England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		3rd October 2012

MR. JUSTICE MOOR:

1. Bridgend County Borough Council has applied for a care order in respect of SA who was born on 9^th April 2012 and is therefore nearly six months old. The matter was listed before me on 27^th September 2012 for me to determine whether or not this court has jurisdiction to deal with the care proceedings.

The Competing Positions

2. SA's mother is GM (nee W) (hereafter "the mother"). She is presently in Spain. Her case is that this court does not have jurisdiction to deal with SA on the basis that SA is habitually resident in Spain. She argues that I should return SA to Spain forthwith. She accepts that, if I do so, SA will initially be placed with Spanish Social Services. In the longer term, she seeks the return of SA to her care, but argues that this a matter for the Spanish Courts.
3. SA's father is GA (hereafter "the father"). Although he was in Spain until July, he has now returned to this country. His position is that this court does have jurisdiction and that SA should remain here, initially in the interim care of Bridgend County Borough Council. In the long term, he seeks the return of SA to his care.
4. Bridgend County Borough Council (hereafter "the Local Authority") also submits that I do have jurisdiction in relation to SA. Its case is that I should make an interim care order in its favour.
5. SA's Guardian, supports the Local Authority.
6. Before turning to the law, it is important to set out clearly the history of this case.

The History

7. The father was born on 23^rd May 1977, so he is aged thirty-five. He has three children by two previous relationships. They live with their mothers, but I am told that he has a close relationship with them.
8. The mother was born on 4^th February 1982, so she is aged thirty. She has one other child, KH, who was born on 17^th October 2008 and so is nearly four years of age. Care proceedings were instituted in relation to KH in 2009; and, in February 2010, a placement order was made. I am told that, in the course of those proceedings, the mother conceded that the threshold criteria in section 31(2)(a) of the Children Act 1989 were met. I am further told that those threshold criteria included that the mother has had an extensive history of mental health difficulties, that these health difficulties were compounded by a history of illegal drug taking and excess alcohol, which induced psychosis; that she had self-harmed and that there had been suicide attempts; that she had not always been compliant with medication and had been a psychiatric in-patient several times. It was also said that her previous relationships had been volatile and that she had been involved in prostitution.
9. Thereafter, she formed a relationship with the father. They lived at an address in Bridgend. Given the previous difficulties, it was inevitable that the Local Authority would be involved. A significant number of allegations were made including that this new relationship was also volatile and aggressive, that the father had threatened to kill a social worker, that the mother was sectioned twice during the pregnancy, that the parents were not co-operating with the Local Authority and that the mother had continued to misuse drugs intermittently during the pregnancy.
10. In February 2012, the mother was admitted to hospital with abdominal pains. On 22^nd February, whilst in the hospital, the parents were informed that care proceedings would be issued forthwith following the new baby's birth. The mother described the social workers as "demons". The father was said to be very angry.
11. In early March 2012, the father was convicted in his absence of threatening to kill one of the social workers. The parents then fled the jurisdiction. They say they went on 4^th March 2012 and I will take that date for the purposes of this judgment. They went to Spain and obtained a rented flat in Alicante, ............ I will return to my detailed findings in relation to their intentions in due course. At this stage, suffice it to say, I am quite satisfied that they left this jurisdiction solely to avoid the new baby being placed in care.
12. As I have already indicated, SA was born in hospital in Spain on 9^th April 2012. Unfortunately, she had an infection known as sepsis and needed to remain in hospital for treatment. The parents removed her from the hospital against medical advice. They say that they were intending to take her to a private hospital. In any event, on 11^th April 2012, a Spanish Court Order was obtained and the Civil Guard returned SA to hospital. She was found to have cannabis in her system. She remained in the hospital until 20^th April 2012 when she was discharged. At that point, the parents reached an agreement with Spanish Social Services called a "Plan of Intervention". The terms included that the parents would allow monitoring by Social Services and allow access to their home.
13. On 26^th April 2012, the Local Authority in this jurisdiction applied for an Emergency Protection Order. Orders were made to enable the child to be found. The Local Authority contacted Spanish Social Services and, as a result of information given, Spanish Social Services decided on 3^rd May 2012 to apply to the Spanish Court to remove SA.
14. On 4^th May 2012, a Spanish order was obtained granting the Spanish Public Body automatic guardianship and foster care by a specially selected family. The parents discovered that some such steps were afoot and the same day left their home in Alicante without giving a new address. This was in breach of the agreement they had reached with the Spanish authorities. It appears that they stayed for a couple of days in a hotel in Mercia before moving to Almeria, quite a distance away.
15. On 4^th May 2012 the Emergency Protection Order obtained here was extended by the Family Proceedings Court, but, on 8^th May 2012, the Local Authority applied to the High Court. The application was heard by Mr. Justice Hedley. His order is drafted very carefully. He expressed the view that, on a summary assessment, SA was likely to be habitually resident in England and Wales and that, if this were so, the court would order a peremptory return of the child to this jurisdiction. The court then invited the Spanish authorities, should they remove the child from the parents, to place her in the care of the Local Authority in this jurisdiction. He went on to express the view that, if this was to happen, it would be lawful for the Local Authority to travel to Spain to collect the child and return here with her. He further invited the Spanish Court, if involved, to transfer jurisdiction to the Courts of England and Wales pursuant to Article 15 of Council Regulation EC 2201 of 2003. In terms of orders, he merely granted the Local Authority permission to invoke the inherent jurisdiction and gave the Local Authority permission to apply for a care order.
16. On 12^th July 2012, the father returned to this jurisdiction. It appears he had been arguing with the mother. Their relationship has subsequently broken down irretrievably. He was arrested at the airport and the following day was sentenced to twenty-four weeks in prison for the threats to kill the social worker. His date for release is 4^th October 2012 (tomorrow).
17. On 24^th August 2012, the Spanish authorities sent the Local Authority an email saying they had located SA and the mother in the Almeria area, but the police were unable to enter the property without a court order.
18. On 5^th September 2012, a court order was obtained authorising the Spanish Police to enter the premises where the mother was living for the purposes of removing SA. The following day, 6^th September 2012, the police entered the property and removed SA to a children's home. On 6^th September 2012, the Local Authority here made an application for an interim care order in the Family Proceedings Court, which was granted on 7^th September 2012. The Local Authority social worker, Emma Payn, travelled to Spain on 7^th September 2012. SA was handed over to her by the Spanish Social Services. Miss Payn travelled back to this jurisdiction with SA. SA has been placed in short term foster care, pursuant to the interim care order.
19. His Honour Judge Gaskell transferred the matter to the High Court on 13^th September 2012. The father was given party status and the matter was listed before me on 27^th September 2012 with the mother to attend via videolink. The Local Authority was represented by Mr. Teertha Gupta QC and Ms Kate Hughes. I heard oral evidence from the social worker, Emma Payn. She drew attention to a video posted by the mother on YouTube in which the mother said:

"I'll give them the run all over the world if I have to. Hopefully I will be able to stay in hiding. I'll keep moving and keep my child close to me."

20. The mother was represented by Mr. James Tillyard QC. I heard oral evidence from the mother via videolink. Her written evidence was to the effect that she had decided to make a new permanent life for herself and her new baby in Spain. She said she never had any intention of returning to the United Kingdom. She had signed a long term tenancy agreement in Spain and had given up her tenancy in the United Kingdom. She said she had obtained a Spanish Residency Card and had opened a Spanish bank account on 27^th March 2012. Her case is that SA's habitual residence is Spain. In her oral evidence, she told me she had no intention of leaving Spain regardless of the outcome of the case. She was asked why she had not registered SA's birth there. She said she did not try to register the birth, as she did not want her child registered to the State. She said she did not have to explain herself and that, if she did not register, that was her right.
21. The father was represented by Mr. Owen Thomas. It was agreed that there was no need for him to give oral evidence. In his written evidence, he said that he had had no plans to live in Spain permanently when he went there in March with the mother.
22. The Guardian was represented by Mr. Charles Geekie QC. Again, it was agreed that there was no need for her to give evidence.

The Law

23. I accept that the mother and the father did not act unlawfully when they left this jurisdiction in March 2012.
24. Part 4 of the Children Act 1989 does not set out any jurisdictional basis for the institution of public law orders. The European Court of Justice has now made it clear in Re C (Case No.C-335/06) [2008] (Fam) 27 that the jurisdictional basis is derived from Council Regulation EC 2201 of 2003 known as Brussels II Revised. Article 8 of the Regulation provides that:

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."

25. What is the law of habitual residence? It is a question of fact (Re J [1990] 2 AC 562 in the House of Lords). The European Court of Justice case of Mercredi v. Chaffe (Case C-497/10) [2011] 1 FLR 1293 deals with the test to be applied at Paragraph 56:-

"…the concept of 'habitual residence', for the purposes of Articles 8 and 10 of the Regulation, must be interpreted as meaning that such residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, where the situation concerned is that of an infant who has been staying with her mother only a few days in a Member State - other than that of her habitual residence - to which she has been removed, the factors to be taken into consideration included, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the mother's move to that State and, second, with particular reference to the child's age, the mother's geographic and family origins and the family and social connections which the mother and child have with that Member State. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances of fact specific to each individual case".

26. The case of Re A (Area of Freedom, Security and Justice) (C-523 of 2007) is also relevant. The European Court of Justice held that:

"(38) In addition to the physical presence of the child in a Member State other factors must be chosen which are capable of showing that that presence is not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment.

(39) In particular, the duration, regularity, conditions and reasons for the stay on the territory of a Member State and the family's move to that State, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State must be taken into consideration.

(40) As the Advocate General pointed out…the parents' intention to settle permanently with the child in another Member State, manifested by certain tangible steps such as the purchase or lease of a residence in the host Member State, may constitute an indicator of the transfer of habitual residence. Another indicator may be constituted by lodging an application for social housing with the relevant services of that State.

(41) By contrast, the fact that the children are staying in a Member State where, for a short period, they carry on a peripatetic life, is liable to constitute an indicator that they do not habitually reside in that State."

27. Is it possible to acquire habitual residence in a country when you have never resided there? At the very least, it is highly doubtful that you can do so. In Al Habtoor v. Fotheringham [2001] EWCA Civ 186; [2001] 1 FLR, it was said that:

"Before a person, whether a child or an adult, can be said to be habitually resident in a country, it is clear that he must be resident in that country."

28. It is right that Mr. Justice Charles appears to have expressed a contrary view in B v. H [2002] 1 FLR 388 holding that, at birth, the habitual residence of a baby was that of the people who had parental responsibility for that baby. He specifically refers to the case where a baby is born abroad prematurely whilst the parents are on holiday there. Subsequent authorities distinguish B v. H on the basis that it is a decision on its own very particular facts. It may be that this matter will be further considered in the Court of Appeal in the near future. Fortunately, for this particular case, I can deal with the matter without the need to determine this aspect (which I shall leave to others). I do, however, remind myself that, if it is possible to establish habitual residence without physical presence at some point, it will clearly be an exceptional case.
29. Is it possible to have no habitual residence at all? The answer is clearly, yes. I remind myself that Baroness Hale in the case of Mark v. Mark [2005] UKHL 42; [2005] 2 FLR 1193 said that a person may have "no habitual residence at all" (Para.37). This is supported by the Court of Appeal decision in Al Habtoor v. Fotheringham in which it was said that:

"The Judge had fallen into error in considering a line of reasoning that implied that if Tariq were not habitually resident in Dubai then he must have been habitually resident in England and Wales. In reality, there was a third alternative, which was that Tariq was not habitually resident in either jurisdiction."

30. Mr. Tillyard, for the mother, relies on Article 8 of Brussels II Revised. This provides that:

"The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised."

31. Finally, Article 13 of Brussels II Revised may be relevant:

"Jurisdiction based on the child's presence

(1) Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction."

32. This is dealt with in Mercredi v. Chaffe, where it is said at para.57:

"If the application of the abovementioned tests were, in the case in the main proceedings, to lead to the conclusion that the child's habitual residence cannot be established, which court has jurisdiction would have to be determined on the basis of the criterion of the child's presence, under Article 13 of the Regulation."

33. I should note in this regard that Mr. Tillyard reminds me of Article 16, which says that the court is seised "at the time when the document instituting proceedings or a similar document is lodged with the court".

My Findings of Fact

34. I am quite satisfied that the mother has not established habitual residence in Spain. She did not make a considered decision to make a new life for herself in Spain. She fled this country for the sole reason that she was intent on avoiding her baby being taken into care. On her case, she left only some eleven days after she was told that the Local Authority intended to take care proceedings following the baby's birth. I am quite satisfied that she had no intention to leave this country at all until then.
35. This was not a considered move to Spain. It was a desperate flight to attempt to get out of the reach of the Local Authority. The mother and father had no connections with Spain, other than having spent some holidays there and the mother having studied Spanish GCSE. The father makes it clear that he was not intending to move there permanently. I find that the mother's intentions were exactly the same. They had not previously discussed moving to Spain. They had not spoken to anyone about it. They had not made any preparations in advance, such as studying the language further or obtaining jobs there. They just bolted there to avoid the care proceedings. Although the mother says that she established a permanent home there, it is important to remember that she abandoned it as soon as she felt threatened by Social Services.
36. My conclusion is entirely supported by the mother's YouTube video in which she made it abundantly clear that she was in hiding in Spain rather than being there to establish a permanent life. She says on more than one occasion that she is in hiding. She refers to the fact that she "can't get a birth certificate or a passport". She goes as far as to say that she will go all over the world if necessary. This evidence is important and it is the antithesis of habitual residence there. She specifically says that she will just keep moving, as indeed she did, when the Local Authority got in touch with the Spanish authorities in Alicante.
37. I would be entitled to find that the mother was still habitually resident in this jurisdiction. She has, at least until she was recently caught, continued to claim income support in this jurisdiction. You are only entitled to do that if you are ordinarily resident in the United Kingdom. Under no circumstances can you claim if you are resident in Spain. I very much doubt the mother's statement that she will never return here, not even if she loses this case. Time will, of course, tell. I am not though going to make a finding of fact that she is habitually resident in this jurisdiction. I do not need to do so, given that I am entirely satisfied that she is not habitually resident in Spain. It may be that, at this particular moment in time, she is not habitually resident anywhere. In effect, she is still on the run from this country. Her attitude to registering SA's birth would suggest that this is the case.
38. Turning to SA, a child's habitual residence normally follows that of those with parental responsibility for her. At present, the father does not have parental responsibility. Given that I have found that the mother is not habitually resident in Spain, I find that SA was never habitually resident in Spain either. She was just there because her mother was there. If the mother had moved to France to avoid the Local Authority, SA would not have become habitually resident in France. Her birth was not registered in Spain. Her parents had deliberately fled from the address at which they had agreed they would reside so that the authorities in Spain did not know her whereabouts. Her parents were on the run and, therefore, so was she.
39. At the time of her removal from Spain, was SA habitually resident in this jurisdiction? I find that she was not. First, I have not made a finding that her mother was habitually resident here at that time, so it is impossible to see how SA could have been habitually resident here either. Second, at the time of her removal from Spain, she had never been physically present in this jurisdiction. I will leave it for others to decide definitively whether or not a young baby can be habitually resident in this jurisdiction, even if she has not ever lived here. I do not need to decide that issue. I merely conclude that Celine was not habitually resident here at that point. Nevertheless, as she was not habitually resident in Spain, the Hague Convention does not apply to this case. It would not be possible to institute proceedings under that Convention to secure her return to Spain.
40. I am satisfied that at the time the Spanish Court was exercising jurisdiction it did so pursuant to Article 13. It does, however, seem to me that the Spanish Court does not now have jurisdiction, pursuant to Article 13, as SA is no long present there. I am equally satisfied that this court does now have jurisdiction, pursuant to Article 13, as SA is present here.
41. Do the circumstances of her removal from Spain make any difference? I am clear that they do not. First, I am not in a position to find that the removal from Spain was illegal. It seems clear that the Spanish Local Authority was granted parental responsibility of SA by the court orders. Indeed, the orders appear to have suspended the parents' parental authority. The first order says:

"In the same way, the aforementioned order establishes that the assumption of guardianship, which is entrusted to the public body, brings with it the suspension of parental authority or that of ordinary guardianship."

42. The Local Authority was clearly alive to the need to secure SA's move to this jurisdiction lawfully. Alexandra Fletcher, a senior lawyer employed by Bridgend, said that the Spanish social worker, Jose Seiquer "seemed content that the order of 8^th May 2012 permitted the Spanish authorities to return SA to the Welsh social workers". She says that she was concerned about this comment, but Jose responded that he was aware that he needed to take his own legal advice and "had to be careful that he did things right within the law or else he could be fined". She says that she was left in no doubt that he knew he had to make sure that everything was done properly. It is difficult to see what more Bridgend could do. Nevertheless, I accept that there remains a doubt as to whether there was the appropriate authorisation.
43. I am, however, equally clear that, if there was not the appropriate authorisation, this does not mean that I must return SA. If there is a wrongful removal in a child abduction case, but the child was not habitually resident in the requesting State, there is no automatic return, as the Hague Convention does not apply. There can, therefore, be no requirement for an automatic return here. Since her arrival in this jurisdiction on 7^th September 2012, SA has been physically present here. As she was not habitually resident in Spain, Article 13 provides that jurisdiction is based on physical presence. I am therefore satisfied that this court does now have jurisdiction.
44. I consider, however, that I do have a discretion to return SA if I consider it right to do so in her best interests. I am quite sure that I should not exercise that discretion as it is not in SA's best interests to be moved again. I say this for the following reasons:

(a) The father wants her to remain here.

(b) Apart from her mother, all other members of her family are here.

(c) I am quite sure it is easier to investigate the allegations against the parents here.

(d) It will be far easier to assess the father here.

(e) It would be odd to return a child to Spain when the Spanish Public Body had just sent her to this jurisdiction.

(f) The only reason why Spain is involved at all is that the mother and father fled when faced with the threat of care proceedings. This court should be slow to endorse such behaviour.

(g) The connection with Spain is tenuous to say the least, given my findings of fact.

45. Having said all that, I accept Mr. Tillyard's submission that to establish jurisdiction the child must be present at the time the proceedings were issued. In this case the proceedings were issued one day before SA arrived here. It follows that I find the current proceedings are flawed. The Local Authority must issue fresh proceedings. I give leave for them to do so. I will dismiss the current proceedings. I request the Family Proceedings Court and then the County Court to transfer the new proceedings to the High Court as soon as possible. Indeed, having made the findings that I have, I am sure that there are reasonable grounds for believing that the threshold criteria are made out and that interim care orders should be made.
46. How should I deal with the short period before this can occur? Mr. Justice Hedley permitted the Local Authority to invoke the inherent jurisdiction of the High Court, pursuant to sections 100(3) and (4) of the Children Act 1989. Pursuant to section 100(4), for the reasons I have given, an interim care order cannot be made until the above process has been undertaken (although I accept that it may be possible to do that very quickly indeed).
47. I am satisfied that, if SA was to be removed from the care of the Local Authority, she is likely to suffer significant harm. It follows that I am satisfied that I have jurisdiction to make an injunction preventing SA from being removed from the care of the Local Authority until the steps outlined above can be taken and I do so.