England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/03/2015

MR JUSTICE HAYDEN

Mr Justice Hayden :

1. I am concerned in this case with SR who is now 4 and half years of age. She has recently started full time education here in the UK and has been in foster care since October 2013. Initially that placement was under the aegis of a Police Protection Order, subsequently under an agreement between the mother and the Local Authority pursuant to S20 of The Children Act 1989. An interim care order was made on 8^th August 2014, renewed on 13^th August and has continued to date. The child's mother is JC an American citizen and as such SR gains her own entitlement to American citizenship. The father, MR, is a Moroccan citizen. The case has been listed before me to determine the question of SR's 'habitual residence'. On the 6^th October 2014, during the course of the care proceedings, Her Honour Judge Cox noted at para 6 of her order :

"the court is not yet satisfied that it has jurisdiction in relation to the child because the court is not in a position to determine the issue of the child's habitual residence."

2. The order also provided:

"the court is satisfied that it has jurisdiction to make protective orders in the interim."

3. In a later order dated the 17^th October 2014, the proceedings were transferred to the High Court in order to determine the issue. The transfer was at the Court's own instigation and the preamble to the order notes:

"Upon the court indicating that the case requires transfer to the High Court for an urgent determination of the issue of jurisdiction."

4. On the 22^nd October 2014 when the case came before the High Court, Mr Justice Cobb listed the matter for hearing on the first available dates, 26^th -28^th January 2015. I also made further directions at a short hearing on 12^th January 2015 both in relation to the filing of expert evidence concerning the jurisdictional issue and in the public law care proceedings. It is important to record that the care proceedings have continued to progress entirely independently of this issue. That has occurred not on any assumption that jurisdiction will be found to be here in the UK (that simply would have not been possible on the facts of this case) but in accordance with key principles of the Children Act 1989 i.e. the imperative to avoid delay in decisions relating to children and to keep in focus the welfare of the child as the paramount consideration pursuant to section 1 (1). That said, there is an obvious tension within such logic. If I find that this court does not have jurisdiction much of the time and effort deployed by a variety of professionals will, in all likelihood, prove to have been of much lesser value, at best. More importantly, there will be significant consequential delay which can only be seriously damaging to SR herself. None of this however must have any bearing on the task I am required to undertake. I must determine jurisdiction by investigating the facts, in the context of the framework of the law, to identify where SR is 'habitually resident'. This is not a welfare exercise and I have cautioned myself throughout to resist the gravitational pull of 'welfare' to the family lawyer.
5. I must emphasise that where there is, as here, obvious potential for a jurisdictional issue, protracted periods under section 20 voluntary arrangements are highly undesirable. For my part, I simply cannot see how it was ever thought that such an arrangement was appropriate in this case. It has led to avoidable delay and has proved to be inimical to SR's welfare. Moreover, the objective within care proceedings must always be to consider any conflict of jurisdiction at the earliest stages and, if the matter needs to be tried, it should be so expeditiously.
6. During the course of the hearing I heard evidence from the mother here in London in the witness box. I also took the father's evidence from Morocco by tele-videolink. It was not possible to see the father but we were able to hear him clearly. He gave his evidence in a mixture of Moroccan Arabic dialect, classical Arabic and English. Though, of course, French is also spoken widely in Morocco, this was the language that he felt least comfortable with. The translator here in the court room moved with impressive facility through all the available options. I record these matters because they will, ultimately, play some part in my investigation of the factual issues. The mother speaks English with a barely detectable American accent and she described her French, the only other language she speaks, as "risibly poor". Though the mother had gleaned a few Arabic phrases, she and the father communicated in French and English. Inevitably, therefore, communication between the two must, at times, have been difficult.
7. By way of completeness I should record that the maternal grandparents, who are based in New York, have both attended this hearing and are joined as parties to the proceedings. They are in the process of being assessed as 'Special Guardians' for the child and have, with the assistance of a skeleton argument prepared by Mr David Williams QC on their behalf, submitted that the Courts of New York would be a more appropriate forum to determine SR's future. They submit this court should make:

" 'A determination that the courts of New York are best placed to determine matters in respect of SR with a view to proceedings being commenced in the USA under Section 210(a)(2) of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) or such other procedural articles as will facilitate this"

8. Contending that New York is the forum conveniens and seeking a stay, it is submitted that the best interests of the child is the primary consideration i.e. the application of forum considerations is ultimately designed to identify whether it is in the best interests of the child for a particular court to resolve the dispute. The relevant factors still derive from the Spiliada case (cited below), recently reviewed in Re T (Brussels II Revised, Article 15) [2013] EWCA Civ 895. As Mr Williams correctly identifies, the principles were summarised in JKN v JCN (Divorce:Forum) 1 FLR 826

"The leading cases are Spiliada Maritime Corp v Cansulex Ltd The Spiliada [1987J AC 460, [1986J 3 WLR 972 and de Dampierre v de Dampierre [1988J 1 AC 92, [1987J 2 WLR 1006, [1987J 2 FLR 300. In the latter case the House of Lords held the test under para 9 Sch 1 to the 1973 Act was to be approached on the same basis as the common law test in Spiliada. Lord Goff of Chieveley set out the considerations for the court in Spiliada at 476-478 and 985-987 respectively:

(i) a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum having competent jurisdiction, which is the appropriate forum for the trial of the action ie where the case may be tried more suitably in the interests of all the parties and the ends of justice;

(ii)if the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which justice requires that the trial should nevertheless take place in this country;

(iii) the court will have regard (inter alia) to whether jurisdiction has been founded as ofright; is the connection with England afragile one?

(iv)If 'substantial justice' can be done in the available, more appropriate forum or in both forums, the court should not have regard to a particular juridical advantage for one party in one forum rather than the other;

(v) If there is no other available forum which is clearly more appropriate for the trial of the action, the court should ordinarily refuse the stay;

(vi) If there is some other available forum which is prima facie more appropriate, the court will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted;

(vii) the court must consider all the circumstances of the case including those which go beyond those taken into account when considering connecting factors with other jurisdictions eg will the plaintiff obtain justice in the foreign jurisdiction?

9. The essence of the grandparents submission on this point, as I see it, is set out in the skeleton argument as follows:

"Of particular concern to the MGP's is that SR is a US citizen and of US and Moroccan heritage. Closed adoption is very rare in the USA. Adoption is not a concept recognised in Morocco. It is not in SR's best interests for her case to be dealt with by a legal system which contemplates a disposal which would not be applied by the country of her nationality. This fact should be of paramount importance in the assessment of which forum is most appropriate."

10. This central submission is supplemented by a further argument under the Human Rights Act 1998 which, to my mind, adds little more. The grandparents reasoning ultimately seeks to inveigle me into a comparative analysis of the strengths and weaknesses of the child protection system in New York State with those of England and Wales. As such it is misconceived, not least because both systems require an intense focus on the welfare of the individual child which, logically, cannot be achieved by systemic comparison. In addition, I am bound to observe that, even on the most superficial survey of the conventional welfare indicators (e.g. degree of connection with USA or with family members there) the argument for New York as the forum conveniens is threadbare. I detected a recognition by the grandparents of the weakness of this point. As a fall back position, they contend that the English courts 'should determine SR's future'. They are, for a variety of reasons, very resistant to the Moroccan courts being found to have jurisdiction. Ultimately, they are distressed grandparents trying to protect their family in any way they can. Mr Williams, in his document, has put their case elegantly and creatively.
11. Pursuant to a written application from the American Embassy in London I have permitted two members of its staff to remain in court and observe the evidence and legal argument. This case involves four American citizens. There have been concurrent criminal proceedings, to which I will refer below; there are continuing care proceedings as well as this important jurisdictional issue. The Local Authority objected to Consular staff attending on the basis that the request had been made on the premise that they should 'observe', without identifying any particular purpose or objective. It is, to my mind, inherently desirable that these proceedings, involving inter jurisdictional issues and the incursion of the state into family life should be both open and transparent to reassure the American Embassy and more widely, that proper process has been observed. In this context I think it important to add that the mother, herself an American citizen, though with indefinite leave to remain here in the United Kingdom, has been afforded representation, at public expense, by both leading and junior counsel.
12. I have not been provided with a Chronology by the Local Authority. To some extent the unreliability of and contradiction in the evidence filed has obviously hampered the preparation of such a document. It has certainly been difficult to identify, with accuracy, key dates. In their skeleton argument, dated 12^th January 2015, Mr Frank Feehan QC and Mr Christopher Barnes, on behalf of the father, have put together a short and extremely helpful list of those dates that can be established by reference to independent evidence.
13. The jurisdictional issue has, as seen above, arisen in the context of care proceedings. On the 22^nd October 2013, SR was taken to Homerton Hospital Accident and Emergency Department by ambulance, having lost consciousness. There is no doubt that this was a serious and potentially life threatening episode. Enquiry undertaken by Police and Children Services concluded that SR was likely to have suffered significant harm in consequence of excessive physical restraint used by the mother. Swelling and bruising were noted to SR's right cheek, at the hospital, and bruising to her chest and right thigh. The mother admitted using inappropriate and physical chastisement to her three year old daughter and was arrested on the 23^rd October. She was subjected to bail conditions which included a prohibition on unsupervised contact with her daughter (a fact which potentially has relevance when contemplating Article 7 (1) (b) of the 1996 Hague Convention).
14. In the course of the care proceedings two important assessments have been filed which I have borne in mind when evaluating the mother's oral evidence at this hearing. Firstly, a parenting assessment, dated 13^th June 2014, which included information from the mother that she felt herself, at times, to be 'overwhelmed' by her own mental health issues. She recognised that on those occasions there would be extended periods of time where she felt unable to respond to her daughter. Secondly, an assessment undertaken by a multi disciplinary team which included a psychiatrist and psychologist at the Anna Freud Centre. The conclusions of that assessment may not be accepted by the mother in the context of the care proceedings, though I have the strong sense, as I listened to her in evidence, that there was much within the report that resonated accurately for her. I have however found it helpful to have both reports in mind when trying to evaluate her reliability. I should say that the report's usefulness to me largely lies in offering alternative explanations to what might otherwise appear to be lies on the mother's part. The following paragraph within the filed report is of significance:

"She displays marked features of both Narcissistic and Borderline Personality Disorder with some traits of both Antisocial and Dependent Personality Disorder. Of particular note in relation to Borderline Personality Disorder are her unstable and intense interpersonal relationships, alternating between extremes of idealisation and devaluation; identity disturbance; recurrent suicidal feelings; affective instability; and chronic feelings of emptiness, with at times inappropriate intense anger and difficulty in controlling anger. In relation to Narcissistic personality Disorder she shows a grandiose sense of self, a belief that she is special and unique, a sense of entitlement, lack of empathy and the belief that others are envious of her. Her Antisocial traits are deceitfulness and impulsivity and her Dependent traits are a need for others to assume responsibility and feeling helpless when alone. "

15. The father, MR, did not make any effort to contact the Court on the first day of the hearing, nor had he communicated with his solicitors for a considerable period of time. In particular, he had failed to respond to what I was told were daily e-mails and telephone calls in the week prior to the commencement of this hearing. Accordingly, no video link had been arranged, no translator instructed and, most significantly of all, the father had not signed his statement prepared by his solicitors on his behalf. With respect to Mr Feehan I could not see how he could regard himself as continuing to be properly instructed in those circumstances. However I pressed the solicitors to renew their efforts to contact the father. Luckily they were able to do so and to put satisfactory arrangements in place for him to give evidence. Concurrently to his disengagement with the legal process the father had also stopped participating in the arranged Skype contact with his daughter, in approximately mid-December 2014. The explanation offered was that the Skype facility had broken on his computer. He did not inform anybody of this, he merely fell silent. I am afraid that I am driven to conclude that all this reflects adversely on his commitment to his daughter and on his understanding of the impact on her, a child in foster care, of her father disappearing. I am told she had enjoyed the contact. I cannot help but note that this is a pattern of behaviour. I also find that it casts light on his conduct during the period which I have been considering when investigating the relevant factual issues involved in determining SR's 'habitual residence'.

Habitual Residence

16. The basis by which habitual residence is determined is now clear. There are two key guides. Firstly, it is not a legal concept to be equated with domicile; secondly, it is a factual exercise identifying the degree of integration by the child into his environment, whatever that environment might be. The concept has recently been considered by the Supreme Court in language which is clear and unambiguous. In A v A (Children: Habitual Residence) [2013] UKSC 60 per Baroness Hale at [54]:

"All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. BIIR must also be interpreted consistently with those Conventions.

The test adopted by the European court is 'the place which reflects some degree of integration by the child in a social and family environment' in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

In my view, the test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from Shah should be abandoned when deciding the habitual residence of a child.

The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

As the Advocate General pointed out in para AG45 and the court confirmed in para [43] of Re A (Area of Freedom, Security and Justice), it is possible that a child may have no country of habitual residence at a particular point in time. When considering the integration of a mature or adolescent child the court can and should take account of the child's own perceptions."

17. Habitual residence was further considered in the matter of Re LC (Reunite: International Child Abduction Centre Intervening) [2014] UKSC 1 [2014] 1 FLR 1486. The Court once again emphasised the importance of the 'necessary degree of stability' to become 'habitual'. It is not a matter of 'intention' either. Lady Hale emphasised the importance of the 'quality' of a child's residence. This does not mean an analysis of opportunities or living standards in a particular country. It is a far more multifaceted exercise in which many considerations will be relevant:

"60. In the case of these three children, as of others, the question is the quality of their residence, in which all sorts of factors may be relevant. Some of these are objective: how long were they there, what were their living conditions while there, were they at school or at work, and so on? But subjective factors are also relevant: what was the reason for their being there, and what were their perceptions about being there? I agree with Lord Wilson (para 37) that "wishes", "views", "intentions" and "decisions" are not the right words, whether we are considering the habitual residence of a child or indeed an adult. It is better to think in terms of the reasons why a person is in a particular place and his or her perception of the situation while there – their state of mind. All of these factors feed into the essential question, which is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed "habitual".

61. It would be wrong to overlay these essentially factual questions with a rule that the perceptions of younger children are irrelevant, just as it was to overlay them with a rule (rejected in A v A) that a child automatically shares the habitual residence of the parent with whom he is living. The age of the child is of course relevant to the factual question being asked. As the CJEU pointed out in Mercredi v Chaffe, at para 53:

"The social and family environment of the child, which is fundamental in determining the place where the child is habitually resident, comprises various factors which vary according to the age of the child. The factors to be taken into account in the case of a child of school age are thus not the same as those to be considered in the case of a child who has left school and are again not the same as those relevant to an infant."

62. Clearly, therefore, this is a child-centred approach. It is the child's habitual residence which is in question. It is the child's integration which is under consideration. Each child is an individual with his own experiences and his own perceptions. These are not necessarily determined by the decisions of his parents, although sometimes these will leave him with no choice but to buckle down and get on with it. The tiny baby whose mother took him back to her home country in Mercredi v Chaffe was in a very different situation from any of the three children with whom we are concerned. The environment of an infant or very young child is (one hopes) a family environment and so determined by reference to the person with whom he lives. But once a child leaves the family environment and goes to school, his social world widens and there are more factors to be taken into account. Furthermore, where parents are separated, there may well be two possible homes in which the children can live and the children will be well aware of this. This may well affect the degree of their integration in a new environment.

63. The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances, he may not lose his habitual residence there for some time, if at all, and correspondingly he will not acquire a new habitual residence until then or even later. Of course there are many permutations in between, where a person may lose one habitual residence without gaining another."

18. Recognising that the relevant definition and applicable test for 'habitual residence' is derived from the Court of Justice of the European Union, in the context of the Brussels II revised regulation ('BIIa') and interpreted in the English context by case law, it is helpful to distil its core characteristics. Mr Setright and Miss Bradley have done this succinctly in their Skeleton Argument and I propose to adopt it as it is not contentious as between the parties.

In re LC (supra) identifies (inter alia) the following characteristics:

(a) The test for the determination of habitual residence applies equally in intra-European cases as in Hague Convention proceedings involving non-European member states [A v A and another ( Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 1; In re L ( A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening ) [2014] AC 1017;].

(b) The test for habitual residence is a question of fact which should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce [ A v A].

(c) The concept corresponds to "the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors, including the reasons for the family's stay in the country in question." [A v A]

(d) There is no legal rule that a child automatically takes the habitual residence of his parents. [A v A; re L].

(e) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. [A v A]

(f) It is possible that a child may have no country of habitual residence at a particular point in time [A v A]

(g) the following factors must be taken into consideration in the factual enquiry into a child's habitual residence:

'2 The concept of "habitual residence" under article 8(1) …. To that end, 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. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case.' [A v A].

19. I was persuaded, on the 12^th January 2015, to permit instruction of an expert in Islamic and Middle Eastern Law to address key legal and cultural features of the Moroccan care system. Mr Andrew Allen was instructed, an expert in Islamic and Middle Eastern law, a practising barrister, formerly a Deputy Director of the Centre of Islamic and Middle Eastern Law at the University of |London. The child's solicitor took the lead in Mr Allen's instruction. Nine questions were identified which were answered succinctly in summary following, a more detailed exegesis of the law. They were ultimately non contentious. To complete my summary of the competing jurisdictional frameworks I set them out in full:

1. What are the principles that determine an application under Moroccan law for the following orders in relation to a child:

(i) Parental responsibility or rights;

(ii) Custody; and

(iii) Access.

Both parents have parental responsibility. No application is required.

The basic principle applied in custody and access applications is the interests of the child.

2. Does Moroccan law provide as a matter of right or custom for custody changing from one parent to another or to another person during the course of a child's childhood?

There is no shift from mother to father at a certain age, as is the case in some Muslim countries (unless the mother re-marries)Article 171 of the Mudawana provides that priority in terms of child custody goes first to the mother, then the father, then the maternal grandmother, unless a judge determines otherwise "in view of what would serve the interests of the child". Applications can be made during a child's minority and custody can shift. Article 170 states that "The right of custody shall be restored to the person entitled to it when the grounds for its withdrawal no longer exist. The court may reconsider custody when it is in the interests of the child." Once a child is 15, the child may chose which parent to live with under Article 166.

3. Is there any form of public funding or legal aid available for making any application for orders identified in (1) above?

Public funding is theoretically available. I would tentatively suggest that the practicalities of finding a sufficiently informed lawyer to take on a case for a foreigner, under the Moroccan legal aid system are probably insurmountable.

4. Do the Moroccan courts have experience of recognising and enforcing orders between the UK and Morocco under the 1996 Hague Convention?

The Mudawana is drafted with express reference to Morocco's international treaty obligations. I am unaware of any Moroccan case applying the 1996 Hague Convention in relation to the UK but the convention does apply as between Morocco and the UK. The existence of the Convention is not known by all Moroccan family judges. Its application is not uniform.

5. How long would it take for a Moroccan court to recognise and enforce an order made in England and Wales?

A Moroccan court would not simply 'recognise and enforce' a UK court order. It would give it due weight (in particular if the order is provided in Arabic translation). If Morocco became the habitual residence of SR, then the Moroccan Courts would have jurisdiction and will apply Moroccan law, taking into account UK law (or a UK court order) if appropriate. I do not have knowledge of how long any Moroccan family court process would typically take.

6. Can proceedings be initiated, and if they can which body would initiate them, in respect of a child who is suffering or may suffer significant harm in Morocco?

There is a child protection system in Morocco and the government of Morocco operates a child protection policy. However most child custody issues are sorted out within the family. There have been criticisms of the Moroccan child protection system as it has been applied to returned asylum seekers from mainland Europe (specifically Spain).^[1] Under Article 177, the Office of the Public Prosecutor (which despite its name is a part of the judiciary and deals with civil, family and criminal matters) would initiate any court action necessary. Article 172 of the Mudawana states that "The court may resort to the assistance of a social worker to prepare a report on the custodian's home and the extent to which it meets the material and moral needs of the child."

7. In what circumstances would the proceedings contemplated in (6) be initiated?

In any of the situations covered by Article 54 of the Mudawana (as set out above).

8. Prior to the mother's removal of SR from the jurisdiction of Morocco what rights did the father have under Moroccan law in relation to SR?

The father had obligations towards SR as a parent rather than rights. Custody would have gone to the mother under Article 171 of the Mudawana. The father would have had the right to contact under Article 180 and the right referred to in the question below.

9. Did the father have any right, without applying to court, to object to the removal of SR from Morocco by the mother?

Article 179 of the Mudawana gives the court the ability to impose restrictions. In the absence of a court order, the commentary that I have read appears consistently to state that a father must approve a child's departure from Morocco. I have been unable to locate a specific statute or other piece of legislation confirming this point.

20. It is impossible in a mere summary of the party's positions on this issue, to do justice to the extensive written and oral submissions that I have received. Though there is a consensus as to how the question of 'habitual residence' should be approached, there is wide divergence as to the answer. The Local Authority's skeleton argument does not, as I read it, crystallise a position. In oral submissions Ms Moore, appearing on the Local Authority's behalf, suggested that SR may have been 'habitually resident' in Morocco but later transferred that status to the UK. It was not a submission deeply rooted in an analysis of either the facts or the law, Ms Moore deferred in that exercise to Mr Setright. Nonetheless, as a general impression of SR's habitual residence it is a potentially useful touchstone. The Father contends that SR's habitual residence is Morocco and has never altered. The mother's case is expressed as 'neutral', contemplating a variety of possibilities though ultimately, I think it is fair to say, weighted towards the conclusion that SR is habitually resident in the UK, probably having been so throughout her life. The grandparents develop their secondary submission, i.e. habitual residence in the UK, in Mr Williams' skeleton argument. There it is contended that SR was never habitually resident in Morocco or alternatively if she had been, at some point prior to her departure in March 2013, this had been displaced by the time of her retention in England.
21. Mr Devereux offers, on behalf of the Guardian, an additional dimension on the approach to habitual residence. Distilling the core tenets of his argument from his supplemental summary submissions provided, at my request, shortly after the conclusion of the hearing, it is submitted:

i) The Brussels II Revised Regulation ("the Regulation") provides the first stop jurisdictional framework for all matters that fall within the Regulation;

ii) The Regulation applies even where there is a rival jurisdiction in a non Member (or better put, non Regulation) State: see In re I (A Child) (Contact Application: Jurisdiction) [2010] 1 AC 319; A v A (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2014] AC 16 at paras [30] – 33]; and Re H (Jurisdiction)[2014] EWCA Civ 1101 at paras [38] – [41] ;

iii) The Regulation prevails over the 1996 Hague Convention "where the child concerned has his or her habitual residence on the territory of a Member State": Article 61 of the Regulation; see also the Practice Guide for the application of the new Brussels II Regulation at pp. 44 – 45; and p.431 of Brussels II bis Regulation, European Commentaries on Private International Law, edited by Ulrich Magnus and Peter Mankowski;

iv) The courts of England and Wales have jurisdiction under the Regulation "in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised": Article 8 of the Regulation;

v) A court shall be deemed to be seised under the Regulation "at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the application has not subsequently failed to take the steps he was required to take to have service effected on the respondent": Article 16 of the Regulation;

vi) The relevant date in the present case is when the local authority initiated proceedings, that is to say, 17 April 2014;

vii) As at the relevant date, 17 April 2014, SR was habitually resident in England and Wales (in fact, she was habitually resident in England and Wales prior to the period of section 20 accommodation which commenced in October 2013);

viii) If it is accepted that as at 17 April 2014, SR was habitually resident in England and Wales, the courts of England and Wales have jurisdiction under Article 8 of the Regulation;

ix) If it is accepted that as at 17 April 2014, SR was habitually resident in England and Wales, because of Article 61 of the Regulation, which provides that the Regulation prevails over the 1996 Hague Convention, the 1996 Hague Convention is not engaged in this case and therefore the father cannot seek to rely upon Article 7 of the 1996 Hague Convention in order to retain a jurisdiction in Morocco.

22. In addition Mr Devereux contends that for the purposes of the Hague Convetnion Article 7 (1) (b) a literal interpretation of the provision would run counter to Baroness Hale's strong guidance that 'the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce'. (supra)
23. Article 7 provides:

'(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and

a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or


b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

(2) The removal or the retention of a child is to be considered wrongful where -

a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and


b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

(3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.'

24. As I have observed in exchanges with Mr Devereux, I do not consider that Baroness Hale intended to undermine the effect of Article 7 (1) (b) in the way he suggests, or at all. If his submission were correct it would, to my mind, fundamentally erode the principle of international comity that is rudimentary to the operation of the Convention.
25. Before I turn to apply all this to what I again emphasise is an essentially factual exercise I must preface my analysis with an important caveat. In part for different reasons but ultimately to the same effect I found both the mother and father to be unreliable witnesses. Both, I find, lacked candour in the witness box; both were, at times, plainly dishonest. In the case of the mother there were gaps in her memory that I find that could only reasonably be explained by her being 'overwhelmed' psychologically in the period she was attempting to recollect, in the way that the expert evidence had foreshadowed. An illustration of this last point was that whilst she could remember registering SR's birth in Casablanca, a journey of several hours from Chefchaouen, an attractive town in north west Morocco where the parents lived and where SR was born, she could not remember how she had made the journey nor with whom. There was nothing significant or controversial in this piece of evidence. The father told me, spontaneously, that he had travelled with the mother by a combination of a friend's taxi service and by train. It was, however, a complete blank in the mother's mind which alerted me to be cautious when evaluating her evidence.
26. I was also struck by the extent to which both parents so readily veered away from any focus on SR's life and circumstances i.e. the very objective of this inquiry. The mother was overly analytical in response to straight forward questions, her language peppered by social work argot which is rarely illuminating from a parent. The father presented as preoccupied with the mother, his relationship with her or their 'love story', as he put it. His unsigned and undated statement (which I accept as having been confirmed in his evidence) also contains very little, if any insight into SR's life, friendships, interests or indeed her personality. In assessing SR's integration into a social or family environment I am therefore left with a paucity of material. As I will develop below, SR was, during the early months of her life, a very well travelled little girl. Her mother describes her as having a 'gypsy soul', the professionals, I suspect, would characterise this more harshly as a somewhat chaotic existence.
27. All this, when combined with the linguistic issues between the parents to which I have referred contrives to present a real challenge, on the face of it, in seeking to identify SR's habitual residence. The divergence in the parties respective positions, to some degree, is reflective of this apparent complexity. In addition, though no party has contended for it, I have also been prepared to contemplate the possibility that SR may never have gained habitual residence in any country.
28. Whilst I have referred to the nature of this inquiry as 'factual', I intend by that only to convey that it has required oral evidence to investigate it. It is too easy, particularly where a child has changed countries regularly, to be deflected by concrete facts, such as where the child was born or by how long a child was in a particular place, as if that were somehow determinative. Sometimes these aspects of the evidence can be misleading, as I sought to illustrate in MB v SB [2014] EWHC 3719 (Fam). 'Integration' as a concept involves a fusion of both the factual and the emotional, it is where a child feels settled, secure, happy and where the focus of his interests and attachments lie. It is not merely geographical, identifying habitual residence requires much greater nuance than that, drawing inferences from facts, the parents' conduct, the feelings a child communicates and what the child may say. Lord Wilson encapsulated the point in Re LC (supra) at para 37 emphasising that integration encompasses more than the 'surface features' of a child's life.
29. The starting point for identifying habitual residence requires determination of jurisdiction for the relevant date. Article 8 of the Brussels II Revised Regulation provides as follows:

"1. 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.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12."'

30. Though Mr Feehan raises an issue as to the date at which the court can properly be said to be 'seised' of proceedings, I do not find this aspect of the case to be complicated. In Re B (Care Order: Jurisdiction) [2014] 1FLR at para 75 McFarlane LJ states:

"With respect, I am unable to accept Miss Morgan's submission that the terms of Art 8 mean that jurisdiction under BIIR only attaches to the state of a child's habitual residence if and when proceedings are issued in that state. The purpose of the reference in Art 8 to 'the time the court is seised' is to crystallise the moment in time at which jurisdiction is to be determined in respect of a particular set of proceedings. The phrase 'the courts' and 'the court' in Art 8 must refer to the same court and they refer to a court that becomes seised of a case; if the child is habitually resident in that Member State then its courts will have jurisdiction under Art 8. The wording in Arts 9 and 10 of BIIR ('retain jurisdiction during a three-month period' and 'shall retain jurisdiction') readily contemplates the courts of the State of former habitual residence (Art 9), or habitual residence immediately prior to abduction (Art 10), having jurisdiction irrespective of whether there are any extant proceedings before those courts. Such an interpretation sits easily with recital 12: 'the jurisdiction should lie in the first place with the Member State of the child's habitual residence'."

31. To my mind, this clearly establishes the time at which jurisdiction crystallises i.e. when the Court (my emphasis) becomes seised of the case. Mr Feehan seeks to rely on a judgment of Peter Jackson J in Re F (Habitual Residence) [2014] EWFC 26

"36. Next, Article 16.  This fixes the time that the court is seised under Article 8 as being the moment when the document instituting the proceedings is lodged with the court.  In this case, Amanda was placed in foster care following the Emergency Protection Order on 21 December, while the care proceedings began on 28 December.  Which application "instituted the proceedings"?  Here, the passage of a week makes no difference whatever to the assessment of habitual residence, but in other cases (for example, where a child has been compulsorily removed under an EPO, followed by a long period of voluntary accommodation in foster care before the issuing of care proceedings) it might.

37. It was suggested on behalf of the Children's Guardian that the matter might turn on whether the application for an EPO and for a care order share the same case number.  That would be a random way of reaching a conclusion.  In my view, the better proper approach is that taken in somewhat analogous circumstances when determining the relevant date for adjudication upon the threshold conditions under s.31 Children Act 1989, namely the date of the application or the date when any earlier continuous protective measures began: Re M (A Minor) (Care Order: Threshold Conditions) [1994] 2 FLR 577.  So in this case, "the proceedings" under Article 16 are to be regarded as a seamless process beginning on 21 December 2012."

32. It is argued that:

i) The court should have regard to this approach in deciding on the effective date at which habitual residence must be determined;

ii) Children Act 1989 section 105(6) provides: "In determining the "ordinary residence" of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place – … (c) while he is being provided with accommodation by or on behalf of a local authority";

iii) There is therefore a potential dissonance between article 16 and section 105(6) as to whether the proper date to consider in this case is October 2013 (accommodation under s.20) or April 2014 (institution of care proceedings). It is submitted that the proper approach is to assess the facts of habitual residence as at October 2013 and to say that "seisin" is in a sense backdated to that date upon issue.

33. For reasons that will become clear below it is not necessary for me to resolve this issue. In my judgement 'the court' being 'seised' of an issue seems to me a clear and unambiguous concept. The issue in re F was not, as I see it, whether the court was seised of the issue, but rather when it became so. The strength of 'accommodation' pursuant to Section 20 Children Act 1989 is that it may not require the court to become involved with the child at all. That is both the advantage and the weakness of the provision (See A v Darlington Borough Council and Others [2015] EWFC 11). The Court, to my mind, becomes 'seised' when and only when it becomes involved in the decision making processes.
34. I am extremely conscious that some of the dates recorded in the papers cannot be accurate. There are, as I have suggested, a variety of reasons for this. However, I predicate my analysis of the history on those dates which can be established to be reliable. SR was born in Morocco on the 29^th May 2010. It is clear that both parents had intended that she be born in the UK: they agreed on this in their oral evidence. I consider the impetus for this plan came from the mother. Though she is an American citizen the mother has an ambivalent relationship with her own country. There is no doubt that she regards herself as having had an unhappy childhood. Her parents divorce clearly affected her greatly. There are allegations of violence in LV's first marriage. It is perhaps these unhappy memories that colour her relationship with the USA. It is also clear that the mother's relationship with her own mother, who lives in New York, remains an uneasy one. The mother told me that SR arrived before her due date. Indeed, the mother can specifically record being in the process of trying to book a flight to London for herself, whilst heavily pregnant, when her waters broke. The father recalled exactly the same detail in his own evidence, though he had not been with the mother at the time. The mother's connections with England are deep-seated. She was educated here to post-graduate level at highly respected universities. She won an internship with the BBC. She presents in evidence as a highly articulate and intelligent woman. She evidently flourished at College. I suspect that her success there did something to boost her self confidence and at least effect some repair to the damage of her childhood. Fragile though they may be, she put down roots in England in this period and there, in my assessment of her evidence, they remain.
35. It is clear that in what has been a peripatetic existence for her in recent years, the UK is undoubtedly where she regards as home. This, to my mind, is why she wished her daughter to be born here and to gain entitlement to British citizenship. By contrast, during her time in Morocco the mother learnt next to no Arabic and did not improve her 'risible' French (her phrase). I have no sense of her integrating into life in Morocco at all, indeed she appears to have spent much of her time on social media on the internet. This I find was also a source of conflict in the parent's relationship and something the father took great objection to for both personal and cultural reasons. He told me that he did not like the mother communicating with other men. This plainly applied to all conversations however innocuous and superficial they might be.
36. In August 2010, the parents travelled to Casablanca together to register SR's birth with the US Consulate. I have already noted above that the mother's recollection of this is largely blank and made my observations as to why. Within a few weeks of this the parents had decided that the child should travel to England. I have no doubt that this was intended by way of a 'Plan B' to their original objective that SR should be born in the UK. On the 14^th September the mother, with a male purporting to be the father, registered the child's birth in England claiming, fraudulently, that the child had been born in Kent. The father, in evidence denied any complicity with this enterprise but I found his denials hollow and unconvincing. He proffered no explanation as to why the mother should have taken SR, still only three months old, to England for such a short trip. I have no doubt that this deception was the primary, if not the sole, object of the visit. Shortly after the task was completed the mother returned to Morocco. She remained for under two months before departing once again, this time, to France and then on to Switzerland. I pause there to remind myself that by this stage SR was still only six months of age. In August 2011 the mother and child travelled briefly to London before then going on to Istanbul and returning back to London. Very quickly after their return mother and child travelled to California and then to New York, it would seem to visit the grandmother. The mother became distressed when describing her visit to her own mother. It was clear that she had built up in her mind some sense of 'going home' as she told me. It became very clear to her, quickly, that this was illusory. Whatever emotional support she thought that she might derive from her own mother was plainly not available to her. She told me in evidence that she felt that for the time being there was no option open to her or SR other than a return to Morocco. On an intellectual level the mother, I believe, would wish for SR to have some real relationship with her father. This resolve is, in part, powered by her sense that such opportunity was denied to her during the course of her own childhood. However, the gulf between her capacity to understand the importance of such a relationship for her daughter and the reality of knowing how to achieve it is a wide one for this mother to bridge.
37. In November 2011 the mother and child returned to Morocco travelling from New York. They remained there for approximately 16 months. Mr Feehan alights on this period as one which he contends establishes SR's habitual residence in Morocco. Superficially that might appear attractive, if I could identify any sense of either SR or her mother being settled or integrated in any way into the life of or the community in Chefchaouen. During this period the grandmother LV visited. She plainly regarded the parents relationship as being in trouble. I have to say that this period, though crucial to the father's claim that it established habitual residence in Morocco, still remains obscure. The father deals with it in eight lines only in his statement. Essentially he says:

"our relationship was generally good during this time, it did have its ups and downs, but for the main part we managed to work things through"

38. I am bound to say that I gained very little more information from his evidence which like his statement returned repeatedly to his relationship with the mother. Though I permitted the advocates a good deal of latitude both in chief and in cross examination they did not extract from the father any significant evidence of SR's routines, relationships, interest or pastimes. I rather suspect that this was because the father was frequently absent either due to his work commitments or in consequence of the parents rather dysfunctional and unhappy relationship. Though I cannot be clear about the dates involved it seems to be common ground that the relationship was punctuated by significant periods of separation.
39. I do not make any cultural assumptions about the role that the father thought he should play in the care and upbringing of his daughter at this age. Too often such assumptions prove entirely misplaced. Families of whatever culture are infinitely variable. That said, it is clear that the father had very 'traditional' views about the role of women generally and on how they should behave publicly. Beyond superficial generalisations the father conveyed no sense of the depth of his relationship with his daughter, nor did he open any window on to her life. When I consider this alongside his subsequent disengagement, in recent months, with the Skype contact to his daughter and his failure to make any contact with the social services by way of explanation, I am left with a clear impression that Mr R's commitment to his daughter has at best been inconsistent. I have been told that SR enjoyed the Skype contact. After such a chaotic early life, leading to her placement in foster care, it must have been reassuring for her to see a familiar face and to know that she had a father who cared for her. His sudden and unexplained disappearance from her life will undoubtedly have confused her. The father showed absolutely no insight into this obvious fact. His inability to create a picture of SR's life in Morocco I find is likely due to his playing an inconsistent part in it. The statement filed by him, to which I have already referred, offers very few clues on these important issues nor did it provide much of a forensic foothold for Mr Feehan to explore from. Mr Feehan points to the father's assertions in the viability assessment:

"MR described JC as a good Mother, who cared for their daughter well and met all of her day-to-day needs. MR reported he also played a big part in the day-to-day care and routines for SR. MR also said that JC played her part in the daily housekeeping and helped with the cooking and cleaning.

MR said that JC and he regularly took SR out as a family and they went swimming, walking in the mountains, visited friends who also had children, went to the local play area and visited other towns."

40. Mr Feehan also highlights passages of the Anna Freud assessment of the mother, which do not resonate comfortably with my own overall impressions of the mother's evidence:

"She also very much liked the culture of the town in which he lived, which was very social and family oriented, with everybody living a somewhat simple life, which she felt a great attraction to. She said that this man had introduced her to his family. It was this town and this man in Morocco that she returned to when she was about to leave to live in Los Angeles."

41. Finally, on behalf of the father, Mr Feehan extracts observations from the mother's 4^th statement which he contends 'demonstrate her clear affinity for Chefchaouen':

"a very beautiful place, everyone there loves children".

"a big part of me wanted for SR to grow up with both of her parents around her"

42. These points are not addressed or amplified in any way in the father's statement, nor were they in his evidence. For the avoidance of doubt, I make no criticism of the father's solicitors in the preparation of his statement. It seems to me that they did the best they could given their client's failure to confirm the draft document or indeed respond to them at all in the 20 days before this hearing. This of itself further confirms my impression of the father's inconsistency towards his daughter.
43. It is common ground that for significant periods of time when the mother was in Morocco the parties were living apart. The mother contends that the father was violent to her throughout the relationship. Mr Setright put those allegations, in each particular, to the father during cross examination. Each was denied, however I could immediately sense the father's agitation when asked about the mother's use of the internet which she had described as the catalyst for his violence. I note also that in the father's statement he describes the separation (when SR was only five months old) as having been provoked by the mother talking to a man via Skype. In his own words the father states that he was 'not happy', 'it showed no respect for me or our culture'. In addition, making due allowance for the inherent difficulties in translation, I found the father's denials of the allegations of violence to be flat and unconvincing. Without resolving the conflicting evidence around the occasion when the police were called, in Morocco, both parents agreed that they were called and that it was in the context of a domestic dispute. By contrast, in her account of the domestic violence, I found the mother to be entirely credible, not least because in recounting the allegations she appeared to regard them as shameful and belittling to herself.
44. In November 2011 when she returned to Morocco SR was sixteen months old. By the time she left, for the last time, arriving in London on the 12^th March 2013 (her passport was stamped at Heathrow airport) she was approaching 3 years old. It is, I think, possible for a child in this age span to attain an habitual residence different to that of her primary carer but the circumstances in which this may potentially occur are likely to reveal clear and obvious signs of the child's integration. For my part, it seems common sense to say that if a child's habitual residence, at this age, diverges from her mother's (or primary carer's) it is likely that there will be some alternative, strong attachment. I have no sense of this with the father and I have heard no other individual mentioned be that adult or child.
45. The mother's evidence of this period offers little by way of illumination either. It is important to emphasise that Mr Setright, on her behalf, does not press vigorously for any particular outcome. As one would expect, that entirely reflects the mother's evidence. She does not seek to diminish the father's relationship with his daughter, she has no investment in that. Rather, I think she would, in a somewhat idealised or sentimental manner, wish to portray the relationship in its most positive light as she would wish it to be. Again however, she offers no colour or detail in respect of SR's daily life in Morocco.
46. I am satisfied that it is likely that the mother did not always cope well with day to day life in Morocco. I consider it probable that she was, for the reasons already discussed above, at times overwhelmed. It is also the case that the mother was physically incapacitated for six months in consequence of a broken leg. She was, I find, the victim of domestic violence. There were protracted periods of parental separation. It is obvious that the mother was unhappy. She had returned to Morocco, as she explained, with reluctance having exhausted her options and to some extent her energy. Her return was, I find, nothing more than a quest for temporary harbour. For all her difficulties this mother is a fiercely independent minded young woman. It is difficult to see how the circumstances she describes in Morocco were ever going to be conducive to her settling there. This unhappiness must, inevitably, have communicated itself to SR and, even at her tender age, adversely impacted on her own capacity to settle.
47. I have already observed that I find neither mother nor father to be reliable chroniclers of the truth. That, in part, explains why pieces of the evidence are contradictory. More than that, contradictory feelings are intrinsic to the human condition particularly in times of stress or unhappiness. Added to this in the mother's case are mental health issues. Ultimately, the court can only evaluate the witnesses and the key points of the evidence against the established framework of the law. In A v A (supra) Baroness Hale emphasised that the test derived from R v Barnet London Borough Council, Ex p Nilish Shah [1983] 2 AC 309 should be abandoned when determining the habitual residence of a child: thus the 'purposes' and 'intentions' of the parents are one of a range of relevant factors and not determinative. The Supreme Court identified the social and family environment of an infant or young child as being shared with those (whether parents or others) on whom the child is dependant (my emphasis). Logically therefore, as Baroness Hale emphasised, it is necessary to assess the integration of that person (i.e. on whom the child is dependant) in the social environment of the country concerned. Here I am quite satisfied that, despite her sometimes disillusioned statements to the contrary, this mother has only really, for much of her adult life, integrated into the UK. It is to the United Kingdom that she has regularly returned. To achieve British citizenship for her daughter she was prepared to jeopardise her own good character. SR's sense of well being, her security whilst an infant in Morocco, was inevitably and inextricably linked to her mother. For most of the time SR's mother has been her entire social and family environment; as such I find that her own habitual residence is and has been throughout her life, like that of her mother, the United Kingdom.

Note 1   Returns at Any Cost: Spain’s Push to Repatriate Unaccompanied Children in the Absence of Safeguards, Human Rights Watch, 2008     [Back]