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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> B (A child), Re [2016] UKSC 4 (3 February 2016) URL: https://www.bailii.org/uk/cases/UKSC/2016/4.html Cite as: [2016] AC 606, [2016] 1 FLR 561, [2016] WLR(D) 52, [2016] Fam Law 298, [2016] UKSC 4, [2016] 2 FCR 307, [2016] 2 WLR 557, [2017] 1 All ER 899 |
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On appeal from: [2015] EWCA Civ 886
JUDGMENT
In the matter of B (A child)
before
Lady Hale, Deputy President
Lord Clarke
Lord Wilson
Lord Sumption
Lord Toulson
JUDGMENT GIVEN ON
3 February 2016
Heard on 8 and 9 December 2015
Appellant David Williams QC Alistair Perkins Michael Gration Mehvish Chaudhry (Instructed by Freemans Solicitors) |
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Respondent William Tyler QC Hannah Markham Miriam Carrion Benitez (Instructed by Goodman Ray Solicitors) |
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Intervener (Reunite) Richard Harrison QC Madeleine Reardon Jennifer Perrins (Instructed by Farrer & Co LLP) |
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Intervener (The International Centre for Family Law Policy and Practice) Henry Setright QC Hassan Khan Dorothea Gartland Katy Chokowry (Instructed by Dawson Cornwell) |
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Intervener (The AIRE Centre) Deirdre Fottrell QC Michael Edwards (Instructed by Bindmans LLP) |
LORD WILSON (with whom Lady Hale and Lord Toulson agree):
INTRODUCTION
3.
The appellant, who continues to live in England, is a British national, aged
35, of Indian ethnicity. The respondent is a British national, aged 45,
of
Pakistani ethnicity. B, likewise, is a British national. On 3 February 2014 the
respondent took B to live in Pakistan, where they have remained ever since. On
13 February 2014, aware that the respondent had removed B from her home but
unaware that she had taken her abroad, the appellant issued an application
under the Children Act 1989 (“the 1989 Act”) for leave to apply for what were
then still described as orders for shared residence of B or for contact with
her. On 6 June 2014, having learnt that the respondent had taken her to
Pakistan, the appellant also applied for orders that B should be made a ward of
court and be returned to England. On 31 July 2014 Hogg J dismissed both of the
appellant’s applications: [2014] EWHC 3017 (Fam). And on 6 August 2015 the
Court of Appeal (Sir James Munby P, Black and Underhill LJJ), by a judgment of
the court delivered by Black LJ, dismissed her appeal: [2015] EWCA Civ 886.
FACTS
4.
In 2000, prior to her relationship with the appellant, the respondent
had begun to investigate the possibility of her conceiving a child by
artificial means and in 2001 she had made unsuccessful attempts to do so. In
2004 their relationship began and they set up home together; but they never
entered into a civil partnership. In 2005 and 2006, as a couple, they together
explored that same possibility. At their joint request, a licensed hospital
administered two cycles of intrauterine insemination (“IUI”) to the respondent
but the treatment was unsuccessful. Then they made a joint application to their
local authority for assessment as potential adopters. Six months later,
however, at the instigation of the appellant, who did not feel ready to be a
parent, they withdrew their candidacy. Ultimately, in April 2007, they applied
to another licensed hospital for the respondent to have further IUI treatment
under the National Health Service. “I see no reason”, wrote the counsellor,
“why this couple should not be treated”. On this occasion the treatment was
successful and in April 2008 B was born.
14.
The respondent’s removal of B to Pakistan on 3 February 2014 was lawful.
The absence of the appellant’s consent did not vitiate it. The appellant has
never been B’s legal parent. Had the insemination which led to B’s conception
occurred after 6 April 2009, and had the respondent so agreed in writing, the
appellant would have been treated in law as B’s parent: sections 43
and
44
of
the Human Fertilisation and Embryology Act 2008. Had she thereupon been
registered as a parent, the appellant would also have acquired parental responsibility
for B: section
4ZA(1)(a)
of the 1989 Act. Alternatively, if the appellant had
secured a shared residence order referable to B prior to 3 February 2014, she
would have acquired parental responsibility for her under the former version of
section 12(2) of the 1989 Act. In the event, however, she never had parental
responsibility for B.
15.
Later the respondent was to give the following evidence, which Hogg J
accepted, about the circumstances of herself and B in Pakistan in the weeks
following their arrival on 4
February 2014:
(a) she arrived in Islamabad on a visa which entitled her to remain with B in Pakistan for about three months;
(b) she stayed with B in the home of her potential business partner for about the first three weeks;
(c) on 10 February she began working in partnership with him;
(d) on 18 February she registered B at an English-speaking school (being other than the one which she had previously considered), at which on the following day B began to attend;
(e) on 19 February she entered into an agreement to rent a two bedroom flat for one year with effect from 1 March;
(f) on (presumably) 1 March she moved with B into the flat; and
(g) on 18 April she was issued with a National Identity Card which entitled her to reside with B in Pakistan indefinitely.
PROCEEDINGS
CONSEQUENCE
HABITUAL RESIDENCE
(a) Principle
28.
A child’s habitual residence is also the thread which unites the
provisions of the Hague Convention on the Civil Aspects of International Child
Abduction 1980 (“the 1980 Convention”). This Convention applies to a child
habitually resident in a contracting state immediately before his wrongful removal
or retention: article 4.
It is the law of that state which dictates whether his
removal or retention was wrongful: article 3(a). It is that state to which,
subject to exceptions, other contracting states must order the child to be
returned: article 12. Under the Hague Convention on Jurisdiction etc 1996 it
is, again, the courts of the contracting state of the child’s habitual
residence which, as against other contracting states, has jurisdiction to make
orders for his protection: article 5(1).
31.
The second consequence is that the interpretation in the courts of
England and Wales of the concept of habitual residence should be consonant with
its international interpretation: see the judgment of the Court of Justice of
the European Union (“the CJEU”) in Proceedings brought by A [2010] Fam 42,
para 34. Its traditional interpretation in England and Wales has been
substantially influenced by the stance adopted by one or both of the parents,
often at the expense of focus on the child’s own situation. By way of example,
our courts had accepted a proposition that one parent with parental
responsibility could not achieve a change in the child’s habitual residence
without the consent of the other parent with parental responsibility: Re M
(Abduction: Habitual Residence) [1996] 1 FLR 887, 892 E-H and 896 B. This
court has now held that proposition to be wrong: In re R (Children) [2015]
UKSC
35; [
2016]
AC 760. By way of another example, our old law largely
proceeded by reference to a proposition that a child’s habitual residence would
necessarily follow the habitual residence of the parent with whom he lived: see
the discussion of it in In re LC (Children) [2014]
UKSC
1; [2014] AC 1038, para 33. But it was held in the LC case, at paras 34 to 37, that
the international interpretation of habitual residence required that
proposition to be relaxed.
“The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B.”
In the light of his third and fourth points Lord Brandon concluded as follows:
“The mother had left Western Australia with a settled intention that neither she nor J should continue to be habitually resident there. It follows that immediately before 22 March 1990, when the retention of J in England by the mother began, both she and J had ceased to be habitually resident in Western Australia.” (emphasis supplied)
35. The analysis by the CJEU of the concept of a child’s habitual residence is located in its judgments in Proceedings brought by A, cited in para 31 above, and in Mercredi v Chaffe [2012] Fam 22.
“2. The concept of ‘habitual residence’ under article 8(1) of [Regulation B2R] must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. 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.”
The court had also suggested, at para 40,
that the
intention of the parents to settle permanently with the child in another member
state, manifested by certain tangible steps such as the purchase or lease of a
residence there, might indicate what, perhaps significantly, the court chose to
describe as a “transfer” of habitual residence.
38.
In A v A (Children: Habitual Residence) [2013] UKSC
60; [2014] AC 1, this court held that the criterion articulated in the two European
authorities (“some degree of integration by the child in a social and family
environment”), together with the non-exhaustive identification of
considerations there held to be relevant to it, governed the concept of
habitual residence in the law of England and Wales: para 54(iii) and (v) of
Lady Hale’s judgment, with which all the members of the court (including Lord
Hughes at para 81) agreed. Lady Hale said at (v) that the European approach was
preferable to the earlier English approach because it was “focussed on the
situation of the child, with the purposes and intentions of the parents being
merely one of the relevant factors”.
39.
It is worthwhile to note that the new criterion requires not the child’s
full integration in the environment of the new state but only a degree of it.
It is clear that in certain circumstances the requisite degree of integration
can occur quickly. For example article 9 of Regulation B2R, the detail of which
is irrelevant, expressly envisages a child’s acquisition of a fresh habitual
residence within three months of his move. In the J case, cited above,
Lord Brandon suggested that the passage of an “appreciable” period of the time
was required before a fresh habitual residence could be acquired. In Marinos
v Marinos [2007] EWHC 2047 (Fam); [2007] 2 FLR 1018, para 31, Munby J
doubted whether Lord Brandon’s suggestion was consonant with the modern
European law; and it must now be regarded as too absolute. In A v A,
cited above, at para 44,
Lady Hale declined to accept that it was impossible to
become habitually resident in a single day.
40.
But do the two European authorities assist in identifying the object of
central relevance to this appeal, namely the point at which habitual residence
is lost?
41.
Yes, in two ways.
42.
The first is indirect. Recital 12 to Regulation B2R states:
“The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity.”
By proximity, “the court clearly meant the practical
connection between the child and the country concerned”: Lord Hughes in A v
A, cited above, at para 80(ii). In its analysis of the concept of habitual
residence the CJEU, both in Proceedings brought by A at para 35 and in
the Mercredi case at paras 46
and
47,
stressed the significance of
recital 12. Of course it does not follow that the court can construe a child’s
habitual residence by reference to the result which best serves his interests.
The effect of the recital is more subtle and more limited yet nevertheless
significant: where interpretation of the concept of habitual residence can
reasonably follow each of two paths, the courts should follow the path
perceived better to serve the interests of children. Or, to be more specific to
the facts of the present case: if interpretation of the concept of habitual
residence can reasonably yield both a conclusion that a child has an habitual
residence and, alternatively, a conclusion that he lacks any habitual
residence, the court should adopt the former.
43.
The second is arrestingly direct. In her Opinion in Proceedings
brought by A Advocate General Kokott said:
“45.
It is also conceivable in
exceptional cases that during a transitional stage there will no longer be
habitual residence in the former state while the status in the new state has
not yet crystallised into habitual residence. Precisely for such a case,
article 13 of [Regulation B2R] confers a residual jurisdiction on the courts of
the member state in which the child is present.”
In its judgment in the same case the court said:
“43.
However, it is
conceivable that at the end of [the integration] assessment it is impossible to
establish the member state in which the child has his habitual residence. In
such an exceptional case, and if article 12 ... is not applicable, the national
courts of the member state in which the child is present acquire jurisdiction
... pursuant to article 13(1) ….”
The court’s reference to a situation in which it is
“impossible to establish” the child’s habitual residence might at first sight
seem ambiguous. Is it referring to a situation in which the child has an
habitual residence somewhere but the evidence does not enable the court to
identify the state in which he has it? The answer is clearly no. The court is referring
to a situation in which a child has no habitual residence. The court is
expressly indorsing para 45
of the Advocate General’s Opinion (note its
repetition of her words “conceivable” and “exceptional”) but is recasting her
point within the slightly ambiguous language of article 13 of B2R, namely
“where a child’s habitual residence cannot be established”.
44.
In A v A, cited above, Baroness Hale, at para 54(viii), referred
to para
45
of the Advocate General’s Opinion and to para
43
of the court’s
judgment in Proceedings brought by A and observed that it was “possible”
for a child to have no habitual residence. Lord Hughes, at para 80(ix),
indorsed the European court’s conclusion by saying that the circumstances in
which a child had no habitual residence would be “exceptional”.
45.
I conclude that the modern concept of a child’s habitual residence
operates in such a way as to make it highly unlikely, albeit conceivable, that
a child will be in the limbo in which the courts below have placed B. The
concept operates in the expectation that, when a child gains a new habitual
residence, he loses his old one. Simple analogies are best: consider a see-saw.
As, probably quite quickly, he puts down those first roots which
represent the requisite degree of integration in the environment of the new
state, up will probably come the child’s roots in that of the old state
to the point at which he achieves the requisite de-integration (or, better,
disengagement) from it.
46.
One of the well-judged submissions of Mr Tyler QC on behalf of the
respondent is that, were it minded to remove any gloss from the domestic
concept of habitual residence (such as, I interpolate, Lord Brandon’s third
preliminary point in the J case), the court should strive not to
introduce others. A gloss is a purported sub-rule which distorts application of
the rule. The identification of a child’s habitual residence is overarchingly a
question of fact. In making the following three suggestions about the point at
which habitual residence might be lost and gained, I offer not sub-rules but
expectations which the fact-finder may well find to be unfulfilled in the case
before him:
(a) the deeper the child’s integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;
(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child’s day-to-day life in the new state, probably the faster his achievement of that requisite degree; and
(c) were all the central members of the child’s life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.
47.
Lord Brandon’s third preliminary point in the J case, set out in
para 34 above, should no longer be regarded as correct; and Hogg J fell into
error in being guided by it. As exemplified by the terms in which Lord Brandon
applied it to the facts of that case, also set out in para 34, his analysis of
a child’s habitual residence afforded to parental intention a dispositive
effect inconsistent with the child-focussed European concept now adopted in
England and Wales; and the result of his analysis was to consign a large number
of children to the limbo of lacking any habitual residence in circumstances in
which the modern law expects such a result to be exceptional, albeit
conceivable. It is nevertheless fruitless to inquire whether the conclusion of
the appellate committee about the child’s loss of habitual residence in
Australia within three weeks of his move would remain valid today.
(b) Application
48.
It follows that, in asking whether B’s wish to remain in touch with the
appellant was enough to sustain a continuation of her habitual residence in
England on 13 February 2014, Hogg J should now be seen to have asked herself
far too narrow a question. The question is whether B had by then achieved the
requisite degree of disengagement from her English environment; and highly
relevant to the answer will be whether she had by then achieved the requisite
degree of integration in the environment of Pakistan.
49.
In my opinion each of the following factors might contribute to a
conclusion that B had by that date achieved the requisite degree of
disengagement from her English environment:
(a) B went to Pakistan with the respondent, who was her biological mother, her primary carer and the person who alone had parental responsibility for her;
(b) B’s removal to Pakistan was lawful;
(c) B knew that she was going to live in Pakistan;
(d) part of B’s ethnic heritage was in Pakistan and certain members of her wider family, albeit unidentified, apparently remain living there;
(e) the respondent took B to Pakistan in the genuine belief that they would have a better life there and with the intention that they would settle there; and
(f) two months earlier the respondent had conducted a reconnoitre of possible arrangements for their future life in Islamabad.
(a) B had lived in England throughout the five years of her life;
(b) she had never previously set foot in Pakistan;
(c) her language was English and she barely spoke Urdu;
(d) she was a British subject;
(e) the appellant, who was a central figure in B’s life, indeed probably the second most important figure, had been left behind in England;
(f) B’s removal was effected without the appellant’s knowledge, still less approval;
(g) B was aware that her removal was to be kept secret from the appellant;
(h) B retained significant emotional links with the appellant and feared that she would miss her following the move to Pakistan;
(i) other important adult figures in B’s life, in particular both sets of grandparents and two aunts, together with various young cousins, had also been left behind in England;
(j) the home in which B had lived throughout her life had not been sold and remained available for her immediate re-occupation with the respondent;
(k) by 13 February 2014 B had been present in Pakistan for only nine days;
(l) at that time she and the respondent had the right to remain there for only about three months;
(m) they were then staying temporarily with a friend of the respondent;
(n) no independent accommodation had by then been secured by the respondent; and
(o) B was not then even attending school in Pakistan nor even registered with a school there.
(c) Conclusion
51.
I conclude that, taken cumulatively, the factors set out in para 50 are
stronger than those set out in para 49
and compel a conclusion that on 13
February 2014 B retained habitual residence in England. Accordingly the
appellant’s application issued on that date under the 1989 Act can and should
proceed to substantive determination. The judge may wish to consider whether to
make B a party to the application, acting by a children’s guardian, and, if so,
whether to invite the guardian to instruct an independent social worker to
interview B in Pakistan and to explore the circumstances of her life there. Were
the court’s eventual conclusion to be that it was in B’s interests to return to
England, either occasionally, in order to spend time with the appellant here,
or even permanently, in order to reside here again whether mainly with the
respondent or otherwise, its order could include consequential provision under
section 11(7)(d) of the 1989 Act for the respondent to return her, or cause her
to be returned, to England for such purposes.
NATIONALITY
THE DISSENTING JUDGMENTS
54.
In para 65 below Lord Sumption complains that the only proposed ground
for allowing the appeal is that it is “highly unlikely, albeit conceivable”
that one habitual residence will be lost before another is acquired. There,
with respect, Lord Sumption misunderstands my judgment. What I suggest - in
para 45
above - is that the modern concept of habitual residence operates in
the expectation that an old habitual residence is lost when a new one is
gained. The mere unlikelihood of the correctness of an outcome favoured by a
judge would be a disgraceful ground for allowing an appeal. The ground for
allowing this appeal is that the modern concept of habitual residence
identifies the point of its loss as being the stage when the person achieves
the requisite degree of disengagement from the old environment (para
48
above);
that intention, in this case parental intention, is no longer dispositive in
this respect (para
47
above); that highly relevant to the person’s achievement
of that requisite degree of disengagement is his achievement of the requisite
degree of integration in the new environment (para
48
above); and that, by
application of the modern concept, B had not lost her habitual residence in England
by 13 February 2014 (para 51 above).
55.
In para 72 below Lord Sumption quotes from para 44
of the Opinion of
Advocate General Kokott in Proceedings brought by A, cited above. Might
I suggest that inadvertently Lord Sumption has in this regard been too
selective? The Advocate General suggests:
“44.
… all the circumstances
of the individual case must be taken into account where there is a change of
place. An indication that the habitual residence has shifted may in
particular be the corresponding common intention of the parents to settle
permanently with the child in another state. The parents’ intention may
manifest itself, for example, in external circumstances such as the purchase or
lease of a residence in the new state, notifying the authorities of the new
address, establishing an employment relationship, and placing the child in a
kindergarten or school. As a mirror image, abandoning the old residence and
employment and notifying the authorities of departure suggest that habitual
residence in the former state is at an end.”
I have set the words quoted by Lord Sumption in italics.
My understanding, however, is that in para 44
the Advocate General recommends a
composite consideration of “all the circumstances” both in the new environment
and, “as a mirror image”, in the old environment in order to determine whether
habitual residence has “shifted” from the latter to the former. She does not
suggest consideration only of severance of links with the old environment with
a view to determining whether, even if no new habitual residence has been
gained, the old one has been lost. For it is only in the next paragraph that
she turns to that possibility.
LADY HALE AND LORD TOULSON:
57.
We agree fully with Lord Wilson’s reasoning and conclusion on the issue
of habitual residence. He has described the identification of a child’s
habitual residence as overarchingly a question of fact (para 46).
At the risk
of appearing pedantic, we would prefer to describe it as a mixed question of
fact and law, because the concept is a matter of law but its application is a
matter of fact. We do not, however, understand Lord Wilson to be laying down a
rule of law that a child must always have an habitual residence: rather that,
as a matter of fact, the loss of an established habitual residence in a single
day before having gained a new one would be unusual. In this particular case,
although the respondent said that her intentions were permanent, looked at from
the child’s point of view, on the relevant date they had been in Pakistan for
only nine days, they had no home there, and she had not yet been entered into a
school. Had the respondent then changed her mind and decided that the move was
a bad idea, it is unlikely that a court would have held that the habitual
residence of either of them had changed during those few days.
58.
Lord Wilson’s conclusion on the issue of habitual residence makes it
unnecessary to reach a decision on the hypothetical question whether it would
have been right for the court to exercise its jurisdiction founded on B’s
nationality if she had no habitual residence at the time when these proceedings
began. It is not in doubt that the restrictions on the use of the inherent or
parens patriae jurisdiction of the High Court in the Family Law Act 1986 do not
exclude its use so as to order the return of a British child to this country:
this court so held in A v A (Children: Habitual Residence) [2013] UKSC
60; [2014] AC 1. The Court of Appeal devoted a large proportion of their
judgment to this aspect of the case. Their approach is summed up in para
45:
“Various words have been used down the years to describe the kind of circumstances in which it may be appropriate to make an order - ‘only under extraordinary circumstances’, ‘the rarest possible thing’, ‘very unusual’, ‘really exceptional’, ‘dire and exceptional’ ‘at the very extreme end of the spectrum’. The jurisdiction, it has been said must be exercised ‘sparingly’, with great ‘caution’ … and with ‘extreme circumspection’. We quote these words not because they or any of them are definitive - they are not - but because, taken together, they indicate very clearly just how limited the occasions will be when there can properly be recourse to the jurisdiction.”
60.
The basis of the jurisdiction, as was pointed out by Pearson LJ in In
re P (GE) (An Infant) [1965] Ch 568, at 587, is that “an infant of British
nationality, whether he is in or outside this country, owes a duty of
allegiance to the Sovereign and so is entitled to protection”. The real
question is whether the circumstances are such that this British child requires
that protection. For our part we do not consider that the inherent jurisdiction
is to be confined by a classification which limits its exercise to “cases which
are at the extreme end of the spectrum”, per McFarlane LJ in In re N
(Abduction: Appeal) [2012] EWCA Civ 1086; [2013] 1 FLR 457,
para 29. The
judgment was ex tempore and it was not necessary to lay down a rule of general
application, if indeed that was intended. It may be that McFarlane LJ did not
so intend, because he did not attempt to define what he meant or to explain why
an inherent jurisdiction to protect a child’s welfare should be confined to
extreme cases. The judge observed that “niceties as to quite where the existing
extremity of the jurisdiction under the inherent jurisdiction may be do not
come into the equation in this case” (para 31).
“… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of ‘comity’ has assumed an expansive meaning. ‘Comity’ once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another’s toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.”
LORD SUMPTION (dissenting) (with whom Lord Clarke agrees):
Introduction
63. I regret that I am unable to agree with the opinion of the majority.
Loss of habitual residence
68.
The habitual residence of a child is the primary basis of jurisdiction
in member states of the European Union, by virtue of article 8 of Council
Regulation (EC) 2201/2003. In Proceedings brought by A (Case C-523/07)
[2010] Fam 42,
the Court of Justice held that this meant that the presence of
the child within the jurisdiction of a state must be:
“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. 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. As the Advocate General pointed out in para 44
of her opinion,
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 the habitual residence. Another indicator may be constituted by lodging an
application for social housing with the relevant services of that state.”
(paras 38-
40)
This statement was substantially repeated in Mercredi
v Chaffe (Case C-497/10PPU)
[2012] Fam 22, and was adopted by this court as
part of the domestic law of England in A v A (Children: Habitual Residence)
[2014] AC 1.
69.
Recital (12) of the Council Regulation recites that “the grounds of
jurisdiction in matters of parental responsibility established in the present
Regulation are shaped in the light of the best interests of the child.” In the
context of article 12 of the Regulation, the Court of Justice has recently
drawn attention to this recital in E v B (Case C-436/13)
[2015] Fam 162,
para
45.
But its value, as both the recital and the judgment make clear, is as
a guide the interpretation of the Regulation’s jurisdictional rules. It
explains why the social integration test of habitual residence has been
adopted. Now that it has been adopted, the task of the courts is to apply it.
The recital is not a licence to treat questions of jurisdiction as
discretionary or to import legal qualifications into the essentially factual
exercise of determining where a child is socially integrated and where she is
not.
72.
The courts have had no difficulty in accepting these as obvious
propositions of fact. Advocate General Kokott in Proceedings brought by A
(Case C-523/07) acknowledged that “abandoning the old residence and employment
and notifying the authorities of departure suggest that habitual residence in
the former state is at an end” (para 44)
and that “in exceptional cases… during
a transitional stage there will no longer be habitual residence in the former
state while the status in the new state has not yet crystallised into habitual
residence” (para
45).
She thought that such situations would be exceptional,
but in the nature of things they can be no more exceptional than the facts
which give rise to them. In In re J (A Minor) (Abduction: Custody Rights)
[1990] 2 AC 562, 578-579, Lord Brandon, speaking for a unanimous appellate
Committee, observed that:
“there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead.”
The courts have more recently expressed reservations
about parts of this passage, mainly because it tends to overstate the
difficulty of acquiring a new habitual residence. As Baroness Hale observed in A
v A (Children: Habitual Residence), supra, at para 44,
this is “best
seen as helpful generalisations of fact, which will usually but not invariably
be true”. That is of course because habitual residence is a question of fact,
as Lord Brandon himself had pointed out immediately before the passage cited.
She went on, in the same paragraph, to adopt that part of Lord Brandon’s
generalisation which is directly relevant to the present case:
“I would not accept that it is impossible to become habitually resident in a single day. It will all depend on the circumstances. But I would accept that one may cease to be habitually resident in one country without having yet become habitually resident in another.”
73.
If an old habitual residence cannot be lost until a new one has been
acquired, it must therefore be by virtue of some rule of rule of law by which
regardless of the facts the severance of the child’s links with her former
habitual residence is somehow deemed in law to be suspended pending the
acquisition of a new habitual residence. Yet it is far from clear to me how
this is to be reconciled with what is an essentially a factual enquiry, as
every court which has hitherto considered this question has emphasised. In A
v A, at para 39 Baroness Hale deprecated the tendency of the courts to
“overlay the factual concept of habitual residence with legal constructs”.
These observations were later repeated by Baroness Hale in In re L (A Child)
(Custody: Habitual Residence) [2014] AC 1017 at paras 20-21, and more
recently by Lord Reed, with whom every other member of this court agreed, in
the Scottish case of In re R (Children) [2016]
AC 76, para 17.
“The arguments advanced by the appellant and also on behalf of the intervener, Reunite, appeared at times to amount to an invitation to swathe habitual residence in sub-principles, or glosses, or comments, in a way which would fly in the face of the determinedly factual approach of the European jurisprudence and the Supreme Court. So, for example, we were invited to say that it would only be in exceptional cases that a child would lose one habitual residence before acquiring another … it may be that there will turn out to be relatively few cases in which the habitual residence of a child does not transfer seamlessly from one country to another, but if so, that will be because the facts tend to be that way and not because the courts impose upon themselves the artificial discipline of only finding it otherwise in exceptional circumstances.”
A jurisdictional limbo?
75.
The notion that there must be a seamless transfer of habitual residence
is a classic legal construct, which has no place in the essentially factual
enquiry involved in identifying a child’s habitual residence. The reason given
by the majority for adopting that notion is not that it is factually
impossible, or virtually so, for a child to have no habitual residence. Their
reason is that it is legally undesirable because it produces a jurisdictional
limbo. However it may be described by its authors, I find it impossible to
regard this as anything other than a proposition of law. And I respectfully
suggest that it is not correct. Article 13 of the Council Regulation provides
for residual jurisdiction to lie with the courts of the country where the child
is present in a case where a child’s habitual residence “cannot be
established”. As Advocate General Kokott pointed out at para 45
of her advice
in Proceedings brought by A, supra, article 13 was included
precisely in order to cover the situation where a former habitual residence has
been lost but the child’s status in her new home “has not yet crystallised into
habitual residence.” A similar provision appears in article 6(2) of the 1996
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the
Protection of Children. Jurisdiction based on presence is also provided for by
sections 2 and 3 of the Family Law Act 1986 in cases where neither the Council
Regulation nor the 1996 Hague Convention applies, and it serves the same
function in that context. For this reason, there is no need for a principle of
seamless transfer except in cases where the child has been removed to a state
(if indeed there is such a state) where there is no jurisdiction founded on the
presence of the child within its territory.
77.
It should be noted that the present issue would not arise in a case
where the child was wrongfully removed in breach of rights of any person’s
rights of custody. This is because article 10 of the Council Regulation confers
jurisdiction on courts of the country where the child was habitually resident immediately
before his removal. There are similar provisions in article 4
of the 1980 Hague
Convention on the Civil Aspects of International Child Abduction and article 7
of the 1996 Hague Convention. The fact that the child may have no habitual
residence for a period after his removal is therefore irrelevant. The appellant’s
difficulty in this case is that she had no parental rights at the time of the
child’s departure from the United Kingdom. She was not registered as a parent
at birth. There was no civil partnership, no adoption, no parental rights
agreement and no court order recognising her status with regard to the child. The
judge found that the respondent was not trying to escape from the jurisdiction
of the English court. She was in law the child’s sole parent who was absolutely
entitled to exercise her parental rights by removing her to Pakistan. Although
Lord Wilson characterises the removal as “secret” and “clandestine”, the judge
made no finding of underhand conduct which could warrant these pejorative
epithets.
The Judge’s findings
“27. The mother said she left this jurisdiction to make a new life in Pakistan. She had actually been thinking about it seriously since July of last year. She made her fact-finding trip in November following which she made a decision. She had the support of her family. They knew what she was about. She and [B] said their goodbyes to school, to the family. They left their home, packed up their possessions and the mother sent a letter with the keys of the house to the applicant. She is admittedly still paying her share of the mortgage to preserve her share of the asset, that matter has yet to be resolved between the two ladies. She had the intention to set up a new life. She had lost her job. She was finding it financially difficult to be in this country even when she was working and she had laid the ground for a new life in Pakistan. It is important to note what she did immediately upon arrival in Pakistan. Until the end of April she was unaware of the applicant’s application to this court, but the mother found herself a new home and a school for the child to which they both moved in on 19 February, just 15 days after their arrival. They had previously been staying with friends. She had work already upon her arrival, at which she has continued, and she made an application for an ID card, which she obtained before she became aware of these proceedings.
28. As I have said, I am not satisfied she was running away as alleged by the applicant, and I accept her intention that she intended to create a new life for herself and for [B] in Pakistan. On that basis, she lost her habitual residence here.”
Next the judge considered the perception of the child. Without making any finding about the appellant’s evidence that the child wished to keep in touch with her, the judge held that even if she did, that did not mean that her habitual residence remained in the United Kingdom after 3 February 2014:
“The mother is the sole legal parent and in moving her she had planned a life away from this country. It was not a wrongful removal. She was exercising her parental responsibility. [B]’s wish to remain in touch is something that I must consider. It does not necessarily mean that the child has to remain in the country. There are many children throughout the world who remain in touch with families or members of a family or even friends when they are relocated by their parents. This is another relocation and a child wishing to remain in touch with a significant person. In my view her wish to remain in touch with the applicant does not justify making or continuing an individual habitual residence in this country when the mother has abandoned her own.”
Inherent jurisdiction
Disposition
88. For these reasons, I would dismiss the appeal.
LORD CLARKE:
Habitual Residence
93.
In para 28 of the judgment in the Court of Appeal, after referring to a
number of recent cases including A v A (Children: Habitual Residence) [2013]
UKSC
60; [2014] AC 1, Black LJ said this:
“The European formulation of the
test (to be found in Proceedings brought by A [2010] Fam 42
at para 2,
as quoted in A v A at para
48)
is the correct one, namely that ‘the
concept of habitual residence … must be interpreted as meaning that it
corresponds to the place which reflects some degree of integration by the child
in a social and family environment’. The inquiry is a factual one, requiring an
evaluation of all relevant circumstances in the individual case. It focuses upon
the situation of the child, with the purposes and intentions of the parents
being merely among the relevant factors. It should not be glossed with legal
concepts. And, as Lord Reed observed at para 18 of
In re R (Children) [2015]
UKSC 35; [2015] 2 WLR 1583, when the
lower court has applied the correct legal principles to the relevant facts, its
evaluation will not generally be open to challenge unless the conclusion which
it reached was not reasonably open to it.”
I respectfully agree.
“[Hogg J] described in her judgment the situation in this country and the situation in Pakistan in such a way as to show that she had looked both at what P was leaving and what was awaiting her in Pakistan. In short, she applied the proper principles to the relevant facts and there is no reason to interfere with her finding that P lost her habitual residence here when she left for Pakistan.”
Again, I agree.
Inherent jurisdiction
96. I agree with Lord Sumption that the appeal on this ground should also be dismissed. I do so for essentially the same reasons as on the habitual residence point, namely that Hogg J made no error of fact or law and that the Court of Appeal correctly so held.
97. I agree with Lady Hale and Lord Toulson that the court must approach the use of the inherent jurisdiction with great caution and circumspection for the reasons they give. However, I agree with Lord Sumption that on the facts of this case it should not use the inherent jurisdiction to order B to be returned to the jurisdiction in order to enable it to exercise its statutory jurisdiction in circumstances in which it would not otherwise have that jurisdiction. This is not to say that there may not be circumstances in which it would be appropriate for the English court in another case to consider the welfare of the child more generally without requiring his or her return to the jurisdiction, at any rate in the first instance. As ever, all will depend on the circumstances.