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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (A Child) [2013] EWCA Civ 1434 (13 November 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/1434.html Cite as: [2014] 1 Fam 139, [2013] WLR(D) 461, [2014] 1 All ER 1045, [2014] 1 FCR 87, [2014] 2 WLR 1384, [2014] FAM 139, [2014] 1 FLR 900, [2014] 1 FAM 139, [2013] EWCA Civ 1434, [2014] Fam Law 20 |
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2013] EWCA Civ 1434 | ||
B4/2013/1782 |
CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE, FAMILY DIVISION
HHJ LESLEY NEWTON
NF12C00222
Strand, London, WC2A 2LL |
||
2013 |
B
e f o r e :
LADY JUSTICE GLOSTER
and
LORD JUSTICE FLOYD
____________________
Re: B (A child) |
____________________
Butterfield
(instructed
by
Saulet Ashworth Llp) for the Appellant mother
Miss Sarah Morgan QC and Miss Catherine Jenkins (instructed
by
A local authority) for the 1st
Respondent
local authority
Mr Henry Setright QC and Mr Edward Devereux (instructed
by
Bindmans
Solicitors) for the 2nd
Respondent
father
Mrs Jane Crowley QC and Miss Alev Giz (instructed
by
Quality Solicitors Wilson
Browne
Llp) for the 3rd
Respondent
child
Hearing date : 30 October
2013
____________________
Crown Copyright ©
Lord Justice McFarlane:
B,
who is now aged 28, was first
referred
to a psychiatrist
because
of concerns surrounding her mental health when she was only eight years old. In her mid-teens she spent a year as a patient in the adolescent mental health unit of the Cassell hospital. Despite the therapy that she was able to access there, and despite continued attempts to provide therapy to her in the years that have followed, her
behaviour
has continued to demonstrate that she does not enjoy robust and sustained mental good health. Throughout this long period the principal presentation of her underlying mental health difficulties has
been
that of attending accident and emergency departments, or other health
resources,
and giving fabricated accounts of symptoms in order to access treatment. A
recent
psychiatric
report,
based
upon an assessment with which Miss
B
co-operated in January
2013,
summarises the history of disturbed
behaviour,
lists the various possible diagnoses that have, in the past,
been
put forward, and concludes that the "pattern of psychological experience and
behaviour
suggests
borderline
personality disorder, somatising disorder and factitious disorder".
B
became
pregnant as a
result
of a
relationship
with a man who is also said to have suffered from serious psychiatric problems. Once the local authority for the area in which she was living
became
aware of the pregnancy, a pre-
birth
assessment was made and as a
result
of Miss
B's
history of sustained and severe mental ill health the local authority
resolved
to issue care proceedings immediately following the
child's
birth
with a view to separating mother and
child
at that point, prior to conducting a structured assessment of her ability to care for the
baby.
Having heard of these plans Miss
B
moved to another area of England and Wales
but,
upon learning that the local authority in that new area also proposed to implement a similar
child
protection plan, Miss
B,
without notice to the father or any of the authorities, moved to Sweden. Although as an autonomous adult Miss
B
was entirely free to make that move, Sweden does not appear to have
been
a country with which she had any links of family, community or language. During a number of media interviews Miss
B
made it very clear that her sole purpose in moving to Sweden was to escape the attention of the social work authorities in England.
child
that she had
been
carrying was
born
in Stockholm. That
child,
a girl, M, now aged 5 years, is the focus of the proceedings which are the subject of this appeal.
by
the appeal can
be
shortly stated. On 12th September 2012, during a short period in which Miss
B
and M were in England, the local authority for the area in which Miss
B's
mother lives issued an application for a care order with
respect
to M under
Children
Act 1989, s 31. All the parties to the proceedings accept that at that time M was habitually
resident
in Sweden. In consequence, Miss
B
asserts that the courts in England and Wales do not have jurisdiction to make orders
relating
to M's welfare and her protection (save for the making of short term provisional protective measures if
required).
The local authority, M's father and the
Children's
Guardian appointed for M in the care proceedings assert that, notwithstanding M's Swedish habitual
residence,
the English court does have jurisdiction.
2013
Her Honour Judge Lesley Newton, sitting as a deputy High Court Judge, concluded that the English court did indeed have full jurisdiction over M in
relation
to matters concerning parental
responsibility,
child
protection and welfare. In consequence of that ruling the care proceedings are now set down for final determination in November
2013.
By
this appeal, which she
brings
with the permission of Lady Justice
Black,
Miss
B
challenges HHJ Newton's conclusion on jurisdiction.
Factual
background
regulation
No. 2201/2003 (
Brussels
II
Revised
– "
BIIR")
it is not necessary to summarise the troubling history of Miss
B's
behaviour
in any more detail than I have already provided. I have however
read
the
recent
psychiatric
report
of Dr G A, a consultant forensic psychotherapist
based
at
Broadmoor
Hospital together with an extensive multi-disciplinary assessment prepared, again with the co-operation of Miss
B,
in May
2013.
Those documents, which of course have yet to
be
scrutinised
by
any first instance court, present the clear opinion that, even with intensive treatment and risk management, Miss
B
will continue to pose a high risk to M of emotional abuse and/or neglect for many years to come as a
result
of the extent and depth of Miss
B's
psychological difficulties.
relating
the necessary factual history, I will concentrate on those matters that more directly impact upon the question of jurisdiction.
birth,
and having no doubt
been
alerted to the situation
by
the English authorities, the Swedish social services conducted a detailed investigation and concluded that Miss
B
did not present such a risk to M so as to necessitate the instigation of the Swedish equivalent of care proceedings. Concern was apparently again raised towards the end of 2009 when care proceedings were commenced in Sweden; those proceedings were dismissed after a short time on 26th February 2010. Throughout this period M continued to live with Miss
B
in Sweden.
because
at that stage Miss
B
and M undertook a pre-planned move to Paris for six months followed
by
a further visit to the USA. During her
return
journey from America Miss
B
stopped off in the UK on 29th September 2011 with the intention of visiting family and friends. On that day the father applied to the English High Court for an order making M a Ward of Court. He subsequently made applications for contact and parental
responsibility
orders. The question of whether or not the English court had jurisdiction was immediately raised in those proceedings with the issue
being
determined
by
Sir Nicholas Wall, the then President of the Family Division, on 1st November 2011 (
reported
as A v
B
(Jurisdiction) [2011] EWHC 2752 (Fam); [2012] 1 FLR 768). At that time the father's Swedish custody application was still pending and Sir Nicholas Wall therefore declined jurisdiction pursuant to the lis pendens provisions in
BIIR,
Article 19 on the
basis
that the Swedish court was already seised of the issues.
brought
to an end
by
the order of Peter Jackson J on 15th December 2011. During the English court process in the Autumn of 2011 Miss
B
and M had
been
obliged to
remain
within this jurisdiction. In order to facilitate an orderly
return
to Sweden, and, more importantly, in order to ensure, so far as was possible, engagement
by
the mother with the Swedish social services, the mother gave a number of undertakings to the English court. In particular she undertook to engage and co-operate with any assessment that the Swedish social services wished to carry out and with any psychiatric assessment that those professionals might
recommend.
B
and M
returned
to Sweden in mid-January.
Records
obtained from Sweden indicate that the social services undertook an enquiry into Miss
B's
care of M
between
January and May 2012. The conclusion of the enquiry was that it was not necessary to institute care proceedings and an order of the Stockholm Administrative Court dated 14th June 2012
records
that fact.
by
an order dated 16th August 2012, the Swedish private law proceedings were set aside.
B
and M made two short visits to England. During that period there was increased professional concern following Miss
B's
attendance at various hospitals in England on a number of occasions. Ultimately, on 11th September 2012 Miss
B
was taken to Hillingdon Hospital as a
result
of her
behaviour
at Heathrow Airport and M was
received
into foster care, initially under the protective powers of the police contained in CA 1989, s 46. The following day, on 12th September 2012, the local authority issued the current application for a care order.
before
Judge Newton in June
2013
the preferred proposal for M's long term care, if she could not
return
to the care of her mother, was to
remain
in the care of the maternal grandmother. However, this court was told during submissions that the grandmother no longer felt able to put herself forward in that role and the option of adoption for M has therefore
become
a live consideration.
The
Brussels
II
Revised
Regulation
Before
turning to the judge's decision, it is necessary to set out the
relevant
provisions of the
BIIR
Regulation.
BIIR
Regulation
applies to public law care proceedings under CA 1989, Part 4.
Recital
(5) to the
Regulation
expressly provides that it 'covers all decisions on parental
responsibility,
including measures for the protection of the
child,
independently of any link with a matrimonial proceeding'.
Recital
(12)
refers
to the grounds for jurisdiction:
The grounds of jurisdiction in matters of parentalresponsibility
established in the present
Regulation
are shaped in the light of the
best
interests of the
child,
in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the
child's
habitual
residence,
except for certain cases of a change in the
child's
![]()
residence
or pursuant to an agreement
between
the holders of parental
responsibility.
Recital
(16) deals with provisional measures in urgent cases:
ThisRegulation
should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, with
regard
to persons or property situated in that State.
become
apparent, the operation of the European Judicial Network is
relevant
to the issues in this appeal;
recital
(25) provides:
Central authorities should cooperateboth
in general matter and in specific cases, including for purposes of promoting the amicable
resolution
of family disputes, in matters of parental
responsibility.
To this end central authorities shall participate in the European Judicial Network in
civil
and commercial matters created
by
Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in
civil
and commercial matters.
responsibility'
is defined as:
The term "parentalresponsibility"
shall mean all rights and duties
relating
to the person or the property of a
child
which are given to a natural or legal person
by
judgment,
by
operation of law or
by
an agreement having legal effect. The term shall include rights of custody and rights of access.
Regulation
(Articles 8 to 15) specifically deals with 'parental
responsibility'
and Article 8 makes provision for 'general jurisdiction' as follows:
1. The courts of a Member State shall have jurisdiction in matters of parentalresponsibility
over a
child
who is habitually
resident
in that Member State at the time the court is seised.
2. Paragraph 1 shallbe
subject to the provisions of Articles 9, 10 and 12.
relevant
to the issues in this case, Article 9(1), which deals with the situation where a
child
has moved from the state in which he had previously
been
habitually
resident,
makes some
reference
to jurisdiction:
Where achild
moves lawfully from one Member State to another and acquires a new habitual
residence
there, the courts of the Member State of the
child's
former habitual
residence
shall,
by
way of exception to Article 8,
retain
jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State
before
the
child
moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual
residence
in the Member State of the
child's
former habitual
residence.
child
abduction, has some
relevance
here arising from the
reference
to
retention
of jurisdiction:
In case of wrongfulremoval
or
retention
of the
child,
the courts of the Member State where the
child
was habitually
resident
immediately
before
the wrongful
removal
or
retention
shall
retain
their jurisdiction until the
child
has acquired a habitual
residence
in another Member State and …
based
on the
child's
presence:
Where achild's
habitual
residence
cannot
be
established and jurisdiction cannot
be
determined on the
basis
of Article 12, the courts of the Member State where the
child
is present shall have jurisdiction.
residual
jurisdiction':
Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shallbe
determined, in each Member State,
by
the laws of that State.
better
placed to hear the case':
1.By
way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the
child
has a particular connection, would
be
![]()
better
placed to hear the case, or a specific part thereof, and where this is in the
best
interests of the
child:
(a) stay the case or the part thereof in question and invite the parties to introduce arequest
![]()
before
the court of that other Member State in accordance with paragraph 4; or
(b)request
a court of another Member State to assume jurisdiction in accordance with paragraph 5.
2. Paragraph 1 shall apply:
(a) upon application from a party; or
(b) of the court's own motion; or
(c) upon application from a court of another Member State with which thechild
has a particular connection, in accordance with paragraph 3.
A transfer made of the court's own motion orby
application of a court of another Member State must
be
accepted
by
at least one of the parties.
3. Thechild
shall
be
considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:
(a) hasbecome
the habitual
residence
of the
child
after the court
referred
to in paragraph 1 was seised; or
(b) is the former habitualresidence
of the
child;
or
(c) is the place of thechild's
nationality; or
(d) is the habitualresidence
of a holder of parental
responsibility;
or
(e) is the place where property of thechild
is located and the case concerns measures for the protection of the
child
![]()
relating
to the administration, conservation or disposal of this property.
4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limitby
which the courts of that other Member State shall
be
seised in accordance with paragraph 1.
If the courts are not seisedby
that time, the court which has
been
seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in thebest
interests of the
child,
accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(
b).
In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.
6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.
BIIR
sets out certain 'common provisions', of which Articles 16, 17 and 20 are of note. Article 16 deals with 'seising of a court':
A court shallbe
deemed to
be
seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he wasrequired
to take to have service effected on the
respondent;
or
(b) if the document has tobe
served
before
![]()
being
lodged with the court, at the time when it is
received
![]()
by
the authority
responsible
for service, provided that the applicant has not subsequently failed to take the steps he was
required
to take to have the document lodged with the court.
Where a court of a Member State is seised of a case over which it has no jurisdiction under thisRegulation
and over which a court of another Member State has jurisdiction
by
virtue of this
Regulation,
it shall declare of its own motion that it has no jurisdiction.
1. In urgent cases, the provisions of thisRegulation
shall not prevent the courts of a Member State from taking such provisional, including protective, measures in
respect
of persons or assets in that State as may
be
available under the law of that Member State, even if, under this
Regulation,
the court of another Member State has jurisdiction as to the substance of the matter.
2. The measuresreferred
to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this
Regulation
as to the substance of the matter has taken the measures it considers appropriate.
High Court hearing 1st November 2012
respect
to M, HHJ Newton gave an extensive, ex tempore, judgment in which she
reviewed
the factual
background
(which was largely agreed) and the
relevant
EC and domestic law. The application was not actively opposed
by
the mother and the only oral evidence given was
by
the social worker. At that time the judge did not have the
benefit
of any up to date assessment of the mother's mental wellbeing or her current parenting capacity. Any findings made were therefore to
be
seen as provisional. In terms of jurisdiction, the judge was clear that 'my present jurisdiction extends only to the making of protective orders within [
BIIR]
Article 20'.
a) The situation was urgent;
b) M was present within the jurisdiction of England and Wales;
c) The interim threshold at CA 1989, s 38 was crossed;
d) Applying the welfare checklist in CA 1989, s 1(3), M's welfare demanded the making of an interim care order;
e) An interim care order is, inherently, a temporary measure made on a provisionalbasis
pending fuller assessment of the
relevant
issues;
Accordingly the judge made an interim care order in
relation
to M on the
basis
that to do so was within the jurisdiction provided
by
BIIR,
Article 20.
request
to the
responsible
court in Sweden to consider transferring jurisdiction with
respect
to M to the High Court in England and Wales under
BIIR,
Article 15 on the
basis
that the English court was now in a
better
position to conduct proceedings designed to protect M's position and to
reach
decisions as to her future. In making that
request
the judge helpfully set out a list of factors which would suggest that transfer to the English court was justified. Finally, HHJ Newton indicated that she would
be
prepared to communicate directly with the Swedish Central Authority and/or any judicial liaison judge or other judge in Sweden.
Article 15 Transfer
request
respect
to the
BIIR
Article 15 transfer
request
was made on 8th March
2013
and produced the following
response:
'There are no ongoing proceedingsregarding
the minor M in Stockholm District Court. For this
reason
there is no
basis
for an examination of the issue of transfer of jurisdiction to a court in another state in accordance with Article 15 of the
Brussels
II
Regulation.
Therefore the
request
is
rejected'.
Communication via the European Judicial Network
2013,
HHJ Newton submitted a number of questions through the office in England of the Head of International Family Justice. In due course these were
responded
to
by
the Swedish judicial member of the European Judicial Network. The first two questions and
response
are of note:
Question 1:
'Does the Swedish Court consider that there is a current Swedish jurisdiction inrespect
of the
child
under Article 8 of
BIIR?
Miss
B,
M's mother, asserts that M is 'habitually
resident'
in Sweden, the other parties
reserving
their position.'
'There is at this point in time, as far as we know, no case concerning MissB
and/or M pending in a Swedish court. Swedish jurisdiction is only tried once a case is opened. 'Jurisdiction' in the abstract, without an open case, cannot
be
tried or transferred. Therefore this question cannot at this point
be
answered in any greater detail.
However,based
on the information presented, it is highly likely that the Swedish court would consider that there is no current jurisdiction.'
Question 2:
'If the answer to question 1 above is 'no', does the Swedish court consider that the English court has a substantive jurisdiction outside that conferredby
Article 20 of
BIIR?'
'As there is no case concerning MissB
pending in the Swedish court, this is not a matter that the Swedish court has an opinion on. However,
based
on the information presented, it seems highly likely that the English court has a substantive jurisdiction outside that conferred
by
Art 20 of
Brussels
IIR. If [t]he English court finds itself competent the Swedish court with certainly, as there is no case going on here, accept that.'
High Court hearing June
2013
2013
the matter came
back
on for hearing
before
HHJ Newton. The principal matter considered at that hearing was the question of whether or not the English court had full jurisdiction over matters
relating
to M's welfare, or whether any jurisdiction
remained
limited to the making of provisional orders under
BIIR,
Article 20. In her judgment given on 13th June the judge concluded that the English court did have full jurisdiction with
respect
to M. In summary the judge made the following preliminary observations
before
expressing the
reasons
for her conclusion:
a) No party sought to challenge the mother's assertion that, at the time that the English courtbecame
seised of the current proceedings (12 September 2012), M was habitually
resident
in Sweden.
b) It is for the local authority to establish that the English court has jurisdiction and not for the mother to demonstrate to the contrary.
c) The Swedish court'srefusal
to transfer the case under Article 15 was not a
refusal
'on the merits'
but
arose from the fact that there were no extant proceedings.
d) Adopting the approach of Cobb J inRe
PB and SE [
2013]
EWHC 647 (Fam), and of the Swedish judicial
responses,
![]()
BIIR
Article 15 can only attach to the transfer of a live case that is
before
the transferring court; it does not apply to the transfer of 'territorial jurisdiction'.
e) HHJ Newton was 'extremely concernedby
the implications for M' if the English court were to grant Miss
B's
application for the court to declare, under
BIIR
Article 17, that it lacked jurisdiction.
f) The determination as to jurisdiction is, however, not a welfarebased
decision.
| '44 | I am, however, confident that those who drafted Brussels II Revised intended it to protect a vulnerable child in M's predicament. It cannot have been within their contemplation that such a child enter a jurisdictional limbo, where, in effect, no court has any responsibility for making decisions as to her future welfare, and with all of the unfortunate consequences that I have attempted to analyse then ensuing. It cannot have been intended that this child, in need of protection now and in the future, would be, to use Mr Setright QC's terminology, "juridically becalmed". So, in turning to the alternative course, I conclude that I am entitled to approach the interpretation of Article 14 in a broad and purposive fashion. |
| 45 | Whilst I do appreciate that these are the opinions of the European Network Judge, not a court in [Sweden] directly seized of any case concerning M, I am satisfied of the following propositions: It is highly probable that the [Swedish] courts do not consider that they have any current jurisdiction; If there was any jurisdiction to transfer, [Sweden] would agree to transfer it; They, the [Swedish] courts, are content that this court continues to deal with this case. |
| 46 | So, trying to address M's predicament in a realistic, pragmatic and common sense fashion, and interpreting the Regulation purposively, I am persuaded, not without hesitation, that the [Swedish] courts have, indeed, declined Article 8 jurisdiction. Thus, no court of a Member State has jurisdiction pursuant to Articles 8 to 18, and, accordingly, I should determine jurisdiction in accordance with the law of England and Wales. There is, put very simply, no court with any competing claim to jurisdiction. |
| 47 | Miss Scriven QC argues that for me to do so 'drives a coach and horses' through the Regulation on the basis that it amounts to giving the courts of England and Wales jurisdiction in a care case by the simple presence of a child unless there are extant proceedings in another member state. I do not accept that analysis. On the contrary, it is only in circumstances where the court of the Member State where the child is habitually resident, having been given full information about the English proceedings, and following proactive judicial liaison, chooses not to exercise any active jurisdiction that this court can properly assume responsibility. That seems to me to be an entirely appropriate operation of the principles of comity and judicial co-operation underlying the Regulation, and avoids the stalemate which would inevitably ensue if this court did not accede to the request to assume jurisdiction.' |
BIIR,
Article 20 on the
basis
that this was a provisional measure which could facilitate the process in Sweden if, in due course, the Swedish court were to assert jurisdiction over these matters.
The case on appeal
B,
summarises the
basis
of her appeal in the following five points:
a) The judge incorrectly applied the provisions of Articles 8, 14 and 17 ofBIIR.
![]()
b) In any event the judge fell into error in the manner in which she dealt with the opinion of the unnamed Swedish network judge.
c) In any event, the process of judicial liaison in this case pursuant to Article 53 ofBIIR
operated in such a way as to deny Miss
B
her right to a fair trial pursuant to ECHR, Article 6.
d) The judge erred in taking account of considerations of forum conveniens which fall wholly outside the scheme ofBIIR.
e) Insofar as the learned judgerelied
on Article 20 of
BIIR
she fell into error
by
ordering an assessment of the maternal grandmother which was neither urgent nor provisional as such an assessment is designed to assess whether the maternal grandmother can provide long term care for M.
by
the Local Authority, the father and the
Children's
Guardian.
relevant
articles of
BIIR,
Miss Scriven's submission is straightforward. On the accepted
basis
that M was habitually
resident
in Sweden at the
relevant
time, namely the commencement of English proceedings in September 2012, the judge had no alternative
but
to find that the Swedish court had jurisdiction pursuant to
BIIR
Article 8. It is submitted that at no place in the judgment does the judge identify how the Swedish court did not have jurisdiction given the fact that M was habitually
resident
there at that point in time. It followed that the Swedish court had jurisdiction pursuant to Article 8, and that conclusion should, in turn, have led the English court to make a declaration of "no jurisdiction" pursuant to
BIIR,
Article 17.
residual
provision to
be
applied where no court of a member state has jurisdiction. The judge purported to give Article 14 "a
broad
and purposive" interpretation whereas, it is submitted, that it should have
been
interpreted narrowly.
relation
to the second limb of her appeal, the approach taken to the opinion of the unnamed Swedish network judge, Miss Scriven submits that the judge failed to distinguish sufficiently
between
the decision of the Swedish court, which was to
reject
the
request
for transfer on the
basis
that there was no active case, and the opinion of the Swedish network judge, to the effect that it was "highly likely" that, if the issue were raised in fresh proceedings in Sweden, the Swedish court would now consider that there is "no current jurisdiction" and that it is "highly likely" that now the English court has a substantive jurisdiction outside that conferred
by
Article 20. It is submitted that the only decision of a Swedish court on these points is the straightforward
rejection
of the Article 15
request.
That decision, it is submitted, in no manner determined that the Swedish court lacked jurisdiction.
relation
to the observations of the Swedish network judge, Miss Scriven submits that these statements are mere "opinion" for which no
reasoning
is given. Further, the opinion
relates
to the "current" circumstances, whereas the task set
by
BIIR
Article 8 is for the English court to consider jurisdiction at the point at which it is seised of the case, namely September 2012. Miss Scriven also observes that the Swedish network judge failed to address in any manner the significance of M's habitual
residence
in Sweden at the start of the English process. Further, there is no
reference
to the fact that, only some three months earlier, the Stockholm Administrative Court was exercising jurisdiction in concluding the enquiry into M's welfare that had
been
conducted
by
the local social services.
by
the Swedish court's decision to
reject
the transfer application and the Swedish judge's opinion that it is "highly unlikely" that jurisdiction would
be
exercised were a future application to
be
made.
by
the Swedish network judge) that Sweden would decline jurisdiction on the
basis
of a lack of extant proceedings in that jurisdiction. It is argued that the English court would only
be
obliged to decline jurisdiction, under Article 17, if, not only was M habitually
resident
in Sweden,
but
also Sweden had had substantive jurisdiction in
respect
of M.
child
is habitually
resident
in a particular Member State does not mean that that State has jurisdiction under
BIIR
in the absence of any live proceedings with
respect
to the
child
in that State; there have to
be
proceedings in existence for Article 8 to
bite.
referred
the court to Emerging Guidance (see paragraph 62
below)
regarding
the development of the International Hague Network of Judges which was apparently endorsed at the 15th anniversary conference of the network judges in July
2013.
The guidance stresses that a key objective of inter-judicial communication is to address any lack of information that the judge in the
requesting
state may have as to the situation in the
requested
state and, in
relation
to the legal implications, in the state of habitual
residence
of the
child.
behalf
of the father Mr Setright QC sought to assist the court
by
developing alternative submissions to complement the local authority's straightforward endorsement of the judge's approach.
requesting
this court to
refer
the question or questions raised in this case to the European Court of Justice in the expectation that the circumstances of this
child
would justify that court expediting its
response
to the
request.
For
reasons
which I will develop, I do not consider that a
referral
to the ECtJ is
required
in this case as the
relevant
provisions of
BIIR
are sufficiently clear to
resolve
the current issues.
by
Mr Setright are twofold:
a) On thebasis
that, whatever the position may have
been
in September 2012, M is now no longer habitually
resident
in Sweden and is habitually
resident
in England. If the current proceedings were, therefore, to
be
withdrawn and immediately
re-issued,
determination of habitual
residence,
and therefore jurisdiction, would
be
crystallised on the
basis
of the current circumstances thereby affording the English court full jurisdiction;
b) One party or another could go now to the Swedish court and make an application for a declaration as to jurisdiction and/or a transfer of mattersrelating
to M's welfare to England.
Children:
Habitual
Residence)
(
Reunite
International
Child
Abduction Centre and others intervening) [
2013]
UKSC 60, [
2013]
3 WLR 761 concerning habitual
residence.
In the judgment of Lady Hale DPSC, with whom the majority agreed, her Ladyship
reviews
the extant domestic and European case law on habitual
residence
and, at paragraph 54, draws the threads together in the following conclusions:
"i) All are agreed that habitualresidence
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.
ii) 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. TheRegulation
must also
be
interpreted consistently with those Conventions.
iii) The test adoptedby
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.
iv) It is now unlikely that that test would produce any differentresults
from that hitherto adopted in the English courts under the 1986 Act and the Hague
Child
Abduction Convention.
v) In my view, the test adoptedby
the European Court is preferable to that earlier adopted
by
the English courts,
being
focussed 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 R v
Barnet
London
Borough
Council, ex p Shah should
be
abandoned when deciding the habitual
residence
of a
child.
![]()
vi) The social and family environment of an infant or youngchild
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.
vii) The essentially factual and individual nature of the inquiry should notbe
glossed with legal concepts which would produce a different
result
from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedingsbrought
![]()
by
A, it is possible that a
child
may have no country of habitual
residence
at a particular point in time."
been
resident
in England for over a year and settled in the care of her grandmother, together with the other significant
background
features of the case, strongly indicate that M is now habitually
resident
in England and no longer habitually
resident
in Sweden. If that is right, says Mr Setright, then the Swedish court would no longer exercise jurisdiction in any fresh proceedings,
but,
if the jurisdiction of the English court has to
be
assessed in
relation
to the circumstances as they were on 12 September 2012, when all accept M was not habitually
resident
in England, there is a
real
prospect of
both
the Swedish court and the English court holding that they do not have jurisdiction with
respect
to M's welfare with the
result
that there is a stalemate and no court in either country can make substantive orders with
respect
to her. It is, therefore, in that context that Mr Setright suggests the two options to which I have already
referred.
re-issue
of a fresh application for a care order, are not steps that this court can direct. They
remain
open to the parties and, if such a course is pursued, the court would then have to evaluate whether or not it did indeed achieve jurisdiction for the English court. Mr Setright commented that such an option would
be
unattractive
because
it is so
blatantly
a tactical strategy. However, I would observe that the unattractiveness of such a course
reduces
when it is set against the
blatant
and admitted tactical nature of the mother's own actions in leaving this jurisdiction and going to Sweden in order to avoid court proceedings prior to M's
birth.
received
by
the local authority or those acting for M. There must
be
a substantial question mark over the locus standi that the local authority would have in Sweden, notwithstanding the fact that currently under the English orders they share parental
responsibility
for M. Similar concern about locus applies to the
child's
representative.
The father himself could only apply for private law orders and does not, in any event, have the funds to make any application. The mother, for her part, has plainly not made her own application in Sweden.
behalf
of M and her
Children's
Guardian, Mrs Jane Crowley QC made a forceful plea for some finality on the issue of jurisdiction, with a decision upholding the judge's conclusion so that long term planning can now
be
undertaken
by
the English court with a view to settling the arrangements for the
remainder
of M's
childhood.
A primary concern on the part of M is that, if the mother's appeal is successful, there is nothing to prevent the mother once again "playing the system"
by
returning
to Sweden with her daughter, and then, possibly moving on again to a third country if the Swedish social services show a higher level of concern than has hitherto
been
the case.
BIIR
Article 8. The mother's case is that "the courts"
referred
to in Article 8 are the courts in England and Wales and that jurisdiction is determined, under that article,
by
whether the
child
is habitually
resident
in that member state at the time that that court, namely the English court, is seised. Miss Crowley's submission is that the
reference
to "the courts" in Article 8 must
be
to the courts in Sweden and, as those courts are not yet seised of any proceedings in
relation
to M, Article 8 does not apply.
response,
Miss Scriven urged this court to set aside the judge's order and make a declaration under
BIIR,
Article 17 that the English court does not have jurisdiction
relating
to M in these proceedings. Further, Miss Scriven submitted that, flexible though it may
be,
the outer extent of what is permissible
by
way of provisional measures under Article 20 has now
been
reached
and any further steps proposed in the continuing proceedings are outside Article 20 and, in Miss Scriven's submission, therefore made without the English court having jurisdiction in the matter.
Discussion
based
to a significant extent upon the
requests
and
responses
made via the International Hague Network of Judges ['the Judicial Network']. It is therefore appropriate to commence an analysis of the issues in this case
by
considering the role of the Judicial Network and its deployment in these proceedings.
children
was first proposed
by
Sir Mathew Thorpe (then Lord Justice Thorpe) at an international seminar in 1998. A convenient description of the current situation is to
be
found in Chapter 3 of the 2012 Annual
Report
of the Office of the Head of International Family Justice (in England and Wales), the office holder at the time
being,
naturally, Lord Justice Thorpe:
'The principal focus of the Office is the facilitation of trans-national judicial collaboration, the processby
which judges of different jurisdictions communicate with each other to assist with the practical aspects of
resolving
a case with an international angle in the
best
interests of justice. A judge in State A,
by
way of example, may want to
be
sure that safe harbour orders are possible in State
B.
He may want to know whether the threat of criminal proceedings can
be
neutralised. He may want to know how quickly an issue can
be
listed. The judge in State
B
may want information as to the law or as to the progress of the proceedings in State A: for instance what protective measures are necessary to safeguard the
child
on
return.
'Direct judicial communication' specifically
refers
to judicial collaboration involving direct communication (such as
by
telephone, video link, or e-mail)
between
judges of different jurisdictions.
International judicial collaboration is facilitated at first instance through network judges, such networksbeing
![]()
both
formal and informal. From the perspective of England & Wales, the two most important networks are the International Hague Network of Judges (the "IHNJ") which operates under the auspices of the Hague Conference of Private International Law, and the network of Family Law Judges which works within the framework of the European Judicial Network (the "EJN"). The role of the network judge is to encourage and facilitate international judicial co-operation on matters of family justice.
binding
rulings from the
requested
Network Judge. The emphasis is upon the practical aspects of
resolving
international cases, including the provision of 'information as to the law', rather than upon obtaining concluded free-standing determinations on matters of jurisdiction or status.
Child
Abduction Convention and the 1996 Hague
Child
Protection Convention, which met in June 2011 under the auspices of the Hague Conference on Private International Law endorsed a document entitled The Emerging Guidance
regarding
the development of the International Hague Network of Judges and General Principles for Judicial Communications (which was Preliminary Document 3A to the Special Commission meeting). The Emerging Guidance was subsequently updated in July 2012.
relates
to the IHNJ, there seems to
be
no
reason
to distinguish
between
the IHNJ and the EJN in this context.
relation
to the second element of the role the Guidance states:
'The second communication function consists of direct judicial communications withregard
to specific cases, the objective of such communications
being
to address any lack of information that the competent judge has about the situation and legal implications in the State of the habitual
residence
of the
child.
In this context, members of the Network may
be
involved in facilitating arrangements for the prompt and safe
return
of the
child,
including the establishment of urgent and/or provisional measures of protection and the provision of information about custody or access issues or possible measures for addressing domestic violence or abuse allegations.
The Principles for Judicial Communications will provide transparency, certainty and predictability to such communications forboth
judges involved as well as for the parties and their
representatives.
Such Principles are meant to ensure that direct judicial communications are carried out in a way which
respects
the legal
requirements
in the
respective
jurisdictions and the fundamental principle of judicial independence in carrying out Network functions.'
requests
made with
respect
to specific cases, the following matters that may
be
the subject of direct judicial communications are offered
by
way of example:
a) scheduling the case in the foreign jurisdiction:
i) to make interim orders, e.g., support, measure of protection;
ii) to ensure the availability of expedited hearings;
b) establishing whether protective measures are available for thechild
or other parent in the State to which the
child
would
be
![]()
returned
and, in an appropriate case, ensuring the available protective measures are in place in that State
before
a
return
is ordered;
c) ascertaining whether the foreign court can accept and enforce undertakings offeredby
the parties in the initiating jurisdiction;
d) ascertaining whether the foreign court can issue a mirror order (i.e., same order inboth
jurisdictions);
e) confirming whether orders were madeby
the foreign court;
f) verifying whether findings about domestic violence were madeby
the foreign court;
g) verifying whether a transfer of jurisdiction is appropriate.
Overarching principles
6.1 Every judge engaging in direct judicial communications mustrespect
the law of his or her own jurisdiction.
6.2 When communicating, each judge seized should maintain his or her independence inreaching
his or her own decision on the matter at issue.
6.3 Communications must not compromise the independence of the judge seized inreaching
his or her own decision on the matter at issue.
Commonly accepted procedural safeguards
6.4 In Contracting States in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:
- except in special circumstances, parties are to
be
notified of the nature of the proposed communication;
- parties or their
representatives
should have the opportunity to
be
present in certain cases, for example via conference call facilities.
6.5 Nothing in these commonly accepted procedural safeguards prevents a judge from following rules of domestic law or practices which allow greater latitude.
basis
the operation of the Network has proved to
be
valuable in lubricating the arrangements that fall to
be
made
between
one jurisdiction and another. It is, however, in my view, outside the scope of the Judicial Network for it to
be
used to obtain an authoritative determination from the court of the
requested
Network Judge on the issues
relating
to a particular
child
where, either, there are no proceedings
relating
to that
child
before
that court, or, if there are proceedings, the determination sought is one that is made outside those proceedings.
reason
why it would
be
outside the scope of the Judicial Network scheme for the
requested
judge to issue an authoritative ruling outside the arena of ongoing court proceedings in his or her court is the one
relied
upon
by
Miss Scriven. In the context of liaison
between
judges in Europe, each will
be
governed
by
the fair trial
requirements
of ECHR, Article 6. One only has to contemplate a
requested
judge issuing a determination in circumstances where they have not heard any of the parties or their advocates, they probably have not
been
exposed to all, or to any, of the key documentation in the case and almost certainly, where there are no extant court proceedings, they do not have any jurisdiction to make a
binding
determination under their domestic law.
background
relating
to the Judicial Network that I have described, I consider that the four questions asked of the Swedish Network Judge fall well outside what can properly
be
requested
via the Judicial Network. To ask (Question 1) 'does the Swedish Court consider that there is a current Swedish jurisdiction in
respect
of the
child
under Article 8 of
BIIR?'
or (Question 2) 'does the Swedish Court consider that the English Court has a substantive jurisdiction outside that conferred
by
Article 20 of
BIIR?'
seeks the determination of fundamental matters of status in a case where those very issues are fully contested. It was wholly inappropriate for the English court to ask such questions
both
as a matter of substance and also
because,
had the Swedish court sought to give a
binding
reply,
such a process would have
been
bound
to
breach
the parties ECHR Article 6 rights.
basis
that, in the absence of current proceedings in Sweden the issue of jurisdiction 'cannot
be
tried'. No doubt if there had
been
current Swedish proceedings, then the question would have
been
answered
by
a ruling after a full court process within those proceedings, and not outside those proceedings via freestanding communication from the Network Judge.
response
to the narrow point that the Swedish court had no current
basis
to determine jurisdiction,
but
went on to offer her opinion that it was 'highly likely' that the Swedish Court would consider that jurisdiction with
respect
to M now lay with England rather than Sweden. It is not for me to offer any view as to whether those additional
responses
were well, or ill, advised. I have already held that it was wholly inappropriate for the English court to ask these questions in the first place. What is, however, clear is that, even taken at their highest, these expressions of opinion as to the 'highly likely' view of the Swedish Court cannot form the
basis
for a finding that the courts in Sweden have actually 'declined jurisdiction', as the judge concluded at paragraph 46. Courts in a Member State can only 'decline' jurisdiction, or declare under Article 17 that they do not have jurisdiction, in the context of a proper judicial process, conducted within ongoing court proceedings in that State where, as Article 17 makes plain, that court is 'seised' of the case
relating
to the particular
child.
relating
to this
child's
welfare needs may point strongly to a
resolution
of the jurisdiction issue in favour of the English court, and although I would not wish to criticise a judge who, in those circumstances, adopts a '
realistic,
pragmatic and common sense' approach and does so from a
child-focussed
perspective, the 'merits' of the case, when the central issue is one of jurisdiction, can only carry the analysis so far and no further. Such an approach can not, and should not, justify inflating the communications that took place over the Judicial Network in this case to providing an authoritative determination from Sweden in which it abdicates jurisdiction with
respect
to M.
both
the process and the internal
reasoning
adopted
by
the judge cannot stand and must
be
set aside, with the
result
that it will fall to this court to determine the issue of jurisdiction under
BIIR
afresh.
BIIR
is Article 8. It is common ground in this case that at the time that the English court
became
seised of this case M was habitually
resident
in Sweden. In consequence Article 8 does not afford jurisdiction to the English court with
respect
to the current care proceedings.
respect,
I am unable to accept Miss Morgan's submission that the terms of Article 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 Article 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 Article 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 Article 8. The wording in Articles 9 and 10 ('
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'.
relating
to M
before
a Swedish court on 12 September 2012 does not mean that the Swedish courts did not have jurisdiction under
BIIR
when these English proceedings were commenced.
BIIR,
Articles 9 to 12 deal with circumstances that do not arise in this case. Article 13, which
relates
to jurisdiction
based
on the
child's
presence in a Member State where a
child's
habitual
residence
cannot
be
established and there has
been
no prorogation of jurisdiction under Article 12, is not
relevant
as M's habitual
residence
can
be
established. Depending on the date at which it is determined it will either
be
Sweden or, if the submissions of some of the parties are correct, England.
residual
jurisdiction where 'no court of a Member State has jurisdiction pursuant to Articles 8 to 13'. For the
reasons
that I have given I conclude that, certainly at the time that the English court was 'seised' of this case in September 2012 and for a considerable period thereafter, jurisdiction attached to the courts of Sweden as
being
the State in which M was (and possibly still is) habitually
resident.
In those circumstances the courts in Sweden did have jurisdiction pursuant to Articles 8 to 13.
BIIR
in
respect
of these care proceedings.
by
virtue of
BIIR,
'it shall declare of its own motion that it has no jurisdiction'. That was the very situation that existed in September 2012. In consequence of Article 17 the English court was
required
to make a declaration of 'no jurisdiction',
but
did not do so. The fact that more than a year has now gone
by
and it can
be
argued that M may now
be
habitually
resident
in England, and no longer habitually
resident
in Sweden, cannot
be
justification for ignoring the
requirement
for a declaration to
be
made in or soon after September 2012. That must
be
particularly so where the fact that M has
been
in England for this time has only
been
achieved
by
the imposition of compulsory orders keeping her here and despite the opposition of her mother.
residence
has changed (and that is a matter which is expressly not determined in this judgment) then that will
be
to a large extent as a consequence of the time that has gone
by
since September 2012 when M has
been
held here under temporary orders of the English court. If, in turn, this
results
in neither the Swedish court any longer having jurisdiction with
respect
to M and the English court not having jurisdiction within these one year old proceedings, that unhelpful situation would seem to
be
a direct
result
of the English court not determining the jurisdiction issue at, or near to, the start of the process in September 2012. A
relatively
prompt hearing on 'jurisdiction' did take place on 31st October 2012. That, however,
resulted
in what is now accepted to
be
an erroneous
request
for Sweden to make a transfer of jurisdiction under
BIIR,
Article 15. The Swedish court did not
respond
to that
request
for over four months [13 March
2013].
By
then the potential for M to
be
drawn into some form of jurisdictional limbo was well established.
basis
that whatever interim steps have
been
taken thus far
by
the English courts (for example assessing the maternal grandmother as a long-term carer) have
been
concluded, it is unnecessary to undertake a detailed audit of those interim measures to determine whether they were, or were not, permissible within the terms of
BIIR,
Art 20. Miss Scriven did not in any event press this aspect of her appeal and it is not therefore necessary to express any conclusion on the Article 20 points.
result
(even if the case were expedited)
by
making a
reference
to the European Court of Justice. In any event no party is actually putting forward a competing construction of the
relevant
articles of
BIIR
as an alternative to the interpretation that I have applied in determining the issue of jurisdiction in this case. The judge's conclusion was
based
upon a finding that the Swedish court had declined jurisdiction. The local authority and the
children's
guardian support the judge's
reasoning
and Mr Setright simply puts forward two pragmatic alternative options, as opposed to offering an alternative interpretation.
reasons
that I have given, I would allow this appeal, set aside the judge's determination on jurisdiction and
replace
it with a declaration under
BIIR
Article 17 that the courts in England and Wales have no jurisdiction with
respect
to the care proceedings concerning M which were commenced on 12th September 2012.
remaining
jurisdiction in the English court in
relation
to these present proceedings arises under
BIIR,
Article 20 and must now
be
focussed upon short-term holding arrangements to facilitate the conclusion of the proceedings in an orderly manner that meets the
requirements
of M's welfare. These are matters of important detail that can
be
dealt with
by
HHJ Newton in the High Court at the hearing which is already planned for 18 November
2013.
In those circumstances I would direct that the existing interim orders made
by
the High Court, including the interim care order, should
remain
in force until discharged or varied
by orders made at the conclusion of the forthcoming hearing.
Lady Justice Gloster
Lord Justice Lloyd