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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: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1434.html Cite as: [2013] WLR(D) 461, [2014] 1 Fam 139, [2014] Fam Law 20, [2014] 2 WLR 1384, [2013] EWCA Civ 1434, [2014] 1 FAM 139, [2014] 1 FLR 900, [2014] FAM 139, [2014] 1 FCR 87, [2014] 1 All ER 1045 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE, FAMILY DIVISION
HHJ LESLEY NEWTON
NF12C00222
Strand, London, WC2A 2LL |
||
B
e f o r e :
LADY JUSTICE GLOSTER
and
LORD JUSTICE FLOYD
____________________
Re: ![]() ![]() |
____________________
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:
Factual background
The Brussels
II Revised Regulation
The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of thebest
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.
This Regulation 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.
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.
The term "parental responsibility" shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal personby
judgment,
by
operation of law or
by
an agreement having legal effect. The term shall include rights of custody and rights of access.
1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.
2. Paragraph 1 shallbe
subject to the provisions of Articles 9, 10 and 12.
Where a child 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.
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediatelybefore
the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and …
Where a child's habitual residence cannotbe
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.
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.
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
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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 a requestbefore
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 the child 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. The child shallbe
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 habitual residence of the child; or
(c) is the place of the child's nationality; or
(d) is the habitual residence of a holder of parental responsibility; or
(e) is the place where property of the child 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.
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 was required 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 this Regulation and over which a court of another Member State has jurisdictionby
virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.
1. In urgent cases, the provisions of this Regulation 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 maybe
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 measures referred 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
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.
Article 15 Transfer request
'There are no ongoing proceedings regarding the minor M in Stockholm District Court. For this reason there is nobasis
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
Question 1:
'Does the Swedish Court consider that there is a current Swedish jurisdiction in respect of the child under Article 8 ofBIIR?
Miss
B,
M's mother, asserts that M is 'habitually resident' in Sweden, the other parties reserving their position.'
Response:
'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?'
Response:
'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
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's refusal 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 in Re 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 ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
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 ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
The case on appeal
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 judge relied on Article 20 ofBIIR
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.
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 matters relating to M's welfare to England.
"i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
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. The Regulation must alsobe
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 different results 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 young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
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."
Discussion
'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.
'The second communication function consists of direct judicial communications with regard to specific cases, the objective of such communicationsbeing
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.'
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 the child or other parent in the State to which the child wouldbe
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 must respect the law of his or her own jurisdiction.
6.2 When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.
6.3 Communications must not compromise the independence of the judge seized in reaching 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;
- any conclusions reached should
be
in writing;
- 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.
Lady Justice Gloster
Lord Justice Lloyd