Mrs Justice Theis
DBE:
Introduction
- The issue the court is
required
to
determine
is whether it has jurisdiction to make orders concerning parental
responsibility
in
respect
of a child, T, age 4, the son of the applicant mother ('the mother') and first
respondent
father ('the father') T is a party to these proceedings through his guardian, following the
direction
on 14 February 2018.
- The competing live applications are the mother's application to continue her interim leave to
remove
T from the jurisdiction and for leave to
remove
T from the jurisdiction to live permanently in the US (having been given leave in March 2017 to go for a year) and the father's application for a child arrangements order, or (probably more
realistically)
for shared care/
defined
contact.
- For
reasons
which are set out below, T has been in the US since March 2017 and save for a few occasions (once prior to going to the US in March and a few
days
in September 2017 in the US) he has not seen his father
regularly
since October 2016 when the parties separated, although it is right to
record
he has had twice weekly skype contact since March 2017.
- Before turning to the
detail
in
relation
to the court's
decision
I would like to
record
that at the start of this hearing I
referred
the parties to the mediation
resource
that is available in this court to assist parties with family
disputes
that cross jurisdictions, as this case
does.
I would urge the parents in this case to continue with the
resource.
Whilst the court is always there to make
decisions
it is
recognised
that in appropriate cases
decisions
about children
reached
with the agreement of both parents often have a more secure and enduring quality than those after long
drawn
out litigation.
Relevant
Background
- The mother is originally from the US, the father is British. She met the father here in 2012,
returned
back to the US later that year,
returning
here in September 2013 following the parent's engagement in the US. The mother came here with her
daughter
E, then age 9, but
returned
to the US with E in November 2013. The parties
dispute
the
reasons;
the father says
due
to financial pressure the mother alleges the father sought to pressure her to have an abortion. The mother
did
not
return
to the UK until August 2014 following their wedding in the US. By then T was 6 months old.
- The parents lived together with the two children until October 2016, when they separated. The mother alleges
domestic
abuse and went to a
refuge
with the children. The father
denies
any abusive behaviour. The father sought an order in November for
disclosure
of the child's whereabouts and a prohibited steps order preventing the mother from
removing
the child from the jurisdiction. Those orders were granted by
DJ
Harrison. The mother sought non-molestation orders and that application was
resolved
by undertakings in January 2017. The father's application came before the court on 1 February 2017 when
DJ
Jones adjourned the matter until 22 April 2017 pending further evidence
regarding
the parents mental and physical health via their GPs.
- Very tragically, on 21 February 2017, E was
diagnosed
with terminal cancer, with only a limited life expectancy. The mother wished to
return
to the US for E to
receive
medical treatment, to be near her birth father and for them all to have the support of the wider maternal family. The father
did
not agree to T going,
resulting
in the mother making an application to the court. The mother was unrepresented, the father and the child were legally
represented.
- The matter came before HHJ Oliver who made an order on 6 March 2017 giving the mother conditional leave to
remove
the child from the jurisdiction until 6 March 2018 on condition that the father sought a mirror order in X US State, which he
did.
On 9 March 2017 HHJ Oliver gave the mother permission to
remove
T from the jurisdiction 'in accordance with the terms of the order made on 6 March 2017'. That order
records
the parties as being in person, and there having been telephone hearings on 7, 8 and 9 March and that the mother had signed the necessary
documentation
for the order to be secured in X US State.
- In the order
dated
6 March the following
recitals
are
recorded:
3.And the mother and father agreeing and the court
declaring
that the court of England and Wales are the courts with primary jurisdiction to consider matters
relating
to the exercise of parental
responsibility
in
respect
of T on the basis that (i) T is habitually
resident
in England and Wales and (ii) the Courts of England and Wales are best placed to make
decisions
about T's upbringing and welfare;
4.And upon the court
declaring
that the mother and father both have rights of custody in
relation
to T for the purposes of Articles 3 and 5 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction'
- In addition, the mother gave undertakings
11.Not to initiate or issue proceedings in any court in [X US State] or elsewhere in the United States of America in
relation
to T.
12.Not to challenge (and will not seek to challenge before any court in [X US State] or elsewhere in the United States of America) the fact that T lives in the jurisdiction of England and Wales
13.To
return
T, or cause the
return
of T, to the jurisdiction of England and Wales forthwith on or before 6.3.18 with liberty to apply to court of England and Wales, no later than 6.2.18, to extend the time if permission from the applicant father is not given.
- The order
dated
6 March 2017 set out in a schedule provision for skype contact twice per week and
daily
supervised contact in the US for periods up to 6
days
in May, September and
December.
There has been some skype contact and only the September
direct
contact has taken place.
- Very sadly, E
died
in June 2017 and is buried near the maternal family home in X US State
- On 5
December
2017 the mother signed a C100 application seeking, in effect, to extend the time to
remain
in the US. In the C1A form
dated
20
December
2017 she sets out the
domestic
harm and violence she alleges has taken place and the severe anxiety she states T is suffering, in part
due
to what is
described
as being 'the forced interaction with his father'. In that application she seeks a temporary break in contact between the child and the father.
- Following
receipt
by the father from the court on 5 January 2018 of the mother's application he filed a C7 acknowledgement on 16 January 2018, in which he sought sole or joint custody.
- The application was heard by
DJ
King on 14 February 2018. Both parties were
represented
by counsel. The order
records
the father's agreement to T
remaining
in the US until 7
days
after the next hearing. He
directed
the matter should be listed before the
DFJ,
joined the child as a party, both parties to
re-file
and
re-serve
documents
and evidence they wish to
rely
on by 21 February. The Guardian was
directed
to file an initial analysis by 28 February.
- The next hearing was on 8 March 2018 before HHJ Moradifar. The parents were in person and the child was
represented
by Ms
Dail.
The order
records
the application as (a) the applicant has applied for a child arrangements order (CAO) and permission to extend paragraph 13 of the order
dated
6 March 2017 and the child's
removal
permanently from the jurisdiction to the US and (b) the father seeks a CAO and in the alternative shared care/
defined
contact order. The order also
records
the father's continuing agreement until the next hearing for T to
remain
in the US and twice weekly skype calls are
recorded
as being agreed. The local authority were
directed
to attend the next hearing on 26 March 2018. That hearing was further adjourned twice as the parents were seeking public funding for legal
representation
and was next effectively listed on 17 May 2018. The Children's Guardian made a part 25 application for an expert assessment on 17 May, to instruct a psychologist in the light of the information that had been filed by the mother with her application in
December
which set out that the child was suffering from stress. The purpose of the
report
was to
determine
whether the child's presentation is as a
result
of his current situation or whether there are any underlying psychological issues, as well as assessing the child's
relationship
and attachment with each parent. UK based psychologists were put forward who could
report
within 13 to 22 weeks.
- The matter was listed before HHJ Marshall on 17 May. The mother was in person and joined the hearing by telephone, the father attended in person and the child was
represented.
The local authority attended and are
recorded
as stating they were unable to undertake any assessment if the child
remained
out of the jurisdiction. The parties were
directed
to file any
revised
applications and statement by 11 June 2018 addressing the child's interim placement. The matter was listed for a contested hearing to consider the child's interim placement and whether the mother should continue to be given permission for the child to
remain
in the US.
- At the hearing on 25 June both parents were legally
represented,
the matter was adjourned until 12 July with
directions
for the filing of evidence about the interim arrangements and the mother about hers and T's health.
- At the hearing on 12 July the mother raised for the first time the issue of jurisdiction, that the child was habitually
resident
in the US. The matter was
re-allocated
to me and listed on 31 July 2018 for
directions.
Further
directions
were made at that hearing and the matter was heard on 8 August. I
reserved
judgment until 10 August.
Legal Framework
- There is limited issue between the parties about the essential legal framework, the issues centre on the application of the
relevant
principles. Both Ms
Martin
and Ms
Dail
rely
heavily on the helpful legal analysis in Mr
Sampson's
skeleton argument.
- Jurisdiction in
respect
of Part 1 orders (including s.8 orders under the Children Act 1989) is
derived
from two sources: The Family Law Act 1986 as amended and Council
Regulation
(EC) No 2201/2003 ('BllR') of 27 November 2003 'concerning jurisdiction and the
recognition
and enforcement of judgments in matrimonial matters and the matters of parental
responsibility'.
- The Family Law Act 1986 was amended to
recognise
the primacy of BIIR and provides at s.2(1) that:
A court in England and Wales shall not make a section 1(1)(a) order with
respect
to a child unless:
(a) it has jurisdiction under the Council
Regulation
(Brussels IIA) (or the 1996 Hague Convention); or
(b) the Council
Regulation
(Brussels IIA)
does
not apply but:
(i) the question of making the order arises in or in connection with matrimonial proceedings and the condition in section 2A of this Act is satisfied or
(ii) the condition in section 3 of this Act is satisfied.''
. In I (A Child) [2009] UKSC 10 Lady Hale noted at para 15: 'if Brussels II
Revised
applies, it governs the situation. If some other EU country (excluding
Denmark
for this purpose) has jurisdiction under the
Regulation,
then this country
does
not. But if Brussels II
Revised
applies and gives this country jurisdiction, it will give jurisdiction even though the
residual
jurisdictional rules contained in the 1986 Act would not. Only if Brussels II
Revised
does
not apply at all will the
residual
rules in the 1986 Act come into play'.
Re
I (supra) is authority for the proposition that the 'other' country need not be a member state itself where considering the issue of prorogation under Article 12. It is sufficient that this country is a member state. This is further clarified in
respect
of the wider ambit of BIIR's application in the Supreme Court
decision
In the matter of A (Children) (AP) [2013] UKSC 60 in particular paragraphs 20, 25, 30 & 31.
- Article 8.1 of BllR provides
"(i)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."
- The issue of habitual
residence
has been the subject of five
decisions
of the Supreme Court starting with
Re
I in 2009 and most
recently
Re
C [2018] UKSC 8. It is essentially a fact-based enquiry. In
Re
B (a minor: habitual
residence)
[2016] EWHC 2174 (Fam) at para 17 Hayden J provides a helpful non-exclusive list of the key factors the court needs to consider:
'The habitual
residence
of a child corresponds to the place which
reflects
some
degree
of integration by the child in a social and family environment (
Re
A (children), adopting the European test);
(ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual enquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual
residence
(
Re
A (children),
Re
KL (a child));
(iii) In common with the other rules of jurisdiction in BIIA, its meaning is 'shaped in the light of the best interests of the child, in particular on the criterion of proximity'. Proximity in this context means 'the practical connection between the child and the country concerned' (
Re
A (children) (para [80](ii));
Re
B (a child)6 (para [42]) applying Mercredi v Chaffe at para [46]);
(iv) It is possible for a parent unilaterally to cause a child to change habitual
residence
by
removing
the child to another jurisdiction without the consent of the other parent (
Re
R sub nom AR v RN (habitual
residence));
(v) A child will usually but not necessarily have the same habitual
residence
as the parent(s) who care for him or her (
Re
LC (children) (no 2)). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focussed. It is the child's habitual
residence
which is in question and, it follows the child's integration which is under consideration.
(vi) Parental intention is
relevant
to the assessment, but is not
determinative
(
Re
KL,
Re
R and
Re
B);
(vii) It will be highly unusual for a child to have no habitual
residence.
Usually a child loses a pre-existing habitual
residence
at the same time as gaining a new one (
Re
B);
(viii) In assessing whether a child has lost a pre-existing habitual
residence
and gained a new one, the court must weigh up the
degree
of connection which the child had with the state in which he
resided
before the move (
Re
B6 –see in particular the guidance at para [46]);
(ix) It is the stability of a child's
residence
as opposed to its permanence which is
relevant,
though this is qualitative and not quantitative, in the sense that it is the integration of a child into the environment rather than a mere measurement of the time a child spends there (
Re
R and earlier in
Re
KL and Mercredi v Chaffe);
(x) The
relevant
question is whether a child has achieved some
degree
of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually
resident
(
Re
R, AR v RN) (emphasis added);
(xi) The
requisite
degree
of integration can, in certain circumstances,
develop
quite quickly (Art 9 of BIIA envisaged within 3 months). It is possible to acquire a new habitual
residence
in a single
day
(
Re
A;
Re
B). In the latter case Lord Wilson
referred
(para [45]) those 'first roots'
represent
the
requisite
degree
of integration and which a child will 'probably' put
down
'quite quickly' following a move;
(xii) Habitual
residence
was a question of fact focussed upon the situation of the child, with the purposes and intentions of the parents being merely among the
relevant
factors. It was the stability of the
residence
that was important, not whether it was of a permanent character. (
Re
R, AR v RN)
(xiii) The structure of Brussels IIA, and particularly
Recital
12 to the
Regulation,
demonstrates
that it is in a child's best interests to have an habitual
residence
and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual
residence;
as such, "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" (
Re
B).'
- The clear message from the cases is that the child is at the centre of the exercise in evaluating the child's habitual
residence.
This will involve consideration of the child's
day
to
day
life and experience, family environment, interests and routine.
- If the court
reaches
the conclusion that T
remains
habitually
resident
here it is accepted this court has jurisdiction, even though T may
remain
in the US pending the
determination
of the competing applications.
- If the court concludes T's habitual
residence
has changed then it is agreed the court will need to consider prorogation under Article 12, the
relevant
parts of which are set out below:
Prorogation of jurisdiction
1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for
divorce,
legal separation or marriage annulment shall have jurisdiction in any matter
relating
to parental
responsibility
connected with that application where:
(a) at least one of the spouses has parental
responsibility
in
relation
to the child;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental
responsibility,
at the time the court is seised, and is in the superior interests of the child…
3. The courts of a Member State shall also have jurisdiction in
relation
to parental
responsibility
in proceedings other than those
referred
to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental
responsibility
is habitually
resident
in that Member State or that the child is a national of that Member State;
and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.'
- There is no issue between the parties that the child has a substantial connection with the member state and the father is habitually
resident
here. Also, the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner. This is supported by the
recitals
in the March 2017 order and the fact that the mother issued her application here in
December
and has submitted to this court's jurisdiction until
relatively
recently.
- In
relation
to when the court 'is seised' Article 16 provides as follows:
'(1) A court shall be
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 to be 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 subsequent proceedings have been issued (whether fresh proceedings or for variation / enforcement of existing orders under the original case number) the court must consider whether seisin
refers
back to the issue of the original proceedings or
refers
to the subsequent application. In E v B Case C – 463/13 the ECJ held that 'prorogation of jurisdiction, on the basis of Art 12(3) of BIIR, is valid only in
relation
to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end, in favour of the court benefiting from a general jurisdiction under Art 8(1) of that
regulation,
following the final conclusion of the proceedings from which the prorogation of jurisdiction
derives'
[para 49] pursuant to which jurisdiction 'ceases following a final judgment in those proceedings' [para. 50].
- The issue of pre-emptive prorogation whether by an undertaking to apply back to the courts of England and Wales and / or not to seek to litigate in the country to which the child is to be taken, have been considered in a number of cases (see Baker J in X v Y and Another - [2015] 1 FLR 1463, following Parker J in AP v TD (
Relocation:
Retention
of Jurisdiction) [2010] EWHC 2040 (Fam), [2011] 1 FLR 1851 and again by Baker J in
Re
ED (jurisdiction: undertaking to
return
child) [2014] EWHC 2731 (Fam), [2015] 2 FLR 1019.)
- These
decisions
need to be considered in the light of the ECJ
decision
in E v B. The situation in this case is that the mother undertook to
return
the child at the end of the period of the temporary leave and agreed not to issue any proceedings in the US. As Baker J concluded in
Re
ED (supra) an undertaking to
return
a child, which amounted to a condition precedent to the granting of temporary permission by this court amounted to unequivocal acceptance of this court's ongoing jurisdiction for the purposes of Article 12.3.
- The focus has been on the last part of Article 12 (3) (b), namely whether prorogation is 'in the best interests of the child'.
- This issue has been considered in a number of cases, in particular
Re
I (supra) and E v B (supra). The question is whether 'it is in the child's interests for the case to be
determined
in the courts of this country rather than elsewhere'. As Lady Hale has made clear, this is quite
different
from the substantive issue in the proceedings.
- Holman J considered this issue in B v B (Brussels II
Revised:
Jurisdiction) [2010] EWHC 1989 (Fam). The fact that a child had been
resident
in Germany for nearly a year and a welfare investigation of his current circumstances was best carried out in Germany was a
relevant
factor in Holman J's finding that the best interests limb of Art 12.3 was not satisfied and that, accordingly, the court should
decline
to exercise its jurisdiction, meaning that litigation would move to Germany where the child was habitually
resident
by that time.
Submissions
- Mr
Sampson's
attractive and comprehensive written and oral submissions make the following points.
- The
relevant
time for the court to consider whether T was habitually
resident
here was when the court was first seised. He submits that was January 2018 when the father
received
her application to extend the temporary leave to
remove,
which was then
deemed
by the court as including an application for leave to permanently
remove
the child from the jurisdiction (see paragraph 7 (a) order
dated
8 March). He submits the earlier application in March 2017 had been
determined
with the orders made by HHJ Oliver on 6 and 9 March 2017.
- He submits when considering the factual situation in January 2018 T was well integrated in into life in the US. The evidence establishes that he is settled in the care of his mother and with the wider maternal family, embedded in the local community and
receives
pastoral, therapeutic and educational input. Whilst it is accepted when T left in March 2017 he was then habitually
resident
in England and Wales, by January 2018 the position had changed. Mr
Sampson
relies
on what is stated in AR v RN [2015] UKSC 35 that in order to establish habitual
residence
there was 'no
requirement
that the child should have been
resident
in the country in question for a particular period of time.' [para 16]. As to the state of mind of the parents and the impact this has on the acquisition of habitual
residence
earlier in that paragraph Lord
Reed
states '…it is the stability of the
residence
that is important, not whether it is of a permanent character'.
- Mr
Sampson
submits
during
the time T has been in the US and by January 2018 he has become settled, integrated and living not only with his mother but in an environment into which he had fully integrated and was living in the centre of a wider family and community.
- If the court accepts his submissions
regarding
habitual
residence
he accepts the child has a substantial connection with the England and Wales and that the acceptance of the jurisdiction was expressly accepted by the parties at the time the court was seised of the proceedings on the basis that the undertakings given in March
regarding
jurisdiction were a condition precedent to the granting of temporary permission by this court and amounted to unequivocal acceptance of the court's ongoing jurisdiction for the purpose of Article 12.3.
- Mr
Sampson
submits it is the final consideration, namely the best interests of the child, that is the focus of his submissions on Article 12.
- He submits the principles that can be
drawn
from the authorities in
relation
to the application of the
review
of best interests is as follows:
'(i) not attenuated but is limited to a
review
of best interests on the issue in question (that of whether to assume jurisdiction) and not a pre-emptive
review
of the potential outcomes available;
(ii)not to assume that one member state is better able than another (or in this case the US) to consider the child's welfare interests (save for the exception in
respect
of non-Hague Convention countries under Article 12.4).
(iii)an appropriately comprehensive consideration of the fact-specific issues on examining whether prorogation of jurisdiction is in the best interests of the child. That is, as a matter of logic, a comparison of whether actual litigation here or potential / proposed litigation (for none has been issued) in the US would be in the best interests of the child. It is accepted that this court must factor into that exercise as
relevant
matters: (i) the fact that the parents have to
date
acceded to the exercise of this court's jurisdiction and (ii) that there is no litigation in the States as yet. Additional matters such as availability of assessments, funding, access to lawyers will fall to be considered.'
- As a consequence, applying those considerations in this case, the
relevant
factors are summarised by him as follows.
- The
relocation
application
requires
careful analysis of the home environment, wider family support available in the US and evidence
relating
to T's welfare. That is best assessed in situ, where it will be most accurate and
reliable.
T's specific and psychological needs are such that his assessor must have knowledge of the services and support that are available locally to him. The mother and T have experienced a profound loss and are navigating ongoing bereavement. It is simply not
realistic
to
require
a newly bereaved mother to conduct international litigation at arm's length. In
reality
the father is not seeking a change of primary
residence.
Issues in
relation
to contact and
relocation
are again best litigated in the United States. Whilst it is
recognised
there is the availability of public funding in the UK that is not
determinative,
it is a factor to weigh in the balance. Both parents are potentially able to obtain pro bono
representation
in the US and the mother has, through solicitors, obtained names and
details
of expert assessors able to undertake assessments in the US, if
required.
- Mr
Sampson
candidly
recognised
that it is unusual for an application for permanent
relocation
to be conducted in the state to which a parent wishes to move but the
reality
here is that the court is charged with
determining
welfare issues
relating
to a child who has been
resident
in the US for over a year, in circumstances where that child has suffered a bereavement and whose family still
reel
from the loss of a sibling. It would be contrary to T's best interests for litigation to
determine
his welfare to be conducted in a jurisdiction so far away from his
day
to
day
life. The father's future involvement in T's life and the mother's ability to support that can be fully
determined
within litigation to
determine
these issues in the US. The mother is willing to undertake, whilst these proceedings are stayed, to issue an application in the US to
determine
her application to
relocate
and
determine
the father's contact with the child.
- Ms
Martin,
in her full and helpful written and oral submissions on behalf of the father,
resists
any finding that T is habitually
resident
in the US and, in the event that he is, submits that all the criteria under Article 12
require
this court to
retain
jurisdiction.
- Although in her written submissions she seeks to suggest the
date
the court should be looking at in
relation
to habitual
residence
should be March 2017 as that was 'when the court was first seised', she was less forceful on this in her oral submissions
recognising
that the orders of HHJ Oliver in March 2017 effectively
determined
the applications that were before him at that time.
- In
relation
to the issue of habitual
residence
she submits that the fact that T has been in the US since March 2017 is not in
dispute
'However, this time cannot, in the face of clear orders, in both the courts of England and [X US State], usurp the habitual
residence
in this jurisdiction and which continues'. In oral submissions she
recognised
that even on her analysis there must come a time when habitual
residence
could change, and it would
depend
on the facts. She
recognises
that 'T has undoubtedly formed bonds with his
relatives
in the USA, but that integration was temporary both factually and intentionally'. She submits he has bonds with his father here which have been
disrupted
by the mother's actions, by
retaining
him in the US and not being supportive about contact,
relying
in particular on the suggestion by the mother than the child's PTSD
diagnosis
is
due
more to the way the father behaves
during
contact, rather than being
due
to the other matters such as the loss of his sister and moving to another jurisdiction.
- Ms
Martin
relies
on the terms of the US mirror order, in effect,
determining
that habitual
residence
is here. She submits that 'until that order is successfully appealed,
revoked
or otherwise
discharged
it stands.'
- She submits that to
determine
that T's habitual
residence
has changed to the US would
'a) fly in the face of the orders of the courts both here and the USA;
b) sanction and permit the mother to breach the orders of the court and her undertakings given to the court;
c) leave T in potential limbo given the orders made here and in the USA stating that habitual
residence
remains
here and the courts in this country should
deal
with this issue; and
d)
leave a situation where T is being alienated from his father with little
realistic
recourse
for the father who lacks the funds to pursue a case in the US (M asserts the availability of pro bono legal services for F in US but this is unsubstantiated) where there would be no
recourse
to legal aid for either of the parties.'
- Ms
Dail
on behalf of the Children's Guardian takes a pragmatic approach in her skeleton argument. She
doesn't
specifically address the issue of habitual
residence
but submits this case has proceeded, until very
recently,
on the basis that this court has jurisdiction. It was expressly conceded in the
recitals
to the orders made in March 2017 that this court
retained
jurisdiction. The mother made her application to extend the leave in
December
2017 and, in effect, submitted and acceded to this court's jurisdiction until July 2018. The Guardian
does
not understand that the father seeks to change T's
residence
and the mother's wish is
recorded
in the order in May 2018 to 'put forward a one-year plan for the care and contact arrangements in
respect
of T acknowledging T needs to
develop
his
relationship
with his father. After which contact will be kept under
review'.
She confirmed the Guardian
does
not seek T's
return
to the jurisdiction 'although a short visit might become necessary once assessments commence'.
Discussion
and
Decision
- The first question the court has to consider is the question of habitual
residence.
There is no issue that at the time T left to go to the US his habitual
residence
was here. That accords with the
recital
agreed by the parties in March 2017, notably
recital
3
records
that the child 'is' habitually
resident
here.
- It seems inescapable that when HHJ Oliver made the orders on 6 and 9 March 2017 the applications that were before him at that time were
determined
and concluded by the orders made. There were no further hearings and no
reviews.
- As a consequence when the mother made her application in
December
2017, that was issued in January 2018, the court was seised afresh, with the
result
that the question of the court's jurisdiction is
required
to be considered at that time.
- Was T's habitual
residence
still in England and Wales? At that stage he had been out of the jurisdiction for 8 months. He had been living with his mother in the maternal family home and all the evidence points to him having become integrated there in the sense of the wider maternal family, his involvement with the local community and the other wider support he was
receiving.
His father
remained
living here, he had some
direct
contact in September and
retained
twice weekly skype contact with him, but apart from that link, the history of his habitual
residence
here together with the
recitals
in the March 2017 order and that the leave to
remove
was expressed as being time limited (albeit with provision to extend) there was little else that connected him with this jurisdiction or could found that he was integrated in a social and family environment here.
- Ms
Martin's
submissions
regarding
habitual
residence
are anchored on the terms of the March order, coupled with the terms of the mirror order in the US. That view in my judgment is too blinkered when undertaking the factual
review
the court is
required
to undertake. What took place in March is clearly
relevant
but T's life has not stood still. The court is bound to consider the matter afresh in
December.
- One of the
difficulties
in this case is that
despite
the fact that the mother was
represented
by previous counsel in February before
DJ
King no issue about jurisdiction was raised and it
does
not feature on the order then or subsequently until raised for the first time on the order
dated
12 July, some six months after the mother had made her application and prior to then had fully acceded to the court's jurisdiction, engaged with the hearings and complied with the court
directions.
However, that, in my judgment is more
relevant
to issues in
relation
to Article 12 than habitual
residence
of the child.
- Having considered the
relevant
considerations and looked at the helpful matters summarised by Hayden J in
Re
B (supra) I have
reached
the conclusion that in January 2018 when this court was seised with the current application T's habitual
residence
was in the US for the following
reasons:
(1) Whilst
recognising
that T's father
remains
here the
reality
for T's
day
to
day
life is that he is integrated in the social and family environment in the US and that is where his stability lies.
(2) Weighed in the balance is the fact that the leave to
remove
was time limited, but it was expressly open to the mother to apply to extend it, which she
did.
(3) T's connection with this jurisdiction largely focuses on his father and his connection with him, whilst important, has to be weighed with other aspects of his life.
(4) It is factored in that the intention of the parents in March 2017, as
recorded
in the
recital,
was that T's habitual
residence
then was England and Wales. The
recital
is expressed in the present tense, perhaps
recognising
the
reality
that it is probably not possible to bind in an unlimited way what is essentially a fact-based inquiry at the
relevant
time when the court is later seised. As the
relevant
authorities have
repeatedly
made clear it is not necessarily the length of time that
determines
habitual
residence,
but the
determination
is guided by factors such as the stability and the
degree
of integration.
- Having
reached
that conclusion, the court is then
required
to consider the question of prorogation under Article 12, focussing on the issue
relating
to the superior or best interests of the child, the other
requirements,
for the
reasons
outlined above, not being in issue.
- The focus of this is not the welfare issues raised by the substantive application, but more
deciding
on the most appropriate forum for those issues to be
determined.
- I have
reached
the conclusion that the balance when considering the interests of the child come
down
on this court
retaining
jurisdiction. This is for the following
reasons.
(1) Between
December
and May the mother unconditionally acceded to the court's jurisdiction. Whilst it is
recognised
she was a litigant in person
during
much of that time she was legally
represented
by previous counsel in February and had the benefit of legal
representation
from 25 June 2018.
(2) There is a structure in place here, the applications have been ongoing for over six months,
detailed
statements have been filed and all parties have the benefit of public funding and experienced legal
representation.
(3) There is no litigation on foot in the US, there is no guarantee of legal
representation,
neither parent have the financial
resources
to fund it and there would inevitably be further
delay
in
reaching
any
decisions
regarding
T's welfare.
(4) It is
recognised
that the analysis of the home environment and wider family support available in the US may be better assessed within proceedings there, but the same would apply in
reverse
to some extent in
relation
to the father if the proceedings were in the US. The
reality
of this case is whichever jurisdiction is involved there will need to be significant enquiries made in the other jurisdiction.
(5) The impact on the mother of
recent
events has been considered, but she has the advantage of the availability of the support of her family and the benefit of experienced legal
representation
here.
(6) There appear to be funding and practical arrangements in place here that can be put in hand for any assessments of T and/or the adults the court considers to be 'necessary'. With the benefits of electronic and other communication it will be possible for this court to understand what support and services are available locally in the US.
- In my judgment the issue of jurisdiction having now been
determined
the focus now should be effective case management leading to a hearing where all outstanding issues can be
determined.
- Before considering further case management issues all I can
do
is
return
to where I started and encourage these parties to engage in mediation. The adults being able to
reach
agreement about T's future care arrangements in whole or even part would no
doubt meet T's welfare needs.