B e f
o
r e :
MR. JUSTICE BAKER
(In
Private)
____________________
____________________
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____________________
MR. HENRY SETRIGHT QC and MR. STEPHEN LYON (instructed by Thomson Snell &
Passmore)
appeared
on
behalf
of
the Applicant.
MISS JANE CROWLEY QC and MISS CAROLINE WILLBOURNE (instructed by Kingsford Solicitors, Ashford) appeared
on
behalf
of
the Respondent.
MR. JOHN STOCKER appeared
on
behalf
of
the
Official
Solicitor (as Amicus Curiae) (MISS ELERI JONES appeared
on
5.8.11).
____________________
HTML
VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
MR. JUSTICE BAKER:
- In this judgment, I consider a
preliminary
issue arising in these
proceedings
in which a mother, "
O",
seeks an
order
against her former
partner,
"
P",
for financial relief under Schedule 1 to the Children Act 1989 in respect
of
their daughter, "S", born in [a day in] April 1997. The
preliminary
issue is whether the court has jurisdiction to entertain the application. Given the notice
of
application was filed
on
29th February 2000,
over
11 years ago, it may be thought unusual, to say the least, that the issue
of
jurisdiction is
only
now being considered. Furthermore, if the court determines that it does have jurisdiction, a supplementary issue will arise as to whether the application can, as a matter
of
law and, if so, should in all the circumstances, be stayed
on
grounds
of
forum non conveniens. That issue has not been argued before me so far and could not be determined without a further hearing.
- The reasons for the 11-year delay in the
proceedings
and the difficulty that has
prevented
the
parties
arguing the issue
of
forum non conveniens at the hearing I have just concluded will emerge from the following summary
of
the background to this case, which is extraordinary even by the standards
of
this division.
Summary
of
background
- The father was born in 1951 and is now aged 59. The mother was born in 1960 and is therefore now aged 51. The
parties
met in 1984 at a time when both were married to
other
people.
The father was then living in Kent, and the mother in Glasgow. The father suggested a relationship with the mother, but she apparently declined. The following year the mother separated from her husband and moved to live in Andorra for three years. Then in 1988 she travelled to Australia where she stayed for nine months, during which time she met another man called X. In 1989 she returned to Scotland and her marriage was dissolved. Later that year the
parties
met again in Scotland and shortly afterwards started a relationship. At that stage the father was the
owner
of
substantial
property
in Kent, Z House, and an island in Scotland. He had recently separated from his wife by whom he had two daughters. Thereafter the
parties
lived at Z House and spent every
other
weekend
on
the Scottish island. However, in January 1992 the father experienced financial difficulties and the island was sold. Thereafter the
parties
continued to live together at Z House in Kent.
-
On
[a day in] April 1997 S was born in Kent. Shortly afterwards the relationship between the
parties
began to break down. The mother alleged that she was the
victim
of
domestic
violence.
In August 1999 the mother and S left Z House with the assistance
of
the
police
and flew to Scotland where they stayed with the maternal grandparents in Aberdeenshire. The mother then decided to fly to Australia and travel there with S
on
a return ticket
on
13th August 1999.
On
the same day the father issued an application for
parental
responsibility, residence and contact in the Tunbridge Wells County Court.
On
27th August that court made an
order
for the disclosure
of
information as to the whereabouts
of
the child and the delivery
of
S for staying contact with the father. Meanwhile, the mother had engaged solicitors in Australia who made an application
on
1st September for a
protection
order
in the court in Townsville, Queensland.
-
On
3rd September, the father made an application to the High Court under the Hague Convention
on
the Civil Aspects
of
International Child Abduction 1980. The
proceedings
in the Tunbridge Wells County Court were subsequently transferred to the
Principal
Registry
of
the High Court.
On
6th September, the father made an application in the Queensland Court for the equivalent
of
a
prohibited
steps and residence
orders
pending
the return
of
the child to the United Kingdom. The mother filed affidavits in the Australian
proceedings
expressing a wish to remain in Australia. In reply, the father filed an affidavit stating that he would support S
on
her return to the United Kingdom and would assist the mother financially.
On
16th September, the judge in the Queensland Court ruled that the best
place
for "the complicated issues" to be determined was in the English court. The mother undertook to return S to the United Kingdom within two weeks and,
on
the basis
of
that undertaking, was granted residence
of
S
pending
their return. Thereafter,
orders
were made in the English court
prohibiting
the mother from removing S from England and Wales upon return to the jurisdiction, and directing her to hand
over
her
passport
to her solicitor
on
arrival at Heathrow.
-
On
1st
October
1999, the mother and S arrived back from Australia. By a further
order
dated 4th
October,
the mother was given temporary relief until the final hearing
of
the father's application for a residence
order
to remove S from England and Wales
on
the basis that they live at the maternal grandparent's home in Aberdeenshire. The
order
further
provided,
however, that there should be regular contact between the father and S for
periods
of
ten days every three weeks. Thereafter, the
parties
filed affidavits in the English
proceedings
- the father seeking a residence
order
whereunder he and S would live together in Z House in Kent, the mother expressing a wish that she and S should remain in Scotland with the maternal grandparents.
- In November 1999 the father applied for and was granted false
passports
for himself and S using the name "Mills",
On
1st December,
pursuant
to the
orders
of
4th
October,
the mother flew with S from Aberdeen to Gatwick to hand her
over
to the father for the
purposes
of
a 10-day
period
of
staying contact. Seven days later, however, the father and S left England
on
the Eurostar bound for
Paris
under the false
passports
and from there flew to Australia later that day. Thus, when the mother arrived at Gatwick a few days later to collect S in accordance with the agreement between the
parties,
there was no sign
of
S
or
the father. The
police
were alerted and ex
parte
location and freezing
orders
were made in the High Court.
On
17th December, S was made a ward
of
court and a direction was made that the father should return her to the care
of
the mother forthwith.
- The
police
were able to establish that the father and S had travelled to Australia under the false
passports.
On
23rd December, the mother applied to the Child Abduction Central Authority to invoke the Hague Convention to secure the return
of
S to this country.
On
30th December, the mother's
passport
was released by the court to enable her to fly to Australia to assist in the location and/
or
recovery
of
the child. The mother duly flew to Australia
on
1st January 2000.
On
4th January, the
Family
Court in Australia made seek and find
orders,
and a further
order
preventing
the removal
of
S from Australia. Six weeks later,
on
16th February, S was recovered by the Australian
police
in Melbourne and reunited with the mother. The father was arrested and detained as an illegal immigrant into the country.
On
the following day, however, he made an application claiming refugee status in Australia.
-
On
29th February 2000, the mother's solicitor filed an application under Schedule 1 to the Children Act 1989. That application was made in the Children Act
proceedings
that had been started in Tunbridge Wells and transferred to the
Principal
Registry. The application was sent to the solicitors acting for the father in connection with the residence and wardship
proceedings,
but it seems that no formal document acknowledging service was ever filed.
-
On
21st March 2000 the
Family
Court
of
Australia
ordered
that S be returned to the United Kingdom. In his judgment, Chisholm J. stated, inter alia, that
"I ... note that the English authorities appear to have taken the
view
that the mother and child were habitually resident in England as distinct from Scotland. However, the court must make its
own
mind up
on
the basis
of
the evidence before it ...
On
balance, although I do not regard this as a
very
easy matter, I conclude that the mother had established habitual residence in Scotland by the time the father left for Australia. I find, therefore, that the mother and therefore the child was habitually resident in the United Kingdom and, if relevant, in Scotland rather than England at the time
of
the wrongful removal."
- The father had maintained in those
proceedings
that if S's habitual residence was Scotland, the Australian court therefore had no jurisdiction to return her
on
the application
of
the Central Authority for England and Wales. The judge rejected this argument holding that "it would be a clear
violation
of
the spirit
of
the Convention if what I see as a technical argument were to succeed and thereby to
prevent
the court from returning the child to the United Kingdom if the circumstances for doing so are
otherwise
established." The father duly filed a notice
of
appeal against the
order
for return, and
pending
determination
of
the appeal the mother and S remained in Australia.
- By a letter from Australia dated 31st March 2000, the father served notice
of
acting in
person
in relation to both the Children Act
proceedings
and the wardship
proceedings
and indicated in correspondence that he had been informed
of
the Schedule 1 application by his former solicitors, although he did not file any formal acknowledgement
of
service
of
that application.
-
On
9th May 2000 the father was arrested and charged with two counts
of
inciting to solicit the murder
of
the mother and her friend, X.
On
26th May, the father's appeal against the
order
for the return
of
S to the United Kingdom was dismissed with costs.
On
3rd May, the father's appeal to the Australian Refugee Review Tribunal to allow his application for refugee status and a
visa
for S in Australia was dismissed.
On
12th June, the mother and S left Australia for Heathrow.
On
the following day the mother attended before Black J. (as she then was) in the High Court where an
order
was made that S should remain a ward
of
court. It was further
ordered
that S should remain in the care and control
of
the mother. Non-molestation
orders
were made against the father and further
orders
were made relating to his dealings with and communications with S and the mother.
- The mother was called as a witness in the Australian criminal
proceedings
against the father.
On
16th May 2001, she was granted
permission
to remove S from the jurisdiction
of
England and Wales for the duration
of
the father's criminal trial in Australia.
On
16th
October
2001, the father was convicted
of
two counts
of
incitement to solicit the murder
of
the mother and X in Australia and
on
7th May 2002 was sentenced to terms
of
6 years and 18 month imprisonment in respect
of
those charges. Further
police
investigations in Australia led to a new charge being made
on
fresh allegations
of
incitement to solicit the mother's murder. Meanwhile,
on
15th February 2002, Mr. Justice Kirkwood had granted the mother
permission
to remove S from the jurisdiction "temporarily for at least 18 months".
On
27th August 2004,
on
the hearing
of
the father's appeal against his conviction and sentence in 2002, the term
of
imprisonment was increased by a further two years. Subsequently, the father was convicted in respect
of
the second and separate
offence
of
soliciting the mother's murder and received a further term
of
imprisonment
of
12 years, with a minimum term expressed to be seven and a half years. The father remains in custody in Australia. He continues to deny the
offences
in respect
of
which he has been convicted.
- Meanwhile,
on
12th March 2004 Z House had been sold realising net
proceeds
in excess
of
£1,000,000 which were held by the mother's solicitors to the
order
of
the court
pursuant
to the freezing
order
made in December 1999.
On
5th May 2006, a District Judge in ancillary
proceedings
between the father and his former wife directed that the sum
of
£302,619 should be
paid
to the wife and the balance to the father. By a subsequent
order
of
Singer J. the father's share was held
pursuant
to the 1999 freezing
order.
- Thereafter the mother's solicitors sought to revive the application under Schedule 1.
On
21st January 2008 that application was adjourned by Singer J. to a date to be fixed "...
on
the
provisional
basis that the court has jurisdiction to
proceed
with the mother's application ... since the child's habitual residence at the time
of
the application was England and Wales." Subsequently there were further hearings at which the application was adjourned further for
various
reasons, including to enable the father's solicitors to
obtain
instructions from their client in Australia and to explore the
possibility
of
arranging a
video
link with the Australian
prison
for the
purposes
of
any hearing
of
the application.
On
22nd June 2009 Singer J. made further directions in the
proceedings,
together with an
order
for interim
periodical
payments
in respect
of
S in the sum
of
£1,500
per
month, such sums to be
paid
out
of
the frozen funds.
-
On
23rd March 2010 Singer J. directed there should be a trial
of
the issue as to whether the court had
or
continues to have jurisdiction to entertain the Schedule 1 application and gave further directions as to the filling
of
affidavit evidence as to jurisdiction. Further hearings took
place
in which further directions were made. The matter was
originally
listed for final determination by Singer J.
on
1st November, but in the event it was adjourned
on
that
occasion.
At that
point,
Singer J. having retired, the application was listed before me for a case management conference in March
2011
at which I gave further directions, including a direction that during the substantive hearing there should be an audio and
video-link
with the father in the Australian
prison.
- The hearing took
place
before me
on
18th, 19th and 20th May
2011.
At the conclusion
of
that hearing, I adjourned the matter to allow all
parties
to file supplemental written submissions
on
the jurisdictional issues. For
various
reasons, about which I make no complaint
or
criticisms, those submissions were filed slightly
out
of
time and this judgment has therefore been regrettably delayed.
- I would like to express my thanks to the Australian Judicial and
Prison
authorities for facilitating the
video
and audio link with the father in
prison
in Australia which has greatly assisted both the father, his representatives and the court in the conduct
of
this hearing. I would also like to acknowledge the assistance that has been
provided
by Miss
Victoria
Miller, legal secretary to Lord Justice Thorpe, the head
of
International
Family
Justice. Finally, by way
of
background I record the important
point
that it has been stated
on
the mother's behalf that she and S are not at
present
living in England and Wales.
The Law
Schedule 1
- The relevant
paragraphs
of
Schedule 1 to the Children Act read as follows:
"1(1)
On
an application made by a
parent,
guardian
or
special guardian
of
a child,
or
by any
person
in whose favour a residence
order
is in force with respect to a child, the court may ... make
one
or
more
of
the
orders
mentioned in sub-
paragraph
(2) ..."
(2) The
orders
referred to in sub-
paragraph
(1) are -
(a) an
order
requiring either
or
both
parents
of
a child -
(i) to make to the applicant for the benefit
of
the child;
or
(ii) to make to the child himself
such
periodical
payments,
for such term, as may be specified in the
order;
(b) an
order
requiring either
or
both
parents
of
a child -
(i) to secure to the applicant for the benefit
of
the child;
or
(ii) to secure to the child himself,
such
periodical
payments,
for such term, as may be so specified;
(c) an
order
requiring either
or
both
parents
of
a child -
(i) to
pay
to the applicant for the benefit
of
the child;
or
(ii) to
pay
to the child himself,
such lump sum as may be so specified;
(d) an
order
requiring a settlement to be made for the benefit
of
the child, and to the satisfaction
of
the court,
of
property
-
(i) to which either
parent
is entitled (either in
possession
or
reversion); and
(ii) which is specified in the
order;
(e) an
order
requiring either
or
both
parents
of
a child -
(i) to transfer to the applicant, for the benefit
of
the child;
or
(ii) to transfer to the child himself,
such
property
to which the
parent
is,
or
the
parents
are, entitled (either in
possession
or
in reversion) as may be specified in the
order.
(3) The
powers
conferred by this
paragraph
may be exercised at any time."
...
(6)
On
making,
varying
or
discharging a residence
order
the court may exercise any
of
its
powers
under this Schedule even though no application has been made to it...
"(7) Where a child is a ward
of
court, the court may exercise any
of
its
powers
under this schedule even though no application has been made to it."
Paragraph 14(1)
provides:
"Where
one
parent
of
a child lives in England and Wales and the child lives
outside
England and Wales with -
(a) another
parent
of
his;
(b) a guardian
or
special guardian
of
his;
or
(c) a
person
in whose favour a residence
order
is in force with respect to the child,
the court shall have
power,
on
an application made by any
of
the
persons
mentioned in
paragraphs
(a) to (c), to make
one
or
both
of
the
orders
mentioned in
paragraphs
1(2)(a) and (b) against the
parent
living in England and Wales."
- Save for this
provision
in
para.14(1),
the schedule is silent as to when the jurisdiction to make such
orders
arise. There is no
other
provision
concerning jurisdiction in the 1989 Act itself.
The
parties'
submissions
- There has hitherto been considerable uncertainty as to the law governing jurisdiction to make
orders
under Schedule 1 to the Children Act.
On
what appears to be the
only
occasion
on
which the question
of
the jurisdiction to make
orders
under Schedule 1 has been raised in the Court
of
Appeal, in Re S (A Child: Financial
Provision)
[2004] EWCA 1685, [2005], 2 FLR 94, (considered in more detail below), the Court expressly declined to embark
on
any wider determination
of
the issue
of
the court's jurisdiction. Counsel appearing
on
this application advanced a
variety
of
alternative legal arguments as
providing
a basis for the jurisdiction.
- On behalf
of
the applicant mother, it was initially submitted that there were at least four bases for the jurisdiction. First, it was submitted that the English court has jurisdiction under Schedule 1 because it has taken concurrent Children Act jurisdiction in respect
of
other
issues relating to the child. Secondly, it was submitted that the finding that the child was habitually resident in England and Wales at the date when the application was made, i.e. 29th February 2000, would
provide
a separate ground for jurisdiction. Thirdly, it was contended that the English court has jurisdiction to make an
order
under Schedule 1 if the father had been served with the
process.
Fourthly, it was argued that the English court has jurisdiction if the father is domiciled in England and Wales for the
purposes
of
the Civil Jurisdiction and Judgments Act 1982 ("the CJJA 1982"). In supplemental submissions, two further grounds were advanced
on
behalf
of
the mother, namely that the jurisdiction had been
prorogued
because the father had unequivocally accepted jurisdiction at the time
of
service
of
the application and thereafter and, further, that the court retained the
power
to make an
order
for financial
provision
under its inherent jurisdiction.
- As amicus, the
Official
Solicitor contended for all these
potential
grounds for jurisdiction, save that based
on
mere service
of
process,
but
put
them in a different
order,
placing
domicile as the
principal
basis.
- In her skeleton argument, leading counsel
on
behalf
of
the father contended that the jurisdictional basis
of
the claims under Schedule 1 is not made
out
anywhere in the statute save for the specific
provision
in
para.14
relating to children resident
outside
England and Wales. She acknowledged that where a
parent
lives in a member state
of
the European Union, jurisdiction is governed by EU law, but asserted that the question
of
the impact
of
EU law
on
jurisdictional disputes in cases involving an EU country and a non-EU country -
"... is the subject
of
some debate. In the absence
of
the EU legal regime there is no clear found
of
jurisdiction for these courts
other
than the common law considerations
of
whether this would be an appropriate jurisdiction in which to hear the case based
on
the residence
of
the
parties
and the child."
-
On
behalf
of
the father it was further asserted that, at the date
on
which the Schedule 1 application was filed, the father was not domiciled in England and Wales, nor was S habitually resident in the country. Counsel for the father challenged the
proposition
that there was a jurisdiction to make Schedule 1
orders
either arising from a concurrent welfare jurisdiction
or
as a result
of
service being effected
on
the respondent. In supplemental submissions, it was agreed
on
behalf
of
the father that, whilst the court may have the
power
to
order
financial
provision
for a ward in appropriate circumstances, those circumstances did not arise in this case. In
oral
submission and in further written submissions that were filed with my
permission
after the conclusion
of
the hearing, the father contended that
on
the facts he had not filed any acknowledgement
of
service in a fashion that led to the
prorogation
of
jurisdiction.
- Finally, it was strongly argued
on
behalf
of
the father that in the event that the court found that it had jurisdiction
on
one
or
more
of
the grounds asserted
on
behalf
of
the mother and the
Official
Solicitor, the court should decline to exercise jurisdiction, applying the
principle
forum non conveniens.
On
this latter
point,
after some discussion during the hearing before me, it was agreed that the question whether the court (1) had the
power
to stay
proceedings
and, if so, (2) should exercise such
power
in the circumstances
of
this case, should be adjourned for a further hearing. Consideration
of
whether another country
provided
a more convenient forum would require not
only
extensive further legal argument but also further evidence, and would involve certain
practical
difficulties. The legal argument would centre
on
the legal decision
of
the European Court
of
Justice in
Owusu
v
Jackson (Case no. C-281/02 [2005] QB 801, and whether that decision is applicable to an application under Schedule 1
of
the Children Act. The factual evidence would centre
on
the fact that the mother is not currently in this country, but rather in a location which she wishes to conceal from the father. The fact that her whereabouts are unknown gives rise to
practical
difficulties. How can the father argue for a stay unless he
or
at least his representatives know the country in which she is living so that the comparative convenience
of
the two jurisdictions can be assessed? In
view
of
these difficulties that would inevitably arise
on
considering an application for a stay, it was agreed between the
parties
to
postpone
the issue until the court had ruled
on
the issue whether it has jurisdiction at all. The question
of
whether the court has the
power
to stay
proceedings,
and if so whether it should exercise that
power
in this case,
only
arises if there is jurisdiction to entertain the application under Schedule 1.
- Having considered counsel's submissions and reflected
on
the matter in the light
of
further reading, I have reached the following conclusions as to the jurisdictional basis for the
orders
under Schedule 1.
Jurisdiction under EU law
- Since 1st March 2002, the
primary
jurisdiction to make
orders
under Schedule 1 is derived from Council Regulation EC No.44/2001
of
20th December 2000
on
the Jurisdiction and Recognition
of
Enforcement
of
Judgments in Civil and Commercial Matters ("Brussels I"). That regulation re-enacted and replaced the Brussels Convention
on
the Jurisdiction and Enforcement in Civil and Commercial Matters 1968 ("the 1968 Convention") which had been incorporated into English law by the CJJA 1982. The application under Schedule 1 in these
proceedings
was filed before Brussels I came into force and is therefore governed by CJJA 1982 and the 1968 Convention.
- The relevant
provisions
of
the 1968 Convention were as follows. Under Section 1 headed "General
Provisions",
Article 2
provided:
"Subject to the
provisions
of
this Convention,
persons
domiciled in a Contracting State shall, whatever their nationality, be sued in the courts
of
that State.
Persons
who are not nationals
of
the State in which they are domiciled shall be governed by the rules
of
jurisdiction applicable to nationals
of
that State."
Article 3
provided,
inter alia –
"
Persons
domiciled in a Contracting State may be sued in the courts
of
another Contracting State
only
by
virtue
of
the rules set
out
in Sections 2 to 6
of
this Title" (i.e. within the
provisions
of
Articles 5-18).
Article 4
provides:
"4. If the defendant is not domiciled in a Contracting State, the jurisdiction
of
the courts
of
each Contracting State shall, subject to the
provisions
of
Article 16 [not relevant to these
proceedings]
be determined by the law
of
that State."
- Section 2 is headed "Special jurisdiction". Article 5
provides,
in so far as relevant to these
proceedings:
"... A
person
domiciled in a Contracting State may, in another Contracting State, be sued ... (2) in matters relating to maintenance, in the courts for the
place
where the maintenance creditor is domiciled
or
habitually resident..."
Under section 6, Article 18
provides:
"18. Apart from jurisdiction derived from
other
provisions
of
this Convention, a court
of
a Contracting State before whom a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered solely to contest the jurisdiction..."
- Thus,
on
29th February 2000, the Courts
of
England and Wales had jurisdiction under CJJA 1982 and the 1968 Convention to make an
order
under Schedule 1
of
the Children Act if (1) the respondent, at the time
of
the application, was domiciled in England and Wales (Article 2);
or
(2) the respondent at the time
of
the application was domiciled in another contracting state
of
the Convention,
or
in Scotland
or
England and Ireland, and the "maintenance creditor", in this situation the child, was domiciled
or
habitually resident in England and Wales (Article 5.2);
or
(3) the respondent has entered an appearance in the
proceedings,
save for the
purposes
of
challenging the jurisdiction (Article 18);
or
(4) the respondent, at the time
of
the application, was not domiciled in a contracting state and the courts have jurisdiction under the law
of
England and Wales. It is worth
pointing
out
in
passing
that identical
provisions
under Brussels I confer jurisdiction in respect
of
applications after 1st March 2002.
-
On
behalf
of
the
Official
Solicitor, supported by the mother, it is submitted that the court has jurisdiction under Schedule 1 in this case
on
the following alternative grounds derived from the 1968 Convention: (1) because the father was domiciled in England and Wales at the date
of
the application under Schedule 1
on
29th February 2000; alternatively, (2) because if the father was domiciled in a contracting state
or
in Scotland at that date, S was domiciled and/
or
habitually resident in England and Wales at that date; alternatively, (3) because the father has entered an appearance in the
proceedings
without challenging the jurisdiction; alternatively, (4) if the father was not domiciled in England and Wales
or
any
other
contracting state, under the domestic laws conferring jurisdiction.
- Under this last alternative, if the father was not domiciled in England and Wales
or
any
other
contracting state
on
29th February 2000, the mother and/
or
the
Official
Solicitor submit that apart from the jurisdiction derived from the 1968 Convention, the court has jurisdiction under domestic laws to entertain the application (1) because there is a jurisdiction to make Schedule 1
orders
concurrent to the jurisdiction to make
orders
relating to her welfare under s.8
of
the Children Act; alternatively, (2) if S was habitually resident in England and Wales at the time
of
the application; alternatively, (3) under the inherent jurisdiction; alternatively, (
on
the submission
of
the mother, but not supported by the
Official
Solicitor) (4) as a result
of
the fact that the
proceedings
have been served
on
the father. I turn to consider these alternative legal bases briefly.
Jurisdiction under the domestic law – (1) the "concurrent" jurisdiction
- It is asserted
on
behalf
of
the mother, with the support
of
the
Official
Solicitor, that the jurisdiction under Schedule 1 is concurrent with the welfare jurisdiction under the Children Act - that is to say, whenever a court has jurisdiction to make a residence, contact,
prohibited
steps
or
specific issues
order
under s.8
of
the Children Act, it also has jurisdiction to make
orders
under Schedule 1. This
view
has the support
of
the editors
of
Rayden & Jackson 18th Ed. who state, at
paragraph
22.218 that
"What Schedule 1 does, in conformity with the
overall
strategy
of
the Act, is to
provide
a concurrent jurisdiction and uniform criteria in relation to the applications for financial
provision
made under the Act."
The editors
of
Dicey Morris & Collins
on
the Conflict
of
Laws 13th edition do not, however, cite this as a basis for the jurisdiction, and no reported authority was cited in support
of
the
proposition
that there is jurisdiction under Schedule 1 concurrent with the welfare jurisdiction under the 1989 Act.
-
On
behalf
of
the
Official
Solicitor Mr. Stocker submits there is no sound
policy
reason for adopting a narrower jurisdictional test for the financial remedies
of
Schedule 1 than for the welfare remedies
of
s.8. The whole
of
the Act is concerned with the welfare
of
children, to be
promoted
and/
or
protected
in the manner described in the respective
parts
of
the Act. A financial remedy is no less a welfare remedy than
other
remedies set
out
in
other
parts
of
the Act.
- In reply, counsel for the father
points
out
that the jurisdiction to make
orders
under s.8. is derived from
Part
I
of
the
Family
Law 1986. The definition
of
"a
Part
I
order"
in s.1(1)
of
the 1986 Act includes inter alia
orders
under s.8
of
the 1989 Act but not
orders
under Schedule 1. Furthermore, under s.2
of
the 1986 Act (as amended), the
primary
jurisdictional basis for making
Part
I
orders
is now Council Regulation EC No. 2201
of
2203
of
27th November 2003 concerning jurisdiction and the recognition
of
enforcement
of
judgments in matrimonial matters and the matters
of
parental
responsibility ("Brussels II Revised"). Article 1.3(e)
of
that Regulation
provides
that it "shall not apply to maintenance
obligations".
Thus, it is submitted for the father, there is no identified source for a concurrent jurisdiction.
- It should be noted, however, that Brussels II Revised is not the
only
source for jurisdiction to make
Part
I
orders.
Article 14
of
the Regulation and the terms
of
Part
I
of
the 1986 Act (as amended) make clear that there is a residual jurisdiction under domestic law.
Prior
to the implementation
of
Brussels II Revised, the jurisdiction to make
Part
I
orders
in non-matrimonial cases arose where the child was habitually resident in England and Wales
or
was
present
in England and Wales and not habitually resident elsewhere in the United Kingdom.
- On this
point
I have come to the conclusion that Mr. Stocker and the editors
of
Rayden & Jackson are right. The fact that the
power
to
order
financial
provision
is located in a Schedule to the Children Act suggests that it is intended to be ancillary to the court's
overall
welfare jurisdiction. Although maintenance is excluded from the definition
of
"upbringing" by s.105(1) with the result that the
paramountcy
principle
does not apply to applications under Schedule 1,
paragraph
1(6)
of
the Schedule
vests
the court with the
power
to make
orders
under the Schedule
of
its
own
volition
whenever it makes
or
varies
a residence
or
special guardianship
order.
To my mind this establishes a close link between the welfare and financial
provision
jurisdictions and, in all the circumstances, I conclude that the court has the
power
to make an
order
under Schedule 1 whenever it has the jurisdiction to make welfare
orders
under the Act. Such interpretation is consistent with the
policy
and
principles
underpinning the Act. Whether
or
not it should exercise those
powers
is
of
course entirely a matter for the court's discretion, depending
on
all the circumstances
of
the case. Furthermore, as the
primary
source
of
jurisdiction is now the European instruments – formerly the 1968 Convention and now Brussels I – the concurrent jurisdiction under the residual domestic law
only
arises where the respondent is not domiciled in a contracting state (now, under Brussels I, a "Member State").
- The
primary
basis
of
the welfare jurisdiction under the Children Act, both under Brussels II Revised and under the former and now residual domestic law, is the child's habitual residence at the date the application for a residence
order
under s.8 is made: see
Part
1 Chapter 2
of
the
Family
Law Act 1986.
Jurisdiction under the domestic law – (2) Habitual residence
of
the child at the date
of
the Schedule 1 application
- The second basis for jurisdiction claimed under the domestic law – that S was habitually resident in England and Wales at the time
of
the Schedule 1 application – rests
principally
on
the decision
of
the Court
of
Appeal in Re S (A Child: Financial
Provision)
(supra). In that case two
parents,
both Sudanese who had married in the Sudan, moved to England, where the father was already resident, and had a child. After the breakdown
of
the marriage, the
parties
were divorced in the Sudan. Subsequently, the father unlawfully retained the child in Sudan following a contact
visit,
and the mother started
proceedings
in England for the child to be returned to this jurisdiction. The court granted the mother a declaration that the child was and remained habitually resident in England, but refused the application for summary return. The mother then
obtained,
under Schedule 1, a sequestration
order
over
the former matrimonial home which was the father's
only
accountable asset. The father argued that the court had no jurisdiction to entertain such an application because (a) the
order
sought was for the mother's rather than the child's benefit; and (b) under Schedule I,
para.14,
an
order
cannot be made against a
parent
resident abroad where the child is also living abroad. The Court
of
Appeal rejected the father's submissions. The term "for the benefit
of
the child" in Schedule 1 was to be given a wide construction. Furthermore,
para.14
of
Schedule 1 could not sensibly be construed to
prevent
an application by a
parent
left within the jurisdiction after the wrongful departure
of
the
other
parent
and child.
- Counsel for the
Official
Solicitor, Mr. Stocker, acknowledges that the decision in Re S is not directly
on
the
point
arising in these
proceedings.
He submits, however, that there is an abundance
of
dicta in the judgment to support the
proposition
that habitual residence is sufficient to found jurisdiction under Schedule 1. The court consisted
of
three
family
law specialists, all
of
whom made assertions which at least implied that habitual residence was sufficient – see in
particular
the dicta
of
Thorpe L.J at
paras.22-23,
Wall J. (as he then was) at
paras.30-31
and Black J, (as she then was) at
para.34.
- I bear in mind that the Court
of
Appeal expressly stated that its judgment was not a comprehensive analysis
of
the basis
of
jurisdiction under Schedule 1. At
para.25
Thorpe L.J.
observed:
"It seems to me that, given the highly unusual circumstances
of
this case and given the relatively narrow range
of
debate, it would be unwise for this court today to embark upon any wider determination
of
the extent
of
the court's jurisdiction."
Furthermore neither the CJJA 1982 nor Brussels I, which had, by that stage, superseded the 1968 Convention, were cited in Re S. Thus there is no reference to the jurisdiction based
on
the domicile
of
the respondent. Furthermore, if I am right in accepting the submission considered above that the jurisdiction under Schedule 1 is concurrent with the welfare jurisdiction under the Children Act, this
proposed
basis for jurisdiction adds
very
little, since, under Brussels II Revised and under residual domestic law, the court will have a welfare jurisdiction in cases where the child is habitually resident at the start
of
proceedings
for
orders
under s.8. Nonetheless, I accept the submission
on
behalf
of
the
Official
Solicitor, supported by the mother, that based upon the authority
of
Re S there is jurisdiction under the domestic law to entertain an application under Schedule 1 in respect
of
a child who is habitually resident in this country at the date
of
that application. Again, however, as the
primary
source
of
jurisdiction is now the European instruments – formerly the 1968 Convention and now Brussels I – this basis for jurisdiction under the residual domestic law
only
arises where the respondent is not domiciled in a contracting state (now, under Brussels I, a Member State).
Jurisdiction under the domestic law – (3) the inherent jurisdiction.
- The third basis for the jurisdiction under the domestic law is the inherent jurisdiction. As set
out
above,
para.1(7)
provides:
"(7) Where a child is a ward
of
the court, the court may exercise any
of
its
powers
under this Schedule even no application has been made to it."
- There is no further statutory restriction
on
this jurisdiction, but in
practice
the circumstances in which it will be invoked when the court does not have jurisdiction
on
one
of
the grounds already considered will be limited to cases where an urgent remedy is required. Those circumstances do not arise in this case.
Jurisdiction under the domestic law – (4) mere service
of
the
process
- The final basis
of
jurisdiction under Schedule 1 under domestic law claimed
on
behalf
of
the mother is derived from a statement made in the 13th Edition
of
Dicey Morris & Collins
on
the Conflict
of
Laws that
"... the English courts have jurisdiction to make an
order
for
payments
for the benefit
of
the child under the Children Act 1989 if the respondent is served with the
process
in England
or
elsewhere" (See Rule 95
of
the 13th Edition - now Rule 102
of
the 14th Edition).
This
proposition
is in turn derived from an
observation
by Denning L.J. in Re Dulles Settlement (No.2) [1951] Ch. 842:
"I take it to be clear that if a child is within the jurisdiction
of
the Court
of
Chancery it has the
power
to
order
custody to the mother and maintenance against the father under the Guardianship
of
Infants Act even if the father is resident
outside
the jurisdiction. But it is essential that the father should be a
party
to the
proceedings
and should either be served here
or
be served
out
of
the jurisdiction
or
voluntarily
submit to the jurisdiction."
- The
Official
Solicitor is doubtful whether the
proposition
advanced by the editors
of
Dicey is correct. Mr. Stocker
points
out
that, if mere service
of
itself were to
provide
a basis for jurisdiction, the courts
of
England and Wales would have a worldwide jurisdiction in respect
of
children living anywhere in the world born to
parents
who are themselves living anywhere in the world, none
of
whom might have any connection with England and Wales. He wonders whether the editors
of
Dicey are doing any more than reminding the reader
of
the imperative need to serve
proceedings
in accordance with the relevant rules.
- As I read the quotation in Denning L.J's judgment in Re Dulles Settlement ((No 2), it was the fact that the child was within the jurisdiction
of
the "Court
of
Chancery" that gave rise to the jurisdiction to make maintenance
orders.
This demonstrates that the
power
to
order
financial
provision
for children under the inherent jurisdiction is
of
long-standing. Furthermore, the fact that Denning LJ linked the court's
power
to
order
custody to the mother and maintenance against the father demonstrates that the concurrence
of
the welfare and maintenance jurisdictions is equally
of
long standing. By insisting
on
the requirement that the respondent be served, he was not conferring jurisdiction in cases where service was effected, but rather indicating that, unless service was effected, the jurisdiction would not, in
practice,
be exercised.
Meaning
of
"domicile" and "habitual residence"
- The summary
of
the law demonstrates that the concepts
of
"domicile" and "habitual residence" are central to the rules as to jurisdiction, and it is necessary to refer briefly to the legal definitions
of
these concepts under English law.
Domicile
- Section 41(2)
of
the CJJA 1982
provides
that:
"An individual is domiciled in the United Kingdom if and
only
if -
(a) he is resident in the United Kingdom; and
(b) the nature and the circumstances
of
his residence indicate that he has a substantial connection with the United Kingdom."
Section 41(3)
provides
that:
"Subject to subsection (5) an individual is domiciled in a
particular
part
of
the United Kingdom if and
only
if -
(a) he is resident in that
part;
and
(b) the nature and circumstances
of
his residence indicate that he has substantial connection with that
part."
Section 41(5)
provides
that:
"An individual who is domiciled in the United Kingdom but in whose case the requirements subject to 3(b) are not satisfied in relation to any
particular
part
of
the United Kingdom, shall be treated as domiciled in the
part
of
the United Kingdom in which he resides."
Habitual residence
- The
parties
are agreed that habitual residence is to be determined according to the
principles
summarised by Ward L.J. in Re
PJ
(Abduction) (Habitual resident: consent) [2009] ECWA Civ 588, [2009] 2 FLR 1051 at
paras.24-27;
and in turn derived from
other
authorities, notably Re J (A minor) (Abduction) [1982] AC 562 and CVS (A Minor) (Abduction) [1992] FLR 442. Those
principles,
so far as relevant to this case, are as follows.
(1) The expression "habitually resident" is not to be treated as a term
of
art with some special meaning but it is rather to be understood according to the
ordinary
and natural meaning
of
the two words which it contains.
(2) It is a misdirection to ask the question whether the
family
are settled in the sense
of
putting
down substantial roots.
(3) Habitual residence may be acquired despite the fact that the
purpose
of
the move was intended to be for a comparatively short duration.
(4) There is a significant difference between a
person
ceasing to be habitually resident in country A and subsequently becomes habitually resident in country B. Whereas a
person
may cease to be habitually resident in country A if she leaves it with a certain intention not to return to it but to take up residence in country B, a certain intention
over
a
period
of
time (the duration
of
which will depend
on
the circumstances) will be required before habitually residence in country B is acquired.
(5) Where
parents
live together and share
parental
responsibility, the child's habitual residence will normally be the same as the
parents,
and neither
parent
can change it without the consent
of
the
other.
- In addition, although Brussels II Revised does not apply to this case, I bear in mind the recent decision
of
the European Court
of
Justice in Mercredi
v
Chaffe (Case C-497/10) [
2011]
1 FLR 1293 and in
particular
the conclusion at
paragraph
56
of
the judgment that:
"the concept
of
habitual residence, for the
purposes
of
Articles 8 and 10
of
the Regulation, must be interpreted as meaning that such residence corresponds to the
place
which reflects some degree
of
integration by the child in a social and
family
environment."
Conclusions
on
law as to jurisdiction
- In summary, this court has jurisdiction to entertain the application under Schedule 1
of
the Children Act 1989 filed
on
29th February 2000 under the CJJA and the 1968 Convention if (a) at the date
of
the application the father was domiciled in England and Wales; (b) at the date
of
the application the father was domiciled in another contracting state,
or
Scotland
or
Northern Ireland, and S was either habitually resident
or
domiciled in England and Wales;
or
(c) if the father entered an appearance to the application, save for the
purposes
of
contesting jurisdiction. In the alternative, if no
other
jurisdiction arises under the 1968 Convention, the court will have jurisdiction under domestic law (d) if it had jurisdiction to make welfare
orders
under the Children Act;
or
(e) if the child was habitually resident in England and Wales at the date
of
the application.
The issues
of
fact in this case
- In effect this all boils down in the current case to the following questions.
(1) Was the father domiciled in England and Wales
on
29th February 2000, so as to give the court jurisdiction under Article 2
of
the 1968 Convention?
(2) If not, (a) was the father domiciled
on
that date in another contracting state under the 1968 Convention,
or
in Scotland, and (b) was S domiciled
or
habitually resident in England and Wales, so as to give the court jurisdiction under Article 5
of
the 1968 Convention?
(3) If not, did the father enter an appearance in the
proceedings
for any
purpose
other
than to contest jurisdiction, so as to give the jurisdiction under Article 18?
(4) If the court does not have jurisdiction under any
of
the above articles
of
the 1968 Convention, was S habitually resident in England and Wales either
on
13th August 1999 (the date
on
which the first application was made under s.8
of
the Children Act, invoking the welfare jurisdiction)
or
on
29th February 2000 (the date
on
which the Schedule 1 application was filed) so as to give the court jurisdiction under domestic law?
Was the father domiciled in England and Wales
on
29th February?
- In the first skeleton argument filed by the father before me, it was asserted that by the date
of
issue
of
the mother's application the father was in Australia with the settled intention
of
remaining there. This assertion is not supported by the evidence filed
on
his behalf. In
particular,
in an affidavit sworn by the father for this hearing
on
22nd December 2010 specifically to address the issue
of
domicile, he stated (a) that he was born in London and lived in England for all
of
his life, apart from the time when he
owned
property
in Scotland, and since August 1999 when he has been in Australia; (b) up to the time that he took S to Australia in 1999 he was domiciled in England and Wales; (c) when he went to Australia with S in December 1999 "this was not with the exclusive intention
of
permanently
living there"; (d) he and S went to Australia
on
return tickets and under three month
visas;
and (e) at the time when he applied for refugee status, which was 12 days before the application under Schedule 1 was filed, he had not made any decision that Australia would be his domicile, as his main concern was to be close to S should she need him wherever she may have been. It is therefore manifestly clear
on
the father's
own
evidence that at the date
on
which the application under Schedule 1 was filed he was still domiciled in England and Wales. Accordingly this court has jurisdiction to entertain the application by
virtue
of
the CJJA 1982 and Article 2
of
the 1968 Convention.
- If that is correct, it follows that he was not domiciled in another contracting state and there is thus no question
of
jurisdiction arising under Article 5
of
the 1968 Convention.
Did the father enter an appearance at the
proceedings
for any
purpose
other
than to contest jurisdiction?
- As set
out
above, under Article 18
of
the 1968 Convention: "Apart from jurisdiction derived from
other
provisions
of
the Convention, the court
of
a Contracting State for whom a defendant enters an appearance shall have jurisdiction. The rules shall not apply where appearance was entered so as to contest the jurisdiction." Thus, if a respondent to a Schedule 1 application enters an appearance in the
proceedings
by returning the appropriate form acknowledging service, even if he is not domiciled in this country, the court will have jurisdiction unless he indicates
on
the document that he is
only
entering an appearance in
order
to challenge jurisdiction.
- Counsel for the
Official
Solicitor and the mother submit that the letter dated 31st March 2000, in which the father served notice
of
acting in
person
in the Children Act
proceedings
and indicated that he was aware
of
the Schedule 1 application without expressly stating that he was contesting the jurisdiction, was sufficient to
vest
the court with jurisdiction under Article 18.
-
On
behalf
of
the father, however, it was submitted that these actions were insufficient to confer jurisdiction. Counsel for the father relies
on
the fact that the father was acting in
person
and was at that
point
in
prison
on
the
other
side
of
the world. Furthermore she
points
out
that no formal appearance was ever entered and submits that it is important for
proper
formalities to be
observed
in
order
for jurisdiction to be conferred
on
the court.
-
On
this
point
I
prefer
the arguments advanced by the father. The Article enables a
prorogation
of
jurisdiction and, as a matter
of
principle,
it is important for
procedural
steps to be clearly and
properly
followed if they are to be relied
on
as evidence in support
of
prorogation:
see, by way
of
analogy, Re I (A child) [2009] UKSC 10 [2010] 1 FLR 361 concerning
prorogation
under Article 12(3)
of
Brussels II Revised. Accordingly, the basis for a jurisdiction afforded by Article 18
of
the 1968 Convention does not arise in this case.
Was S habitually resident in England and Wales
on
13th August 1999 and/
or
29th February 2000?
- As set
out
above, S's movements during her life, in so far as they are relevant to the question
of
habitual residence, have been as follows. She was born in April 1997. From then until August 1999 her
principal
home was in Kent. In that month, following the final breakdown
of
the
parents'
relationship, her mother took her to Scotland. A few days later, the mother took her to Australia without the consent
of
the father. In her affidavit filed for this hearing
on
23rd September 2010 specifically to address the issue
of
domicile and habitual residence, the mother accepts that, up to that
point,
she (i.e the mother) was habitually resident in England and Wales.
On
16th September 1999, in the Hague
proceedings
in Queensland, she undertook to return S to the United Kingdom. At about the same time an
order
was made in the English court
preventing
her removing S from England and Wales
on
her return.
On
4th
October,
at a further hearing in the English court after her return from Australia, she was given
permission
to remove S temporarily to her
parents
home in Scotland
on
terms that every three weeks she would bring S down to England for 10 days staying contact with the father. Shortly afterwards, the
parties
filed statements in the Children Act
proceedings,
each seeking residence
orders
- the mother
on
the basis that she would take S to live in Scotland, the father
on
the basis that S would live in England. In
oral
evidence before me the mother said that although at that stage she wished to remain in Scotland she "had no idea where she would be living in the future". At that stage she was "living
out
of
a suitcase". In December 1999, the father abducted S to Australia.
On
16th February 2000, S was reunited with the mother in Australia. Thereafter they remained there for several weeks during which time the application under Schedule 1 was filed in the
Principal
Registry in these
proceedings.
In the Australian
proceedings,
the mother was seeking an
order
for the return
of
S to England and Wales whereas the father was arguing inter alia that the court had no
power
to
order
such a return because she was habitually resident in Scotland.
- To my mind this history demonstrates that up to August 1999 S was habitually resident in England and Wales and that nothing
occurred
in the
various
moves thereafter to alter that status. Whilst the mother may at
one
stage have harboured hopes
of
moving
permanently
to Scotland, those hopes were never realised. The
permission
granted to the mother
on
4th
October
1999 to remove S to Scotland was
on
a temporary basis and
on
terms that S would be brought down to England for 10 days every three weeks. In my judgment, that did not alter the child's habitual residence in England. Furthermore, neither the mother's abduction
of
the child to Australia in August 1999, nor the father's abduction
of
the child to Australia in December 1999, altered S's habitual residence. I therefore conclude that S was habitually resident in England and Wales
on
29th February 2000.
- I recognise that Chisolm J. in Australia came to a different
view
in his judgment dated 21st March 2000. However, as the learned judge himself
observed,
the court must make its
own
mind up
on
the basis
of
the evidence before it, and he did not have before him the
oral
evidence that I heard from the mother.
- Accordingly, at the dates
on
which (1) the welfare jurisdiction
of
the English courts was first invoked by the filing
of
the father's application in the Tunbridge Wells County Court (13th August 1999) and (2) the Schedule 1 application was filed (29th February 2000), S was habitually resident in England and Wales, and under domestic law this court has jurisdiction to entertain an application under Schedule 1 either concurrently with the welfare jurisdiction under the Children Act
or
simply because she was habitually resident in this country at the date
on
which the Schedule 1 application was made.
Conclusion
- For the reasons set
out
above, I conclude that this court does have jurisdiction
pursuant
to Article 2
of
the 1968 Convention to entertain the application under Schedule 1 by
virtue
of
the fact that the father was domiciled in England and Wales at the time the application was filed. If, contrary to my finding, he was at that date domiciled not in England and Wales but rather in Australia, then
pursuant
to Article 4
of
that Convention and the domestic law
of
England and Wales, as S was at all material times habitually resident in England and Wales, this court has jurisdiction to entertain the application, either concurrently with its welfare jurisdiction under the Children Act
or
simply by reason
of
S's habitual residence at the date the Schedule 1 application was filed.
- I make it clear that the fact that the court has jurisdiction does not necessarily mean that the application will in fact be heard. The father wishes to argue that the
proceedings
should be stayed
on
the ground
of
forum non conveniens. As stated above, this issue involves
potentially
complex issues
of
fact and law. I shall therefore direct that the matter be listed for a further hearing before me in the first week in
October
2011
so that the directions can be given for the determination
of that issue.
_________________