B e f o r e :
MR. JUSTICE BAKER
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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
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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 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)  EWCA 1685, , 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  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)  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.
- 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."
- 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)  ECWA Civ 588,  2 FLR 1051 at paras.24-27; and in turn derived from other authorities, notably Re J (A minor) (Abduction)  AC 562 and CVS (A Minor) (Abduction)  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)  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)  UKSC 10  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.
- 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.