[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AA v BB & Ors [2022] EWHC 2322 (Fam) (12 July 2022) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2022/2322.html Cite as: [2022] EWHC 2322 (Fam), [2023] 1 FCR 573 |
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
(formerly CV21C50083) |
FAMILY DIVISION
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
AA |
Applicant/Second Respondent |
|
and |
||
BB |
First Respondent |
|
and |
||
COVENTRY CITY COUNCIL |
Second Respondent/Cross-Applicant |
|
and |
||
XX (by his Children's Guardian) |
Third Respondent |
|
and |
||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Intervener |
____________________
Ms Rachel Langdale QC and Ms Lubeya Ramadhan (instructed by Goodman Ray Solicitors) for the First Respondent
Mr Aidan Vine QC and Mr Nick Brown (instructed by Coventry City Council) for the Second Respondent / Cross Applicant
Ms Ruth Kirby QC and Jennifer Steele (instructed by Jackson West Solicitors) for the Third Respondent
The attendance of the Intervenor was excused
Hearing dates: 8 – 10 June 2022
____________________
Crown Copyright ©
Mrs Justice Lieven DBE :
a. Under the HC/80:
i. Was the F exercising rights of custody over XX at the date of removal from the US?
ii. Was the US (Oklahoma) Court exercising rights of custody over XX?
iii. If the answer to either question is yes – is there a grave risk to XX if he is returned to the USA?
b. In respect of the care proceedings, the first issue is whether the English Court has jurisdiction to hear care proceedings:
i. What is the basis of the English Court's jurisdiction?
1. Brussels II Revised or
2. The Family Law Act 1986 or
3. Common law principles applied to the Children Act 1989?
ii. If the test for jurisdiction is habitual residence, at what date is habitual residence to be tested?
c. If the English Court does have jurisdiction, what is the forum conveniens for the determination of matters concerning XX?
The Facts
Message F to M: 'I am going to destroy you completely until you have nothing left but your shotgun and an open field. And no one to call for help'. 'In 20 minutes I can make your life so terrible you might end it'. 'I feel nothing towards you. I am making the call to VA tomorrow. That is the most damaging. And work my way down'. 'I have more evidence on my phone. You will lose your job'
Message M to F: 'This is your last chance to be reasonable. I'm having to file a restraining order…I've notified my employers of your threats'.
Message F to M: 'It's the medicine. I didn't get back on it. I'm sorry. I'm going to kill myself so I can't cause you harm'. 'I'm driving to my hiking spot. I'm jumping from the peak'.
F message to M: 'That isn't a baby, that's a retarded autistic velociraptor. You're a fucking FOOL to give birth. Enjoy the retard!'
F encourages M to take an abortion pill: 'I reiterate that you should take the pill before Saturday. If you haven't by then I'll assume you never will and that will be that. Contact me ONLY if/when you are no longer pregnant and only then can we salvage our relationship whether as friends or romantically'.
"There is nowhere on Earth you can hide if you are in fact pregnant and do give birth. I will find you and you will lose that child. I will never stop until it is removed from your arms and you will never see it again. I will make it my life's mission to save it from your sociopathy by any and all means necessary. You'll never see me coming. Whenever you feel like I've finally given up and you're finally safe… that will be the time I act."
"… stop emailing me. I will take full custody of my son. No visitations without my discretion. Period. Now stop your bullshit and go fuck yourself. I will not reply to you again. Ever."
"I also do not need any "building of parenting skills", let alone from your corrupt institution that has proven not to give a damn about my son's emotional wellbeing or early childhood development. If you did care, you'd release him to his father immediately so he can have overdue stability. That would be putting my son first, but you'd rather milk him for additional public funding. There is nothing to be learned from self-righteous, woefully incompetent monsters like yourself. I will be suing you and your business into the ground and going public when the time is right. Coventry will deeply regret this ongoing injustice. I swear on my life I will not rest until you and your disgustingly mismanaged institution is bankrupted and/or thoroughly reformed…release my boy immediately." F also states he will release a tell-all book.
Is the Hague Convention 1980 engaged?
Article 1
The objects of the present Convention are -
a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.
Article 3
The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.
Article 4
The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Convention -
a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
b) "rights of access" shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.
"It seems to me that the Court itself had a right of custody at this time in the sense that it had the right to determine the child's place of residence, and it was in breach of that right that the mother removed the child from its place of habitual residence."
"The matter has also received detailed consideration by the Supreme Court of Canada first in Thomson v Thomson [1994] 3 S.C.R. 551 in which La Forest J. quoting the passage I have already quoted from Sir Stephen Brown P. said, at p. 588:
"I am fully in agreement with this statement. It seems to me that when a Court has before it the issue of who shall be accorded custody of a child, and awards interim custody to one of the parents in the course of dealing with that issue, it has rights relating to the care and control of the child and, in particular, the right to determine the child's place of residence. It has long been established that a Court may be a body or institution capable of caring for the person of a child. As I explained in E. (Mrs) v. Eve [1986] 2 S.C.R. 388, the Court of Chancery has long exercised wardship over children in need of protection in the exercise of its parens patriae jurisdiction. But I see no need to rely on jurisdiction emanating from this doctrine, which has understandably 'puzzled and concerned' other contracting parties . . ."
"There are two aspects to this matter. First of all the application to the Court must raise matters of custody within the meaning of the Convention and that will require in every case a consideration of the terms of the D application. Secondly, a question arises as to the time at which the Court acquires such right. It is clear that the interpretation which has been accepted of the Convention which allows the possibility of a Court having rights of custody does not contemplate that happening unless there is an application to the Court in a particular case raising the issue of the custody of one or more children. The date at which such application confers these rights is a matter which has not been the subject of detailed consideration ^ in relation to the Convention. For the purposes of the Civil Jurisdiction and Judgments Act 1982, Schedule 1, article 21 and the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters which is scheduled to that Act (Schedule 1) it has been held that an English Court becomes definitively seized of proceedings for the purposes of that Convention on the date of service of the writ at F which point it has jurisdiction over the merits of the dispute: Neste Chemicals S.A. v. D.K. Line S.A [1994] 3 All E.R. 180 and Dresser U.K. Ltd. v. Falcongate Freight Management [1992] QB 502".
"One needs, therefore, to look wider. One goes to the preamble which expresses the desire of the States signing the Convention: '… to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of habitual residence, as well as to secure protection for rights of access.' One sees at once a sharp distinction drawn between rights of custody and rights of access. The distinction was exposed in the trenchant judgments of Hale J in S v H (Abduction: Access Rights) [1998] Fam 49, [1997] 1 FLR 971 and Re W; Re B (Child Abduction: Unmarried Father) [1998] 2 FLR 146, with which I agree. In the latter she said at 157F:
'Thus a deliberate distinction is drawn between rights of custody and rights of access … Rights of custody are protected under Art 12 by the remedy of speedy return to the country where the children were habitually resident before they were removed. Rights of access are protected under Art 21 by remedies to organise and secure their effective exercise in the country where the children are now living.' Speedy return of the children wrongfully removed is required to give effect to that purpose of the Convention best expressed in para 19 of the Explanatory Report by Professor Pèrez-Vera as follows: 'The Convention rests implicitly upon the principle that any debate on the merits of the question, ie of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal …'
It seems to me, therefore, that the proper approach to the consideration of whether or not the father's rights amount to rights of custody is to view the expression broadly, endeavouring to give it a universal meaning but one which preserves the essential distinction between, on the one hand, the rights of custody which should only be varied by the Courts of the child's habitual residence for the purpose of which consideration the child should be speedily returned, and, on the other, the rights of access, the protection of which do not require so Draconian a remedy and which can be safeguarded 198 Ward LJ Re V-B (Abduction: Custody Rights) (CA) [1999] 2 FLR C7 in the country to which children will have been lawfully and not wrongfully removed."
"60. Accordingly on this aspect of the case, we conclude that (1) the Hague Convention requires the Court to give the expression "rights of custody" an autonomous interpretation; (2) the reference in article 3 to "rights of custody attributed to a person . . . under the law" of the child's habitual residence is not a choice of law of that state in the sense that if the domestic law, still less the conflict of laws rule, does not characterise the C right as a right of custody, then it will not be such a right for Hague Convention purposes; (3) the task of the Court is to establish the rights of the parents under the law of that state and then to consider whether those rights are rights of custody for Hague Convention purposes; (4) in considering whether those rights are rights of custody, the Court is entitled and bound to give a purposive and effective interpretation to the Hague Convention; (5) the rights given by the New York order to the father are rights of custody D for Hague Convention purposes, whether or not New York state or federal law so regards them either for domestic purposes or Hague Convention purposes."
"55. But what of his reference to interim orders and special cases? For this purpose it is necessary to go back to earlier authorities: see in particular B v B (Child Abduction: Custody Rights) [1993] Fam 32 and Re B (Abduction) (Rights of Custody) [1997] 2 FLR 594 , considered and applied by Hale J in In re W , Re J and Re C . From these authorities one can, I think, derive the proposition that, even if the proceedings have not been served, rights of custody will be vested in the Court if, in proceedings of the appropriate kind (as to which see In re W at p 19B, Re J at p 655H and Re C at p 864A) the Court:
i) has made an interim order for residence or prohibiting the removal of the child from the jurisdiction or
ii) even if it has not yet made any such order, has considered the matter and given directions for the future conduct of the proceedings: see In re W at pp 5A–D, 12E, 16C–17D, Re J at pp 654F–H, 657C–E, and Re C at pp 860C–F, 863C–G."
Grave risk and intolerable situation
"Second, the risk to the child must be grave. It is not enough, as it is in other contexts such as asylum, that the risk be real. It must have reached such a level of seriousness as to be characterised as grave. Although grave characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as grave while a higher level of risk might be required for other less serious forms of harm. (In Re E (Children) (SC(E)) [2012] 1 AC 144).
34. Third, the words physical or psychological harm are not qualified. However, they do gain colour from the alternative or otherwise placed in an intolerable situation (emphasis supplied). As was said in In re D [2007] 1 AC 619, para 52, intolerable is a strong word, but when applied to a child must mean a situation which this particular child in these particular circumstances should not be expected to tolerate. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent."
Jurisdiction for the Care Proceedings
"38. Having regard to the wording and objectives of Council Regulation (EC) No 2201/2003 and the relevant multilateral Conventions, the concept of habitual residence in article 8(1) of the Regulation should therefore be understood as corresponding to the actual centre of interests of the child.
39. In order to ascertain the actual centre of interests, the referring Court must take account of all factors present "at the time the Court is seised". It is unclear, however, what is to be regarded as becoming seised in a case such as the present in which the authorities have clearly acted on their own authority. (On the concept of the institution of proceedings, for the purposes of article 64(2) of Council Regulation (EC) No 2201/2003, see my opinion in Proceedings brought by C (Case C-435/06) [2007] ECR I-10141:
"62. The third question concerns the temporal scope of application of Council Regulation (EC) No 2201/2003. According to the transitional provisions in article 64(2) the Regulation applies to recognition and enforcement of judgments subject to three conditions: … [second requirement] the proceedings resulting in the judgment must have been instituted before the date of application of Council Regulation (EC) No 2201/2003 but after the date of entry into force of Council Regulation (EC) No 1347/2000 …"
"67. As regards the second requirement (see above, para 62), the national Court proceeds on the footing that the proceedings were instituted in autumn 2004 when the Social Welfare Board initiated the investigation. By contrast, the commission submitted that the proceedings were instituted only by the Social Welfare Board's application to the Länsrätt on 25 February 2005 for confirmation of its decision.
"68. Article 16 of Council Regulation (EC) No 2201/2003 specifies only when a Court is to be regarded as seised, that is to say-in short-at the time when the document instituting the proceedings is lodged with the Court, or if the document has to be served before being lodged with the Court, at the time when it is served on the respondent. By contrast, the provision does not directly cover the case in which an authority acts on its own authority and takes measures to protect children. However, if the date of the relevant decision is not that of the order of the Social Welfare Board of 23 February 2005 but that of its confirmation by the Länsrätt on 3 March 2005, that would suggest, as the commission submits, that for the purposes of article 64(2) the proceedings should be regarded as instituted only by the Social Welfare Board's application to the Länsrätt.")
The relevant act could in particular be the taking into care on 16 November 2005, since it was by that measure that the authorities first acted with external effect. (Concerning the institution of proceedings for the purposes of article 64(2) of Council Regulation (EC) No 2201/2003, the Court of Justice seems to focus on an even earlier date, namely the start of the authorities' internal investigations: see Proceedings brought by C (Case C-435/06) [2008] Fam 27, para 72.)
40. In this case, the duration and regularity of residence and the child's familial and social integration may in particular be significant for determining the place of habitual residence.
Duration and regularity of residence.
41. To distinguish habitual residence from mere temporary presence, residence must normally be of a certain duration. Council Regulation (EC) No 2201/2003 does not prescribe a particular time limit in this connection. When residence is sufficiently permanent depends instead on the circumstances of the individual case. Important factors here may be in particular the age of the child and the familial and social circumstances described below."
"17. I think that Ms Chokowry's approach is sensible and, adopt it here, with my own amendments: (i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment (A v A, adopting the European test). (ii) The test is essentially a factual one which should not be overlaid with legal sub-rules or glosses. It must be emphasised that the factual inquiry must be centred throughout on the circumstances of the child's life that is most likely to illuminate his habitual residence (A v A, In re L). (iii) In common with the other rules of jurisdiction in Council Regulation (EC) No 2201/2003 ("Brussels IIA") its meaning is "shaped in the light of the best interests of the child, in particular on the criterion of proximity". Proximity in this context means "the practical connection between the child and the country concerned": A v A, para 80(ii); In re B, para 42, applying Mercredi v Chaffe (Case C-497/10PPU) EU:C:2010:829; [2012] Fam 22, para 46. (iv) It is possible for a parent unilaterally to cause a child to change habitual residence by removing the child to another jurisdiction without the consent of the other parent (In re R). (v) A child will usually but not necessarily have the same habitual residence as the parent(s) who care for him or her (In re LC). The younger the child the more likely the proposition, however, this is not to eclipse the fact that the investigation is child focused. It is the child's habitual residence which is in question and, it follows the child's integration which is under consideration. (vi) Parental intention is relevant to the assessment, but not determinative (In re L, In re R and In re B). (vii) It will be highly unusual for a child to have no habitual residence. Usually a child lose a pre-existing habitual residence at the same time as gaining a new one (In re B). (viii) In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the Court must weigh up the degree of connection which the child had with the state in which he resided before the move (In re B —see in particular the guidance at para 46). (ix) It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there (In re R and earlier in In re L and Mercredi). (x) The relevant question is whether a child has achieved some degree of integration in social and family environment; it is not necessary for a child to be fully integrated before becoming habitually resident (In re R) (emphasis added). (xi) The requisite degree of integration can, in certain circumstances, develop quite quickly (article 9 of Brussels IIA envisages within three months). It is possible to acquire a new habitual residence in a single day (A v A; In re B). In the latter case Lord Wilson JSC referred (para 45) to those "first roots" which represent the requisite degree of integration and which a child will "probably" put down "quite quickly" following a move. (xii) Habitual residence was a question of fact focused upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It was the stability of the residence that was important, not whether it was of a permanent character. There was no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely (In re R). (xiii) The structure of Brussels IIA, and particularly recital (12) to the Regulation, demonstrates that it is in a child's best interests to have an habitual residence and accordingly that it would be highly unlikely, albeit possible (or, to use the term adopted in certain parts of the judgment, exceptional), for a child to have no habitual residence; As such, "if interpretation of the concept of habitual residence can reasonably yield both a conclusion that a child has an habitual residence and, alternatively, a conclusion that he lacks any habitual residence, the Court should adopt the former" (In re B supra)."
Forum Conveniens
i) It is upon the party seeking a stay of the English proceedings to establish that it is appropriate;
ii) A stay will only be granted where the Court is satisfied that there is some other forum available where the case may be more suitably tried for the interests of all parties and the ends of justice. Thus, the party seeking a stay must show not only that England is not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate;
iii) The Court must first consider what is the 'natural forum', namely that place with which the case has the most real and substantial connection. Connecting factors will include not only matters of convenience and expense but also factors such as the relevant law governing the proceedings and the places where the parties reside;
iv) If the Court concludes, having regard to the foregoing matters, that another forum is more suitable than England, it should normally grant a stay unless the other party can show that there are circumstances by reason of which justice requires that a stay should nevertheless be refused. In determining this, the Court will consider all the circumstances of the case, including those which go beyond those taken into account when considering connecting factors.