CL v AL (separated siblings)
| Jurisdiction | England & Wales |
| Judge | KEEHAN J |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWHC 2154 (Fam) |
| Court | Family Division |
Jurisdiction – Habitual residence – Integration in social and family environment – Children without habitual residence unusual but not impossible – Presence founding jurisdiction where no habitual residence – Subsequently habitual residence in England founded jurisdiction.
The British father and the Australian mother had two children, both of whom had dual British and Australian nationality. The elder boy was born in Australia and the younger boy in England; the family spent time living in both countries. In July 2015 the family moved from Australia to England, with the goal of establishing themselves in Scotland, where the parents hoped to run a guest house; this move happened in October 2015 but the plan quickly unravelled. In January 2016 the mother returned to Australia for a few weeks, leaving the boys in the father’s care; shortly afterwards, the father moved with the boys to a familiar place in England. When the mother returned she issued Children Act 1989 proceedings.
A district judge determined in July 2016 that it was in the welfare/best interests of both boys, then 12 and 9, to relocate to Australia with the mother. When he was told, the 12-year-old reacted very badly; the parents therefore agreed that the elder boy would stay with the father as a temporary measure while the mother and the younger boy flew to Australia.
In September, the father applied to vary the July order; in October, the mother applied to enforce it. Concurrent proceedings in respect of both children in the Family Court of Australia were eventually stayed, pending resolution of the English proceedings.
At the hearing in August 2017, the father argued that he should care for both children in England, while the mother argued that she should care for both children in Australia. Both parents very much regretted their decision to separate the boys, who were now 13 and 10. The guardian took the view that the ideal solution was for both parents to live in England and for the children to be looked after by both parents under a shared care arrangement. She reported that the elder boy was resolutely opposed to moving to Australia and had said that he would not get on the plane; however, he did very much want to live with his brother. The younger boy said he wanted to live with the mother, preferably in Australia, but also wanted very much to live with his brother; he had also said that everyone living in England might work. The guardian described the relationship between the boys as one of the closest sibling relationships that she had ever encountered, but thought that if the ideal solution was not possible, the status quo was the next best option. The immigration status of both parents was uncertain, with both expressing the view that they would not now be able to move permanently to the other country. On the second day of the final hearing the mother suggested that the elder boy might be persuaded to change his mind, if there was a concerted effort by both parents and the elder boy spent some time in her care; if that was not successful, she proposed professional therapeutic intervention.
Held – (1) In considering the habitual residence of the boys the court had well in mind the principal authorities, most especially Re B (a child) (habitual residence: inherent jurisdiction)[2016] UKSC 4. While this established that it was unlikely and unusual that a child would be found to have lost habitual residence in one country but not yet to have acquired habitual residence in another country, it would be unusual, not impossible (see [26], [27], below).
(2) The boys had lost their habitual residence in Australia when they returned to the UK in July 2015. However, they had not established a sufficient degree of integration in the social and family environment in Scotland (A v A (children: habitual residence)[2013] UKSC 60) to have acquired habitual residence there and had lived in England for only a few weeks before the mother issued her application. Thus the court was not satisfied that they had acquired habitual residence anywhere in the UK. In those circumstances, pursuant to s 2(1)(b) of the 1986 Act, neither Brussels IIA nor the 1996 Hague Convention on the Protection of Children applied. When the mother issued her application, jurisdiction had therefore been founded on the boys’ presence in England and Wales, pursuant to s 2(1)(b)(ii). By the date of the July order both boys had established a sufficient degree of integration in England to have acquired habitual residence here. The elder boy had remained living in, and habitually resident in, England. Given the somewhat itinerant lifestyle of the mother and younger boy in the two months they had spent in Australia before the father’s application in September 2016, and the fact that the father and brother had remained living in England, by the date of the father’s application the younger boy had not yet acquired habitual residence in Australia, because he had not established the necessary degree of social integration; neither had he lost his habitual residence in England. Therefore, at the date of the father’s application in September 2016, both boys were still habitually resident in England and the English court had jurisdiction to entertain the parents’ cross-applications. The English court was first seized of issues relating to the boys, ahead of proceedings issued in the Family Court of Australia (see [31], [34]–[36], [39]–[41], below).
(3) Given the boys’ ages the court was required to give real weight to the wishes and feelings of both boys. It was the strongly held wish not only of the parents, but more importantly and especially both of the boys, that the boys were reunited and lived together. That was particularly acutely important: (a) because of the very special relationship the boys had with one another, and (b) because of the very limited options for them having direct contact if they remained separate and apart. There was regular indirect contact between the boys and the mother and the father by telephone calls and particularly by Skype, but this form of contact was no substitute whatsoever for living together, or even just regular direct contact. The parents had not done all that they could possibly have done to promote direct contact between the boys (it did not reflect well on the mother that she had adopted a litigation tactic in deciding not to bring the younger child to England to see the elder child, on legal advice) (see [60]–[62], [64], [66], below).
(4) It would be wholly contrary to the welfare/best interests of both children for the status quo to be maintained; that is for the elder child to remain living in this country, whilst the younger child remained living in Australia. The ideal solution would be for the children to live together in England, with both parents present and for there to be a shared care arrangement. However, that was not something the court could order; it was only something that the parents could agree and put in place themselves. The court’s view was that if the mother wished to live in this jurisdiction she would find a legal way to do so but this was not a finding; any decision had to be made on the premise that the mother would not be able to live permanently in England, as she had suggested (see [58], [67], [68], below).
(5) The court was extremely disappointed that therapeutic intervention had been mentioned only some 10 months after the proceedings began. Over the last 12 months no real steps and efforts had been taken by either parent to persuade the elder boy to change his mind, he was clear that he just wanted to settle down in one country and it was fanciful to hope that he would move from this position now. In any event, the court was very concerned about creating the self-same set of circumstances that followed the July order and about further extending the time before these boys and these parents had a decision on their long-term future (see [71]–[76], below).
(6) Although the desire of the boys to be together was equally held and equally strong, it could therefore be achieved only by disappointing one of them. The elder boy’s views, though strongly held, were not determinative but, given those views, how was he to be placed on the plane for the long flight to Australia? This was neither a credible nor practical option and it certainly was not in his welfare/best interests. The court had to consider and balance the harm that would come to the elder boy if he was ordered to go to Australia and live with the mother, against the harm that the younger child would suffer as a result of being ordered to come and live with the father in England. The younger child was not only younger, his views were less forceful, he had acknowledged that living in England might work and he had yet to start secondary education; the balance of harm fell in favour of making a child arrangements order in favour of the father in England in respect of both boys, with provision for the children to spend time with the mother (see [77], [78], below).
Statutory provisions referred to
Children Act 1989, s 1(1), s 1(3).
Family Law Act 1986, s 2, s 2(1)(b), s 2(1)(b)(ii), s 3.
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, art 6 and art 8.
Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in...
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