GC v as
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Stuart-Smith,Lord Justice Moylan |
| Judgment Date | 13 August 2021 |
| Neutral Citation | [2021] EWCA Civ 1223 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2021/0173 |
In the Matter of the Senior Courts Act 1981
And in the Matter of S (Children) (Inherent Jurisdiction: Setting Aside Return Order)
[2021] EWCA Civ 1223
Lord Justice Moylan
Lord Justice Baker
and
Lord Justice Stuart-Smith
Case No: B4/2021/0173
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Hon Mr Justice Mostyn
FD18P00811
Royal Courts of Justice
Strand, London, WC2A 2LL
William Tyler QC and Emily James (instructed by Expatriate Law) for the Appellant
Henry Setright QC and Cliona Papazian (instructed by Freemans) for the Respondent
Hearing date: 29 April 2021
Approved Judgment
This is an appeal against an order made on 11 January 2021 dismissing applications by the mother under the inherent jurisdiction in respect of her children who are residing with their father in Libya. Permission to appeal was granted by Moylan LJ on 10 March 2021.
Background
The mother was born in England and is now aged 41. The father, now aged 38, was born in Tripoli in Libya. They met in England in 2007 and started a relationship, and in 2008 went through an Islamic marriage in Brighton. In 2013, after the father had obtained a Masters degree in Law from an English university, they moved to Tripoli for a few months. By the end of that year, the mother was pregnant, and in November she moved back to stay with her parents in England. In April 2014, the father returned to this country and the parties resumed living together. The following month, the mother gave birth to their first child, D, and in January 2016 to their second child, E. In September 2016, the father, who had previously been given indefinite leave to remain, was granted British citizenship. In September 2017, the mother gave birth to the parties' third child, F.
In December 2017, the parties and the three children travelled to Turkey on one-way tickets booked by the mother. They met with members of the paternal family for a holiday, before all travelling on to Libya on 26 December 2017. In a judgment in subsequent proceedings in this country to which I shall turn shortly, it was held that at that point the parties had agreed to move with the children to live permanently in Libya. Two weeks later, however, in January 2018, the mother returned to this country alone to attend an appointment in relation to a benefits claim. The mother had expected that the youngest child, F, would be travelling with her, but shortly before their scheduled departure the father advised her that he had not been able to secure an exit visa for F. During the early part of 2018, and while in England, the mother made contact with English solicitors, Dawson Cornwell, a lawyer in Libya, the Libyan embassy, Reunite, and others, seeking advice about her situation. Over the course of 2018, the mother travelled between Libya and England on several occasions. Throughout this period, the children and the father remained in Libya. In September 2018, the mother returned to England and thereafter has not visited Libya again. Since that date she has had only indirect contact.
In November 2018, the mother started proceedings in the Family Division of the High Court seeking the summary return of the children to this jurisdiction. She asserted that the children had been “forcibly” retained in Libya by the father who, she claimed, was shortly due to travel to this country. At a preliminary hearing, conducted without notice to the father, the children were made wards of court, and a Tipstaff passport order was made, with the aim of preventing the father leaving the jurisdiction after his arrival. In the event, the father did not travel to England at that time, or at any time since. In April 2019, he sent the mother an invitation to apply for a visa in Libya, but she did not take it up.
After several interim hearings, the wardship proceedings were listed for “a fact-finding hearing to determine the issue of the habitual residence of the children and thereafter whether or not the court has jurisdiction to proceed to make orders in respect of the children.” The hearing took place over two days in September 2019 before HH Judge Hillier sitting as a deputy High Court judge. Both parents gave oral evidence, the mother attending court and the father joining by video link from Libya. Judgment was reserved and handed down on 25 October 2019. In a lengthy analysis the judge found that the mother had told lies in the course of the proceedings and the father had deceived the UK immigration authorities when applying for asylum in a way which the judge described as “sophisticated, planned and totally dishonest”. She found that they had agreed to move with the children to live permanently in Libya in 2017, rejecting the mother's case that they were only visiting Libya on holiday, and therefore concluded that the children had not been wrongfully removed from England. She further rejected the mother's alternative claim that the children had been wrongfully retained in Libya in January 2018 when the mother returned for the first time to England to attend the benefits appointment. Finally, she concluded that, by the date of the mother's application to the Family Division at the end of November 2018, the children had acquired habitual residence in Libya. She concluded that the courts of England and Wales did not have jurisdiction in matters of parental responsibility over the children pursuant to Articles 8 or 10 of Brussels IIA and therefore dismissed the mother's application for an order for the summary return of the children.
At the end of her judgment, the judge added this coda:
“Parens patriae
134. The court has jurisdiction in relation to British citizen children by virtue of their nationality: the inherent parens patriae jurisdiction. The current state of the law is not entirely clear, given the various different (obiter) dicta emerging from the UK Supreme Court in Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC, [2016] 2 WLR 557 ….
135. Mr Edwards [counsel for the father] pre-emptively defended any suggestion that this court should exercise its parens patriae jurisdiction in the current case.
136. In the event, however, there has been neither a formal application nor any submissions on behalf of the mother asserting that the court should exercise its parens patriae jurisdiction, whether on welfare/protection grounds or for reasons deriving from forum necessitatis arguments.
137. Accordingly, I need not burden this judgment either with analysis of the modern scope of this ancient jurisdiction or with consideration of whether, in the absence of both a wrongful retention and of habitual residence at the relevant date, the court should consider making any orders by this route.”
Permission to appeal was granted against the judge's decision on the application for summary return. By supplemental application, the mother in addition sought permission to argue that that the judge should have investigated whether it was appropriate to exercise the parens patriae jurisdiction. At the outset of the appeal hearing, this Court (Bean LJ, Baker LJ and Cobb J) heard brief submissions on whether they should permit this additional ground to be advanced. In his judgment, Cobb J (with whom the other members of the Court agreed) indicated that he would refuse permission to the mother to be allowed to rely on the additional ground, for three reasons, set out at paragraphs 55 to 59 of his judgment:
“55. First, counsel for the mother had not presented her case before the judge at the hearing on the basis that the judge should exercise this parens patriae jurisdiction; the mother's case had been explicitly presented on the basis that the English Court's jurisdiction was to be founded either on the basis of Article 8 BIIR or Article 10 B …
56. Consistent with the way in which the case was presented before the judge at first instance, the appellant's case on this appeal was originally presented on the basis that the ‘legal framework’ was limited to a consideration of Article 8 and Article 10 of BIIR. It seems to me that the appellant is in very considerable difficulties in arguing that the judge was wrong not to accept jurisdiction on a basis which was not argued before her.
57. Secondly, and in any event, a parens patriae jurisdiction founded on the basis of nationality is a relative rarity.”
Cobb J then cited dicta from the Justices of the Supreme Court in Re B, supra, (considered below). He continued:
“58. Thirdly, the court's reliance on, or deployment of, the inherent jurisdiction is highly discretionary. It would in the circumstances be very difficult indeed for the appellant mother to persuade us that the judge was wrong not to exercise her discretion to invoke this jurisdiction in the absence of some error of principle or misunderstanding of the facts; this is particularly so (although I realise that this is repeating the first point above), as the case had not been argued before the judge at first instance in this way.
59. Even if we had decided that the mother should be allowed to rely on this further ground of appeal, then for the reasons outlined above, I would have had no hesitation in concluding that this ground would not have added materially to the merits of the appeal, or affect the ultimate outcome.”
With regard to the grounds for appeal for which permission had been granted, the appeal was dismissed, for the reasons set out in Cobb J's judgment at paragraphs 60 to 84. It is unnecessary to recite those reasons for the...
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Ss v McP
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