J v U
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Bodey |
| Judgment Date | 29 September 2016 |
| Neutral Citation | [2016] EWHC 2481 (Fam) |
| Court | Family Division |
| Docket Number | Case No. ZC15D03907/ZC16P00841 |
| Date | 29 September 2016 |
[2016] EWHC 2481 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Bodey
(In Private)
Case No. ZC15D03907/ZC16P00841
Mr. C. Hale QC and Ms. F. Dowse (instructed by Anthony Gold Solicitors) appeared on behalf of the Applicant.
Mr. T. Scott QC and Mr. W. Tyzack (instructed by Stewarts Law LLP) appeared on behalf of the Respondent.
Introductory
The issue for determination is whether the English court has jurisdiction in respect of two children, A, born [date stated], who is ten and B, born [date stated], who is eight. Both children, it is common ground, are habitually resident in Bosnia. Their mother, whom I will call "the mother", seeks urgently to invoke this court's jurisdiction to make orders permitting her to relocate with the children to Serbia in two days' time. Jurisdiction is strongly contested by the children's father, whom I will call "the father". He says that such issues relating to the welfare of the children should be resolved in Bosnia where the parents and the children are habitually resident.
The mother has been represented by Charles Hale QC with Ms. Dowse and the father by Mr. Scott QC with Mr. Tyzack. I have read sufficient of the court bundle. The case was listed for half a day which was plainly inadequate, the reading alone taking about that amount of time. Having heard both side's arguments on Monday, today being Thursday, there was insufficient time left for judgment preparation and delivery. I have, therefore, had to squeeze the preparation of this judgment around the work involved in other hearings, in the evenings and early mornings. This is not ideal but the late stage at which the jurisdiction of this court has been invoked has made an urgent decision unavoidable.
Background in brief
The parents began to cohabit in 2000 in [European city stated] where both were working. The father is now aged [age stated] and is retired from a long career in the English Civil Service where he rose to a very senior level. The mother is aged [age stated] and has made a successful career employed by the European Commission (the "EC") with status to work [status stated]. The parties were married in [year stated] following which the children came along in [year stated] and [year stated] respectively.
In 2006 the father obtained a secondment with the [agency stated] in Sarajevo, Bosnia, where the mother and the children joined him in February 2009. She has worked for the EC in Sarajevo, Bosnia, since that time. Thus, the family have lived in Sarajevo for the last seven-and-a-half years where the children are settled in the [school stated]. They (the children) have British passports and speak several languages.
Unhappily, difficulties arose between the parties in their marriage and [in the summer of] 2015 the wife issued an English petition. She originally relied on an assertion that both parties are habitually resident in this jurisdiction, but has since abandoned that and now relies only on an alternative assertion of her English domicile. [In the Autumn of] 2015 the father issued a petition for divorce in Sarajevo, Bosnia. Following that, on [date] December 2015 he applied in this jurisdiction to strike out the wife's petition for lack of jurisdiction on the basis that he asserts she is not domiciled here; or else for a discretionary stay. That application by the father remains pending in this court.
The mother has now obtained a posting to Belgrade, Serbia, and is due to move there on 1 st October 2016, two days' time. She wants to take the children with her but the father does not agree. There is a substantial issue between the parties as to who is the children's primary carer and there are various other factual disputes connected with the children's welfare. On 19 th July 2016 the mother issued a Form C100 in this court seeking a Child Arrangements Order (i.e. residence of the children) and a Specific Issue Order permitting her to relocate. Specifically, in box 4a of her Form C100 she seeks permission to move the children from Bosnia to Serbia and an interim order for the children to live with her. On 16 th August 2016 her application came before a circuit judge who made various directions about the jurisdictional issue regarding the wife's divorce petition here. Both parties were ordered to file statements in respect of that particular issue. In addition, the judge set the matter down with a time estimate of half a day before me on 26 th September 2016 'for an urgent directions appointment to include determination of whether there is jurisdiction to hear the Children Act proceedings'. She made a permissive order too that the father 'may, if so advised, file a statement in response to the mother's statement supporting her Form C100 by 15 th September 2016'. The father has not availed himself of that permission. Mr. Scott tells me that the view was taken that, since this hearing was set up only to determine the legal issue of jurisdiction, a response setting out the father's case on welfare issues seemed unnecessary and premature.
The mother's statement in support of her Children Act application failed to include the sort of detail which a court would require before granting leave to relocate. By letter dated Friday 23 rd September 2016, however, her solicitors gave a lot more of the necessary details. The father complains through Mr. Scott that he has not had sufficient time properly to consider this.
The law
The applicable law, as it appears in Art.14 of Brussels II Revised (see below) and in the Family Law Act 1986 (see below), is not disputed by counsel. The question is how it is to be applied in the present case. The statutory framework is not entirely straightforward and I need to set out the relevant provisions.
'1 Orders to which Part I applies
(1) Subject to the following provisions of this section, in this Part 'Part I order' means:
(a) a s.8 order made by a court in England and Wales under the Children Act 1989…
(d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children—
(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child…'
'2 Jurisdiction: general
(1) A court in England and Wales shall not make a s.1(1)(a) order [ i.e. a s.8 order] with respect to a child unless—
(a) it has jurisdiction under the Council Regulation or the Hague Convention, or
(b) neither the Council Regulation nor the Hague Convention applies but:
(i) the question of making the order arises in or in connection with matrimonial proceedings… and the condition in s.2A of this Act is satisfied, or
(ii) the condition in s.3 of this Act is satisfied…'
Pausing there, it is agreed that neither the Council Regulation (being Brussels II Revised) nor the Hague Convention (1996) applies. It is further agreed that the condition in s.3 of the Act is not satisfied, as the children were not habitually resident or present in England and Wales at the relevant date, being (by s.7(c) of the Act) the date when the application was made.
'2 (3) A court in England and Wales shall not make a s.1(1)(d) order [ i.e. an inherent jurisdiction order giving care of a child to any person or providing for contact with or the education of the child] unless—
(a) it has jurisdiction under the Council Regulation or the Hague Convention [ which it does not], or
(b) neither the Council Regulation nor the Hague Convention applies, but
(i) the condition in s.3 of this Act is satisfied [ which it is not], or
(ii) the child concerned is present in England and Wales on the relevant date [ which was not the case] and the court considers that the immediate exercise of its powers is necessary for his protection.'
'2A Jurisdiction in or in connection with matrimonial proceedings
(1) The condition referred to in s.2(1) of this Act [ above] is that the proceedings are proceedings in respect of the marriage… of the parents of the child concerned, and
(a) the proceedings—
(i) are proceedings for divorce…, and
(ii) are continuing,
(b) [not relevant].'
This condition is met in this case.
'2A (4) Where a court—
(a) has jurisdiction to make a s.1(1)(a) order by virtue of 2(1)(b)(i) of this Act, but
(b) considers that it would be more appropriate for Part I matters relating to the child to be determined outside England and Wales,
the court may by order direct that, while the order under this subsection is in force, no section 1(1)(a) order shall be made by any court by virtue of s.2(1)(b)(i) of this Act.'
By Art.14 of Brussels II Revised under the heading 'Residual jurisdiction', it is provided that:
'Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.'
The mother's case regarding jurisdiction
Mr. Hale puts his case for jurisdiction in two ways. His 'primary' case, as he describes it, is based on s.2(1)(b)(i) of the Act, namely that the question of making the s.8 orders sought by the mother arises 'in or in connection with' matrimonial proceedings which satisfy s.2A (because they are in respect of the marriage of the children's parents and are continuing proceedings). Alternatively, Mr. Hale relies on s.1(1)(d) in saying that he seeks an order (i.e. a Relocation Order) under the inherent jurisdiction of the High Court not being an order which 'gives care of a child to any person or provides for contact with or the education of a child'.
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