Local Authority B v X, v and T
| Jurisdiction | England & Wales |
| Judge | Cobb J |
| Judgment Date | 11 May 2020 |
| Neutral Citation | [2020] EWFC 37 |
| Court | Family Court |
(Re T)
([2020] EWFC 37)
(Cobb J)
England, Family Court.
States — Recognition — Turkish Republic of Northern Cyprus (“TRNC”) — Whether TRNC a Member State for purposes of European Council Regulation No 2201/2003
Jurisdiction — Turkish Republic of Northern Cyprus — Whether TRNC capable of being a country of habitual residence for determining jurisdiction in care proceedings — Whether child can retain habitual residence when parent deported from country — Effect of having no place of habitual residence
Treaties — Interpretation — Application — Protocol No 10 of the 2003 Act of Accession of Cyprus to European Union — Effect of suspension of acquis communautaire to the TRNC — The law of England
Summary:2The facts:—The applicant, a local authority in the United Kingdom, took over care proceedings initiated in respect of T, a British national born in the north of Cyprus, an area which claimed to be the Turkish Republic of Northern Cyprus (“TRNC”). T's mother, X (“the first respondent”), had travelled to the TRNC while pregnant in order to escape the involvement of social services after her first child was permanently removed from her care. T's father, V (“the second respondent”), remained in the United Kingdom.
X had overstayed her visa in the TRNC and was subject to arrest and deportation. She was first deported from the TRNC to the Republic of Cyprus, and subsequently from the Republic of Cyprus to the United Kingdom. T was taken into care and transported with his mother to the United Kingdom but was not subject to formal deportation orders.
Immediately upon her arrival in the United Kingdom, X was arrested and charged for her involvement in cross-border criminal activity that occurred while she was resident in the TRNC. T was taken into care and care proceedings were filed in the Family Court.During the care proceedings, X submitted that the English Courts had no jurisdiction to determine the matter as T was habitually resident in the TRNC. She argued that pursuant to Article 8 of European Council Regulation No 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the BIIR”), the Court should decline to exercise jurisdiction.3 The applicant, as well as the second respondent, disputed that T could retain habitual residence in the TRNC after the deportation of X and the removal of T from the jurisdiction. It was further submitted that the BIIR did not apply to the TRNC as Protocol No 10 of the 2003 Act of Accession of Cyprus to the European Union (“EU”) suspended the application of EU law (“the acquis communautaire”) to the TRNC. X requested that the Court refer the question of habitual residency in the TRNC to the Court of Justice of the European Union (“the CJEU”).
Held:—The Court had jurisdiction to determine the proceedings. The request to refer the matter to the CJEU was dismissed.
(1) The BIIR was designed to facilitate a readily accessible basis of jurisdiction in matters of parental responsibility and could not be applied effectively if jurisdiction could be said to lie in a country from which a child, or his or her parents, were barred from entry. Therefore, a person, or a dependent of that person, could not retain habitual residence in a country that he or she had left under a deportation order, and to which he or she had no lawful right to return. In such circumstances, integration was abruptly and decisively lost and could not practically continue or be resumed. As such, T had ceased to be habitually resident in the TRNC (paras. 51–2).
(2) T, most unusually, had no habitual residence. In addition to losing his habitual residence in the TRNC upon his departure after the deportation of his mother, he had not established a sufficient degree of integration to acquire habitual residence in the United Kingdom. Similarly, T was never habitually resident in the Republic of Cyprus due to the short duration of his time there. Pursuant to Article 13 of the BIIR,4 the English Court could therefore assume jurisdiction over T due to his presence in the United Kingdom (para. 53).
(3) The suspension of the acquis communautaire to the TRNC under Protocol No 10 of the Act of Accession of Cyprus to the EU was effective in achieving the derogation of EU law, including the BIIR, to the TRNC. It therefore followed that even if T was habitually resident in the TRNC at the time the English Courts were first seised of the matter, he was not habitually
resident in a Member State for the purposes of the BIIR. Pursuant to Article 14 of the BIIR,5 the English Courts could therefore assume jurisdiction over T due to his presence in the United Kingdom (para. 68).(4) In view of the finding that T had no habitual residence, it was not necessary to refer the question posed by the first applicant to the CJEU. Further, the question raised had previously been considered by the English High Court6 and was therefore not sufficiently new to justify a referral (para. 72).
The following is the text of the judgment of the Court:
1. This application concerns a child, T. He is now about 5 years old. He is a British national; both his parents are British nationals. He was born in Kyrenia in the Turkish Republic of North[ern] Cyprus (“TRNC”), and lived there from his birth in early 2014 until late summer 2018 when he travelled with his mother to the Republic of Cyprus, the southern territory of the island,1 where he remained until 17 October 2018. On that day, he flew to London, again in the company of his mother. On each occasion on which T and his mother travelled, the mother was the subject of a formal deportation order from the relevant territory of the island of Cyprus. On her arrival in this country the mother was arrested and taken into custody, where she has remained to date. A police protection order was made in relation to T on his arrival in England, and he was placed into foster care, where he, in turn, has remained.
2. On the day after his arrival in London, namely 18 October 2018, Local Authority A issued care proceedings (Part IV Children Act 1989) in relation to T. The proceedings were later transferred to the Family Court sitting at Leeds given the mother's historical links with the North East of England, and Local Authority B (hereafter “the Local Authority”) was substituted for Local Authority A as the relevant designated authority. It is in the context of these care proceedings that the issue before me arises.
3. That issue is whether the Family Court in this country can properly exercise jurisdiction in relation to T. The Local Authority
contends that it can and should do so; its stance is supported by the Children's Guardian on behalf of T, and by T's father (Mr V), who lives in England. The mother opposes that outcome and argues that this court should decline jurisdiction; she argues that the courts of the Republic of Cyprus (notably in the southern territory, not the courts of the TRNC) should assume jurisdiction for T, and further argues that T should be physically sent back to the Republic of Cyprus forthwith.4. The legal issues in the case are complicated by the internal territorial and political division within Cyprus. The United Kingdom, in accordance with its obligations under international law, has not recognised, and does not recognise, the TRNC as a state, yet the Republic of Cyprus is a Member State of the EU.
5. No oral evidence has been led on this jurisdiction issue. I have had access to a huge quantity of documentary material, much of which has been generated during the criminal investigations concerning the mother's activities in the TRNC. I have a transcript of her evidence, recently given at the Crown Court, which traverses much relevant ground. Having received detailed and high-quality submissions from leading and junior counsel for the parties, I briefly reserved judgment.
6. In accordance with standard practice laid down by Sir James Munby P in Re E[2014] EWHC 6 (Fam), the authorities of the Republic of Cyprus and the TRNC have been made aware of the proceedings, and of this hearing. No one from either of the Cypriot authorities has attended the hearing.
7. Since 1974, Cyprus has been a divided island, separated by a UN buffer zone known as the “Green Line”, albeit with crossing points. In 1983 the northern part of Cyprus unilaterally declared independence and formed an unrecognised breakaway state, the TRNC. While the Republic of Cyprus government is the legal authority for the whole island, the northern part of Cyprus (the TRNC) remains outside government control. The Republic of Cyprus has de jure sovereignty over the entire island, but the island is de facto partitioned into two main parts.
8. The Republic of Cyprus acceded to the European Union on 1 May 2004. The application of the acquis communautaire (the bundle of accumulated legislation, legal acts, and court decisions which constitute the body of European Union laws) to the areas of the island over which the Republic of Cyprus does not exercise sovereign jurisdiction was (and is) suspended by separate Protocol (Protocol 10), at least until final settlement of the Cyprus problems. Protocol 10 provides that the “application of the acquis [communautaire] shall be suspended in those areas of the Republic of Cyprus in which the Government of the Republic of Cyprus does not exercise effective control” (emphasis by underlining added). This was explained by the Court of Justice of the European Union (CJEU) in the case of Orams v. Apostilides (British Residents' Association Intervening)[2010] EWCA Civ 9, [2011] QB 519 (“Orams”) (see below) in this way at [33/34]:
[33] … the Act of Accession of a new Member State is based essentially on the general principle that the provisions of...
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