London Borough of Sutton v AH (Mother) and Others

JurisdictionEngland & Wales
CourtFamily Division
JudgeThe Honourable Mr Justice Cobb
Judgment Date30 Jul 2015
Neutral Citation[2015] EWHC 2299 (Fam)
Docket NumberCase No: ZE15C00253

[2015] EWHC 2299 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989

AND IN THE MATTER OF THE HAGUE CONVENTION OF 19 OCTOBER 1996 ON JURISDICTION, APPLICABLE LAW, RECOGNITION, ENFORCEMENT AND CO-OPERATION IN RESPECT OF PARENTAL RESPONSIBILITY AND MEASURES FOR THE PROTECTION OF CHILDREN

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Cobb

Case No: ZE15C00253

Re: NH (1996 Child Protection Convention: Habitual Residence)

Between:
London Borough of Sutton
Applicant
and
AH (Mother)
TT (Father)
NH (Child, by his Guardian, Clare Brooks)
Respondent

Ms Anne-Marie Lucey (instructed by Rachel Hergest, Local Authority Solicitor) for the Applicant

AH was neither present nor represented

TT was neither present nor represented

Mr Robin Barda ( instructed by Cafcass Legal) for NH (by his Guardian)

Hearing dates: 21 July – 22 July

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable Mr Justice Cobb

Introduction and summary of outcome

1

At the conclusion of the hearing on 22 July 2015, I announced my decision, and gave brief reasons. This judgment explains the decision and reasoning more fully.

2

The applications before the Court concern NH; he was born in October 1999 and is 15 years old. The applications have been brought by the London Borough of Sutton for orders under the inherent jurisdiction (issued 12 May 2015), and/or a public law order under Part IV of the Children Act 1989 (issued 14 May 2015). The unusual circumstances in which these applications have been brought require me, by way of preliminary adjudication in accordance with the guidance given by Sir James Munby P in Re E (A Child) (Care Proceedings: European Dimension) [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, sub nom Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] 2 FLR 151, FD, (and see also, for its general application: Purrucker v Vallés Pérez (No 1) Case C-256/09 [2011] Fam 254; [2011] 3 WLR 982; [2012] 1 FLR 903), to determine whether the English Court has jurisdiction.

3

This reasoned judgment leads to the conclusion that the English Court does have jurisdiction. I have concluded on the evidence that it is not possible to establish NH's habitual residence; jurisdiction is founded merely upon NH's physical presence in England. I recognise that I am, in these circumstances, exercising a "jurisdiction of necessity" (as it is so described by Paul Lagarde in his 1997 Explanatory Report to the 1996 Child Protection Convention, see [45]) enabling me to make substantive orders in relation to NH. I readily acknowledge that NH's connections with England are tenuous and, according to NH's Guardian, NH enjoys no "affinity" with this country. My conclusion follows, however, a careful review and application of the key provisions of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (" the 1996 Child Protection Convention").

4

Before descending into the factual and legal detail, I summarise the outcome and my essential reasoning. NH is a national of Canada and Zimbabwe. He has lived an unsettled life; he has not attended any school for more than one year. For the last three years he has lived in Switzerland, though has been educated during that period in residential schools in both Zimbabwe and Germany. He has spent two months this year in residential care in Zurich.

5

On 25 April 2015, NH travelled to this jurisdiction on a flight from Zurich; on arrival here, he was met by relatives with whom he stayed briefly in the Midlands before heading to other relatives in South London. Three days after his arrival, his mother, AH ("the mother"), joined him, also travelling here from Zurich. The mother had intended that NH would, within a few days or weeks of his arrival here, travel onwards from England to South Africa and then Zimbabwe, to attend a therapeutic clinic and residential boarding school. NH was (and is) adamantly opposed to this outcome and had (has) no intention of complying with his mother's wishes. NH believed he was merely in England on holiday, though accepted that he would not be returning to live in Switzerland largely because his residence permit ('B-Permit' or Aufenthaltsbewilligung) had expired there and had not been renewed. His mother had indeed taken the step of de-registering him as a resident, thus comprehensively extinguishing his right of residence there. Although the mother had successfully applied for a Schengen visa for herself (though not for NH), her application for an extension of that visa has been refused, and she is required to leave Switzerland by 10 September 2015.

6

The jurisdiction of the Court was invoked following an incident on 8 May 2015, when the police were called to the home at which NH and his mother were staying in the area of the London Borough of Sutton ("the local authority"). NH alleged that he had been assaulted by his mother. The mother was arrested, and NH was taken into police protection, and placed in foster care. When the mother (although bailed, with a condition to have no contact with NH) withheld her agreement to NH's continued placement in foster care, the local authority sought to initiate proceedings under the inherent jurisdiction of the High Court. On 13 May 2015, Roderic Wood J declined the relief sought under the inherent jurisdiction (given the provisions of section 100 of the Children Act 1989), but made an interim care order under section 38 of the Children Act 1989 in respect of NH (a formal application for an order under Part IV of the Children Act 1989 followed on the next day). Given the obvious uncertainties over jurisdiction, this order was made for a time-limited period expressly pursuant to the emergency powers vested in the court under Article 11 of the 1996 Child Protection Convention.

7

The issue of substantive jurisdiction was then listed for determination following further case management directions given at a hearing on 26 June 2015; that case management order included a direction that the local authority should obtain clarification from the Swiss Central Authority "whether they consider [NH] to have habitual residence in Switzerland or to have no habitual residence", and whether they would "readmit [NH] into their care".

8

I am satisfied that this is the first realistic stage in these proceedings at which a Court could reach an informed view about jurisdiction. I have been assisted by Ms Lucey and Mr Barda for the local authority and NH respectively; NH has actually been present in court for much of the hearing. The mother has not attended this hearing, though she has communicated extensively with the Court and the parties by e-mail over the course of the two days, conveying her views in the clearest terms, and presenting documents in both English and German which she wishes me to consider. I am wholly satisfied that she is aware of this hearing and its purpose. She has had publicly-funded lawyers acting for her here, but has recently terminated their instruction. The documents generated in these proceedings have been served on the Zimbabwean Embassy, the Canadian Embassy, the Swiss Embassy in London and the Swiss Central Authority; none of these bodies has sought to make representations.

9

In order to explain my reasoning (set out from [34] below), it is necessary for me to set out in a little detail the unusual chronology, the facts of this case, and the relevant law.

Background facts

10

NH is the second of two children of the mother; his older half-sister (now aged 27) resides in Canada. NH's father (TT) has, so far as I am aware, played no part in NH's life; it is not known whether he has parental responsibility for NH. Efforts are currently being made to locate him. NH has dual Canadian and Zimbabwean citizenship.

11

NH was born in South Africa in 1999, where he lived for the first five years of his life. In 2004, NH together with his half-sister and mother moved to Canada, where they remained for eight years. In 2012, NH and his mother moved to Switzerland, where the mother married a Swiss national; the marriage did not in fact last more than a couple of years, and the mother is now divorced. In the following year (2013), NH was sent to boarding school in Zimbabwe; he remained there for an academic year, albeit returning to Switzerland (apart from one holiday when he travelled to Australia) for the school holidays. He then attended boarding school in Germany for a period; latterly he has been at a day school in Zurich.

12

The relationship between NH and his mother appears to have been an increasingly difficult one particularly in NH's adolescent years; the mother asserts that in many ways NH presented challenging behaviours with which she struggled to cope. In February 2015, NH moved to reside temporarily at the 'Schlupfhuuse' in Zurich at his mother's instigation; the Schlupfhuus offers residential care to a limited number of young people (aged 13–18) for a maximum of three months together with a " Beratungsstelle" (advice centre) and a " Krisenwohngruppe" (crisis residential centre). A child protection file was opened in...

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