MZ v RZ
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peel |
| Judgment Date | 06 September 2021 |
| Neutral Citation | [2021] EWHC 2490 (Fam) |
| Docket Number | Case No: FD21P00333 |
| Court | Family Division |
[2021] EWHC 2490 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE INHERENT JURISDICTION
IN THE MATTER OF THE HAGUE CONVENTION 1996
IN THE MATTER OF M (A GIRL)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Peel
Case No: FD21P00333
Saiful Islam (instructed by Legit Solicitors) for the Applicant
Mai-Ling Savage (instructed by MB Law Ltd) for the Respondent
Hearing date: 6 September 2021
This is an ex tempore judgment.
M was born on 30/9/2018 and is now nearly 3 years old. Her mother removed M from this jurisdiction to India in March 2019, returning shortly afterwards without her. M has since March 2019 remained in India, staying with her maternal grandparents. Both parents live in England.
India is not a signatory to the 1980 or 1996 Hague Conventions. The father applied on 7 April 2021, some 2 years after the child's removal, under the inherent jurisdiction for (i) a wardship order and (ii) a return order. His principal concern is to ensure the return of the child to this country so as to develop a meaningful relationship with her. The relief sought by him could, and perhaps should, have been made pursuant to s8 of the Children Act 1989. In Re NY [2019] UKSC 49 at paragraph 44 Lord Wilson said this:
“The application for the return order may be framed either as a claim for a specific issue order under section 8 of the Children Act 1989 or for an order pursuant to the inherent power of the High Court. However, the latter course should only be invoked exceptionally. Exceptionality may be demonstrated by reasons of urgency, complexity or the need for particular judicial expertise.”
Today's hearing has been listed before me to determine, on submissions only, two preliminary issue, namely:
i) Does the court have jurisdiction including the question of whether M is habitually resident in India; and
ii) If it has jurisdiction, is the father's delay in issuing proceedings fatal to his application?
I am very grateful to counsel for their focused written and oral submissions.
The background can be shortly stated. The father is a Bangladeshi national, the mother is an Indian national. The father has limited leave to remain in the United Kingdom, and the mother has had since January 2021 indefinite leave to remain. The parents met in London and started a relationship in 2012 or 2013. According to the Father they started living together in 2013, whereas according to the mother it was in 2015. They entered into a religious marriage in December 2016 which I am told would not be recognised such as to enable either of them to issue divorce proceedings. They lived, and continue to live and work, in England. Both accuse the other of gross relationship misconduct, including allegations of domestic and sexual abuse, deceit, controlling and coercive behaviour, drug and alcohol use. I am in no position to resolve such matters summarily at this hearing.
At the time of M's birth, neither parent was a British citizen nor settled in the United Kingdom. As a result, M did not automatically acquire British citizenship under s1(1) of the British Nationality Act 1981.
In January 2019 the parents separated. After separation, the father continued to see child although there was clearly ongoing tension between the parties.
On 23 March 2019 the mother and M flew from England to India. It is clear from the evidence, particularly contained in a sequence of text messages, that (i) the father was in general terms aware of the mother's plan to take M to India, (ii) he was given very short notice of the date on which she proposed to remove her and (iii) he plainly objected to the removal, and did not consent to it. He was clearly worried that M might be left in India, particularly if she did not (as was indeed the case) have a visa or other travel document entitling her to return to the United Kingdom.
The mother says that she removed M from England because she believed M was not safe here. It is also clear on the mother's own case that she did not intend it to be a permanent removal. She says at paragraph 33 of her narrative statement: “At the time I was deciding whether to leave my job and concentrate on looking after the baby but this was my only source of income….my plan was to bring her back once I got myself settled. I had no intention of keeping my baby in a different country”.
In April 2019 the mother M returned to the United Kingdom and has developed her career. She left M in India with the maternal grandparents. Since her departure from this country, the father has not seen M in person although he has had some remote contact, in recent times once per week for 10 minutes. He would be gravely hampered in attempting to travel to India and see M there as he would then, by immigration rules, be prohibited from re-entering the UK.
On 2 May 2019 the father reported the matter to the police who took no action as they assumed the child to be safe and well. In Dec 2019 and January 2020 the parties had limited involvement with mediation.
In January 2021 the mother obtained indefinite leave to remain which, by s1(3) of the British Nationality Act 1981, entitles an application to be made on M's behalf for British citizenship.
On 7 April 2021 the father made his application under the inherent jurisdiction. I accept the general proposition set out in Re B (A child) 2015 EWCA Civ 886, applying Al Habtoor v Fotheringham [2001] EWCA Civ 186 that extreme circumspection is required when being asked to exercise the inherent jurisdiction in respect of a child outside this jurisdiction.
Habitual Residence: the Law
Brussels II Revised is of no application as the father instituted proceedings after the end of the transition period following the withdrawal of the United Kingdom from the European Union.
Article 5(1) of the Hague Convention 1996 vests jurisdiction in the state “of the habitual residence of the child”. Counsel agree that the relevant date for these purposes is the date of the application, namely 7 April 2021.
By Article 7(1) of the 1996 Convention:
(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and
a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.
The father initially sought to rely on Re H 2014 EWCA Civ 1101. The underlying ratio of the case is that Article 10 of Brussels II revised, which is in near identical terms to Article 7(1) of the 1996 Convention cited above, applies only to contracting states. India, as I have already mentioned, is not a contracting state. Thus, it was originally submitted, the 1 year time limit after a wrongful removal or retention does not apply where there is a removal to a non-contracting third party state and, accordingly, habitual residence is retained by the state of origin even if no request for a return is made within one year.
The difficulty with that submission is that the Court of Justice of the European Union, by a judgment given on 24 March 2021 under the heading In Case C-603/20 PPU, has now definitively ruled that the time limit applies whether the removal is to a contracting or a non-contracting state. The decision arises out of a referral made by Mostyn J on 6 November 2020, prior to the end of transitional period. The decision is based on an analysis of Article 10 of Council Regulation 2201/2003, but the wording is near identical to Article 7(1) of the 1996 Convention and in any event the judgment makes plain at paragraph 62 that the decision apples equally to the 1996 Convention:
“62. It follows from the foregoing that there is no justification for an interpretation of Article 10 of Regulation No 2201/2003 that would result in indefinite retention of jurisdiction in the Member State of origin in a case of child abduction to a third State, neither in the wording of that article, nor in its context, nor in the travaux préparatoires, nor in the objectives of that regulation. Such an interpretation would also deprive of effect the provisions of the 1996 Hague Convention in a case of child abduction to a third State which is a contracting party to that convention, and would be contrary to the logic of the 1980 Hague Convention.”
Counsel realistically accepted that as a consequence of this decision, the father cannot rely on Article 7(1).
Accordingly, in my judgment the issue is whether the child was habitually resident at the date of the father's application, or by that point had become habitually resident in India.
The law on habitual residence was summarised in by Hayden J in In re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam), which has been referred to with approval by higher courts in In the Matter of L (Children) [2017] EWCA Civ 441 and In re C and another (Children) (International Centre for Family Law, Policy and Practice intervening) [2017] EWCA Civ 980, [2018] UKSC 8. At paragraphs 17–18 he says this:
17. I think that Ms Chokowry's approach is sensible and, adopt it here, with my own amendments:
(i) The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment ( A v A, adopting the European...
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