Re B (A Child) (Habitual Residence) (Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black |
| Judgment Date | 06 August 2015 |
| Neutral Citation | [2015] EWCA Civ 886 |
| Docket Number | Case No: B4/2014/2859 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 August 2015 |
[2015] EWCA Civ 886
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE HOGG
Royal Courts of Justice
Strand, London, WC2A 2LL
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Lord Justice Underhill
Case No: B4/2014/2859
Mr David Williams QC and Mr Alistair Perkins (instructed by Freemans) for the appellant
Mr William Tyler QC and Miss Hannah Markham (instructed by Goodman Ray) for the respondent
Mr Richard Harrison QC, Miss Madeleine Reardon and Miss Jennifer Perrins (instructed by Farrer and Co LLP) for the intervener Reunite International Child Abduction Centre
Hearing dates: 13–15 May 2015
This is the judgment of the court to which we have all contributed.
P was born in April 2008 and is now 7 years old. She was conceived by IVF, her father being an unknown donor. At the time of her conception, her mother (the respondent to this appeal) was in a relationship with another woman (the appellant) with whom she was living. This appeal arises from the appellant's attempts to have contact with P following the parties' separation. It is an appeal from Hogg J's dismissal, on 31 July 2014, of the appellant's applications under the Children Act and under the inherent jurisdiction of the High Court.
The factual background in outline
From birth, P was brought up in the household of the appellant and the respondent. The respondent was at all times her primary carer but the appellant played a role in her care when she was available. Since December 2011, when the appellant and the respondent separated, P has lived with the respondent. To begin with, the appellant moved out of the parties' jointly owned home and the respondent remained living there with P. On 3 February 2014, however, the respondent left this country to take up residence in Pakistan, taking P with her. They have remained in Pakistan since then.
The adults have been in conflict since their separation. The appellant continued to see P but it was not always easy to arrange contact and over time it reduced so that by the time the respondent went to Pakistan, the appellant was seeing P only once every three weeks for about two hours. The appellant had been trying to obtain more contact with P. In October 2013, she wrote to the respondent proposing a shared residence order and saying that she would take proceedings if that was not agreed. The parties attended a mediation session in January 2014 and there was to be another in February but then the appellant found herself unable to communicate with the respondent. Not knowing that the respondent had departed for Pakistan, she commenced Children Act proceedings on 13 February 2014, also seeking orders to assist her to locate P.
The Children Act proceedings came to the respondent's attention by early May 2014 and her solicitors then informed the appellant that the respondent and P had been in Pakistan since 3 February. The respondent challenged the jurisdiction of the English court to entertain the proceedings and, on 12 May 2014, directions were given with a view to the issue being determined by the High Court.
On 6 June 2014, the appellant made an application for an order under the inherent jurisdiction. The relief sought was that P should be made a ward of court and her summary return to this jurisdiction should be ordered. By way of explanation as to why the application was made, the application form said:
"The Applicant seeks a summary return of her daughter under the inherent jurisdiction. She is concerned about P's welfare having been removed from England and Wales and taken to Pakistan [sic]. A return to England and Wales would also facilitate contact with her daughter."
The proceedings culminated in the hearing before Hogg J, who was to consider the question of jurisdiction, whether P should be a ward of court during her minority, whether summary return should be ordered, and the question of contact (see §7 of the order of Moylan J of 9 June 2014). The respondent was ordered to attend the hearing before Hogg J in person but she did not comply with this, nor had she complied with an order to attend at an earlier stage in the proceedings. She was represented, however, and she gave evidence by telephone during the two-day hearing. The appellant gave evidence in person.
Jurisdiction in outline
Two alternative bases for jurisdiction were asserted, namely habitual residence and nationality, P being a British national. Habitual residence was the preferred option. If P was habitually resident here on 13 February 2014 when the Children Act proceedings were begun, and there was therefore jurisdiction for those proceedings, there would be a comparatively straightforward route by which the appellant could achieve a resolution of the issues over P. However, if it could not be established that P was habitually resident here on 13 February 2014, the appellant asked Hogg J to exercise the inherent jurisdiction on the basis of nationality.
Hogg J considered the provisions of the Family Law Act 1986 sections 1 to 3 which she cited in her judgment. As relevant, these provide as follows:
" S.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 section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order;
…..
(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; but
(ii) excluding an order varying or revoking such an order;
….
S. 2 Jurisdiction: general
(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless —
(a) it has jurisdiction under the Council Regulation [No 2201/2003] or the Hague Convention [1996], or
(b) neither the Council Regulation nor the Hague Convention applies but —
(i) [matrimonial or civil partnership proceedings]
(ii) the condition in section 3 of this Act is satisfied.
….
(3) A court in England and Wales shall not make a section 1(1)(d) order 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 condition in section 3 of this Act is satisfied, or
(ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of the powers is necessary for his protection."
S. 3 Habitual residence or presence of child
(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned —
(a) is habitually resident in England and Wales, or
(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory,
……."
Hogg J found that P was not habitually resident here on 13 February 2014, in essence because she had lost her habitual residence in this country upon her departure with the respondent for Pakistan, albeit that, in the judge's view, she had probably not yet acquired a habitual residence in Pakistan. In the light of her finding as to habitual residence, the judge held that there was no jurisdiction to entertain the Children Act proceedings.
As for the inherent jurisdiction, in light of P's British nationality, there is no doubt that it did exist, in so far as it had not been removed by the jurisdictional provisions of the Family Law Act 1986 which are set out above. An order made in the exercise of the inherent jurisdiction, which gives care of the child to any person or regulates contact, would come within section 1(1)(d) of the Act and, on the facts of this case, there would not be jurisdiction to make such an order because the jurisdictional provisions of the Act would not be satisfied. However, a return order is not caught by section 1(1)(d) (see A v A and another (Children: Habitual Residence)(Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, hereafter A v A) and is therefore not within the jurisdictional prohibitions in section 2(3) of the Family Law Act 1986. This explains the application made by the appellant on 6 June 2014 for such an order. The question for Hogg J in relation to the inherent jurisdiction was, accordingly, not whether the jurisdiction existed, but whether this was an appropriate case in which to exercise it. The appellant argued that it was, principally because she would be unable to litigate about P in Pakistan because of the approach in that country to homosexuality which meant, she said, that the only forum to resolve issues over P's welfare was the courts of England and Wales.
Hogg J declined to exercise the inherent jurisdiction. She reviewed certain of the authorities on the question of when it is appropriate to do so but concluded that the facts of the present case did not justify such a course, it being "[a]t heart a contact application which does not come within the 'extreme circumspection' or 'dire circumstances' as referred to" in the jurisprudence.
Grounds of appeal
The appellant appealed on two grounds. She complained, first, that the judge's finding as to habitual residence was wrong. She argued that P remained habitually resident in England and Wales as at the relevant date, 13 February 2014, because she was still integrated in a social and...
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