Re A (A Child) (Habitual Residence: 1996 Hague Child Protection Convention)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Snowden,Lord Justice Bean |
| Judgment Date | 12 June 2023 |
| Neutral Citation | [2023] EWCA Civ 659 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000119 |
[2023] EWCA Civ 659
Lord Justice Bean
Lord Justice Moylan
and
Lord Justice Snowden
Case No: CA-2023-000119
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE ARBUTHNOT
FD22P00457
Royal Courts of Justice
Strand, London, WC2A 2LL
Edward Devereux KC and Professor Rob George (instructed by Field Seymour Parkes Solicitors) for the Appellant
Will Tyler KC and Marisa Allman (instructed by Slater Heelis Solicitors) for the Respondent
Hearing date: 4 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 12 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The father appeals from the order made by Arbuthnot J (“the judge”) on 22 December 2022 by which she dismissed the father's application for an order in respect of his child, A, who was born in early 2021, on the basis that the courts of England and Wales did not have jurisdiction to make orders in respect of A.
The judge's decision was based on her finding that A was habitually resident in Zambia and not England and Wales both at the date of the father's application (dated 24 June 2022 and issued by the court on 6 July 2022) and at the date of the hearing in November 2022. A had been wrongfully retained by the mother in Zambia on a date not specifically determined by the judge but which was, at the latest, 23 May 2022 when the father sent a text to the mother formally withdrawing his consent to A remaining in Zambia. A, since her birth, and both her parents were habitually resident in England and Wales when they all travelled to Zambia on 8 March 2022 for what was intended, as found by the judge, to be a short trip. The mother and A have remained there since then.
There are three Grounds of Appeal.
(1) The judge was wrong when she decided that the relevant date to assess habitual residence, for the purposes of determining jurisdiction, was the date of the hearing and not the date of the application;
(2) The judge's decisions that A was habitually resident in Zambia at the date of the application and at the date of the hearing were both wrong;
(3) The Judge was wrong when she decided that article 7 of the 1996 Hague Child Protection Convention (“the 1996 Convention”) did not apply in this case because A had been wrongfully retained in a non-Contracting State.
When I gave permission to appeal, it appeared to me that the case raised broad issues as to the application of the Family Law Act 1986 (“the FLA 1986”) and the 1996 Convention, in particular the date at which, for the purposes of determining jurisdiction under article 5 of the 1996 Convention, the court decides where the child the subject of proceedings is habitually resident. Whether it is the date of the application or the date of the hearing is an issue which has divided the judges of the Family Division. However, during the course of the hearing it became apparent that it was not necessary to deal either with the arguments as to the relevant date for the purposes of article 5 or the scope of article 7. This was because this appeal could be determined on a relatively narrow basis since, as explained below, it is clear that if A's habitual residence had changed from England and Wales to Zambia (a non-Contracting State to the 1996 Convention) during the course of the proceedings, the relevant date for the purposes of determining jurisdiction would be the date of the application. Further, if, on the other hand, A remained habitually resident in England at the date of the final hearing then, even on the mother's case, this court would have jurisdiction. Accordingly, the primary issue was whether the judge's decision as to A's habitual residence, in particular at the date of the application, was wrong.
That issue would not be determinative of the appeal because the mother raises an issue as to the nature of the order being sought by the father and whether it is within the scope of the FLA 1986 at all. The mother submits that the father was not seeking an order within the scope of that Act but was seeking an order solely under the court's inherent jurisdiction. On the mother's case, jurisdiction to make such an order depended on the application of the 1996 Convention.
The father is represented by Mr Devereux KC (who did not appear below) and Mr George. They challenge the judge's findings as to A's habitual residence, in particular as at the date of the application. It is submitted: (a) that the judge applied the wrong approach because she appeared to consider that A could become habitually resident in Zambia simply by having “some degree of integration” there; and (b) that, in any event, the judge's analysis was flawed because it failed to take into account a number of relevant factors. Other submissions were made as to the relevant date for the assessment of habitual residence and as to the applicability of article 7 of the 1996 Convention.
The mother is represented by Mr Tyler KC (who did not appear below) and Ms Allman. They submit that the judge's findings that A was habitually resident in Zambia at the date of the application and at the date of the hearing are unimpeachable. In addition to their submissions as to the nature of the order sought by the father, as referred to above, they also made submissions as to the relevant date for the assessment of habitual residence and article 7.
Background
The background, in brief, is as follows.
The father is a UK national. He is aged in his late 30s and has always lived in England. The mother was born in Zambia but lived in England from about 2001 when she was aged 12. She is now in her early 30s.
The parties met in England in 2016 and started living together here in 2017. A was born in England in early 2021.
As set out in the judgment below, the “mother travelled regularly to Zambia during the parents' relationship, sometimes on her own and sometimes with the father”. She “had an idea for a business” there, which the father financially supported. She rented a property which, from January 2021, was a four-bedroomed house.
The mother and A visited Zambia for a period in October and November 2021.
The mother was unwell from December 2021 or January 2022 with the father and maternal grandmother, who lived in England, being largely responsible for caring for A.
The parents and A travelled to Zambia on 8 March 2022. They travelled on return tickets and with a small amount of luggage. Most of A's clothes and other belongings remained in the family home as did the mother's. The mother contended that the trip was “for an indeterminate period” but the judge found that this was intended to be a “short trip of a fortnight or so, to go to the paternal grandfather's memorial service and for the mother to take her business plans forward”.
The father returned to England on 20 March 2022. The judge found that, at some point before 23 May 2022, the mother decided not to return to England “but to make her life either in Zambia or South Africa”.
On 23 May 2022, on legal advice, the father sent an electronic message to the mother in which he said that he was withdrawing his consent to A remaining in Zambia. He subsequently went to Zambia in early June 2022 and sought to reach an agreement with the mother that she and A would return to England. No agreement was reached.
The father returned to England and commenced proceedings. The mother and A have remained in Zambia. There have been proceedings in Zambia.
Proceedings
The father's application is dated 23 June 2022 and was issued on 6 July 2022. It was made in Form C66 which is headed “Application for Inherent Jurisdiction order in respect of children”. An order was sought for the return of A from Zambia.
Although the application was in Form C66, in his substantive statement in support, the father made it clear that he contended that the courts of England and Wales had jurisdiction based on A's habitual residence here. He was not seeking an order under the court's inherent jurisdiction based on the child's UK nationality. In his first statement the father said that he sought A's return home to England; that he wanted to be “reunited” with her; and that he considered she needed a relationship with both parents. In his second, substantive statement he made clear that he was seeking wide-ranging orders concerning A. He dealt in some detail with “Welfare Considerations” which included matters the father considered relevant to each element of the welfare checklist. He set out that A's welfare was “best served by living in the UK” and his primary position that he and the mother should “co-parent A and work together in her best interests”. He wanted “to play an active role in A's life” and suggested that, initially on her return to England, he would have contact with her for a few hours during the week and at weekends. This time would be “built up at a pace with which A is comfortable”. He also said that, alternatively, if the mother did not want to return to England, he was “capable of …. caring for A”.
The father's case was that the mother had wrongfully retained A in Zambia and that A remained habitually resident in England both at the date of the application and at the date of the substantive hearing before the judge. It was submitted that the English court had jurisdiction under either article 5 or article 7 of the 1996 Convention or, alternatively, under section 3 of the FLA 1986.
The mother's case was that A was habitually resident in Zambia both at the date when the proceedings were issued by the father and at the date of the final hearing before the judge and that, accordingly, the English court did not have jurisdiction...
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