Re F (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice Ryder,Mr Justice Bodey |
| Judgment Date | 12 June 2014 |
| Neutral Citation | [2014] EWCA Civ 789 |
| Docket Number | Case No: B4/2014/0469 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 June 2014 |
[2014] EWCA Civ 789
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Justice COLERIDGE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lord Justice Ryder
and
Mr Justice Bodey
Case No: B4/2014/0469
Mr David Williams QC (instructed by Nelsons Solicitors Limited) for the applicant father
Mr Henry Setright QC and Ms Kerrie Broughton (instructed by the local authority solicitor) for the local authority
Mr Teertha Gupta QC (instructed by Bhatia Best) for the mother
Mr Charles Prest (instructed by A&N Care Solicitors) for the child F
Hearing date: 19 May 2014
Sir James Munby, President of the Family Division:
This is an application for permission to appeal against an order made by Coleridge J as long ago as 14 March 2013.
The judge was hearing care proceedings in relation to a girl, F, who was born in August 2007. Her father was born in the United States of America and her mother in Zimbabwe, where F was born. F and her father seem to have arrived in this country on 14 November 2012. The proceedings started on 21 December 2012 when the local authority applied for and obtained an emergency protection order. The care proceedings proper began seven days later on 28 December 2012. Following a contested hearing before a District Judge, which led to the making of an interim care order, the case was transferred to the High Court on 7 January 2013.
It is a matter of very great concern to us that proceedings of a kind that Parliament has now declared are to be concluded within 26 weeks should still be on foot some 76 weeks after they were commenced and seemingly with no early end in sight. I recognise that the parents' involvement with the proceedings has been fitful, that for some of the time the father has been abroad, that for most of the time the mother has been in South Africa and that the mother's participation as directed by the court has been hindered by delays in the immigration process (as recorded by Eleanor King J in an order dated 22 January 2014) and then by the refusal of the immigration authorities to grant her the necessary visa. But although this may explain, it can scarcely justify the long delay. F, after all, has been in foster care ever since the emergency protection order was granted over 17 months ago.
What is even worse is that the court's jurisdiction to deal with the proceedings has still not been settled, for what is challenged before us – and in the event successfully challenged – is Coleridge J's decision in relation to F's habitual residence. Even now that fundamental jurisdictional issue remains at large, for the outcome of this appeal is that the question of habitual residence must go back for a proper hearing. Well may the children's guardian lament that although the court as long ago as 14 August 2013 had endorsed a plan for permanence for F, whereby she would be rehabilitated to the care of her mother (a plan, moreover, of which F has known since then), here we are more than nine months later and only the most preliminary steps in this process have been achieved.
When the matter came before Coleridge J on 14 March 2013, the local authority, the mother and the children's guardian were all represented. The father was neither present nor represented. I can go straight to the transcript to show how the point with which are now concerned arose:
"MR JUSTICE COLERIDGE: Have we made a declaration that the child is habitually resident here?
[Counsel for the Guardian]: Not yet my Lord, no.
MR JUSTICE COLERIDGE: Well, I think we ought to and she plainly is. I mean, even if you read the father's evidence and what he says, all his statements indicate that he was coming here to settle, get citizenship in order to plug into the NHS.
[Counsel for the Guardian]: Well it does.
MR JUSTICE COLERIDGE: Sounds like residence to me.
[Counsel for the Guardian]: It does to me.
MR JUSTICE COLERIDGE: So I think we should do that, because we do not want this child being moved on in some kind of — do we need to make an order that she be not removed from the jurisdiction?
[Counsel for the local authority]: My Lord, I think in the circumstances it would be appropriate.
MR JUSTICE COLERIDGE: I am just worried about this chap coming in suddenly.
[Counsel for the local authority]: Quite so. My Lord, residence, habitual residence was an issue raised by the father on the last occasion.
MR JUSTICE COLERIDGE: Yes, I saw that.
[Counsel for the local authority]: Put in terms, she is not habitually resident here, she is habitually resident in the United States and Zimbabwe, indicating perhaps a question as to the approach he was taking. The Local Authority have always been clear in line with your Lordship's view that if he is here for the purposes of obtaining the healthcare, then that is clearly evidence enough.
MR JUSTICE COLERIDGE: Yes.
[Counsel for the local authority]: Particularly given the month and a half before proceedings commenced.
MR JUSTICE COLERIDGE: Yes.
[Counsel for the local authority]: So my Lord, I would be grateful if that declaration could be given today and again, I will include that within the draft.
MR JUSTICE COLERIDGE: Thank you."
That is all. There was no judgment.
The outcome was an order dated 14 March 2013 which contained the following recital:
"AND UPON the Court having considered the Court papers, and in particular the evidence having been filed by the Father, and finding that [F] is habitually resident in the jurisdiction of England and Wales".
Time passed. Eventually the father re-engaged. On 22 January 2014 Eleanor King J ordered that any application to appeal out of time should be lodged by 5 February 2014. On 5 February 2014 she extended that date until 14 February 2014. The appellant's notice was finally filed by the father on 11 February 2014. It was followed by a detailed skeleton argument dated 12 February 2014 which drew attention to the fact that there was a hearing listed for 7 April 2014 and appropriately sought expedition of the consideration of the application. I note with dismay that the date passed without the application having been considered. On 30 April 2014 Ryder LJ adjourned the application for permission for an oral hearing with appeal to follow if permission granted. The application came on before us on 19 May 2014.
On behalf of the father Mr David Williams QC identifies four grounds of appeal. He says that Coleridge J was wrong to find that F was habitually resident in England and Wales and did not apply the proper test to determining that issue, in that: (a) he did not consider whether the facts showed an adequate degree of integration of F into a social and family environment in England – this, as will be appreciated, is a reference to the test laid down by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1; (b) he did not consider whether this test was met at the relevant time, namely 21 or 28 December 2012; (c) he determined the issue without the father having been given notice that it was to be determined, without hearing the father's case and without giving a reasoned decision; and (d) if he did consider whether F was integrated, he gave undue weight to irrelevant facts and failed to give due weight to relevant matters.
Before addressing these complaints it is convenient to set out some basic propositions which are no longer open to challenge.
In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR (forthcoming) I referred (para 23) to the fact that the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision. By reference to Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449, I said that the rule developed by the judges of the Family Division was that what normally founds jurisdiction in such a case is the child...
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