Re H (Children) (Jurisdiction: Habitual residence)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Vos,Lord Justice Richards |
| Judgment Date | 29 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1101 |
| Docket Number | Case No: B4/2013/2973 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2014 |
[2014] EWCA Civ 1101
Lord Justice Richards
Lady Justice Black
and
Lord Justice Vos
Case No: B4/2013/2973
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
MR JUSTICE PETER JACKSON
FD13P00219
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr David Williams QC & Ms Gina Allwood (instructed by MSB solicitors) for the Appellant Respondent not present
Ms Deirdre Fottrell, Ms Eleri Jones & Mr Mike Hinchliffe (instructed by Cafcass Legal) for the Childrens Guardian
Mr James Roberts & Ms Jennifer Perrins (instructed by Dawson Cornwell) appeared on behalf of the Intervener 'Reunite'
Hearing date: 24 th June 2014
The appellant in this appeal is the father of two young children who are presently in Bangladesh with their mother. His case is that they have been wrongfully retained there by her and that there is evidence to suggest that they are at risk of significant harm. There have been proceedings in Bangladesh relating to the children but they have not resolved the situation to the father's satisfaction and he sought to bring the matter before the English court by making an application under the inherent jurisdiction of the High Court, issued on 4 February 2013. The order he sought was for the return of the children to this country.
Mr Justice Peter Jackson dismissed the father's application on 24 September 2013 on the basis that the courts of England and Wales had no jurisdiction to entertain it. His judgment can be found on bailli.org.
The father and mother both originate from Bangladesh. The father came to this country some years ago and obtained British citizenship. He and the mother were married in Bangladesh in 2005 and the mother then came to live here, where the children were born in 2007 and 2008. Both children are British citizens.
In May 2008, the parents and children travelled to Bangladesh when one child was 14 months old and the other 6 weeks old. The father returned here alone in August 2008.
Since then, he has made three extensive visits to Bangladesh between 2009 and 2012, spending two years there in all. He last saw the children in November 2012. Peter Jackson J recorded in his judgment that he frequently speaks to the children on the telephone since returning here.
There seems to be a dispute as to whether the mother's continued presence in Bangladesh is the result of her refusal to return to England with the children (which is the father's case) or of the father abandoning her there (which may be the mother's case). I say that it "may" be the mother's case because the mother has not participated in these proceedings at all so far so one can only surmise what she has to say about things.
Before Peter Jackson J, the father asserted that the English court had jurisdiction on the basis either that the children were habitually resident here when the proceedings were issued or that they are British citizens.
Peter Jackson J did not consider that the children were habitually resident here. He noted the young age of the children when they left the United Kingdom and the length of time they had since spent in Bangladesh. He said that even if the father was right that they had been unlawfully retained in Bangladesh by the mother, they had long since ceased to be habitually resident here.
He accepted that, on the basis of In the matter of A (Children) [2013] UKSC 60 [2013] 3 WLR 761 (hereafter referred to as Re A), the children's British citizenship provided a theoretical basis on which the court could exercise jurisdiction but on the facts of this case he considered that it would be inappropriate to do so, the courts of Bangladesh having long since been seised of the matter and providing a forum where the father could present his case and any issue over the welfare of the children could be resolved. He was not impressed with the father's argument that an order from the English court might assist him in the Bangladeshi proceedings, "particularly" he said "as the father has apparently not taken any active legal steps to enforce the 2011 custody order locally".
He observed that even if the father had been able to establish that the children continued to be habitually resident here, he would have been unwilling for the same reason to intervene "on the basis of such limited information….when the court in Bangladesh is already engaged and where the relief sought (the peremptory return of the children to this country) has such potential consequences for them".
Joinder of the children as parties and the intervention of Reunite
When I granted permission to appeal, I joined the children as parties to the appeal. I explained why this was in the judgment I then gave. It is very unusual for new parties to be joined in this way at the appeal stage but I considered that in view of the mother's failure to participate, it was in the children's best interests that they were represented separately. CAFCASS interpreted this as an invitation to adopt the role of advocate to the court which was not what I had intended.
Where both parents participate in litigation concerning their children, the court can be sure to receive at least two points of view as to what is in the children's best interests and, if there is any legal argument that can legitimately be advanced in support of the rival contentions, it will be presented. Where, as here, there is only one active party to the litigation, the case (factual and legal) is inevitably presented in accordance with that party's view of the children's interests, which may or may not be the only perspective. In the absence of any argument from the mother to counter the father's presentation, there was therefore a risk in this case that what was actually in the children's best interests would not emerge and that the arguments, legal and factual, that would further those interests may be overlooked. It was for that reason that I decided, as I said in my earlier judgment, that in their interests they should be represented separately in the appeal.
This does not presage the frequent joinder of children as parties at the appeal stage, nor is it intended to send a message that whenever only one of the parents appears in proceedings, whether at first instance or on appeal, the children should be joined. My decision was a decision taken on the particular facts of this case.
CAFCASS invited us to give guidance as to the correct approach to the joinder of children as parties at the appeal stage but I do not intend to take up this invitation. The question is not entirely straightforward and it may merit further examination should a case arise in which it requires to be decided. Here, however, as there is nothing for us actually to determine in this respect, attention should be focussed on the other important issues which arise directly. CAFCASS did not contest their involvement in the proceedings and have provided assistance, for which I am grateful. On the facts of this case, there was a role for them not only in presenting the legal arguments in the way that would best serve these children but also in making submissions as to their welfare interests in connection with the question of whether the English court should exercise its jurisdiction over them and if so, how.
Considering that the legal issues in this case potentially had wide implications in international child abduction cases, Reunite sought to intervene to present submissions and was given permission to do so. We have therefore had the assistance of their written and oral assistance too.
The issues arising
The appellant advanced four grounds of appeal which I do not quote directly here but which revolved around the following questions:
i) Ground 1: Is there still a 'rule' (hereafter "the 'rule'") that where two parents have parental responsibility for a child, neither can unilaterally change the child's habitual residence?
ii) Ground 2: How does Article 10 of the Council Regulation (EC) No. 2201/2003 (hereafter "Brussels IIR") operate where a child has been wrongfully removed from a Member State where he was habitually resident to a non-Member State or wrongfully retained in these circumstances?
iii) Ground 3: Was Peter Jackson J wrong to decline to exercise the parens patriae jurisdiction?
iv) Ground 4: Was the judge wrong to conclude that had he exercised his jurisdiction, he would not have made the orders that the father sought?
Subsidiary arguments arose in the course of exploration of these themes as will become evident as this judgment proceeds.
There was a measure of agreement between the parties but not complete unanimity. As things evolved, the parens patriae issue lost significance and it was the first two grounds of appeal that were important in determining the question of jurisdiction. As to ground 1, only the appellant argued for the continued existence of the 'rule' and even he was possibly not a very enthusiastic supporter of it. There was otherwise general acceptance that it had been overtaken by the development of the law on habitual residence in recent Supreme Court decisions. As to ground 2, there was agreement that Article 10 of Brussels IIR applied notwithstanding that the children are now in Bangladesh but there was debate as to how it should be interpreted where a non-Member State was involved. As to whether the English court should exercise such jurisdiction as it had, the appellant naturally said that it should, or alternatively that the question of whether jurisdiction should be exercised should be remitted to the Family Division for...
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