Re J (A Child) (Finland)(Habitual Residence)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Black,Lord Justice David Richards
Judgment Date21 February 2017
Neutral Citation[2017] EWCA Civ 80
Docket NumberCase No: B4/2016/0308

[2017] EWCA Civ 80

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE FAMILY COURT AT GUILFORD

HER HONOUR JUDGE CUSHING

GU15P00263

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Black

and

Lord Justice David Richards

Case No: B4/2016/0308

Re J (A Child) (Finland)(Habitual Residence)

Mr James Turner QC & Mr Alexander Laing (instructed by Goodman Ray solicitors) for the Appellant

Ms Deirdre Fottrell QC, Ms Georgina Rushworth & Ms Marlene Cayoun (instructed by Bindmans LLP) for the Respondent

Hearing dates: 17 th January 2017

Lady Justice Black
1

This is an appeal against the decision made on 5 January 2016, by Her Honour Judge Cushing, that the English court did not have jurisdiction in relation to proceedings which the appellant wished to bring concerning M, his five year old son. The respondent to the appeal is M's mother.

2

The father is of British and Nigerian ancestry. He has lived for all of his adult life in England. The mother is a Finnish national. She lived in England between about 2002 and the end of 2014 but made trips to Finland during that time. The parties met in about 2003 and were married in Finland in 2010. They separated in early 2013 when the mother left the matrimonial home, taking M with her.

3

Proceedings between the parties in relation to M have been on foot for much of the period since the separation. On 14 November 2014, at the conclusion of a hearing which had taken several days, Deputy District Judge Lavelle ordered that M should live with the mother and made an order providing that the mother was "permitted to remove [M] from England and Wales on or after 29 December 2014 to live permanently in Finland." Deputy District Judge Lavelle's order included arrangements as to the time M was to spend with the father. Once he went to live in Finland, he was to be made available for staying contact with the father in England on a minimum of 3 occasions in each of 2015 and 2016. He was also to be made available for staying contact in Finland on a minimum of 3 occasions per year and to have Skype contact with the father.

4

The order included, as part of the preamble, a record of various ancillary arrangements agreed between the parties as to contact, covering matters such as who would pay the associated travel costs and where M should spend Christmas and his birthdays. This section of the order included the following provision:

"The parents shall attend a single session of extended mediation with the child's NYAS Guardian to take place on a date to be agreed, but in any event no later than 11 December 2014."

It was agreed that details of the 2015 contact would be discussed at the mediation. There was a delay in the provision of a sealed copy of the order which the father says he received only on 30 March 2015. He points out that there are two places in it where there is a blank which looks as if it was intended for further information. Both relate to where M would be collected and returned for the purposes of contact. The father's case is that these details were agreed at the meeting with the Guardian and should have been included in the order.

5

On 29 December 2014, M and the mother went to live in Finland. The father continued to have dealings with the English court about M thereafter. I put it in this rather ambiguous way because it is not possible to establish with certainty precisely what occurred, the father having been in person throughout the relevant time, including before Judge Cushing. I will not set out all the detail of what the father has to say about his attempts to engage the court following the order of Deputy District Judge Lavelle, because ultimately the father's case on jurisdiction was focussed upon proceedings which were begun no earlier than mid-April 2015, as I shall explain in due course. I will revert later to the precise nature of the father's proposed proceedings, but for present purposes it is sufficient to say that they concerned "parental responsibility" in the sense used in Article 1 of Brussels IIA ( Council Regulation (EC) No 2201/2003) (hereafter "Brussels IIA" or "the Regulation") and came firmly within the scope of the Regulation. Jurisdiction therefore fell to be determined in accordance with the rules contained in Section 2 of the Regulation.

The Brussels IIA jurisdiction provisions

6

The jurisdiction provisions contained in Brussels IIA are familiar and need not be rehearsed in their entirety here. General jurisdiction is dealt with in Article 8, which provides that the courts of a Member State have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised. That general provision is subject to a number of other articles. Of those, only Article 9 need be mentioned here. It provides:

Article 9

Continuing jurisdiction of the child's former habitual residence

1. Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence.

2. Paragraph 1 shall not apply if the holder of access rights referred to in paragraph 1 has accepted the jurisdiction of the courts of the Member State of the child's new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.

7

Article 15 provides for the transfer of a case from the court with jurisdiction to another court better placed to hear it.

8

Article 16 sets out when a court "shall be deemed seised". Here, the relevant part of Article 16 is paragraph 1(a) which provides:

1. A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; …

9

There has been a relatively recent pronouncement by the CJEU on the subject of Article 16 ( Case C-173/16 M.H. v M.H.) which I think it worth mentioning as it is potentially important for other cases, although, as it turned out, nothing in fact turned on it here.

The issue that Judge Cushing had to determine and the issue on appeal

10

The various jurisdiction provisions of Brussels IIA meant that Judge Cushing needed to consider where M was habitually resident at the time that the court was seised with the father's application in relation to him. In their skeleton argument for the appeal, Mr Turner QC and Mr Laing, for the father, advanced various possibilities as to what might, in fact, be the relevant proceedings that should have been considered in Judge Cushing's review of whether the English court had jurisdiction. Their suggestions included the possibility that the father was merely seeking to have the order of 14 November 2014 perfected and therefore, in their submission, that his application was in fact a continuation of the original proceedings which culminated in Deputy District Judge Lavelle's order. However, as will become apparent in the following paragraphs, the father put his case quite specifically in front of Judge Cushing and Mr Turner accepted that that formulation confined the scope of the argument before us.

11

What the father had said in his position statement for Judge Cushing was:

"1. Today's hearing is in relation to my application dated 25 May 2015 and subsequent hearing on the 16 July 2015 regarding stay of the order of Deputy District Judge Lavelle of 14 November 2014….

4. My application to stay the order was made back in April/May 2015 and jurisdiction was seised from that moment…."

These two paragraphs are not entirely consistent, but when one looks in a little more detail at what the father says had occurred between April and July 2015, I think it is possible to see what he had in mind in them.

12

The father's case is that in mid-April he sent a form C100 to the county court, seeking to appeal the order of Deputy District Judge Lavelle. His recollection is that when he enquired of the county court a few days later, he was told that the form had not arrived. He recollects that he then went to the court in person, on 20 April 2015, and handed over a new C100 form, in which he sought a variation of Deputy District Judge Lavelle's order. If that document took the form of the draft C100, dated 20 April 2015, which appears at B54 of the appeal bundle, it would have stated, under "Nature of application", that he was asking the court for "VARIATION/ADDITION OF RECITAL TO ORDER TO PROTECT CONTACT AND CONTACT LOCATIONS AS AGREED WITH GUARDIAN". The draft form contains a statement, by way of explanation as to why the application was being made, that the parties had reached an agreement as to the locations for contact in Finland and the mother had decided not to deliver the child to those agreed locations and had "also breached contact order which includes prohibitive steps order". The form continues:

"I am seeking a recital to be added to the order preventing breach of agreements and security for contact. The court in England still has jurisdiction as far as I am aware."

In the section of the form dealing with urgency, there was a statement that the order sought was a:

"recital to order securing contact outside jurisdiction"

The reasons for urgency asserted were that:

"the order is due to be transferred outside jurisdiction and the recital should be added prior to that so...

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1 cases
  • Re C (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 July 2017
    ...an extensive review of the law on habitual residence here, having very recently looked at the position post- Re B in Re J (A Child) (Finland) (Habitual Residence) [2017] EWCA Civ 80 at §26 et seq. There is certainly no need for me to cite at length from Re B which has quickly become well kn......

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