Re A (Jurisdiction: Family Law Act 1986) (Application for Amplification)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 15 December 2021 |
| Neutral Citation | [2021] EWFC 105 |
| Court | Family Court |
| Docket Number | Case No: SE21P00182 |
[2021] EWFC 105
IN THE FAMILY COURT AT SHEFFIELD
Sheffield Family Court,
West Bar, Sheffield, S3 8PH
Mr Justice Poole
Case No: SE21P00182
Ms Marlene Cayoun (instructed by Expatriate Law) for the Applicant
Dr Charlotte Proudman (instructed by Nelsons Law) for the Respondent
Hearing date: 30 th November 2021
This judgment was delivered in private. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
This is a judgment on the preliminary issue of whether this court has jurisdiction to hear an application for a child arrangements order under s.8 of the Children Act 1989 when the child and parents concerned all live abroad. The Applicant is the father and the Respondent the mother of two children: J, aged 15, and A, aged 10. The parties and their children are all British citizens. The parties married in August 2013 in Nottingham but separated three years later and divorced, the decree absolute having been made by the Family Court in Newport, Gwent, in August 2017. Currently, J lives with the father in Country B, whilst A lives with the mother in Country C. Both countries are in the Middle East and neither are signatories to the 1996 Hague Convention. The application before the court is the father's dated 30 September 2021 for an order that A should live with him in country B. By order of HHJ Lynch on 2 November 2021, the matter was listed for a hearing of the preliminary issue of jurisdiction.
The parties agree that,
i) The matrimonial proceedings between the parties ended with the decree absolute in 2017.
ii) The father's application is for an order under s.8 of the Children Act 1989 which falls within the category of orders within s.1(1)(a) of the Family Law Act 1986 (FLA 1986).
iii) Neither child is habitually resident or present in the jurisdiction of England and Wales.
iv) The father's application was made after Britain left the European Union and Council Regulation No. 2201/200 (“ Brussels II”) has no application to the present case.
Accordingly, the preliminary issues which require determination are:
i) Does the question of making the order arise “in connection with” matrimonial proceedings (s.2(1)(b)(i) of the FLA 1986)?
ii) If so, are the proceedings “continuing” (ss.2A(1)(a)(ii) and 42(2) of the FLA 1986) notwithstanding the decree absolute?
iii) If the court does have jurisdiction under the FLA 1986, would it nevertheless be more appropriate for the application to be determined outside the jurisdiction of England and Wales such that the court should direct that no order should be made (s.2A(4) of the FLA 1986)?
The direction given on 2 November 2021 was for a hearing “on the question of jurisdiction only, to be heard on submissions.” No provision was made for evidence to be filed and served. Dr Proudman, for the mother, urged the court to determine the third issue, which is one of appropriate forum, but Ms Cayoun, for the father, cautioned that the court should require evidence, for example as to the operation of family law in Country C, before determining that question.
Background
The background to the father's application is as follows:
i) Both parties were born in England. They began co-habiting in 2006. They married in Nottingham in 2013. In 2014 they moved, with both children, to Country D where both taught at an international school. They separated in 2016. The father commenced divorce proceedings in the Newport Family Court, Gwent, which proceeded by consent and ended with the making of the decree absolute in August 2017.
ii) Following the parties' separation, both children initially lived with the mother but in early 2018 J moved to live with the father. Later that year both parties and the children returned to live in England after the teaching contracts ended, but the mother applied to the Family Court at Chesterfield for permission to remove A from the jurisdiction to live with her in Country C. As recorded in the order of HHJ Bellamy on 13 August 2018, the father believed that it was in A's best interests to move to Country C to live with the mother. The court recorded that it had jurisdiction on the basis of habitual residence. In effect, the court allowed the mother to take A with her to live in Country C where they both remain. The mother is employed as a teacher in that country. It is not disputed that A is habitually resident there.
iii) From August 2018 to August 2019 J lived with grandparents in Scotland before moving to live with the father in Sheffield. The father maintains that on a visit to him during the Christmas holiday in 2019, A disclosed to him that the mother had physically abused her. This is denied by the mother and I have received no evidence on the matter beyond the father's assertion. The father and J decided to move to the Middle East, specifically to Country B where the father had an offer of a job. He says that the intention was to be closer to A. He applied to the Family Court at Sheffield for permission to remove J from the jurisdiction to live with him in Country B. By consent of the parties, HHJ Lynch made orders on 22 July 2020 permitting the father to relocate with J to Country B, and providing for J to live with the father, A to live with the mother, and for each child to spend time with the parent with whom they were not living. Although the child arrangements orders were in respect of both children, the court recorded that it had jurisdiction in relation to J on the basis of habitual residence but did not make any recording of its jurisdiction in relation to the orders concerning A. The mother was represented by solicitors for the purpose of the proceedings and the consent order.
iv) In July 2021 the father and J visited Country C. The father alleges that A disclosed abuse of her by the mother. Again, this is denied and I have received no evidence on the allegation beyond the father's assertion. He alerted the Country C's police and child protection services but this resulted in no action being taken against the mother. Indeed, the mother made a complaint of harassment against the father and he signed a document which he now understands was an agreement not to make allegations against the mother, in order to allow him to leave Country C. The father's contact with A has been very restricted, he says, and concerned for her welfare, he has made his application to this court for an order that she should live with him.
The Statutory Provisions
The relevant provisions of the FLA 1986 are:
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…
There is no dispute that the father's application is for such an order.
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 Hague Convention, or
(b) the Hague Convention does not apply but—
(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or
(ii) the condition in section 3 of this Act is satisfied.
As noted, the 1996 Hague Convention does not apply and therefore does not confer jurisdiction in this case. Given the agreement that A is neither habitually resident nor present in this jurisdiction, the condition under section 3 of the Act does not apply. Hence, the relevant provision is at s.2(1)(b)(i).
2A Jurisdiction in or in connection with matrimonial proceedings or civil partnership proceedings.
(1) The condition referred to in section 2(1) of this Act is that the proceedings are proceedings in respect of the marriage or civil partnership of the parents of the child concerned and—
(a) the proceedings—
(i) are proceedings for divorce or nullity of marriage, or dissolution or annulment of a civil partnership, and
(ii) are continuing;
The parties agree that the matrimonial proceedings were in respect of their marriage, they are the parents of the child concerned, A, and the proceedings were for divorce. There remains an issue of whether the proceedings are “continuing”.
42 General interpretation of Part I.
(2) For the purposes of this Part proceedings in England and Wales or in Northern Ireland for divorce, nullity or judicial separation in respect of the marriage of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of eighteen (whether or not a decree has been granted and whether or not, in the case of a decree of divorce or nullity of marriage, that decree has been made absolute).
Submissions and Caselaw
The first issue for the court is whether the question of making the s.8 order which the father seeks arises “in or in connection with matrimonial proceedings”. The parties agree that there were matrimonial proceedings but they ended with the decree absolute in 2017. The father does not seek to argue that the question of making the s.8 order now sought arises “in” matrimonial proceedings, even if they are regarded as “continuing” proceedings under s.42(2) of the FLA 1986. Hence, the issue is whether it arises “in connection” with the concluded matrimonial proceedings.
For the father, Ms Cayoun relies on the Court of Appeal decision in Lachaux v Lachaux [2019] 2 FLR 712. In that case the mother was British, the father, French. The parties had divorced in Dubai and the...
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