Re "M" (Minors)

On 5th October 1992 we dismissed an appeal by the paternal grandparents of two children, Michael aged 8 and Kerry aged 7, from the decision of His Honour Judge Harold Wilson, given on 8th September 1992, that the Oxford County Court had jurisdiction under the Family Law Act 1986 to entertain an application by the mother of the children for a residence order under section 8 of the Children Act 1989. We then said that we would give our reasons later: this we now do.

The mother has another son, Daniel, born in 1979, by her marriage to a Mr. Measey. That marriage broke down in 1982 and in 1983 the mother started to live with Donald Macleod in the Oxford area. Daniel was received into care late in 1983, following allegations that he had been assaulted by Donald Macleod, and he has since been placed in the long term foster care of his maternal grandparents. By Donald Macleod (whom I shall hereafter call "the father") the mother had Michael, born on 25th February 1984, and Kerry, born on 28th August 1985. The mother and the father are not, and never have been, married, which is a most relevant fact in the circumstances of this case.

The relationship between the mother and the father caused concern to the social services department of the Oxfordshire County Council over the years, and in May 1991 the children were placed on the child protection register as being at risk of neglect. The primary concerns were then about the mother's parenting ability, the father's personality and heavy drinking, and the children's development and behaviour.

The relationship between the mother and the father ended in the summer of 1991. Such were the concerns of the social worker for the future of the children that she contacted the children's paternal grandparents, who live at Fort William in Scotland and are registered foster parents, and they agreed to have the children to live with them; on 11th September 1991 Michael and Kerry went to live in Fort William with their grandparents. There is not total agreement between the parties as to the terms on which this move took place. The mother says she agreed to the children going to Scotland for one year only because there was otherwise a real risk that they would be taken into care. The grandparents say that it was agreed that the children should stay with them for a minimum period of one year, and thereafter consideration would be given to returning the children to the mother should Oxfordshire social services consider that she was capable and fit to look after them. For present purposes it is not necessary to resolve this conflict, since it is common ground that the children were to stay with the grandparents for at least one year, although whether this was to be a calendar year or merely the school academic year is not clear.

The children settled well into life in Scotland. They attended school there and took a full part in local activities. They had regular contact with both parents, including a week's stay with the mother at her home in Oxford at both Christmas 1991 and Easter 1992; in addition the mother visited the children in Scotland. In December 1991 the father applied to Oxford City magistrates for a parental responsibility order in respect of the children, but he subsequently withdraw that application.

On 4th July 1992 the children came to Oxford for what was intended to be a two-week holiday with the mother, as she accepts; they stayed with her at the house which had been their home before they went to Scotland. However, during the course of that visit the mother decided that she would not return the children and notified the grandparents and the father to that effect on 13th July. On 16th July the grandparents started proceedings in the Sheriff Court at Fort William claiming custody of the children, and on the same day were granted ex parte relief against the mother. These Scottish proceedings were served on the mother on 20th July. On 23rd July the mother filed applications in the Oxford County Court in respect of each child claiming, under section 8 of the Children Act 1989, a residence order and a prohibited steps order to prevent the removal of the child from the jurisdiction of England and Wales. On the same day (23rd July) the Scottish ex parte orders were discharged. I need not mention the various further orders that were made both in England and Scotland since the only issue that arises on this appeal is the jurisdiction of the English court; I record, however, that Michael returned with the father to his grandparents in Scotland on 24th July where he now is; Kerry remains with the mother. The question of jurisdiction came as a preliminary issue before His Honour Judge Wilson sitting in the Oxford County Court on 8th September 1992 when, after hearing counsel for the mother, the father and the grandparents he decided that the court had jurisdiction to hear and decide the mother's applications. He also directed (inter alia) that the children be added as parties to the mother's applications and that the Official Solicitor, who had consented so to act, be their guardian ad litem. On this appeal by the grandparents, supported by the father, against this decision, we had the advantage of argument by counsel instructed by the Official Solicitor, as well as by counsel for the grandparents, the father and the mother.

The question of jurisdiction is governed by the Family Law Act 1986 as amended by the Children Act 1989. The orders which the mother seeks under section 8 of the Children Act 1989 are "Part I orders" as defined by section 1(1) (a) of the 1986 Act. As the mother and the father were never married this is a non-matrimonial case, and accordingly under section 2(2) of the 1986 Act a court in England and Wales has no jurisdiction to make a section 1(1) (a) order unless the condition in section 3 is satisfied. Section 3 is, as far as relevant in the following terms:

"3 Habitual residence or presence of child.

(1) The condition referred to in section 2(2) of this Act is that on the relevant date the child concerned—

• (a) is habitually resident in England and Wales, or

• (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom…"

"Relevant date" is defined by section 7(c) (i) as the date of the application for the order: in the present case 23rd July 1991.

So the issues in the present case are:

2) If the answer to both parts of the first question is in the negative, since the children were present in England and Wales on 23rd July, were they then habitually resident in Scotland?

The judge answered question 1(a) above in the affirmative sense and said that, if he had not done so, he would have answered question 1(b) also in the affirmative. He did not proceed to consider question 2.

Before turning to consider my answers to these questions there are certain other statutory provisions, as well as some propositions to be derived from the authorities, to which I now refer.

Section 41 of the 1986 Act is in the following terms:

"41.Habitual residence after removal without consent, etc.

• (1) Where a child who—

• (a) has not attained the age of sixteen, and

• (b) is habitually resident in a part of the United Kingdom…

becomes habitually resident outside that part of the United Kingdom…in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom…for the period of one year beginning with the date on which those circumstances arise.

(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom…in which he was habitually resident before his change of residence—

(a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom…the right to determine where he is to reside, or

(b) in contravention of an order made by a court in any part of the United Kingdom…"

Under section 2(2) (a) of the Children Act 1989 the mother alone has, and has at all material times had, parental responsibility for the children. Under section 2(9) she could not surrender or transfer any part of that responsibility to another but could arrange for some or all of it to be met by one or more persons acting on her behalf. So long as the children were living with...