Re T (Children) (Jurisdiction: Matrimonial Proceedings)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Stuart-Smith,Lady Justice Elisabeth Laing |
| Judgment Date | 17 March 2023 |
| Neutral Citation | [2023] EWCA Civ 285 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001802/CA-2022-001855 |
[2023] EWCA Civ 285
Lord Justice Moylan
Lord Justice Stuart-Smith
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001802/CA-2022-001855
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
MRS JUSTICE ARBUTHNOT
FD22P00359
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Gration KC and Katy Chokowry (instructed by Dawson Cornwell LLP) for the Appellant
The Respondent in person
Hearing date: 19 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 17 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
The mother appeals from the orders made by Arbuthnot J (“the judge”) on 28 July 2022 and 15 September 2022.
By the former order, the judge dismissed the mother's application for orders in respect of her three children, including specifically that they be returned from Albania (where they had been taken by the father). This was because she determined that it was the courts in Scotland and not the courts in England and Wales which had jurisdiction to make welfare orders based on her finding that the children were habitually resident in Scotland on 3 April 2022 (the date when they went to Albania). That decision was made before it was known that the father had commenced divorce proceedings in England on 18 May 2022. The court and the mother only became aware of this following the judge's judgment on 13 July 2022.
The discovery of the existence of divorce proceedings led the mother to make a further, informal, application to the judge, before the order of 28 July 2022 had been sealed, contending that the English court had jurisdiction to make welfare orders in respect of the children under section 2(1)(b)(i) of the Family Law Act 1986 (“the FLA 1986”) because of the existence of those proceedings.
As set out in more detail below, an order under section 8 of the Children Act 1989 (“the CA 1989”) is defined in the FLA 1986 as a section 1(1)(a) order and section 2(1) of the FLA 1986 sets out when a court in England and Wales has jurisdiction to make such an order. Section 1(1) of the FLA 1986 lists a number of orders to which Part I applies and which include child welfare orders which can be made in Scotland and Northern Ireland (all defined as a “Part I order”). I will, at times, describe a section 1(1)(a) order as a section 8 order and a Part I order as a welfare order so as to distinguish between the former, which applies only to England and Wales, and the latter, which applies across all UK jurisdictions.
By the second order, the judge determined that the English court still did not have jurisdiction to make a section 8 order under section 2(1)(b)(i) of the FLA 1986. As explained in her judgment, this was because she had already decided that the 1996 Hague Child Protection (“the 1996 Convention”) applied and applied to give Scotland jurisdiction. She also decided, alternatively, that, if the 1996 Convention did not apply, the court did not have jurisdiction under section 2(1)(b)(i) of the FLA 1986 because “the question of making the order [did not arise] in or in connection with matrimonial proceedings”.
The mother challenges the judge's decisions contending: (a) in respect of the former, (i) that the judge was wrong to decide that the 1996 Convention applied to determine jurisdiction between England and Wales and Scotland and (ii) that she should have determined that the children were habitually resident in England at the relevant date; and (b) in respect of the latter, that she should have determined that the court has jurisdiction pursuant to section 2(1)(b)(i).
There is a strong argument that this appeal is academic because, since the above orders, the children returned to live in England on 21 September 2022 and have remained here since then. However, I was (just) persuaded by Mr Gration's submissions that the judge's judgments and orders were continuing to have adverse consequences for the mother, in particular in respect of her endeavours to obtain legal aid. Why this should be so was not entirely clear but, to avoid any further difficulties, we agreed to hear and determine the appeal.
The first issue raised by this appeal is whether the 1996 Convention applies to determine which constituent part of the United Kingdom has jurisdiction to make a Part I order. For the reasons set out below, it is clear that it does not and that the allocation of jurisdiction within the UK is determined by the provisions of the FLA 1986.
The second issue is whether the judge was right to decide that the mother's application for orders in respect of the children did not arise in connection with the divorce proceedings so that section 2(1)(b)(i) of the FLA 1986. For the reasons set out below, I consider that the judge should have decided that that question did arise in connection with the father's divorce proceedings so as to give the court jurisdiction.
The third issue is whether the judge was right to decide that the children were habitually resident in Scotland or whether she should have decided that they were habitually resident in England. It is not necessary for this issue to be decided, having regard to our decision in respect of the above two issues. However, again for the reasons set out below, I consider that the judge was wrong and that the children remained habitually resident in England as at the relevant date.
The mother was represented by Mr Gration KC (who appeared at the first but not the second hearing below) and Ms Chokowry (who did not appear below). The father appeared in person.
Unfortunately, due to administrative delays and the intervention of the winter vacation, this case took much longer to be heard than it should have done.
At the conclusion of the hearing, we informed the parties that the appeal would be allowed. I set out below my reasons for agreeing with that decision.
Background
The background, in brief, is as follows.
The mother and the father were both born in Albania. The father moved to live in England in 2002 and became a British citizen in 2007. The parties married in Albania in 2010. The mother came to England in January 2011. Their three children, now aged 11, 9 and 3, were all born in London. Until 20 December 2021, the family lived continuously in London with occasional holiday visits to Albania.
In December 2021 the mother and the father agreed to move to Scotland. A property was rented in the same town where a cousin of the father's lived with his family. The property was, it appears, rented for 12 months. The older children were enrolled in a school there. In circumstances which are disputed, the mother left the family home on 17 December 2021. The father and the children first travelled to Scotland on 20 December 2021, so that the older children could attend their proposed school's induction day on 21 December. They returned to London on 21 December and then went to Albania for Christmas, without the mother.
The father and the children returned from Albania and travelled to Scotland on 7 January 2022. The older children attended school there.
The mother continued to live in London. She had very limited contact with the children.
On 3 April 2022, the father and the children left Scotland and travelled to Albania. They remained living there until 21 September 2022 when they returned to live in England. As referred to above, they have remained here since then.
Proceedings
On 4 May 2022, the mother commenced proceedings in England. She issued an application formally under the inherent jurisdiction for an order that the children be made wards of court and that they be returned to England. A without notice order was made giving directions.
In her statement, dated 3 May 2022, the mother set out details of her relationship with the father, including allegations that he had been physically and emotionally abusive towards her. This, she said, provided the background to her having left the family home in December 2021. She set out what she said had happened since then and also said that the father had returned to England “recently”.
The father's first statement is dated 11 May 2022. He disputed the mother's account and said that she had left him and the children because she was in a relationship with someone else. Although he gave his address as the rented property in Scotland, he explained that, having intended to visit Albania only for the Easter holidays, he had decided to remain in Albania because the children were happier there. In respect of their time in Scotland he said:
“We all were stressed and did not find life easy. I was at home and spent my savings and later borrowed money from my family”.
At a hearing on 12 May 2022, attended by both parties and their legal representatives, the court directed the parties to file statements dealing with the issue of the children's habitual residence as at 3 April 2022 “when they travelled to Albania”. The order also recorded the view expressed by the judge that the mother “should apply forthwith through the Central Authority for proceedings to be taken in Albania under the Hague Convention”.
Proceedings were subsequently commenced on behalf of the mother in Albania seeking the return of the children under the 1980 Hague Child Abduction Convention. Those proceedings were discontinued or dismissed following the return of the children to England in September 2022.
In his second statement, dated 9 June 2022, the father gave his address as a property in Albania. The statement contained a great deal more detail about, and a different perspective (from the brief summary in his previous statement set out above) of, the time he and the children had spent...
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