Surrey County Council v NR
| Jurisdiction | England & Wales |
| Judgment Date | 2017 |
| Neutral Citation | [2017] EWHC 153 (Fam) |
| Date | 2017 |
| Court | Family Division |
Jurisdiction – Inherent jurisdiction – Nationality – Without notice application – Whether children habitually resident in Northern Cyprus – Whether children needed protection.
Practice and procedure – Without notice application – Inherent jurisdiction – Whether interim declaration of habitual residence appropriate – Whether jurisdiction based on nationality could be exercised without notice.
Wardship – Jurisdiction – Nationality – Without notice application – Whether children habitually resident in Northern Cyprus – Whether children needed protection.
The local authority became involved with the family when the two children were infants, because of concerns about possible neglect and the mother’s mental health. There was also protracted litigation between the parents in relation to both contact and residence arrangements. When the children were about 10 and 8 the mother was sentenced to a 20-week suspended sentence with 120 hours of unpaid work and weekly probation supervision for breach of a non-molestation order. She immediately left the jurisdiction with the children, travelling to Northern Cyprus, a territory recognised only by Turkey and not within the rules set out in the 1980 Hague Convention or Council Regulation (EC) No 2201/2003 (Brussels IIR) and remained in Northern Cyprus in breach of court orders.
After a time the authorities in Northern Cyprus became concerned about the quality of the mother’s care for the children. The mother and children then travelled into the Republic of Cyprus, the Greek Cypriot area, where the mother was arrested pursuant to a European Arrest Warrant, on charges of child abduction. Both children were placed in a children’s home in the Republic, but the elder child absconded, apparently on the mother’s instructions, and was eventually found and placed in a children’s home in Northern Cyprus. The two children were therefore in two different territories. The mother was in custody in the Republic and was due to be returned to the UK in police custody within a few days. The father had had no contact with the children for nine years and was not seeking care of the children at present.
The local authority view was that the children, now aged 15 and 13, were both habitually resident in Northern Cyprus, but that their interests would best be served by returning to England and Wales, where care proceedings would be issued. The authority obtained permission to make an application, without notice to the mother, seeking to invoke the inherent jurisdiction of the High Court, based on the children’s British nationality, to order the children’s return. Both the authorities in Northern Cyprus and those in the Republic wished to facilitate the return of the children to England and Wales and had stated that they did not intend to issue legal proceedings in their own jurisdictions. The children had expressed a preference to be in Northern Cyprus but acknowledged that if the mother was going to return to England they should do so as well; it was clear that the mother was very strongly influencing their views and actions.
Held – (1) Whilst the existence of the inherent jurisdiction based on nationality was in no doubt, the test for exercising the jurisdiction did not yet appear to be conclusively settled. It was however, clear that the court was able, albeit with great caution and circumspection, to exercise its inherent jurisdiction in respect of a British child who was outside the jurisdiction, based on the nationality of that child, where the court was satisfied on the evidence before it that that child required the court’s protection (see [33], below).
(2) The evidence suggested that there had been a wrongful removal from England and Wales for the purposes of Art 10 of Brussels IIR to Northern Cyprus, a non-Member State, in circumstances where the application of the acquis communautaire to the areas of the island over which the Republic of Cyprus did not exercise sovereign jurisdiction had been suspended by Art 1.1 of Protocol No 10 on Cyprus, annexed to the Act of Accession of 2003. The habitual residence that both children appeared to have established in Northern Cyprus, subsequent to their removal from the jurisdiction in England and Wales in 2012, was thus habitual residence in a non-member state. Accordingly, and having regard to the interpretation placed on Art 10 by the Court of Appeal in Re H (jurisdiction)[2014] EWCA Civ 1101, it was arguable that the basis for the court’s jurisdiction in this case could be said to be the continued habitual residence of both children in England and Wales, as they had not acquired habitual residence in another member state for the purposes of Art 10 of BIIA (see [40], [41], below).
(3) However, the court must avoid reaching definitive conclusions as to habitual residence at a without notice hearing, before all parties had had a proper opportunity to adduce evidence and make submissions on this question of fact. Although, applying Re F (a child)[2014] EWCA Civ 789, interim declarations as to habitual residence were permitted where necessary, the court’s view was that where what was being sought was an order for the summary return of a child to this jurisdiction, the court should
be cautious about considering an interim declaration before all parties had had a proper opportunity to adduce evidence and make submissions. These points applied with particular force in circumstances where it was apparent on the face of the papers that there was a significant lack of clarity, and much dispute, with respect to the children’s whereabouts and circumstances since their removal from this jurisdiction nearly five years ago (see [42], below).
(4) The court would always be cautious before it acceded to a without notice application for an order for summary return pursuant to the court’s inherent jurisdiction, not least because to do so would necessarily involve the court having either to reach an interim conclusion on the question of habitual residence as a precursor to making a return order (with the attendant difficulties inherent in basing the summary return of a child on a provisional view as to jurisdiction) or to exercise its jurisdiction based on the child’s nationality, which jurisdiction the Supreme Court had made tolerably clear was only to be exercised with great caution or circumspection for the protection of the child. In the circumstances, the court would not routinely grant without notice applications under the inherent jurisdiction for the summary return of a child to the jurisdiction (see [49], below).
(5) However, there would be cases where it was appropriate for such an order to be made and this was such a case. These children required the protection of this court. They were currently separated from each other in different territories, within which no-one was claiming parental responsibility for them, and neither parent was currently in a position to exercise parental responsibility (the mother because she was in custody and the father because he was estranged from the children). If this court did not exercise its jurisdiction to make orders for their summary return, both children would be in administrative limbo, without access to services required to protect their welfare. Neither child would be in a position to have direct contact with the mother and neither child would have a full opportunity to see whether a reconciliation could be effected with the father. Making the children wards of court and making return orders under the inherent jurisdiction would serve to facilitate the lawful transit of the children from their current locations to the jurisdiction where both parents were shortly to be and in which steps could be taken by the local authority to secure the children’s future welfare with the full involvement of both parents (see [44]–[46], [50], below).
Statutory provisions referred to
Children Act 1989, s 100(2), s 100(3), s 100(4).
Family Law Act 1986, ss 1(1)(d), s 2(3), s 2(3)(b)(i), s 2(3)(b)(ii).
Act of Accession of 2003, Protocol No 10, Art 1.1.
Brussels IIA (Council Regulation (EC) No 2201/2003), Art 8, Art 10.
Hague Convention on the Civil Aspects of International Child Abduction 1980.
Cases referred to
A (a child), Re[2016] EWCA Civ 572, [2016] 3 FCR 85, [2016] 4 WLR 111.
A (children) (jurisdiction: return of child), Re[2013] UKSC 60, [2013] 3 FCR 559, [2014] 1 All ER 827, [2013] 3 WLR 761, [2014] 1 FLR 111 (see also A v A and another (children: habitual residence) (Reunite International Child Abduction Centre and others intervening)).
A (removal outside jurisdiction: habitual residence), Re[2011] EWCA Civ 265, [2011] 1 FLR 2025.
A v A and another (children: habitual residence) (Reunite International Child Abduction Centre and others intervening)[2013] UKSC 60, [2014] AC 1 (see also A (children) (jurisdiction: return of child)).
Al Habtoor v Fotheringham[2001] EWCA Civ 186, [2001] 1 FCR 385, [2001] 1 FLR 951.
B (a child) (habitual residence: inherent jurisdiction) Re[2016] UKSC 4, [2016] 2 FCR 307, [2016] AC 606, [2016] 2 WLR 557, [2016] 1 FLR 561.
B (a child) (habitual residence) (inherent jurisdiction), Re[2015] EWCA Civ 886, [2016] 2 WLR 487.
B (a minor) (habitual residence), Re[2016] EWHC 2174 (Fam), [2016] 4 WLR 156.
B (minors) (abduction) (no 1),Re[1994] 1 FCR 389, [1993] 1 FLR 988, FD.
F (a child) (care proceedings: habitual residence), Re[2014] EWCA Civ 789, [2015] 1 FCR 88.
F v S (wardship: jurisdiction)[1991] FCR 631, [1991] 2 FLR 349.
H (jurisdiction),Re[2014] EWCA Civ 1101, [2014] 3 FCR 405, [2015] 1 WLR 863, [2015] 1 FLR 1132.
Hope v Hope (1854) 4 De GM & G 328, (1854) 43 ER 534, [1843–60] All ER Rep 441.
Leicester City Council v Chhatbar[2014] EWHC 830 (Fam), [2014] 2 FLR 1365.
N (abduction: appeal), Re[2012] EWCA Civ 1086, [2013] 1 FLR 457.
P (GE) (an infant), Re [1964] 3 All ER 977, [1965] Ch 568, [1965] 2 WLR 1, CA.
R v Sandbach Justices, ex p Smith [1950] 2 All ER 781, [1951] 1 KB 62.
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