The London Borough of Hillingdon v M (First Respondent) N (Second Respondent) A and B (through their children's Guardian) (3rd and 4th Respondents)
| Jurisdiction | England & Wales |
| Judge | HHJ Rowe |
| Judgment Date | 02 August 2016 |
| Neutral Citation | [2016] EWFC B92 |
| Docket Number | CASE NO ZW16C00329 |
| Date | 02 August 2016 |
| Court | Family Court |
[2016] EWFC B92
IN THE WEST LONDON FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF A(7) AND B (5)
HHJ Rowe QC
CASE NO ZW16C00329
and
and
JUDGMENT ON THE ISSUE OF JURISDICTION
The Application
On 17 June 2016 the local authority issued care proceedings in respect of two little girls, A (7) and B (5), who had arrived in the UK from Ghana on 21 May 2016. The girls, British citizens, had been placed with their father in Ghana by an English court in 2014. Their mother has been an inconsistent figure in their lives. Neither parent was with the girls on arrival in the UK, and both are living in Ghana.
The girls have been in foster care since being accommodated directly from Heathrow Airport. They are having indirect contact with their father. Their mother flew to the UK and the girls had one session of supervised contact with her. This was not considered to be especially successful, and the mother very soon returned to Ghana.
The father has given different accounts of his reasons for sending the girls to the UK with an unknown adult female:-
a. Initially the father said that he sent the children to the UK to renew their British passports, to see his [their?] nephew A, for a change of environment and for fun and sightseeing;
b. Subsequently he indicated that he wished his children to remain in the UK until Ghana is politically stable. He wishes to reunite with the children in the UK and seek a future here if the political instability remains;
c. The father indicated that he intended the children to live with his step daughter Miss O. She has told the authorities, however, that she is unable to care for the girls and does not wish to be considered to care for them. She said that the plans were for the girls to live with an auntie, who does not actually have blood ties with the girls;
d. In his position statement dated 29 July he asserts that
i. He arranged for the children to travel with a family friend;
ii. His intention is for the children to remain in the UK;
iii. He had made a clear arrangement for the children to stay with his step daughter;
iv. His reasons for sending the girls were that the children should be able to see British relatives, that their passports were due to expire, and that there is political uncertainty in Ghana.
This judgment deals with the issue of whether this court has jurisdiction to make orders in respect of the arrangements for the care of the girls.
Position of the parties
The local authority's initial case was that the children were still habitually resident in Ghana at the relevant date of 17 June. The court could acquire jurisdiction exercising the inherent jurisdiction of the High Court, but should do so only with extreme circumspection, for the reasons set out in the case of Re B (A Child) [2016] UKSC 4. As the local authority processed information more recently provided by the father, who instructed solicitors at the end of last week, it considered that if the court concludes that the children actually lost habitual residence in Ghana when they left Ghana, a matter the local authority leaves to the court to decide, then the court might now assume jurisdiction on the basis of the children's presence in the UK, pursuant to Brussels II Revised Article 13.
The mother was neither present nor represented. The social worker has attempted to engage her, however this attempt was unsuccessful. It appears that similarly in the previous proceedings concluding in 2014 the mother also failed to engage in the court process although it appears that she has had sporadic contact with the girls in Ghana from time to time.
The father's primary contention is that the children have acquired habitual residence in the UK. He has arranged for them to leave Ghana and proposes that they remain in England given political uncertainty and instability in Ghana. He did arrange for the children to stay with his step daughter and could not have foreseen that she would withdraw once the authorities started to intervene to investigate the children's circumstances. The children are British citizens and are now integrated in UK life by being accommodated in foster care. The father's fall back position is that even if the children have not acquired habitual residence here, the court has jurisdiction pursuant to Article 13, and does not need to consider the use of the inherent jurisdiction.
The Guardian submits that on arrival in the UK the children were still habitually resident in Ghana. At the relevant date they had been in the UK for just 27 days and had at best minimal integration into UK life. The court is invited to exercise its jurisdiction under the inherent jurisdiction of the High Court on the basis that the children are British nationals, present in the jurisdiction. This is in any event the more convenient and appropriate place for the proceedings to be heard. In oral submissions the Guardian also considered that Article 13 is a real possibility based on the father's evidence.
The local authority were to liaise with the Ghanaian consular authority and to " invite them to attend the next hearing or to file a document by 28.07.16 setting out their position in this matter, including how the girls may be repatriated and what action they will take regarding the girls' care if the court determined that it does not have jurisdiction in relation to them". This has been done however whilst the Ghanaian consular authority asked for – and was supplied with – more detail of the case, no document has been forthcoming and I was told that despite the local authority following up the invitation, no further response was forthcoming. All parties invited the court to proceed to resolve the issue of jurisdiction and to do so on submissions, notwithstanding the factual uncertainty around the father's reasons for sending the girls to the UK.
The law
With thanks and to avoid delay in this ex tempore judgment, I adopt [and set out below] the law as set out in the skeleton argument on behalf of the children.
JURISDICTION
The court is referred to Re F (A Child) [2014] EWCA Civ 789 in which the President made the following observations at paragraph 10:
a. The jurisdictional reach of the Courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision.
b. The rule which has been developed by the Judges of the Family Division is that the Court's jurisdiction is normally established in care cases by the child either being habitually resident or actually present in England and Wales at the relevant time ( Re R (Care orders: Jurisdiction) [1995] 1 FLR 711; Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham LBC v D (Criteria for Territorial Jurisdiction in Public Law proceedings) [2008] 2 FLR 1449. However, this is modified by Brussels II Revised.
c. It has been established by decisions of the Supreme Court that Brussels II Revised applies to determined the...
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