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B (A Child) [2013] EWCA Civ 1434

Mother’s appeal against a ruling that the English court had jurisdiction in respect of her child who was habitually resident in Sweden

The mother and child (aged five) returned from Sweden to this jurisdiction in September 2012 and during their brief stay here, the local authority issued an application for a care order.  All the parties to the proceedings accepted that the child was habitually resident in Sweden.  The mother asserted that the courts in England and Wales did not have jurisdiction to make orders relating to the child's welfare and her protection (save for the making of short term provisional protective measures).  The local authority, the child's father and the Children's Guardian asserted that, notwithstanding the child's Swedish habitual residence, the English court did have jurisdiction.

In June 2013, Her Honour Judge Lesley Newton, sitting as a deputy High Court Judge, concluded that the English court did have full jurisdiction over the child in relation to matters concerning parental responsibility, child protection and welfare.  In consequence of that ruling the care proceedings were set down for final determination in November 2013.  By this appeal (permission having been granted), the mother challenged the judge's conclusion on jurisdiction.

The appeal was concerned with matters of jurisdiction and in particular the interpretation of European Council regulation No. 2201/2003 (Brussels II Revised – "BIIR").  There was no dispute that the BIIR Regulation applied to pubic law care proceedings.  In considering their decision, the Court of Appeal noted that the judge's conclusion as to jurisdiction was based to a significant extent upon the requests and responses made via the International Hague Network of Judges.

In his judgment, Lord Justice McFarlane provides a helpful review of the Emerging Guidance document produced in 2011 to assist the Network.  It was held that the questions that the judge had asked of the Swedish Network Judge fell well outside what can be properly requested and that it was wholly inappropriate for the English court to asks questions that had the Swedish court sought to answer and provide a binding reply would have been in breach of the parties' ECHR Article 6 rights.  The Swedish judge's replies were interpreted by the judge to amount to the Swedish court declining jurisdiction.  The Court of Appeal noted that courts in a Member State can only 'decline' jurisdiction, or declare under Article 17 that they do not have jurisdiction, in the context of a proper judicial process, conducted within ongoing court proceedings in that State.

The Court of Appeal allowed the appeal, set aside the judge's determination on jurisdiction and replaced it with a declaration under BIIR Article 17 that the courts in England and Wales had no jurisdiction with respect to the care proceedings concerning the child which were commenced in September 2012.

Richard Tambling barrister, 1 Garden Court

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Case No: B4/2013/1782
Neutral Citation Number: [2013] EWCA Civ 1434

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
OF JUSTICE, FAMILY DIVISION
HHJ LESLEY NEWTON
NF12C00222

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 13/11/2013

Before :

LORD JUSTICE MCFARLANE

LADY JUSTICE GLOSTER


and

LORD JUSTICE FLOYD
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Re:  B (A child)

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Miss Pamela Scriven QC and Mr Christopher Butterfield (instructed by Saulet Ashworth Llp) for the Appellant mother
Miss Sarah Morgan QC
and Miss Catherine Jenkins (instructed by A local authority) for the 1st Respondent local authority
Mr Henry Setright QC
and Mr Edward Devereux (instructed by Bindmans Solicitors) for the 2nd Respondent father
Mrs Jane Crowley QC
and Miss Alev Giz (instructed by Quality Solicitors Wilson Browne Llp) for the 3rd Respondent child

Hearing date : 30 October 2013
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Judgment
Lord Justice McFarlane:
1. Miss B, who is now aged 28, was first referred to a psychiatrist because of concerns surrounding her mental health when she was only eight years old.  In her mid-teens she spent a year as a patient in the adolescent mental health unit of the Cassell hospital.  Despite the therapy that she was able to access there, and despite continued attempts to provide therapy to her in the years that have followed, her behaviour has continued to demonstrate that she does not enjoy robust and sustained mental good health.  Throughout this long period the principal presentation of her underlying mental health difficulties has been that of attending accident and emergency departments, or other health resources, and giving fabricated accounts of symptoms in order to access treatment.  A recent psychiatric report, based upon an assessment with which Miss B co-operated in January 2013, summarises the history of disturbed behaviour, lists the various possible diagnoses that have, in the past, been put forward, and concludes that the "pattern of psychological experience and behaviour suggests borderline personality disorder, somatising disorder and factitious disorder". 

2. In 2007 Miss B became pregnant as a result of a relationship with a man who is also said to have suffered from serious psychiatric problems.  Once the local authority for the area in which she was living became aware of the pregnancy, a pre-birth assessment was made and as a result of Miss B's history of sustained and severe mental ill health the local authority resolved to issue care proceedings immediately following the child's birth with a view to separating mother and child at that point, prior to conducting a structured assessment of her ability to care for the baby.   Having heard of these plans Miss B moved to another area of England and Wales but, upon learning that the local authority in that new area also proposed to implement a similar child protection plan, Miss B, without notice to the father or any of the authorities, moved to Sweden.  Although as an autonomous adult Miss B was entirely free to make that move, Sweden does not appear to have been a country with which she had any links of family, community or language.  During a number of media interviews Miss B made it very clear that her sole purpose in moving to Sweden was to escape the attention of the social work authorities in England. 

3. In due course, on 13th January 2008, the child that she had been carrying was born in Stockholm.  That child, a girl, M, now aged 5 years, is the focus of the proceedings which are the subject of this appeal. 

4. The issue raised by the appeal can be shortly stated.  On 12th September 2012, during a short period in which Miss B and M were in England, the local authority for the area in which Miss B's mother lives issued an application for a care order with respect to M under Children Act 1989, s 31.  All the parties to the proceedings accept that at that time M was habitually resident in Sweden.  In consequence, Miss B asserts that the courts in England and Wales do not have jurisdiction to make orders relating to M's welfare and her protection (save for the making of short term provisional protective measures if required).  The local authority, M's father and the Children's Guardian appointed for M in the care proceedings assert that, notwithstanding M's Swedish habitual residence, the English court does have jurisdiction. 

5. In a judgment given on 13th June 2013 Her Honour Judge Lesley Newton, sitting as a deputy High Court Judge, concluded that the English court did indeed have full jurisdiction over M in relation to matters concerning parental responsibility, child protection and welfare.  In consequence of that ruling the care proceedings are now set down for final determination in November 2013. 

6. By this appeal, which she brings with the permission of Lady Justice Black, Miss B challenges HHJ Newton's conclusion on jurisdiction. 

Factual background

7. As this appeal concerns matters of jurisdiction and, in particular, the interpretation of European Council regulation No. 2201/2003 (Brussels II Revised – "BIIR") it is not necessary to summarise the troubling history of Miss B's behaviour in any more detail than I have already provided.  I have however read the recent psychiatric report of Dr G A, a consultant forensic psychotherapist based at Broadmoor Hospital together with an extensive multi-disciplinary assessment prepared, again with the co-operation of Miss B, in May 2013.  Those documents, which of course have yet to be scrutinised by any first instance court, present the clear opinion that, even with intensive treatment and risk management, Miss B will continue to pose a high risk to M of emotional abuse and/or neglect for many years to come as a result of the extent and depth of Miss B's psychological difficulties.

8. In relating the necessary factual history, I will concentrate on those matters that more directly impact upon the question of jurisdiction.

9. Following M's birth, and having no doubt been alerted to the situation by the English authorities, the Swedish social services conducted a detailed investigation and concluded that Miss B did not present such a risk to M so as to necessitate the instigation of the Swedish equivalent of care proceedings.  Concern was apparently again raised towards the end of 2009 when care proceedings were commenced in Sweden; those proceedings were dismissed after a short time on 26th February 2010.  Throughout this period M continued to live with Miss B in Sweden. 

10. M's father applied to the Stockholm District Court for joint custody and contact on 30th September 2010.  Progress in those proceedings was delayed because at that stage Miss B and M undertook a pre-planned move to Paris for six months followed by a further visit to the USA.  During her return journey from America Miss B stopped off in the UK on 29th September 2011 with the intention of visiting family and friends.  On that day the father applied to the English High Court for an order making M a Ward of Court.  He subsequently made applications for contact and parental responsibility orders.  The question of whether or not the English court had jurisdiction was immediately raised in those proceedings with the issue being determined by Sir Nicholas Wall, the then President of the Family Division, on 1st November 2011 (reported as A v B (Jurisdiction) [2011] EWHC 2752 (Fam); [2012] 1 FLR 768).   At that time the father's Swedish custody application was still pending and Sir Nicholas Wall therefore declined jurisdiction pursuant to the lis pendens provisions in BIIR, Article 19 on the basis that the Swedish court was already seised of the issues. 

11. During the currency of the wardship proceedings, the local authority had issued care proceedings under CA 1989, s 31.  Those proceedings were brought to an end by the order of Peter Jackson J on 15th December 2011.  During the English court process in the Autumn of 2011 Miss B and M had been obliged to remain within this jurisdiction.  In order to facilitate an orderly return to Sweden, and, more importantly, in order to ensure, so far as was possible, engagement by the mother with the Swedish social services, the mother gave a number of undertakings to the English court.  In particular she undertook to engage and co-operate with any assessment that the Swedish social services wished to carry out and with any psychiatric assessment that those professionals might recommend.

12. Miss B and M returned to Sweden in mid-January.  Records obtained from Sweden indicate that the social services undertook an enquiry into Miss B's care of M between January and May 2012.  The conclusion of the enquiry was that it was not necessary to institute care proceedings and an order of the Stockholm Administrative Court dated 14th June 2012 records that fact. 

13. At around the same time the father had made an application to withdraw his outstanding private law applications in Sweden and, by an order dated 16th August 2012, the Swedish private law proceedings were set aside.

14. In the summer of 2012 Miss B and M made two short visits to England.  During that period there was increased professional concern following Miss B's attendance at various hospitals in England on a number of occasions.  Ultimately, on 11th September 2012 Miss B was taken to Hillingdon Hospital as a result of her behaviour at Heathrow Airport and M was received into foster care, initially under the protective powers of the police contained in CA 1989, s 46.  The following day, on 12th September 2012, the local authority issued the current application for a care order.

15. Following her initial stay in foster care, M was placed with her maternal grandmother.  At the time that the case was last before Judge Newton in June 2013 the preferred proposal for M's long term care, if she could not return to the care of her mother, was to remain in the care of the maternal grandmother.  However, this court was told during submissions that the grandmother no longer felt able to put herself forward in that role and the option of adoption for M has therefore become a live consideration.

The Brussels II Revised Regulation
16. Before turning to the judge's decision, it is necessary to set out the relevant provisions of the BIIR Regulation.

17. There is no dispute that the BIIR Regulation applies to public law care proceedings under CA 1989, Part 4. Recital (5) to the Regulation expressly provides that it 'covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding'.

18. Recital (12) refers to the grounds for jurisdiction:

The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.

19. Recital (16) deals with provisional measures in urgent cases:

This Regulation should not prevent the courts of a Member State from taking provisional, including protective measures, in urgent cases, with regard to persons or property situated in that State.

20. As will become apparent, the operation of the European Judicial Network is relevant to the issues in this appeal; recital (25) provides:

Central authorities should cooperate both in general matter and in specific cases, including for purposes of promoting the amicable resolution of family disputes, in matters of parental responsibility. To this end central authorities shall participate in the European Judicial Network in civil and commercial matters created by Council Decision 2001/470/EC of 28 May 2001 establishing a European Judicial Network in civil and commercial matters.

21. In the definitions provision (Article 2) 'parental responsibility' is defined as:

The term "parental responsibility" shall mean all rights and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect. The term shall include rights of custody and rights of access.

22. Section 2 of the Regulation (Articles 8 to 15) specifically deals with 'parental responsibility' and Article 8 makes provision for 'general jurisdiction' as follows:

1. The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

2. Paragraph 1 shall be subject to the provisions of Articles 9, 10 and 12.

23. Although not directly relevant to the issues in this case, Article 9(1), which deals with the situation where a child has moved from the state in which he had previously been habitually resident, makes some reference to jurisdiction:

Where a child moves lawfully from one Member State to another and acquires a new habitual residence there, the courts of the Member State of the child's former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the judgment on access rights continues to have his or her habitual residence in the Member State of the child's former habitual residence.

24. In like manner, the opening provisions of Article 10, which deals with jurisdiction in cases of child abduction, has some relevance here arising from the reference to retention of jurisdiction:

In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and …

25. Article 13(1) deals with jurisdiction based on the child's presence:

Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.

26. Article 14 makes provision for 'residual jurisdiction':

Where no court of a Member State has jurisdiction pursuant to Articles 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State.

27. Finally in Section 2, Article 15 deals with 'transfer to a court better placed to hear the case':

1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child:

(a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or

(b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.

2. Paragraph 1 shall apply:

(a) upon application from a party; or

(b) of the court's own motion; or

(c) upon application from a court of another Member State with which the child has a particular connection, in accordance with paragraph 3.

A transfer made of the court's own motion or by application of a court of another Member State must be accepted by at least one of the parties.

3. The child shall be considered to have a particular connection to a Member State as mentioned in paragraph 1, if that Member State:

(a) has become the habitual residence of the child after the court referred to in paragraph 1 was seised; or

(b) is the former habitual residence of the child; or

(c) is the place of the child's nationality; or

(d) is the habitual residence of a holder of parental responsibility; or

(e) is the place where property of the child is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

4. The court of the Member State having jurisdiction as to the substance of the matter shall set a time limit by which the courts of that other Member State shall be seised in accordance with paragraph 1.
If the courts are not seised by that time, the court which has been seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

5. The courts of that other Member State may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seisure in accordance with paragraph 1(a) or 1(b). In this case, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

6. The courts shall cooperate for the purposes of this Article, either directly or through the central authorities designated pursuant to Article 53.

28. Section 3 of BIIR sets out certain 'common provisions', of which Articles 16, 17 and 20 are of note.  Article 16 deals with 'seising of a court':

A court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

29. Article 17 provides for 'examination as to jurisdiction':

Where a court of a Member State is seised of a case over which it has no jurisdiction under this Regulation and over which a court of another Member State has jurisdiction by virtue of this Regulation, it shall declare of its own motion that it has no jurisdiction.

30. Finally, Article 20 sets out 'provisional, including protective, measures':

1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.

High Court hearing 1st November 2012
31. In her judgment given on 1st November 2012, at the conclusion of an application for an interim care order with respect to M, HHJ Newton gave an extensive, ex tempore, judgment in which she reviewed the factual background (which was largely agreed) and the relevant EC and domestic law. The application was not actively opposed by the mother and the only oral evidence given was by the social worker. At that time the judge did not have the benefit of any up to date assessment of the mother's mental wellbeing or her current parenting capacity. Any findings made were therefore to be seen as provisional. In terms of jurisdiction, the judge was clear that 'my present jurisdiction extends only to the making of protective orders within [BIIR] Article 20'.

32. In those circumstances, HHJ Newton was satisfied that [paragraph 60]:

a) The situation was urgent;

b) M was present within the jurisdiction of England and Wales;

c) The interim threshold at CA 1989, s 38 was crossed;

d) Applying the welfare checklist in CA 1989, s 1(3), M's welfare demanded the making of an interim care order;

e) An interim care order is, inherently, a temporary measure made on a provisional basis pending fuller assessment of the relevant issues;

Accordingly the judge made an interim care order in relation to M on the basis that to do so was within the jurisdiction provided by BIIR, Article 20.

33. HHJ Newton went on to make a request to the responsible court in Sweden to consider transferring jurisdiction with respect to M to the High Court in England and Wales under BIIR, Article 15 on the basis that the English court was now in a better position to conduct proceedings designed to protect M's position and to reach decisions as to her future. In making that request the judge helpfully set out a list of factors which would suggest that transfer to the English court was justified. Finally, HHJ Newton indicated that she would be prepared to communicate directly with the Swedish Central Authority and/or any judicial liaison judge or other judge in Sweden.

Article 15 Transfer request
34. The decision of the Stockholm District Court with respect to the BIIR Article 15 transfer request was made on 8th March 2013 and produced the following response:

'There are no ongoing proceedings regarding the minor M in Stockholm District Court. For this reason there is no basis for an examination of the issue of transfer of jurisdiction to a court in another state in accordance with Article 15 of the Brussels II Regulation. Therefore the request is rejected'.

Communication via the European Judicial Network
35. Thereafter, on 16th May 2013, HHJ Newton submitted a number of questions through the office in England of the Head of International Family Justice. In due course these were responded to by the Swedish judicial member of the European Judicial Network. The first two questions and response are of note:

Question 1:
'Does the Swedish Court consider that there is a current Swedish jurisdiction in respect of the child under Article 8 of BIIR? Miss B, M's mother, asserts that M is 'habitually resident' in Sweden, the other parties reserving their position.'

Response:
'There is at this point in time, as far as we know, no case concerning Miss B and/or M pending in a Swedish court. Swedish jurisdiction is only tried once a case is opened. 'Jurisdiction' in the abstract, without an open case, cannot be tried or transferred. Therefore this question cannot at this point be answered in any greater detail.

However, based on the information presented, it is highly likely that the Swedish court would consider that there is no current jurisdiction.'

Question 2:
'If the answer to question 1 above is 'no', does the Swedish court consider that the English court has a substantive jurisdiction outside that conferred by Article 20 of BIIR?'

Response:
'As there is no case concerning Miss B pending in the Swedish court, this is not a matter that the Swedish court has an opinion on. However, based on the information presented, it seems highly likely that the English court has a substantive jurisdiction outside that conferred by Art 20 of Brussels IIR. If [t]he English court finds itself competent the Swedish court with certainly, as there is no case going on here, accept that.'

High Court hearing June 2013
36. On the 10th June 2013 the matter came back on for hearing before HHJ Newton. The principal matter considered at that hearing was the question of whether or not the English court had full jurisdiction over matters relating to M's welfare, or whether any jurisdiction remained limited to the making of provisional orders under BIIR, Article 20. In her judgment given on 13th June the judge concluded that the English court did have full jurisdiction with respect to M. In summary the judge made the following preliminary observations before expressing the reasons for her conclusion:

a) No party sought to challenge the mother's assertion that, at the time that the English court became seised of the current proceedings (12 September 2012), M was habitually resident in Sweden.

b) It is for the local authority to establish that the English court has jurisdiction and not for the mother to demonstrate to the contrary.

c) The Swedish court's refusal to transfer the case under Article 15 was not a refusal 'on the merits' but arose from the fact that there were no extant proceedings.

d) Adopting the approach of Cobb J in Re PB and SE [2013] EWHC 647 (Fam), and of the Swedish judicial responses, BIIR Article 15 can only attach to the transfer of a live case that is before the transferring court; it does not apply to the transfer of 'territorial jurisdiction'.

e) HHJ Newton was 'extremely concerned by the implications for M' if the English court were to grant Miss B's application for the court to declare, under BIIR Article 17, that it lacked jurisdiction.

f) The determination as to jurisdiction is, however, not a welfare based decision.

37. HHJ Newton's conclusions were expressed at paragraphs 44 to 47:

'44 I am, however, confident that those who drafted Brussels II Revised intended it to protect a vulnerable child in M's predicament. It cannot have been within their contemplation that such a child enter a jurisdictional limbo, where, in effect, no court has any responsibility for making decisions as to her future welfare, and with all of the unfortunate consequences that I have attempted to analyse then ensuing. It cannot have been intended that this child, in need of protection now and in the future, would be, to use Mr Setright QC's terminology, "juridically becalmed". So, in turning to the alternative course, I conclude that I am entitled to approach the interpretation of Article 14 in a broad and purposive fashion.

45 Whilst I do appreciate that these are the opinions of the European Network Judge, not a court in [Sweden] directly seized of any case concerning M, I am satisfied of the following propositions:

(1) It is highly probable that the [Swedish] courts do not consider that they have any current jurisdiction;

(2) If there was any jurisdiction to transfer, [Sweden] would agree to transfer it;

(3) They, the [Swedish] courts, are content that this court continues to deal with this case.

46 So, trying to address M's predicament in a realistic, pragmatic and common sense fashion, and interpreting the Regulation purposively, I am persuaded, not without hesitation, that the [Swedish] courts have, indeed, declined Article 8 jurisdiction. Thus, no court of a Member State has jurisdiction pursuant to Articles 8 to 18, and, accordingly, I should determine jurisdiction in accordance with the law of England and Wales. There is, put very simply, no court with any competing claim to jurisdiction.

47 Miss Scriven QC argues that for me to do so 'drives a coach and horses' through the Regulation on the basis that it amounts to giving the courts of England and Wales jurisdiction in a care case by the simple presence of a child unless there are extant proceedings in another member state. I do not accept that analysis. On the contrary, it is only in circumstances where the court of the Member State where the child is habitually resident, having been given full information about the English proceedings, and following proactive judicial liaison, chooses not to exercise any active jurisdiction that this court can properly assume responsibility. That seems to me to be an entirely appropriate operation of the principles of comity and judicial co-operation underlying the Regulation, and avoids the stalemate which would inevitably ensue if this court did not accede to the request to assume jurisdiction.'

38. Finally, HHJ Newton held that, if she were in error as to this court having jurisdiction, the court was in any event justified to give directions for the assessment of M's maternal grandmother as a prospective long-term carer under BIIR, Article 20 on the basis that this was a provisional measure which could facilitate the process in Sweden if, in due course, the Swedish court were to assert jurisdiction over these matters.

The case on appeal

39. Miss Scriven QC, for Miss B, summarises the basis of her appeal in the following five points:

a) The judge incorrectly applied the provisions of Articles 8, 14 and 17 of BIIR. 

b) In any event the judge fell into error in the manner in which she dealt with the opinion of the unnamed Swedish network judge.

c) In any event, the process of judicial liaison in this case pursuant to Article 53 of BIIR operated in such a way as to deny Miss B her right to a fair trial pursuant to ECHR, Article 6. 

d) The judge erred in taking account of considerations of forum conveniens which fall wholly outside the scheme of BIIR.

e) Insofar as the learned judge relied on Article 20 of BIIR she fell into error by ordering an assessment of the maternal grandmother which was neither urgent nor provisional as such an assessment is designed to assess whether the maternal grandmother can provide long term care for M.

40. The appeal is opposed by the Local Authority, the father and the Children's Guardian. 

41. In support of the first limb of her appeal, namely the incorrect application of the relevant articles of BIIR, Miss Scriven's submission is straightforward.  On the accepted basis that M was habitually resident in Sweden at the relevant time, namely the commencement of English proceedings in September 2012, the judge had no alternative but to find that the Swedish court had jurisdiction pursuant to BIIR Article 8.  It is submitted that at no place in the judgment does the judge identify how the Swedish court did not have jurisdiction given the fact that M was habitually resident there at that point in time.  It followed that the Swedish court had jurisdiction pursuant to Article 8, and that conclusion should, in turn, have led the English court to make a declaration of "no jurisdiction" pursuant to BIIR, Article 17.

42. Miss Scriven submits that the judge was in error in utilising Article 14 as Article 14 is a residual provision to be applied where no court of a member state has jurisdiction.  The judge purported to give Article 14 "a broad and purposive" interpretation whereas, it is submitted, that it should have been interpreted narrowly. 

43. In relation to the second limb of her appeal, the approach taken to the opinion of the unnamed Swedish network judge, Miss Scriven submits that the judge failed to distinguish sufficiently between the decision of the Swedish court, which was to reject the request for transfer on the basis that there was no active case, and the opinion of the Swedish network judge, to the effect that it was "highly likely" that, if the issue were raised in fresh proceedings in Sweden, the Swedish court would now consider that there is "no current jurisdiction" and that it is "highly likely" that now the English court has a substantive jurisdiction outside that conferred by Article 20.  It is submitted that the only decision of a Swedish court on these points is the straightforward rejection of the Article 15 request.  That decision, it is submitted, in no manner determined that the Swedish court lacked jurisdiction.

44. In relation to the observations of the Swedish network judge, Miss Scriven submits that these statements are mere "opinion" for which no reasoning is given.  Further, the opinion relates to the "current" circumstances, whereas the task set by BIIR Article 8 is for the English court to consider jurisdiction at the point at which it is seised of the case, namely September 2012.  Miss Scriven also observes that the Swedish network judge failed to address in any manner the significance of M's habitual residence in Sweden at the start of the English process.  Further, there is no reference to the fact that, only some three months earlier, the Stockholm Administrative Court was exercising jurisdiction in concluding the enquiry into M's welfare that had been conducted by the local social services.

45. In any event, Miss Scriven submits that the judge's conclusion at paragraph 46 that "the Swedish courts have, indeed, declined Article 8 jurisdiction" is simply not supported by the Swedish court's decision to reject the transfer application and the Swedish judge's opinion that it is "highly unlikely" that jurisdiction would be exercised were a future application to be made. 

46. For the Local Authority Miss Sarah Morgan QC seeks to uphold the judge's judgment and the judge's conclusion.  Miss Morgan submits that the judge was properly entitled to conclude that she could exercise jurisdiction given the Swedish court's decision (as clarified by the Swedish network judge) that Sweden would decline jurisdiction on the basis of a lack of extant proceedings in that jurisdiction.  It is argued that the English court would only be obliged to decline jurisdiction, under Article 17, if, not only was M habitually resident in Sweden, but also Sweden had had substantive jurisdiction in respect of M. 

47. Miss Morgan submitted that the fact that a child is habitually resident in a particular Member State does not mean that that State has jurisdiction under BIIR in the absence of any live proceedings with respect to the child in that State; there have to be proceedings in existence for Article 8 to bite.

48. Miss Morgan has referred the court to Emerging Guidance (see paragraph 62 below) regarding the development of the International Hague Network of Judges which was apparently endorsed at the 15th anniversary conference of the network judges in July 2013.  The guidance stresses that a key objective of inter-judicial communication is to address any lack of information that the judge in the requesting state may have as to the situation in the requested state and, in relation to the legal implications, in the state of habitual residence of the child.

49. On behalf of the father Mr Setright QC sought to assist the court by developing alternative submissions to complement the local authority's straightforward endorsement of the judge's approach.

50. Mr Setright made a preliminary application requesting this court to refer the question or questions raised in this case to the European Court of Justice in the expectation that the circumstances of this child would justify that court expediting its response to the request.  For reasons which I will develop, I do not consider that a referral to the ECtJ is required in this case as the relevant provisions of BIIR are sufficiently clear to resolve the current issues. 

51. The alternative courses of action put forward by Mr Setright are twofold:

a) On the basis that, whatever the position may have been in September 2012, M is now no longer habitually resident in Sweden and is habitually resident in England.   If the current proceedings were, therefore, to be withdrawn and immediately re-issued, determination of habitual residence, and therefore jurisdiction, would be crystallised on the basis of the current circumstances thereby affording the English court full jurisdiction;

b) One party or another could go now to the Swedish court and make an application for a declaration as to jurisdiction and/or a transfer of matters relating to M's welfare to England.

52. In developing the first of these two alternative options, Mr Setright drew attention to the fact that, since the judge's judgment, the Supreme Court had handed down its decision in A v A and another (Children:  Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2013] 3 WLR 761 concerning habitual residence.  In the judgment of Lady Hale DPSC, with whom the majority agreed, her Ladyship reviews the extant domestic and European case law on habitual residence and, at paragraph 54, draws the threads together in the following conclusions:

"i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.

iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time."

53. Mr Setright submits that M's current circumstances, having been resident in England for over a year and settled in the care of her grandmother, together with the other significant background features of the case, strongly indicate that M is now habitually resident in England and no longer habitually resident in Sweden.  If that is right, says Mr Setright, then the Swedish court would no longer exercise jurisdiction in any fresh proceedings, but, if the jurisdiction of the English court has to be assessed in relation to the circumstances as they were on 12 September 2012, when all accept M was not habitually resident in England, there is a real prospect of both the Swedish court and the English court holding that they do not have jurisdiction with respect to M's welfare with the result that there is a stalemate and no court in either country can make substantive orders with respect to her.  It is, therefore, in that context that Mr Setright suggests the two options to which I have already referred.

54. The first option, withdrawal of the current proceedings and immediate re-issue of a fresh application for a care order, are not steps that this court can direct.  They remain open to the parties and, if such a course is pursued, the court would then have to evaluate whether or not it did indeed achieve jurisdiction for the English court.  Mr Setright commented that such an option would be unattractive because it is so blatantly a tactical strategy.  However, I would observe that the unattractiveness of such a course reduces when it is set against the blatant and admitted tactical nature of the mother's own actions in leaving this jurisdiction and going to Sweden in order to avoid court proceedings prior to M's birth. 

55. Mr Setright's second option, namely that one of the other parties should make an application to the Swedish court, was not well received by the local authority or those acting for M.  There must be a substantial question mark over the locus standi that the local authority would have in Sweden, notwithstanding the fact that currently under the English orders they share parental responsibility for M.  Similar concern about locus applies to the child's representative.  The father himself could only apply for private law orders and does not, in any event, have the funds to make any application.  The mother, for her part, has plainly not made her own application in Sweden. 

56. On behalf of M and her Children's Guardian, Mrs Jane Crowley QC made a forceful plea for some finality on the issue of jurisdiction, with a decision upholding the judge's conclusion so that long term planning can now be undertaken by the English court with a view to settling the arrangements for the remainder of M's childhood.  A primary concern on the part of M is that, if the mother's appeal is successful, there is nothing to prevent the mother once again "playing the system" by returning to Sweden with her daughter, and then, possibly moving on again to a third country if the Swedish social services show a higher level of concern than has hitherto been the case. 

57. Mrs Crowley took issue with Miss Scriven's suggested interpretation of BIIR Article 8.  The mother's case is that "the courts" referred to in Article 8 are the courts in England and Wales and that jurisdiction is determined, under that article, by whether the child is habitually resident in that member state at the time that that court, namely the English court, is seised.  Miss Crowley's submission is that the reference to "the courts" in Article 8 must be to the courts in Sweden and, as those courts are not yet seised of any proceedings in relation to M, Article 8 does not apply.

58. In response, Miss Scriven urged this court to set aside the judge's order and make a declaration under BIIR, Article 17 that the English court does not have jurisdiction relating to M in these proceedings.  Further, Miss Scriven submitted that, flexible though it may be, the outer extent of what is permissible by way of provisional measures under Article 20 has now been reached and any further steps proposed in the continuing proceedings are outside Article 20 and, in Miss Scriven's submission, therefore made without the English court having jurisdiction in the matter.

Discussion

59. The judge's conclusion as to jurisdiction is based to a significant extent upon the requests and responses made via the International Hague Network of Judges ['the Judicial Network']. It is therefore appropriate to commence an analysis of the issues in this case by considering the role of the Judicial Network and its deployment in these proceedings.

60. The establishment of an international network of judges concerned with the welfare and protection of children was first proposed by Sir Mathew Thorpe (then Lord Justice Thorpe) at an international seminar in 1998. A convenient description of the current situation is to be found in Chapter 3 of the 2012 Annual Report of the Office of the Head of International Family Justice (in England and Wales), the office holder at the time being, naturally, Lord Justice Thorpe:

'The principal focus of the Office is the facilitation of trans-national judicial collaboration, the process by which judges of different jurisdictions communicate with each other to assist with the practical aspects of resolving a case with an international angle in the best interests of justice. A judge in State A, by way of example, may want to be sure that safe harbour orders are possible in State B. He may want to know whether the threat of criminal proceedings can be neutralised. He may want to know how quickly an issue can be listed. The judge in State B may want information as to the law or as to the progress of the proceedings in State A: for instance what protective measures are necessary to safeguard the child on return. 'Direct judicial communication' specifically refers to judicial collaboration involving direct communication (such as by telephone, video link, or e-mail) between judges of different jurisdictions.

International judicial collaboration is facilitated at first instance through network judges, such networks being both formal and informal. From the perspective of England & Wales, the two most important networks are the International Hague Network of Judges (the "IHNJ") which operates under the auspices of the Hague Conference of Private International Law, and the network of Family Law Judges which works within the framework of the European Judicial Network (the "EJN"). The role of the network judge is to encourage and facilitate international judicial co-operation on matters of family justice.

61. It is of note that this description of the role of the Judicial Network falls short of describing a mechanism for obtaining binding rulings from the requested Network Judge. The emphasis is upon the practical aspects of resolving international cases, including the provision of 'information as to the law', rather than upon obtaining concluded free-standing determinations on matters of jurisdiction or status.

62. The Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, which met in June 2011 under the auspices of the Hague Conference on Private International Law endorsed a document entitled The Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications (which was Preliminary Document 3A to the Special Commission meeting). The Emerging Guidance was subsequently updated in July 2012.

63. Although the Guidance expressly relates to the IHNJ, there seems to be no reason to distinguish between the IHNJ and the EJN in this context.

64. The Guidance describes the two-fold role of a Network Judge. The first element is not case-specific. In relation to the second element of the role the Guidance states:

'The second communication function consists of direct judicial communications with regard to specific cases, the objective of such communications being to address any lack of information that the competent judge has about the situation and legal implications in the State of the habitual residence of the child. In this context, members of the Network may be involved in facilitating arrangements for the prompt and safe return of the child, including the establishment of urgent and/or provisional measures of protection and the provision of information about custody or access issues or possible measures for addressing domestic violence or abuse allegations.

The Principles for Judicial Communications will provide transparency, certainty and predictability to such communications for both judges involved as well as for the parties and their representatives. Such Principles are meant to ensure that direct judicial communications are carried out in a way which respects the legal requirements in the respective jurisdictions and the fundamental principle of judicial independence in carrying out Network functions.'

65. In a section of the Guidance which deals with requests made with respect to specific cases, the following matters that may be the subject of direct judicial communications are offered by way of example:

a) scheduling the case in the foreign jurisdiction:

i) to make interim orders, e.g., support, measure of protection;

ii) to ensure the availability of expedited hearings;

b) establishing whether protective measures are available for the child or other parent in the State to which the child would be returned and, in an appropriate case, ensuring the available protective measures are in place in that State before a return is ordered;

c) ascertaining whether the foreign court can accept and enforce undertakings offered by the parties in the initiating jurisdiction;

d) ascertaining whether the foreign court can issue a mirror order (i.e., same order in both jurisdictions);

e) confirming whether orders were made by the foreign court;

f) verifying whether findings about domestic violence were made by the foreign court;

g) verifying whether a transfer of jurisdiction is appropriate.

66. Thereafter, the following 'Communication Safeguards' are offered:

Overarching principles
6.1 Every judge engaging in direct judicial communications must respect the law of his or her own jurisdiction.

6.2 When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.

6.3 Communications must not compromise the independence of the judge seized in reaching his or her own decision on the matter at issue.

Commonly accepted procedural safeguards
6.4 In Contracting States in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:

– except in special circumstances, parties are to be notified of the nature of the proposed communication;

– a record is to be kept of communications and it is to be made available to the parties;

– any conclusions reached should be in writing;

– parties or their representatives should have the opportunity to be present in certain cases, for example via conference call facilities.

6.5 Nothing in these commonly accepted procedural safeguards prevents a judge from following rules of domestic law or practices which allow greater latitude.

67. The focus of this guidance, and it would seem the focus of the work of the Network itself, is upon achieving the exchange of information and cooperation on the practicalities of a case. Nowhere does the Guidance suggest that the Network Judge should give authoritative rulings or legal advice. On that basis the operation of the Network has proved to be valuable in lubricating the arrangements that fall to be made between one jurisdiction and another. It is, however, in my view, outside the scope of the Judicial Network for it to be used to obtain an authoritative determination from the court of the requested Network Judge on the issues relating to a particular child where, either, there are no proceedings relating to that child before that court, or, if there are proceedings, the determination sought is one that is made outside those proceedings.

68. The primary reason why it would be outside the scope of the Judicial Network scheme for the requested judge to issue an authoritative ruling outside the arena of ongoing court proceedings in his or her court is the one relied upon by Miss Scriven. In the context of liaison between judges in Europe, each will be governed by the fair trial requirements of ECHR, Article 6. One only has to contemplate a requested judge issuing a determination in circumstances where they have not heard any of the parties or their advocates, they probably have not been exposed to all, or to any, of the key documentation in the case and almost certainly, where there are no extant court proceedings, they do not have any jurisdiction to make a binding determination under their domestic law.

69. Turning to the present case, and against the background relating to the Judicial Network that I have described, I consider that the four questions asked of the Swedish Network Judge fall well outside what can properly be requested via the Judicial Network. To ask (Question 1) 'does the Swedish Court consider that there is a current Swedish jurisdiction in respect of the child under Article 8 of BIIR?' or (Question 2) 'does the Swedish Court consider that the English Court has a substantive jurisdiction outside that conferred by Article 20 of BIIR?' seeks the determination of fundamental matters of status in a case where those very issues are fully contested. It was wholly inappropriate for the English court to ask such questions both as a matter of substance and also because, had the Swedish court sought to give a binding reply, such a process would have been bound to breach the parties ECHR Article 6 rights.

70. As matters turned out, the Swedish judge, correctly if I may say so, declined to answer these direct questions on the basis that, in the absence of current proceedings in Sweden the issue of jurisdiction 'cannot be tried'. No doubt if there had been current Swedish proceedings, then the question would have been answered by a ruling after a full court process within those proceedings, and not outside those proceedings via freestanding communication from the Network Judge.

71. Of course, the Swedish Network Judge did not limit her response to the narrow point that the Swedish court had no current basis to determine jurisdiction, but went on to offer her opinion that it was 'highly likely' that the Swedish Court would consider that jurisdiction with respect to M now lay with England rather than Sweden. It is not for me to offer any view as to whether those additional responses were well, or ill, advised. I have already held that it was wholly inappropriate for the English court to ask these questions in the first place. What is, however, clear is that, even taken at their highest, these expressions of opinion as to the 'highly likely' view of the Swedish Court cannot form the basis for a finding that the courts in Sweden have actually 'declined jurisdiction', as the judge concluded at paragraph 46. Courts in a Member State can only 'decline' jurisdiction, or declare under Article 17 that they do not have jurisdiction, in the context of a proper judicial process, conducted within ongoing court proceedings in that State where, as Article 17 makes plain, that court is 'seised' of the case relating to the particular child.

72. Although the factors that HHJ Newton identifies relating to this child's welfare needs may point strongly to a resolution of the jurisdiction issue in favour of the English court, and although I would not wish to criticise a judge who, in those circumstances, adopts a 'realistic, pragmatic and common sense' approach and does so from a child-focussed perspective, the 'merits' of the case, when the central issue is one of jurisdiction, can only carry the analysis so far and no further. Such an approach can not, and should not, justify inflating the communications that took place over the Judicial Network in this case to providing an authoritative determination from Sweden in which it abdicates jurisdiction with respect to M.

73. It follows from these conclusions, that both the process and the internal reasoning adopted by the judge cannot stand and must be set aside, with the result that it will fall to this court to determine the issue of jurisdiction under BIIR afresh.

74. The starting point in considering jurisdiction under BIIR is Article 8. It is common ground in this case that at the time that the English court became seised of this case M was habitually resident in Sweden. In consequence Article 8 does not afford jurisdiction to the English court with respect to the current care proceedings.

75. With respect, I am unable to accept Miss Morgan's submission that the terms of Article 8 mean that jurisdiction under BIIR only attaches to the State of a child's habitual residence if and when proceedings are issued in that State. The purpose of the reference in Article 8 to 'the time the court is seised' is to crystallise the moment in time at which jurisdiction is to be determined in respect of a particular set of proceedings. The phrase 'the courts' and 'the court' in Article 8 must refer to the same court and they refer to a court that becomes seised of a case; if the child is habitually resident in that Member State then its courts will have jurisdiction under Article 8. The wording in Articles 9 and 10 ('retain jurisdiction during a three-month period' and 'shall retain jurisdiction') readily contemplates the courts of the State of former habitual residence (Art 9), or habitual residence immediately prior to abduction (Art 10), having jurisdiction irrespective of whether there are any extant proceedings before those courts. Such an interpretation sits easily with Recital 12: 'the jurisdiction should lie in the first place with the Member State of the child's habitual residence'.

76. It follows that the fact that there were no extant proceedings relating to M before a Swedish court on 12 September 2012 does not mean that the Swedish courts did not have jurisdiction under BIIR when these English proceedings were commenced.

77. BIIR, Articles 9 to 12 deal with circumstances that do not arise in this case. Article 13, which relates to jurisdiction based on the child's presence in a Member State where a child's habitual residence cannot be established and there has been no prorogation of jurisdiction under Article 12, is not relevant as M's habitual residence can be established. Depending on the date at which it is determined it will either be Sweden or, if the submissions of some of the parties are correct, England.

78. Article 14 provides for residual jurisdiction where 'no court of a Member State has jurisdiction pursuant to Articles 8 to 13'. For the reasons that I have given I conclude that, certainly at the time that the English court was 'seised' of this case in September 2012 and for a considerable period thereafter, jurisdiction attached to the courts of Sweden as being the State in which M was (and possibly still is) habitually resident. In those circumstances the courts in Sweden did have jurisdiction pursuant to Articles 8 to 13.

79. It follows from this analysis that the English court has no jurisdiction under BIIR in respect of these care proceedings.

80. I, therefore, finally come to Article 17. It is in plain and mandatory terms. Where a court is seised of a case over which it has no jurisdiction, and over which a court in another Member State has jurisdiction by virtue of BIIR, 'it shall declare of its own motion that it has no jurisdiction'. That was the very situation that existed in September 2012. In consequence of Article 17 the English court was required to make a declaration of 'no jurisdiction', but did not do so. The fact that more than a year has now gone by and it can be argued that M may now be habitually resident in England, and no longer habitually resident in Sweden, cannot be justification for ignoring the requirement for a declaration to be made in or soon after September 2012. That must be particularly so where the fact that M has been in England for this time has only been achieved by the imposition of compulsory orders keeping her here and despite the opposition of her mother.

81. If the situation is now that M's habitual residence has changed (and that is a matter which is expressly not determined in this judgment) then that will be to a large extent as a consequence of the time that has gone by since September 2012 when M has been held here under temporary orders of the English court. If, in turn, this results in neither the Swedish court any longer having jurisdiction with respect to M and the English court not having jurisdiction within these one year old proceedings, that unhelpful situation would seem to be a direct result of the English court not determining the jurisdiction issue at, or near to, the start of the process in September 2012. A relatively prompt hearing on 'jurisdiction' did take place on 31st October 2012. That, however, resulted in what is now accepted to be an erroneous request for Sweden to make a transfer of jurisdiction under BIIR, Article 15. The Swedish court did not respond to that request for over four months [13 March 2013]. By then the potential for M to be drawn into some form of jurisdictional limbo was well established.

82. In the light of the decision to which I have come on the central issue of jurisdiction, and on the basis that whatever interim steps have been taken thus far by the English courts (for example assessing the maternal grandmother as a long-term carer) have been concluded, it is unnecessary to undertake a detailed audit of those interim measures to determine whether they were, or were not, permissible within the terms of BIIR, Art 20. Miss Scriven did not in any event press this aspect of her appeal and it is not therefore necessary to express any conclusion on the Article 20 points.

83. As I have indicated at paragraph 50, I do not consider that the issues raised in this case justify the further inevitable delay that would result (even if the case were expedited) by making a reference to the European Court of Justice. In any event no party is actually putting forward a competing construction of the relevant articles of BIIR as an alternative to the interpretation that I have applied in determining the issue of jurisdiction in this case. The judge's conclusion was based upon a finding that the Swedish court had declined jurisdiction. The local authority and the children's guardian support the judge's reasoning and Mr Setright simply puts forward two pragmatic alternative options, as opposed to offering an alternative interpretation.

84. For the reasons that I have given, I would allow this appeal, set aside the judge's determination on jurisdiction and replace it with a declaration under BIIR Article 17 that the courts in England and Wales have no jurisdiction with respect to the care proceedings concerning M which were commenced on 12th September 2012.

85. The only remaining jurisdiction in the English court in relation to these present proceedings arises under BIIR, Article 20 and must now be focussed upon short-term holding arrangements to facilitate the conclusion of the proceedings in an orderly manner that meets the requirements of M's welfare. These are matters of important detail that can be dealt with by HHJ Newton in the High Court at the hearing which is already planned for 18 November 2013. In those circumstances I would direct that the existing interim orders made by the High Court, including the interim care order, should remain in force until discharged or varied by orders made at the conclusion of the forthcoming hearing.

Lady Justice Gloster

86. I agree.

Lord Justice Lloyd
87. I also agree.