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Re G (Children) (Habitual Resident) [2017] EWHC 2111

Jurisdiction decision including consideration of habitual residence, prorogation of jurisdiction and forum conveniens.

The hearing was to determine whether the court had jurisdiction in relation to proceedings issued by the mother under the inherent jurisdiction concerning twins (X and Y) aged 5.

The mother asserted that the court did have jurisdiction: the children were habitually resident pursuant to Article 8 BIIR; alternatively, there had been prorogation pursuant to Article 12(3) BIIR.

The mother and the children had been out of the jurisdiction, staying in the United Arab Emirates, since 9.11.16. The relevant date for habitual residence was 2.3.17, when the proceedings were instituted.

The mother's case was that she always intended to return to the UK and had been prevented from doing so by the father seeking orders in the UAE that removed the children's passports from her. The father's case was that the mother changed her mind about returning after she went to the UAE and expressed the wish to remain there. He asserted that he had to seek the order removing the children's passports because the mother had threatened to take the children where he would not see them.

It was agreed that when the mother and children left the jurisdiction on 9.11.16 they were habitually resident here and the intention was for them to return here by 5.1.17 to enable the children to return to school. In correspondence of 13.4.17 the father was 'delighted' that the mother and children were coming to this jurisdiction and provided fulsome and unconditional support for that. By the time of the jurisdiction hearing, the father did not consider such a step was in the children's interests.

Theis J concluded that the children did not lose their habitual residence in the UK and were habitually resident here on 2.3.17. Her reasons are set out from [60] to [69], and included:

• the return to the UAE was only short term and the intention was to return to the UK by 5.1.17;
• the mother's failure to return was due to the unilateral action taken by the father in removing the children's passports;
• the time the children spent in the UAE had not meant they were any more integrated than they were through their regular trips backwards and forwards to stay and visit the wider family which they had done since birth; and
• the mother was unaware of any steps she could take here until she obtained legal advice in late February (which resulted in the prompt issue of proceedings on 2.3.17).

Even if she was wrong about habitual residence, Theis J was satisfied that there had been prorogation of jurisdiction under Article 12(3) BIIR (see [70-79]). The father had accepted jurisdiction in a clear and unequivocal way. It was noted that the father had been served, had legal advice specifically in relation to issues of jurisdiction and then wrote a letter dated 13.4.17 effectively setting out that he consented and was expressed to be 'delighted' about the orders being sought by the mother.

The court considered that the father's change in position regarding jurisdiction between 13.4.17 and 28.4.17 was a tactical manoeuvre by him to bolster his change in position that the children should not be returned to this jurisdiction, which was consistent with his controlling nature. The fact that the father then raised the issue of jurisdiction did not change the fact that he had already unequivocally accepted jurisdiction through the letter of 13.4.17. It was accepted that once Article 12(3) BIIR had been satisfied it could not be resiled from.

Lastly, as to forum conveniens, the court was satisfied that this jurisdiction was the relevant jurisdiction and any application for a stay should be rejected (see [80-87]).

Summary by Victoria Flowersbarrister, Field Court Chambers

__________

IMPORTANT NOTICE
This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published. In any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.  All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Case No: FD17P00120
Neutral Citation Number: [2017] EWHC 2111 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF:  G (CHILDREN)

Royal Courts of Justice
Strand
London
WC2A 2LL
 
19th June 2017


Before:

THE HONOURABLE MRS JUSTICE THEIS DBE
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Re: G (Children)
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Miss Anita Guha (instructed by Slater & Gordon) for the Applicant Mother
Miss Katy Chokowry
(instructed by Williscroft & Co) for the Respondent Father

Hearing date: 15th and 19th June 2017
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Transcribed from the Official Tape Recording by
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JUDGMENT

THE HONOURABLE MRS JUSTICE THEIS:
Introduction

1. This matter was listed before me last Thursday, 15th June, to determine whether this court has jurisdiction in relation to proceedings issued by the mother under the inherent jurisdiction concerning two children, X and Y, twins, age 5 .  The applicant is M, who is the mother of the children, and the respondent is F, who is the father of the children.  For convenience I will refer to them in this judgment as the mother and father.

2. The mother asserts that this court does have jurisdiction on alternate grounds.  Firstly, that the children are habitually resident pursuant to Article 8 of Council Regulation (EC) Number 2201-2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, more commonly known as Brussels IIR.  Secondly, that there has been prorogation of jurisdiction pursuant to Article 12(3) of Brussels IIR on the grounds that the father is habitually resident in this jurisdiction, and the jurisdiction of the court was unequivocally accepted by both parties at the time the court was seized and is in the best interests of the children.

3. The mother and children have been out of this jurisdiction, staying in Abu Dhabi in the United Arab Emirates, since 9th November 2016, staying with the maternal family.  They had gone there on 9th November at a time when it is accepted the mother and the children were habitually resident here.  It is accepted it was only for a relatively short period and the intention was to return, at the latest, by 5th January 2017, to enable the children to return to their primary school in the north of England where they had been attending since September 2016.

4. The mother's case is that she always intended to come back and has been prevented from doing so due to the father seeking orders in the United Arab Emirates that removed the children's passports from her care and her control on 13th December 2016.  Since then she has returned alone to this jurisdiction twice; first at the end of February until early March and more recently so that she could attend this hearing last Thursday to enable her to give oral evidence.

5. The father's case is that the mother changed her mind about returning here after she went to the United Arab Emirates on 9th November and expressed the wish to remain there.  He had to seek, he says, the order removing the children's passport from her control as he said the mother had threatened to take the children where he would not see them.  He accepts his solicitors wrote the detailed letter dated 13th April 2017 after the mother had issued these proceedings on 2nd March 2017, after he had been served and had had the benefit of legal advice in relation to jurisdiction where he said he was "delighted" the mother was going to return to the United Kingdom with the children. The letter sought and obtained the agreement of the mother's solicitors to adjourn the hearing then listed on 18th April to enable the practical arrangements for their return to be made.

6. The father then set out in a letter two weeks later, dated 28th April that he had changed his mind.  He did not consider it was now in the children's interests to return here as he was concerned about the lack of support for the mother and he intended to return to the United Arab Emirates at the end of this year.  As a result of that change of position when the matter came before Her Honour Judge Jakens on 23rd May 2017 directions were made for this hearing to be listed to determine the issue of jurisdiction.

7. I have read the court bundle, the two full skeleton arguments from Miss Guha and Miss Chokowry and heard the oral evidence of the parties, limited to issues relevant to habitual residence.

8. This matter was listed with a time estimate of one day.  The oral evidence did not conclude until just before 5pm.  It was a gross under estimate. This was, and always was, a two day case.  I directed written closing submissions and I am giving this judgment on the next working day, as the mother was returning to the United Arab Emirates before the judgment and the father was going to be unavailable other than for a limited period of time today.

9. When they were at court last week they took the opportunity with both of the parties being physically present with their legal teams to agree the terms of an order regarding the practical arrangements that would be put in place, if the court accepted that it had jurisdiction.  A draft order was submitted by Miss Guha with her closing submissions. The father was clear in his oral evidence that he would ensure that any order, if it was made by this court, would be complied with.

10. Essentially, the father disputes that the children have habitual residence.  He says it has been acquired in the United Arab Emirates.  He does not accept that he, in the terms of Article 12(3), has unequivocally accepted the jurisdiction of the court and even if he is unsuccessful in relation to both of those matters he says if the court does decide it has jurisdiction it should decline jurisdiction on the grounds of forum conveniens, in that the United Arab Emirates is the more suitable forum and these proceedings should be stayed.  The mother resists the court exercising its discretion in relation to a stay on forum conveniens.  She does not accept there are any proceedings afoot in the United Emirates and that any involvement she may have had with procedures there she submits that has been through no choice as they post-dated the father's steps in removing the children's passports from her control.

Relevant Background

11. The relevant background, the essential background, is not disputed and can be taken quite shortly.  The father was born in the Lebanon to Palestinian parents.  They moved as a family to the United Arab Emirates in 1982.  The father remained there until 1998, when he moved to Slovakia to study medicine.  He obtained Slovakian citizenship in 2012.  The mother was born in the United Arab Emirates, but has Jordanian nationality.  She was brought up in the United Arab Emirates although went to Jordan to attend university, before returning back to the United Arab Emirates after that.

12. The parties were married in Abu Dhabi in November 2010.  The mother joined the father in Slovakia in February 2011.  She soon became pregnant and returned back to the UAE for a number of months, before returning to Slovakia for the children's birth on 2nd December 2011.  The children have Slovakian citizenship.  The mother returned back to the UAE in late 2011 so she could have the support of her family and returned back to Slovakia with the children in April 2012.

13. Between 2012 and late 2013 there followed a pattern of the mother spending time in Slovakia with the children and the father, then going back and spending time in the UAE with her family whilst the father remained working in Slovakia.  Both parties give differing accounts as to why this took place. The mother was concerned at the father's long working hours and there was a suspicion of other relationships. The father says the mother could not cope without the help and support of her family.  There was some limited evidence that the mother had some medical treatment for depression in Slovakia during this time, although the parties disagreed as to the reasons for this intervention.

14. The father completed his studies and training in Slovakia at the end of 2013 and secured employment as a consultant cardiologist in the United Kingdom in January 2014.  The mother and children joined him.  The intention then was for the father to be able to work in this jurisdiction for a period of five years, which would enable him to get the necessary licence to enable him, if that was the agreement between the parties, to practice back in the UAE.  He initially worked in Lincolnshire, which is where the mother and children joined him. The mother and children lived there until they moved to North West England with the father in October 2015.

15. During this period the mother, as she had done before, returned back to the UAE to see her family and ensure her residence status in the UAE was kept up to date.  When she was in Lincolnshire with the children, the children attended nursery and the mother was their primary carer.  During the time the family was in England from October 2015 the mother and children had about two relatively short visits to the UAE, but otherwise remained living in England.  In September 2016 the children started attending primary school, following their attendance at nursery before then.  According to the mother the children quickly settled into school, were happy there, they liked different aspects of the school.  She described in her oral evidence X liking computers whereas Y had a good and close relationship with his class teacher and the headmaster and they both joined in and took part in various school activities.

16. The mother became pregnant again, there were complications with that pregnancy and she required hospital treatment.  At that time the father was working during the week as a consultant cardiologist in Devon.  Although there is a disagreement between the parties as to the precise circumstances of the decision, it is agreed the mother and children went to the UAE on 9th November. This decision was made quickly as the mother at that time felt well enough to travel.  Agreement was reached with the school for the children to have a temporary leave of absence from the school to enable the mother to go back to the UAE and for the children to be back for the start of the January term, which was 5th January 2017.  A single ticket was purchased for the mother and children due to the cost of purchasing a return ticket at such short notice.

17. There is a dispute between the parties as to what discussions there had been at around this time about divorce, and who instigated it.  The mother says it was raised by the father, as set out in paragraph 19 of her third statement. The father says it was the mother who raised it shortly after she had returned back to the UAE.  It is clear that by the time of the message between the parties from the father to the mother on 28th November 2016 there had been some discussion about divorce. There is a reference to that when the father says in a message to the mother, he sets out various things and includes at paragraph 4: 

"I have spoken to a solicitor regarding the divorce process and as soon as you come back we shall sign the documents and I shall arrange for you to have your residency permit transferred to the kids as the carer..."

and then continues with other matters.

18. Very unfortunately the mother miscarried two days later, on 30th November 2016.  According to the father, at some stage after that the mother threatened to take the children where he would not be able to locate them.  He states in his second statement at paragraph 13: 

"She then started to make reference to taking the children away from the United Arab Emirates so I would not be able to find them at all.  It was as though whatever I said she would not agree to.  It was as a result of those threats that I made the application to the Abu Dhabi primary court for the applicant to hand over the passports of the children."

19. As a consequence of that application he obtained an order that removed the children's passports from her.  It was on a without notice basis.  She had no opportunity to make any representations in relation to that order, the passports are currently being held by the father's father, the children's paternal grandfather.

20. Sadly, again, at about this time the father's mother had a relapse of a previous illness and required a bone marrow transplant.  The father took about two months off from working in this jurisdiction to accompany his mother to Jordan for the purposes of the bone marrow treatment in December 2016 through till January 2017.  During that period he made three trips to the UAE. He last saw the children face to face on 15th January 2017.  He returned back to the United Kingdom in late January/early February 2017 and has not been to the UAE since.

21. In December 2016 the mother sent the father a message which read as follows:

"Hello [F], just to let you know I tried to use your card account which you gave me earlier to buy some clothes for the kids but the card was declined and on the credit card machine screen the lady showed me it was giving them a message saying 'stolen'.  I don't have any spending money for the kids and you have not booked the tickets yet for the kids to come back.  Hence school for the kids start on 5th January. Also, don't forget I don't have a key for the house when I come back because you took the only key I had before I came here to Abu Dhabi."

22. The father's response to that message on the same day, so in December 2016, was short.  It was as follows:  "I shall send the kids some money in the near future."  It does not respond back to the request for tickets to be arranged, to enable the mother and the children to come back to this jurisdiction.  In his oral evidence the father sought to suggest the messages in the papers sent on 11th March 2017 should also be seen as part of his response, which I reject.  They were sent at an entirely different time, in an entirely different context and after a significant gap of time.  The fact is that in December 2016 the mother was seeking to return here, as had been planned and agreed between the parties in November, and the father was not agreeing and had by then taken unilateral steps to prevent the mother returning to this jurisdiction by removing the children's passports.  Any steps taken after that by the mother have to be viewed, in my judgment, in that light.

23. It is accepted by the father that any discussions between the respective families regarding divorce in the UAE were after the children's passports had been removed.  The documents that I have seen disclose that there were two appointments in the UAE on 15th and 22nd January.  It is accepted the parties did not have any legal advice.  They were accompanied by members of their family, but at neither appointment was agreement reached.  There is a debate between the parties as to whether there was any judicial involvement in either of these appointments.  In the description in the oral evidence it does appear that it is almost like a mediator, there were efforts made by the person who was overseeing the appointment to see whether the parties, with the assistance of their wider families, were able to reach agreement and if they were not able to more time was given.  What is agreed between the parties is that they didn't reach agreement on all matters at either of these two appointments.

24. The documentation the court has in relation to this is a document from the Judicial Department dated 25th May 2017 entitled "To whom it may concern".  It has a reference of the Family Guidance file number and gives the name of the parties.  It records the hearings that took place on 15th January and 22nd January and it concludes as follows in relation to 22nd January: 

"Both said parties attended and after discussions and negotiations the husband insisted on divorce.  At the session both parties discussed over their rights resulted from divorce.  However, they disagreed. Therefore they requested to keep the file until further approach." 

It is agreed that there have been no further steps or determinations or proceedings issued in the UAE following 22nd January.  The father accepted in his oral evidence that he had not issued any divorce petition or equivalent, or any application that dealt with issues relating to the children.

25. At some point in January 2017 the mother enrolled the children to attend nursery in the UAE.  She was very clear in her oral evidence she did that in circumstances where she was unable to bring them back to this jurisdiction, as had been planned, that the children were bored. She was unable to register them for school because they were then in the UAE on a three month tourist visa, so she took steps to keep them occupied. She said initially they settled in but quickly became bored, because all of the children there were much younger than them and became reluctant to attend.  They have not attended nursery since the middle of May.  The only other activity that they have done is karate.  They have weekly karate lessons, which they enjoy, but apart from that there have been no other steps taken in relation to providing them with any wider education or integration in the society there.

26. The mother returned back to this jurisdiction in February 2017, ostensibly to collect hers and the children's belongings because, as she observed, she had no choice in relation to that.  She had taken very few belongings with her when she left in November.  It was only planned to be a relatively short trip. The father had taken the steps that I have described to remove the children's passports and the father was putting some pressure on her in relation to wanting to give up the family accommodation in Manchester.  But it was when she was here she was able to get some independent legal advice. It was only then, for the first time, as she confirmed in evidence and was not challenged on that, she became aware she was able to take steps within this jurisdiction in relation to securing the children's return back here.  She first saw solicitors on 27th or 28th February and very promptly issued wardship proceedings on 2nd March 2017, seeking orders for the children to come back here.

27. On 8th February the children's residence status in the UAE became somewhat precarious, they had a three month visa when they went out on 9th November.  There had been no application made to secure their residence status out there, although more recently there was an application made which was granted at the end of February that gave them a time limited residence status in the UAE.

28. There were difficulties in securing service of these proceedings on the father, he was not served personally until early April.  There was then a response following his being served with the documents, including the mother's statement in support.  The detailed letter written to the court and to the mother's solicitors dated 13th April 2017 sets out from the father's perspective his analysis in relation to the position.  Half way down the second page there is a section of the letter entitled "Position in relation to the applications before the court" which refers to the application made by the mother dated 2nd March 2017.  It states as follows:

"[F] is delighted that [M] is now saying that she wishes the children to be brought up in England and therefore allow him to have an ongoing opportunity to have a quality relationship with the children."

It goes on to set out the logistics that need to be arranged to enable the mother and children to be able to return here and sought an adjournment for a period of three months.

29. It concludes on the third page:  "[F] respectfully requests that the case be adjourned for a period of three months in order for the parties to negotiate the details of the return of the children to England."  It then goes on to set out that if the parties are not able to reach agreement that he would be issuing his own proceedings: 

"Obviously the court has already made a prohibited steps order preventing [F] from removing the children from the care and control of [M] or her mother and she therefore has the necessary protection as regards the children not being removed from her care albeit that those orders will need to be reviewed upon him making an application for a child arrangements order and for the children to live with him."

30. It is accepted by the father that at that stage he had not only seen the application and supporting material, but he had had independent legal advice which included advice regarding jurisdiction. On the basis of that letter dated 13th April 2017 the mother agreed to an adjournment of the forthcoming hearing on 18th April, so the parties could agree the practical arrangements for the children's return.

31. Two weeks later, on 28th April, the father's solicitors wrote to the mother's solicitors again. They say: 

"We refer to previous correspondence in this matter.  After giving very careful consideration to the situation our client has reached the decision that he will return to the United Arab Emirates within the year to reside there permanently.  His decision arises as a result of a number of factors..."

which included his view that the children should be brought up in the UAE, his mother's ill health and recent changes here that he said made it less remuneratively attractive to work here.

32. The letter continues that it was his wish for a reconciliation between the parties in the UAE, that if that is not the position he will seek the care of the children and give instructions as set out in that letter to apply here for a child arrangements order.  The letter acknowledges they raised the issue of jurisdiction with the father at the outset of this case, it then continues saying:  "This may need to be a preliminary consideration for the court."  At the hearing before Her Honour Judge Jakens on 23rd May 2017, as I have indicated, directions were made that set out this hearing to determine the question of jurisdiction.

The evidence

33. The evidence of the parties consists of the following.  The mother has filed three statements and the father two. The mother gave oral evidence with the assistance of an Arabic speaking interpreter and her statements that she had signed had been translated.  However, it was clear during her oral evidence that her understanding of English was quite good.  In fact she gave a number of her answers in English.  She acknowledged that if she came back initially that it is likely to be at the expense of her family, as the father was refusing to assist her financially due to what he described were his difficult financial circumstances.  She set out that her plan is to return to North West England, to rent accommodation and she had made some preliminary enquiries, and for the children to return to their previous primary school. She had been in communication with the school, they had been unable to confirm the place because the children need to be physically present in the jurisdiction to be able to make an application, but the mother had understood they would be treated as a priority.

34. In her oral evidence the mother was challenged about a number of inconsistencies in her statements about why she left Slovakia with the children in 2011, whether the father had been a qualified doctor or not when they got married, his behaviour towards her, the date when she came to the United Kingdom and the reasons for her return to the United Arab Emirates on 9th November 2016.  These inconsistencies, the father submits, are such that her evidence cannot be relied on and should be rejected by the court.

35. The father in his oral evidence described what he regarded were his straitened financial circumstances.  He was somewhat vague on the details but said that he could not afford to continue to contribute to the cost of the mother and children returning here if the court accepted it had jurisdiction.  He described his income as being between £1,800 and £2,000 net per week.  He said he had financial responsibility towards the wider family, particularly his mother due to her ill health.  He described in his evidence the mother raising the issue of divorce before she went back to the UAE in November, and very soon thereafter she raised that issue again as well.  He insisted that it was she who raised it first and not him.  He agreed if the court found it had jurisdiction he would do all he could to ensure the children returned here and would comply with any orders made by the court.

Legal Framework

36. Turning now to the relevant legal framework.  I am extremely grateful for the very clear exposition in both skeleton arguments prepared by counsel for the parties. 

37. Dealing with the three areas in turn.  Firstly, habitual residence.  BIIR applies to cases where there is a rival jurisdiction in a non-member state, see Re: A (Jurisdiction, Return of Child) [2013] UKSC 60.  Under Article 8 of BIIR this court has jurisdiction in matters of parental responsibility over the child if that child is habitually resident in England and Wales at the time the court is seized.  Pursuant to Article 9 the courts of the child's former habitual residence retain jurisdiction to modify a judgment about access rights for three months after the child has been lawfully moved from one member state to another.

38. In the recent case of Re: J (A Child) (Finland, Habitual Residence) [2017] EWCA Civ 80 Black LJ summarised the law relating to habitual residence between paragraphs 26 and 33.  I have considered that summary, as set out in full in the skeleton arguments provided by the parties. 

39. Miss Guha in her skeleton argument at paragraph 20 summarises the position as follows.

40. Firstly, in relation to habitual residence, if interpretation of the concept of habitual residence could reasonably both yield a conclusion to a child having habitual residence and alternatively a conclusion that he lacked one, the court should adopt the former.

41. Secondly, the modern concept of a child's habitual residence operated in such a way as to make it highly unlikely, albeit conceivable, that a child would be left in limbo caused by being found to lack a place of habitual residence, a concept operated in the expectation that where a child gained a new habitual residence he lost his old one.  As with the analogy of a see-saw, as the child quite quickly put down the first roots which represented the requisite degree of integration in the environment of the new state, up would probably come the child's roots in that of the old state at the point at which he achieved the requisite de-integration from it.

42. Thirdly, the identification of a child's habitual residence was overarchingly a question of fact.  In considering the point at which habitual residence might be lost or gained a fact finder might find the following unfulfilled expectations in the case before him: 

(a) The deeper the child's integration in the old state probably the less fast his achievement of the requisite degree of integration in the new state;

(b) The greater the amount of adult pre-planning of the move, including pre arrangements for the child's day to day life in the new state probably the faster his achievement of that requisite degree; and

(c) Were all the central members of the child's life in the old state to have moved with him probably the faster his achievement of it and conversely were any of them to have remained behind and thus represent for him a continuing link with the old state probably the less fast his achievement of it.

43. Fourthly, the question was whether the child had by then achieved the requisite degree of disengagement from her English environment.  This was relevant to the case of Re: B and highly relevant to the answer would be whether she had by then achieved the requisite degree of integration in the environment of Pakistan.

44. As had been said, habitual residence is a question of fact which requires an evaluation of all the relevant circumstances. The focus is on the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors.  The stability of the residence was important, not whether it was permanent. There was no requirement that the child should have been resident for a particular period of time.

45. The concept of habitual residence means that: 

"It corresponds to the place which reflects some degree of integration by the child in a social and family environment.  To that end in particular the duration, regularity, conditions and reasons for the stay in the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in the state must be taken into consideration."  See Re:  A (Area of Freedom, Security and Justice) [2009] 2 FLR 1 at paragraph 39. 

The relevant date the court must determine habitual residence in this case is 2nd March 2017, when the proceedings were instituted.

46. The second area in terms of the legal framework that the court needs to consider is the question in relation to prorogation.  The relevant parts of Article 12 BIIR reads as follows: 

"Prorogation of jurisdiction and Article 12(3). 

The courts of a member state shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph one where: 

(a) The child has a substantial connection with that member state and particularly by virtue of the fact that one of the holders of parental responsibility is habitually resident in that member state, or that the child is a national of that member state; and

(b) The jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seized and is in the best interests of the child."

47. It is accepted that the father is habitually resident here, so the first criteria under (a) is met.  In Bush v Bush [2008] EWCA Civ 865 the Court of Appeal considered the meaning of express and unequivocal acceptance as follows.  At paragraph 53 it was said: 

"It is plain that Article 12(1) (b) of the Brussels II bis Regulation (Council Regulation (EC) 2201/2003), when it speaks of the jurisdiction being 'accepted expressly or otherwise in an unequivocal manner… at the time the court is seized,' is not simply referring to a mere submission in matrimonial proceedings equivalent to what would be an entry of appearance under the Brussels I Regulation (Council Regulation (EC) 44/2001), Article 24.  First, it is clear that it does not refer to acceptance of the jurisdiction in relation to matrimonial proceedings alone.  It must refer to jurisdiction in matters of parental responsibility.  Second, the emphasis is on the acceptance of jurisdiction 'expressly' or 'in an unequivocal manner.'  This must mean that acceptance of jurisdiction of a court other than that of the child's habitual residence is not lightly to be inferred, and that the paradigm case will be actual agreement by the parents at the time the matrimonial proceedings are instituted."

48. In a recent CJEU case called Gogova v Illiev KC-215/2015 the court stated as follows at paragraph 40: 

"In accordance with Article 12(3)(b) of [Brussels IIR], read in the light of Article 16 of the regulation, the courts of a Member State may establish jurisdiction on the basis of the former provision on condition that the existence is shown of an agreement, express or at least unequivocal, on that jurisdiction between all the parties to the proceedings, at the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen..."

49. The final area under the legal framework is the question of forum conveniens.  The relevant principles have recently been summarised in two recent decisions.  The first is a decision of MacDonald J, SF v HL [2015] EWHC Civ 891 (Fam) and the second is a decision of Roberts J in Re: K (A Child) (No 3, Forum Conveniens) [2016] 2 FLR 132.

50. Essentially the court will grant a stay if it is satisfied there is some other available forum which is more appropriate, that the action had the most real and substantial connection, for example, through convenience, expense, availability of witnesses, language or where the parties' live.  The burden of proof is on the person seeking a stay although the burden for establishing any particular fact relied upon by any party to persuade the court to exercise its discretion in a particular way rests on that person.  If a party establishes there is another forum which is more appropriate, the burden then shifts to the party seeking to anchor the proceedings here to show that there are special circumstances which require the proceedings to continue here.

51. The final matter that I should just mention is that at the end of Miss Chokowry's submissions on behalf of the father she submits that even if the court does consider and determine that it does have jurisdiction this is an inappropriate case for a summary return because the children have been out of this jurisdiction for seven months.

Discussion and Decision

52. Turning now to the discussion and the court's decision.  This case has a number of features. 

53. Firstly, it is agreed between the parties that when the mother and children left this jurisdiction on 9th November the children and mother were habitually resident here and the intention was for the mother and children to return back to this jurisdiction, certainly by 5th January 2017 to enable the children to return back to the primary school. 

54. Secondly, when the mother issued these proceedings the father, through the letter written on his behalf on 13th April 2017, was "delighted" that the mother and children were coming to this jurisdiction and provided fulsome and unconditional support for that next step.  What is now being said by the father is that he does not consider such a step is in the children's interests, due to changes in his position in that he intends to return back to the UAE at the end of this year.  It appears it was as a result of this view being reached by him his position has changed about jurisdiction.

55. In considering the evidence of the parties whilst the mother may have been inconsistent in some of the accounts she has given, I reject that this was done to build a case.  I did not consider she was untruthful about some of the key aspects.  I accept her evidence that she did not raise the issue of divorce first and I accept her evidence that she did not change her mind about returning back to this jurisdiction.  Whilst there may have been discussions about the difficulties in the parties' relationship, it was the father who took the lead on this and any discussions regarding divorce.  The mother's third statement at paragraph 19, which considers this, is supported by the electronic communication on 28th November 2016.  It is quite clear the father was taking the lead in this matter, which is entirely consistent with what, in my judgment, was obviously the dynamics in this relationship, which is where the father has been and needs to be in control of the situation.  It is not without note that two days after that electronic communication was sent on 28th November the mother miscarried on 30th November.

56. The discussions relied upon by the father in the UAE took place between the respective families there which he accepts did not take place until after the father had secured the removal of the children's passports from the mother.  I do not accept the father's evidence that the mother threatened to remove the children to somewhere where he would not find them.  Her intention was to return back here, that has always been her intention.  She wanted to return here with the children.  That remained her position and she was thwarted from fulfilling that step by the action the father took in removing the children's passports in December 2016 and thereafter ignoring her request to return back here.  That position is supported by the communication I have already referred to by the mother requesting flight tickets to be bought in December 2016 and the father's ignoring that request, by her issuing these proceedings promptly once she had received legal advice about what the position was.  I reject the father's reliance on what he says the mother said in the communication on 10th January 2017 about speaking to the school.  That was in the context where the mother was unable to return.  She said she had spoken to the school, the headmaster, but the class teacher was not clear about what the position was. She had been contacted by one of the other mother's at the school and she considered that clarification should be given to the school.

57. I also reject the reliance by the father on the communication of 11th March about getting the ideas of their life in the United Kingdom out of the children's heads.  That has to be viewed in the context of what I consider to have been her being stranded in the United Arab Emirates and also the position in relation to the residence permit that the children had at that time, the uncertainty of the tourist visa.

58. The significance of the refusal by the father to respond meant that the mother, as I have said, was stranded against her wishes in the UAE due to the father's unilateral steps.  Any step taken by the mother regarding the children, as I have said, needs to be seen by that light.  As she described in her evidence registering the children with the nursery was to alleviate the children becoming bored, they could not be registered at school for the reasons she gave.  It was not ideal as the children quickly became bored at nursery and then became reluctant to attend.  This is far removed from the situation where it could be said that the children had become integrated within a different jurisdiction.  As she said when she was asked in oral evidence about the communication asking the father to speak to the school on 10th January 2017, she had no choice as she could not return because of the removal of the passports.

59. In my judgment the children in this case did not lose their habitual residence in the UK and as a result were, in my judgment, habitually resident here on 2nd March 2017.  I have reached that conclusion for the following reasons. 

60. Firstly, the return back to the United Arab Emirates was only short term and the intention was to return back here by 5th January. 

61. Secondly, the mother's failure to come back here was due to the unilateral action taken by the father in removing the children's passports on 13th December. 

62. Thirdly, the children's attendance at nursery was not for any educational or integration purpose but was to help occupy the children's time whilst they and the mother were unable to return back to the United Kingdom together. 

63. Fourthly, the time the children spent in the United Arab Emirates has not meant they are any more integrated than they were through their regular trips backwards and forwards to stay and visit the wider maternal and paternal family, which they have done since birth. 

64. Fifthly, I accept the evidence of the mother that the children do have a memory of attending school here in the way she describes.  Even though they only attended for eight weeks they enjoyed their schooling here. They were involved in various activities and participated in the full educational and wider life of the school. 

65. Sixthly, the children have remained registered with their general practitioner here.  They have no corresponding medical provision through insurance in the UAE. 

66. Seventhly, the mother was unaware of any steps that she could take here until she obtained legal advice in late February. That advice resulted in these proceedings, which she promptly issued on 2nd March.

67. Eighthly, the fact that the maternal family live in the UAE and the parents have lived there by and large from birth or an early age, whilst relevant does not add much to the children in this particular case regarding their integration there in circumstances where they were regular visitors to the UAE to visit the wider family. 

68. Ninthly, whilst Arabic may be the first language of the family I accept the mother's evidence in relation to the children's understanding of English.  She said the children spoke English well through their time in this jurisdiction, they attended English speaking nurseries in the UAE, and their English was supported by staff that were in the maternal home in the UAE. 

69. Tenthly, the children had been based in the United Kingdom since 2014 and predominantly here since October 2015.  They had attended nurseries and schools here that were commensurate and appropriate for their respective ages.

70. Turning to the question of prorogation, even if I am wrong about habitual residence which, for the reasons set out above, I do not consider I am, I am satisfied there has been prorogation of jurisdiction in this case under Article 12(3).  I fully recognise the need as described in the case of Bush for the jurisdiction to be accepted expressly or in an unequivocal manner and the paradigm case was as described in the case of Bush at paragraph 53. 

71. In this case the first communication on behalf of the father, after he was served the proceedings and had had the benefit of legal advice that included advice on the question of jurisdiction, was the very detailed letter dated 13th April 2017.  That letter could not have been clearer, it accepted the jurisdiction of the court.  In the section of the letter entitled "Position in relation to the application before the court" the letter stated, as I have said: 

"[F] is delighted that [M] is now saying she wishes the children to be brought up in England and therefore allow him to have an ongoing opportunity to have a quality relationship with the children."

A little later the letter asks that the application is adjourned for a period of three months:  "In order for the parties to negotiate the details of the return of the children to England."  A little later the letter refers to the prospect of the father making an application for a child arrangements order.  The letter says it provides an overview of the position from the father's perspective, highlighting the points the court will need to be informed of: 

"In order to progress this case.  In the event of the court ordering [F] to prepare a statement he will provide further and detailed information as to the issues that have been between the parties."

72. It was that letter and reliance on that letter which prompted the mother to agree to the 18th April hearing being adjourned.  Two weeks later there was a change in the father's position communicated in the letter dated 28th April, premised on the basis that he intended to return to live in the UAE permanently "within the year".  The reasons he gives for this include his view that this will meet the best interests of the children, the ill health of his mother and the changes to his remuneration.  He referred in that letter to issuing his own application for a child arrangements order and he says at the bottom of the second page of that letter: 

"We have also raised with our client at the outset of this case whether or not there are jurisdictional issues for this court in circumstances where your client chose to return to Dubai with the children to which our client consented and thereafter your client taking the decision that she wished to remain in Dubai with the children to which our client at the time agreed, all this we understand being the subject of a documented discussion and application to a judge in Dubai.  This may need to be a preliminary consideration for the court and our client's application to the court for a child arrangements order will be subject to the caveat that the application is only being made and is to progress if the court accepts it has jurisdiction."

73. In my judgment the father had accepted jurisdiction in a clear and unequivocal way.  Firstly, the letter of 13th April is clear in its terms, even though it made no overt mention of jurisdictional issues it was quite clear, and accepted by the father, that advice had been given beforehand.  Secondly, it accepted the principle of the orders the mother was seeking in these proceedings.  Thirdly, the letter of 13th April resulted in the agreement between the parties to adjourn the hearing on 18th April.  Fourthly, both letters written by the father acknowledge the steps he was proposing to take regarding issuing a child arrangements order application, a step that would be wholly incompatible with challenging the jurisdiction of the court.  Whilst I accept he had a caveat to that in the letter dated 28th April, there was no such caveat in the letter dated 13th April.

74. I reject the submission that he took the jurisdiction point at the first time he could at the first inter partes hearing on 23rd May.  The hearing on 18th April was on notice.  It was adjourned at the father's instigation as he agreed to the orders being sought by the mother, in effect for the children to return here in an unequivocal way and the court's jurisdiction to determine those issues vis-a-vis the children.

75. I accept Miss Guha's analysis in paragraph 9 of her closing submissions in relation to the decision of Gogova. What she says is that submissions have been made in the father's skeleton argument, submitted on behalf of the father, that the relevant date for considering whether the criteria of Article 12(3) are met is:  "At the latest at the time when the document instituting the proceedings or an equivalent document is lodged with the court chosen", reliant on the Gogova case.  She submits this dicta needs to be read in conjunction with paragraph 42 of the judgment where the CJEU accepted that a defendant must be aware of the proceedings to accept jurisdiction.  The factual matrix of that case was materially different in that the defendant there had never himself indicated that he accepted jurisdiction when he became aware of the proceedings.  She submits that scenario was considered by the House of Lords in detail in the case of Re: I (A Child) (Contact application jurisdiction) [2009] UKSC 10 and the court is referred in particular to paragraphs 23 to 33 of the judgment and in particular at paragraph 30 when it is stated as follows: 

"There is, however, another way of achieving much the same result.  Article 16 fixes which is first in time for priority purposes under article 19.  But it contains within itself the possibility that apparent seisin may not mature into actual seisin unless the applicant later effects service or lodges the document with the court.  Whether this is regarded as a condition defeasant makes no difference: the result in the actual decision depends upon what happens later.  It might be possible to take a similar approach to prorogation, so that the apparent seisin when the application is lodged does not mature into actual seisin until the respondent is served and has an opportunity to indicate whether or not he accepts jurisdiction.  This too would be consistent with the English use of 'has been' rather than 'was'".

76. She submits that the relevant time for the court to consider whether the father accepted jurisdiction was the time of actual seisin, when he was served with the papers and he conveyed his position through his solicitors on 13th April, after having had legal advice on the issue of jurisdiction.  That is supported because Gogova can be distinguished from this case because there the applicant was unable to serve the father and the court had appointed a legal representative to represent the father, who then accepted jurisdiction but who had not had direct instructions with the father. That is a very different situation to the situation we have here, where the father had been served, had legal advice specifically in relation to issues of jurisdiction and then wrote the letter dated 13th April effectively setting out that he consented and was expressed to be 'delighted' about the orders being sought by the mother.

77. I agree also with Miss Guha that the change in position regarding jurisdiction by this father between 13th April and 28th April was a tactical manoeuvre by him, to bolster his change in position that the children should not be returned to this jurisdiction. That again is consistent with the court's assessment in relation to his controlling nature regarding these matters and is consistent with the without notice steps he took on 13th December to remove the passports. His controlling attitude continued to be displayed in texts.  I read just one by way of example. In the text exchanges on 11th April 2017 he says as follows:  "I am the one who decides how my kids will live and where and according to the will of God.  I do not want any more discussions."

78. The children and the mother have been in a state of limbo since 13th December 2016, unable to take the steps she wished to do as a result of the father's actions. Whilst I acknowledge there will be some disruption in returning here after such a gap the mother has made the essential initial enquiries regarding the practical arrangements in relation to school and accommodation.  In the absence of any financial contribution from the father, or only a limited contribution from the father, she will have some financial support from her own family.  Whilst acknowledging the father no longer lives in North West England, the family will at least be in the same jurisdiction.

79. The fact that he raised the issue of jurisdiction in his first statement and at the hearing on 23rd May 2017 does not change the fact that he had, in my judgment, already unequivocally accepted jurisdiction through his letter of 13th April 2017.  Miss Chokowry accepted that once Article 12(3) has been satisfied it cannot be resiled from.

80. Turning, finally, to the issue of forum conveniens.  There is no issue between the parties regarding the relevant principles.  In my judgment, applying those principles, I am satisfied this jurisdiction is the relevant jurisdiction and that any application for a stay should be rejected.  I reach that conclusion for the following reasons.  Firstly, whilst the parties and the children undoubtedly have a connection with the United Arab Emirates, as I have already set out, the mother's continued presence there since December 2016 when she wished to return here has been primarily as a result of the unilateral steps and actions taken by the father.  In effect, as the mother said in her oral evidence, she has had no choice but to remain there. 

81. Secondly, the mediation the parties took part in between family members has to be looked at in the context that was after the father had removed the children's passports.  I accept that the mother had no choice but to engage in those steps there, but agreement was not reached.  The existence of and status of any proceedings in the UAE is far from clear.  The mother's team produced on the morning of the hearing last week a letter from Byron James, who is employed by an organisation called Expatriate Law.  It appears he is an English barrister who is based in Dubai.  No leave was sought for that instruction.  Those representing the father question Mr James' expertise.  I have given no weight to the contents of that letter.  The father accepts in his oral evidence that he has not issued any petition for divorce or equivalent document and there are no judgments and no proceedings in relation to the children extant in the UAE. The only document the court has is the one from the Judicial Department dated 25th May, which refers to the family guidance file and that on 22nd January 2017 the parties requested "to keep the file until further approach", there has been no further approach.

82. Thirdly, the first language of the adults is Arabic, but they both speak English. The father's obviously is far better than the mother's, but hers is reasonable. As I said, she was able to answer some questions in evidence in English. The mother says the children speak English first and know little Arabic. They have attended English speaking nurseries, the schools they attended here were English speaking although they did attend Arabic Saturday school.  Whilst I consider that she was perhaps painting a slightly more enthusiastic picture than was the reality I accept her evidence in broad terms that the children have a good knowledge of the English language.

83. Fourthly, whilst I acknowledge the situation for the children and the mother returning here may be difficult, it was only eight weeks ago that the father expressed his delight that this was going to take place and that it had his full support.  The evidence of a significant change in his financial circumstances and changes regarding his intention to return to the UAE are somewhat vague and I strongly suspect is presented in a way to support his position and decisions that he has unilaterally made as to what he considers is in the best interests for the children.  The message that I read out about how he is the only one who decides how the children will live, where and he does not want any more discussions is a revealing window into the father's attitude.

84. Fifthly, the issues concerning the father's fears about the mother's ability to care for the children in this jurisdiction can and will be, if necessary, considered in contested proceedings here. Whilst any move here may cause the children some emotional upset this has to be due in large part to the father's actions that I have indicated, namely, removal of the passports on 13th December and changing his position about the issue of jurisdiction here which has resulted in yet further delay.  From the children's perspective the delays caused by this jurisdictional dispute have been contrary to their welfare, but not to the extent that the court should stay these proceedings.  I am satisfied that the mother will ensure that all their needs will be met, as she has done to date.

85. Sixthly, the special circumstances that exist here are that the mother was unaware of her legal position in relation to issuing proceedings here until February 2017 and the mother's position has really been as a result of not being able to come back here due to the unilateral action taken by the father in removing the passports.  It is quite clear, as I have already found, the mother wanted to be able to return back to this jurisdiction and was making requests to do so in December 2016, which the father ignored.

86. Finally, I have weighed in the balance the mother's immigration position and her entitlement to be here on a spousal visa, which is valid until 2020.  There are mixed messages in the papers regarding the parties' marriage and the status of their relationship. The father was hopeful for a reconciliation, but on the papers that only appeared to be possible on his own terms.  Again these are matters that will no doubt need to be explored within proceedings, whatever they may be, in this jurisdiction.

87. For the reasons set out above, I am satisfied this court has jurisdiction and the court should not exercise its discretion and order a stay of proceedings here. The closing submissions of Miss Chokowry assert that this is not a suitable case for summary return as the children have been out of the jurisdiction for seven months.  In the light of my findings set out above that has been primarily due to the father's conduct both here and in the UAE, which the mother did not consent to or had no real choice about.  I reject Miss Chokowry's submission. The delays have been due to the father's actions.  He should not then be able to rely on the unilateral action he has taken to support a submission that the children should not return here, a state of affairs he was only willing to endorse a few weeks ago on 13th April when he was enthusiastic about the mother and children's return back here.  The matters he relies on to support the court refusing a summary return have been seen through his eyes only.  The mother may, or may not, agree with him. That is a matter to be considered in the context of these proceedings, once she has had the opportunity to consider them with the benefit of legal advice and with the wider perspective of what is in the child's best interests.

88. The final issue concerns release of the father's passport.  In her very helpful submissions, Miss Chokowry sets out that the father's primary position is to seek for his passport to be returned forthwith for the very obvious reason of him wishing to visit his mother who still has ill health, but there is a realistic recognition in the closing submissions that the court may defer a decision on that until the mother and children have returned back to this jurisdiction. I will now hear brief submissions in relation to that unless the parties have been able to reach agreement on it.