username

password

image of 4 Paper Buildings logoCoram ChambersFamily Law Week Email SubscriptionAlpha BiolabsHarcourt Chamberssite by Zehuti

Home > Judgments

AG and AB (Children) [2018] EWHC 381 (Fam

Appeal before Baker J in private law children proceedings where the court at first instance had made a finding that the children were not habitually resident in England and Wales and consequently the English court had no jurisdiction to make orders under section 8 of the Children Act 1989. The appeal was partially successful insofar as the court was found to have overlooked its residual jurisdiction to make orders in respect of the children on the basis of their physical presence in the jurisdiction. However the appeal was dismissed as the judge at first instance's findings of fact and orders were upheld.

The original proceedings were commenced by the father's ex parte application in the Guildford family court for a prohibited steps order restraining the mother from leaving the jurisdiction with the parties' twins (then aged 11 months). The District Judge granted the PSO on the strength of the father's representations (which were later found to have been "exceedingly manipulative, exceedingly untruthful") that the parties had been resident in England for a period of two months with an intention to remain here, before the mother had threatened to return the children to Canada, where they had lived for the first nine months of their lives.

Having obtained the PSO, the father initially delayed telling the mother about the order. When he did, the matter was restored to court before HHJ Nathan, who listed the matter for a contested hearing to determine the habitual residence of the children and the consequential issues of jurisdiction. The mother argued that the children were habitually resident in Canada and the family's presence in England was an entirely temporary, unsettled arrangement that was part of an extended trip to several countries towards the end of her maternity leave.

The court heard evidence on the issue of the children's habitual residence. The factual issues will not be set out in this summary but the court determined that the children were held not to be habitually resident in England at the time the application was made. HHJ Nathan discharged the PSO on the basis that the court did not have jurisdiction to make the order.

After the hearing, the mother and children returned to Canada. Proceedings commenced there in respect of financial and child arrangements. The father later brought an appeal (out of time) against the order of HHJ Nathan in this jurisdiction.

The father's appeal concerned four grounds, summarised by the Judge in the order in which the appeal court would address them as follows:

(1) Did the judge apply the correct legal test when considering if the children were habitually resident in England and Wales?

(2) Was the judge wrong to conclude that the children were not habitually resident in England and Wales at the relevant date?

(3) Was there any other basis upon which the judge had jurisdiction to consider an application under s.8 of the Children Act in this case?

(4) If there was jurisdiction, what order should this court now make in determining this appeal?

The appeal court was satisfied that the judge had applied the correct legal test in assessing the children's habitual residence, and that HHJ Nathan had been justified to conclude that they were habitually resident in Canada at the time of the application. The appeal court referred to the guidance of A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, Re L (A Child) (Custody: Habitual Residence) [2013] UKSC 75, Re LC (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening) [2013] UKSC 75, [2014] AC 1017, Re R (Children) [2015] UKSC 35, [2016] AC 76, and In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] UKSC 4, [2016] 1 FLR 561.

The one successful part of the father's appeal related to the court's conclusion that it had not had jurisdiction to make the section 8 orders in light of its finding about habitual residence. Section 2(1) FLA 1986 provides that the English court shall not make a section 8 order unless either

(a) it has jurisdiction under Council Regulation (EC) 2201/2003 ("Brussels IIA") or the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("1996 Hague Convention"), or

(b) neither Brussels IIA nor the 1996 Hague Convention applies and (on the facts applicable to this case) the condition in section 3 FLA 1986 is satisfied.

The judgment is worth reading in full on this issue. In summary, because the children were physically present in England and Wales on the relevant date, the appeal court held that there had been residual jurisdiction to make section 8 orders notwithstanding the lack of habitual residence in England. The judge at first instance erred in focusing exclusively on the issue of habitual residence. Baker J made no criticism of the court below for this oversight as the Judge had not been addressed on its residual jurisdiction under section 3 of the Family Law Act 1986 by counsel at the hearing.

However, in light of the court's other findings about the presentation and conduct of the father (which were not subject to the appeal) and the overall facts of the case, Baker J was satisfied that even if the court at first instance had been aware of its jurisdiction to make section 8 orders it would still have discharged the PSO and recommended that any issues be heard in Canada. For this reason, the orders were upheld and the appeal dismissed.

Summary by Charlotte Hartley, barrister, 1 King's Bench Walk
______________________________________

The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) 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: 2017/0118
Neutral Citation Number: [2018] EWHC 381 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 28 February 2018


Before :

THE HONOURABLE MR JUSTICE BAKER

- - - - - - - - - - - - - - - - - - - - -

IN THE MATTER OF AG AND AB (CHILDREN)
AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201/2003
AND IN THE MATTER OF THE FAMILY LAW ACT 1986
AND IN THE MATTER OF THE CHILDREN ACT 1989

Between :

FA
 Appellant
- and - 
JR Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Edward Devereux QC (who did not appear in the court below) (instructed by Dawson Cornwell) for the Appellant
Jacqueline Renton
(who did not appear in the court below) (instructed by Barlow Robbins) for the Respondent

Hearing dates: 24 November 2017
- - - - - - - - - - - - - - - - - - - - -

Judgment
MR JUSTICE BAKER :

1.  This is an appeal against an order of HH Judge Nathan in the family court at Guildford dated 2 August 2016, by which he declared that the parties' twin children, a girl hereafter referred to as AG and a boy hereafter referred to as AB, were, at the relevant date, namely 18 May 2016, habitually resident in Canada and that the court had no jurisdiction to determine the application by the children's father for a child arrangements order and prohibited steps order under the Children Act 1989 as amended, and further discharged an earlier prohibited steps order made without notice to the mother by a district judge on 18 May 2016, under which the mother had been prohibited from removing the children from England and Wales.

Background

2. The children's father is a dual French and Moroccan citizen with family in both countries. For some time prior to the start of the proceedings, however, he had owned a home in this country in Camberley, Surrey. The children's mother is a Canadian citizen with family in Canada, who owns her own house in Calgary, Alberta. The parties met in Canada in 2006 and had sporadic contact for the next eight years although for much of the intervening period they lived in separate countries. According to the mother, it was in May 2014 that their relationship became close, and as a result the father transferred his employment from England to Canada, moving to live with the mother in her house in Calgary in November 2014. By that stage, the mother had discovered she was pregnant. In the following months, there were difficulties in the parties' relationship.

3. On 19 June 2015, the mother gave birth to the twins. She was then given twelve months maternity leave by the airline company for which she worked. The difficulties between the parties continued. In August 2015, following an argument, the mother called the police who removed the father from the property. The mother started proceedings in respect of the children and was granted an ex parte order providing that the father's contact with the children should be supervised. Subsequently, however, relations between the parents improved for a while, and at a hearing in October 2015, with the mother's consent, the court lifted the supervision requirement. On 11 December 2015, the Canadian court made a "final order" in the children proceedings, providing inter alia that the father would be a guardian of the children and have equal parenting rights, and that he could take the twins to see his family in France on the basis that the mother was to go with him to that country.

4. After that order, the family duly visited France. At that point, according to the mother, there was a reconciliation between them and, on returning to Canada in January 2016, the father moved back into the mother's home. The parties then began to make plans the future, but the evidence about those plans was a matter of dispute before the judge. According to the father, they agreed that they would relocate to England on a permanent basis, it having been his long-term intention to work in this country. To that end, he arranged for some of his possessions to be transported from Canada to England, including a car, along with possessions belonging to the mother and children. According to the mother, however, there was no plan for permanent relocation to England. Her evidence was that the parties agreed to take a lengthy trip around Europe and Morocco in the course of 2016. She said that the father's explanation for transporting his car was that he could make a profit by selling in this country. She agreed that some of her possessions and the children's clothes were shipped over, but asserted that the bulk of their possessions remained in Canada.

5. On 17 March 2016, the family left Canada, travelling initially to France, where the father has family, then to Morocco to meet more of his relations, and then back to France. In early April, they visited England, staying in several Airbnb properties, before returning to France again. At the end of April, the mother and father left the twins for a short while with the father's family in France and came back to England where they took possession of the father's property in Camberley, which had until that point been let to a tenant, and carried out an extensive clean of the property. It was the father's case before the judge that this was with a view to the family taking up permanent occupation of the house. The mother, on the other hand, maintained that it was never her intention to remain in this country, and drew the judge's attention to correspondence by letter and social messaging which supported her case. In his judgment, the judge described this as a significant amount of correspondence with various friends and family "all of which indicates that it was her plan to return to Canada". The father had by that point obtained new employment in this country. The mother agreed that he had obtained a job, but her evidence before the judge was that it was his aim to seek a transfer to Canada.

6. On 8 May 2016, the parents brought the children back to this country from France. It was the mother's evidence before the judge, that, on arrival back in England, she presented the customs officer with documents from her employers in Canada showing that she was due to return at the conclusion of her maternity leave and that, as a result, her passport was stamped with a sixth month visa. Within a short time of their arrival in Camberley, the relationship deteriorated. The judge was shown a series of text messages passing between the parties referring to the mother's intention to return to Canada in June. In the course of the text messages, the father agreed to pay for her ticket. In his judgment, the judge noted that there was nothing in the text messages from the father enquiring why she was going back to Canada. Shortly afterwards, the father took possession of the passports of the mother and the children, although the circumstances in which this occurred was a matter of dispute.

7. On 18 May 2016, without notice to the mother, the father applied to the family court at Guildford. An ex parte hearing took place that day before District Judge Bell. A transcript of the hearing was included in the papers for this appeal. According to the transcript, the father told the judge that he had moved to Canada in 2014 on a two-year work visa, and that he, the mother and children had come back to England in March 2016. He did not refer to the periods spent in France and Morocco after that date. At the conclusion of the hearing, the district judge made an order which recited, inter alia, that "on the basis of the information from the father that the parties and the children moved to England in March 2016 to reside here, it provisionally appears to the court that the children are habitually resident in England and Wales" and "the father has informed the court that the mother has said that she now intends to return to Canada with the children by 14 June 2016 [and] the father fears an earlier return may be arranged" and made a prohibited steps order prohibiting the mother from removing the children from England and Wales until further order.

8. In his judgment, Judge Nathan recorded that the father had not told the mother immediately about the order. Two days afterwards, the family had visited the GP because one of the twins was unwell, and the children were then registered as patients with the surgery. It was only after the visit to the surgery that the father told the mother that he had obtained the ex parte prohibited steps order. The mother then immediately visited her solicitor. The matter was restored before Judge Nathan on 26 May 2016 at which, having heard representations from both parties' counsel, the judge gave directions for the filing of evidence and listed the matter for a full hearing on 2 June 2016 "on the issue of the children's habitual residence".

9. At the hearing on 2 June, having heard evidence from the parties and submissions from counsel, the judge gave an extempore judgment. He summarised the facts as set out above and then considered the parties' oral evidence. He described the father's evidence as inconsistent, unsatisfactory and misleading whereas the mother was, in his judgment, straightforward consistent and credible. He referred briefly to the law, citing a passage from the judgment of Baroness Hale of Richmond in A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, [2014] AC 1 (in fact, the passage at paragraph 48 where Baroness Hale quotes directly from paragraph 2 of the judgment of the CJEU in Proceedings brought by A (Case C-523/07) [2010] Fam 42, and also the observation of Lord Reed in Re R (Children) [2015] UKSC 35, [2016] AC 76 (at paragraph 16) that it is "the stability of the relationship that is important, not whether it is of a permanent character". The judge then set out his conclusions as follows at paragraphs 39 to 41 of his judgment:

"39. My conclusions on the facts, and applying that law, are these:

(a) The parties had no agreement whatsoever to come to this country on a permanent, or even semi-permanent, basis. It was their intention [that] the mother would go back to Canada by 19 June or thereabouts at the expiration of the mother's maternity leave.

(b) They had no intention at all to integrate themselves or their children into the life of this country …. There is no factual element of integration at all in this country, indeed, their movements could not have been more peripatetic in Europe and this country. They were only in the property in Camberley from 8 May. They were in three Airbnbs in this country before that, and they were in France, Morocco, backwards and forwards at times before that.

(c) So, whilst clearly permanence is not the case here, to go back to the judgment of Lord Reed's, their movements did not have the character of stability at all; not only did they not intend to integrate, they did not actually integrate in this country. The reasons for the stay were, actually, temporary. It was the intention of the mother and the father, in my judgment, to go back to Canada.

(d) The parties do not have nationality in this country. There was no question of attendance at school. Linguistic knowledge is an irrelevance in this particular case. There were no social relationships here for the children. There were no roots that were being laid down, it was temporary and no more than that."

40. Whilst the mother regards the father's conduct as Machiavellian, certainly I would say that in my judgment he has been exceedingly manipulative, exceedingly untruthful, and has tried to bring about a situation that could have resulted in the mother being forced by legal mechanisms to stay in this country in a very cunning way indeed.

41. In my judgment the three children are not habitually resident in this country. The prohibited steps order will be discharged. The courts of Canada have jurisdiction in this case."

10. On 11 June 2016, the mother and children returned to live in Canada. Since that date, according to the mother, the children have lived in Canada with the mother and spent time with the father in that country on a fairly regular basis, including for periods of staying contact on at least four occasions. In addition, the parties have engaged in litigation in Canada in the Court of Queen's Bench Alberta. The father has applied to that court for orders in respect of his time with the children, and the mother has also applied in respect of financial support.

11. On 24 July 2017, the father applied out of time for permission to appeal against Judge Nathan's order of 2 June 2016. Permission to appeal was granted on 3 October 2017 and the appeal came on for full hearing before me on 24 November 2017.

The issues in outline

12. On behalf the father, Mr Edward Devereux QC distills his challenge to Judge Nathan's order and judgment into the following four grounds:

(1) The judge failed to consider the question of jurisdiction as he should have done within the terms of Council Regulation (EC) 2201/2003 ("Brussels IIA"), the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children ("1996 Hague Convention") and the Family Law Act 1986. He merely focused instead on the narrow issue of habitual residence; his decision was therefore flawed.

(2) The judge directed himself throughout – save for one limited passage at the very end of his judgment at paragraph 39 (c) – with reference to whether the "relocation" to England and Wales was "permanent"; by requiring the father to prove that it was "permanent" he created a higher threshold for "habitual residence" than that which is required by the relevant authorities.

(3) The judge placed too much weight on the intentions of the parties and insufficient weight on factual matters that pointed towards the "integration" of the family into England and Wales.

(4) If indeed it were his finding that the children were habitually resident in Canada at the relevant time (as is stated in the recital to the order), the judge failed to provide sufficient reasoning for that determination within his judgment.

13. In reply, on behalf of the mother, Miss Jacqueline Renton summarises her submissions as follows. She contends that the appeal is pointless and it was wholly unreasonable of the father to seek permission to appeal thirty months out of time in circumstances where the parties are litigating in Canada, where the father has had regular time with the children since June 2016 and it is wholly unclear what he is seeking to gain from this appeal, bearing in mind that the Canadian court is currently seised of the matter and has a substantive welfare jurisdiction over and in respect of the children. As to the grounds of appeal, it is contended on behalf the mother that there was no jurisdiction in England and Wales as of 18 May 2016, under either Article 13 of Brussels IIA, Article 11 or Article 12 of the 1996 Hague Convention or under Article 14 of Brussels IIA and the Family Law Act 1986, and that the judge had been correct in concluding that the children were habitually resident in Canada at the relevant date.

The relevant provisions under the Regulation and under statute

14. As Lewison LJ observed in Mittal v Mittal [2013] EWCA Civ 1255, [2014] 1 Fam 102 at paragraph 24, Brussels IIA:

"was intended to set up a framework for allocating jurisdiction between member states in certain kinds of family proceedings."

The European Commission's Practice Guide on the application of the regulation states (at page 16):

"The jurisdiction rules listed in Articles 8 to 14 set out a complete system of grounds of jurisdiction to determine the Member State whose courts are competent."

15. Of the several jurisdictional rules in Articles 8 to 14, the following - Articles 8, 13 and 14 - are relevant to this case.

"Article 8
(1) The court 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 paragraphs 9, 10 and 12.

Article 13
(1) Where a child's habitual residence cannot be established and jurisdiction cannot be determined on the basis of Article 12 [which provides for the prorogation of jurisdiction in circumstances not applicable in this case], the courts of the member state where the child is present shall have jurisdiction.

(2) Paragraph 1 shall also apply to refugee children or children internationally displaced because of disturbances occurring in their country.

Article 14
Where no court of a Member State has jurisdiction pursuant to Article 8 to 13, jurisdiction shall be determined, in each Member State, by the laws of that State."

16. The relevant domestic rules as to jurisdiction are set out in Part 1 of the Family Law Act 1986. S1(1)(a) provides:

"(1) Subject to the following provisions of this section, in this Part, 'Part 1 order' means

(a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order …"

Orders made under s.8 of the Children Act include, of course, child arrangements orders and prohibited steps orders of the type made by Judge Nathan in this case. S.2(1) of the 1986 Act provides:

"(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless

(a) it has jurisdiction under the Council Regulation or the Hague Convention, or

(b) neither the Council Regulation nor the Hague Convention applies but

(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of the Act is satisfied, or

(ii) the condition in section 3 of this Act is satisfied."

This case does not involve matrimonial or civil partnership proceedings, so it is unnecessary to consider s.2A. S.3 provides (so far as relevant):

"(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date of the child in question

(a) is habitually resident in England and Wales, or
 
(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory, and in either case the jurisdiction of the court is not excluded by subsection (2) below.

(2) For the purposes of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, matrimonial proceedings or civil partnership proceedings are continuing in a court in Scotland, Northern Ireland, or a specified dependent territory in respect of the marriage or civil partnership of the parents of the child concerned."..

Preliminary legal points
17. In his skeleton argument, Mr Edward Devereux QC on behalf of the appellant father raised a number of preliminary points, about which there is said to be uncertainty, concerning the interpretation of Article 13 of Brussels IIA, s.2(1)(b) of the Family Law Act 1986, and the 1996 Hague Convention.

18. In respect of Article 13, he submitted that the interpretation of the Article is by no means clear, settled or unambiguous. In particular, he asked the question: what do the words "where a child's habitual residence cannot be established" actually mean? Do they mean "where a child's habitual residence cannot be established in a Member State"? Alternatively, do they mean "where a child's habitual residence cannot be established anywhere"? He submits that resolving this ambiguity is relevant to the court's analysis of Judge Nathan's decision.

19. Mr Devereux contends that the latter interpretation is to be preferred and cites by way of support the commentary on the regulation in "Brussels II bis Regulation", volume 2 of the series "European Commentaries on Private International Law, edited by Ulrich Magnus and Peter Mankowski, who at page 160 state that:

" … Article 13(1) is not applicable to the case where the child's habitual residence is situated outside the European Union. Indeed, in that case the child cannot be considered to have no habitual residence and, therefore, Article 13 does not give jurisdiction to the court of the Member State in which this child is present. In that situation, if no Member State's court has jurisdiction on the basis of Article 12, then only national rules of international jurisdiction will apply, on the basis of Article 14 …. If those rules do not give jurisdiction to the court of a Member State, then no European tribunal can hear the case."

On this point, Miss Jacqueline Renton on behalf of the respondent mother is in agreement with Mr Devereux. She contends that the plain wording of Article 13 indicates its inapplicability to cases where a child's habitual residence can be established in any other state.

20. In so far as there is any doubt about this point, it seems important for it to be resolved. In my judgment, the interpretation proposed by counsel is correct. The words "where a child's habitual residence cannot be established" mean "where a child's habitual residence cannot be established anywhere". My reasons for so concluding are as follows:

(1) As Miss Renton submits, this is in accordance with the plain and straightforward meaning of the words. In my judgment, there is no reason for reading the words "in a Member State" into Article 13 after the word "established".

(2) If the words "in a Member State" were to be read into Article 13 after the word "established", it would mean that Article 13 would invest jurisdiction in the court of a Member State where the child was present even if he or she was habitually resident in a non-Member State. In Re A, supra, Baroness Hale observed (at paragraph 30) that "there is nothing in the various attributions of jurisdiction in Chapter II [of Brussels IIA] to limit these to cases in which the rival jurisdiction is another Member State." It must logically follow that there is no reason to limit the qualifications on jurisdiction to cases in which the rival jurisdiction is another Member State.

(3) Under Article 13(2), the courts of a Member State shall have jurisdiction in respect of children who are present in the Member State where they are refugees or "internationally displaced because of disturbances occurring in their country". Such a provision would, of course, be unnecessary if the courts of a Member State has jurisdiction under Article 13(1) in respect of all children from non-Member States who are present in the country.

21. In respect of s.2(1)(b) of the 1986 Act, Mr Devereux draws attention to what he suggests is a conflict of authority between judges of the Family Division as to the meaning of the words "neither the Council Regulation nor the Hague Convention applies".

22. In SF v HL [2015] EWHC 2891 (Fam), MacDonald J stated at paragraphs 41 to 42:

" 41. … the jurisdictional rules of the Regulation apply irrespective of whether any competing foreign jurisdiction is, or is not, a Member State (Re A). In circumstances where R is not habitually resident in any Member State for the purposes of Article 14 of the Regulation the question of jurisdiction is governed by the law of England and Wales.

42.  Within this context, the effect of ss.2(1) and 3(1)(b) of the Family Law Act 1986 is that where the child is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory, the English court will have jurisdiction to make orders in respect of the child notwithstanding that it does not have jurisdiction under the Regulation."

As a result, he concluded that a child habitually resident in South Korea but present in England and Wales came within the jurisdiction of the English court.

23. In A v B [2016] EWHC 2982 (Fam), however, Keehan J found (as conceded by the parties) that the court did not have jurisdiction under Brussels IIA or the Hague Convention and further found (as also conceded by the parties) that the provisions of Brussels IIA applied to the consideration of jurisdiction in the case. He therefore held that in those circumstances the court was not entitled to go on to consider the residual jurisdiction under s.2(1) of the 1986 Act and whether that could found jurisdiction on the facts of that case. In reaching that view, he took into account the observation of Baroness Hale in In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice and another intervening) [2009] UKSC 10, [2010] 1 AC 319 at paragraph 15:

" …if Brussels IIA applies gives this country jurisdiction, it will give jurisdiction even though the residual jurisdiction rules contained in the 1986 Act would not. Only if Brussels IIA does not apply at all with the residual rules in the 1986 Act come into play."

24. Mr Devereux invites the court to prefer the interpretation adopted by MacDonald J which he points out is consistent with the rules set out in Dicey, Morris and Collins on The Conflict of Laws, fifteenth edition, rule 106 at page 1119 of volume 2. Miss Renton, on the other hand, invites the court to prefer the alternative interpretation. She acknowledges that it may be seen as limiting the residual jurisdiction but submits that such an approach is entirely appropriate given that the courts have the benefit of both Brussels IIA and the Hague Convention as what she described as "first ports of call", the principal purpose of the 1986 Act is to intra-UK disputes, and the availability of alternative bases of residual jurisdiction in appropriate circumstances, for example the parens patriae jurisdiction as described by the Supreme Court in Re A, supra.

25. In my judgment, MacDonald J's interpretation is correct. The clear meaning of s.2(1)(b) read as a whole is as follows:

"(1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless

(a) it has jurisdiction under the Council Regulation or the Hague Convention, or

(b) neither the Council Regulation nor the Hague Convention applies so as to give the court jurisdiction but

(i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of the Act is satisfied, or

(ii) the condition in section 3 of this Act is satisfied."

In my judgment, this is the only logical interpretation and I do not read Baroness Hale's observation in Re I quoted above as indicating a different view. Article 14 of Brussels IIA plainly envisages that Member States will have residual domestic rules investing them with jurisdiction in respect of orders to which the Regulation applies. For England and Wales, those rules are set out in ss.2(1) and 3(1) of the 1986 Act. I see no justification for restricting the residual jurisdiction under the Family Law Act as suggested by Miss Renton. On the contrary, it seems to me important that the court should have jurisdiction to make orders under the Children Act in respect of children who are present in this country if their welfare so requires. I am not convinced that Keehan J was advancing the alternative interpretation as suggested by counsel. His judgment was obviously based on concessions and made without full legal argument and he was apparently not referred to MacDonald J's earlier judgment. If he was proposing a more restrictive interpretation, I respectfully disagree with his conclusion.

26. Thus the court in the circumstances must ask two questions. Does it have jurisdiction under the Regulation or the Hague Convention? If not, is the condition in s.3 of the Family Law Act 1986 satisfied? If the answer to either question is yes then the court has jurisdiction to make orders under s.8.

27. It is important to bear in mind, of course, that it does not follow from the fact that the court has jurisdiction to make orders that such orders will be made. Indeed, the court cannot make an order under s.8 of the Children Act unless it considers that doing so will be better for the child than making no order at all: s.1(5).

28. The third preliminary point raised by Mr Devereux concerns the 1996 Hague Convention. He suggest that the court in this case might have had jurisdiction under the Convention. He described this as "far from clear". On the one hand, Canada is not a Contracting State to the Convention but, on the other hand, the Convention has direct effect in England and Wales by virtue of s.2 of the European Communities Act 1972 and the European Communities (Definition of Treaties) (1996 Hague Convention etc) Order 2010, SI 2010/332. He therefore suggests that Judge Nathan might have had jurisdiction under Article 11 of the Convention, which gives a court jurisdiction in cases of urgency, or perhaps Article 12, which gives a court jurisdiction in certain circumstances to take measures of a provisional character for the protection of the child. He concedes, however, that these arguments were not raised before the judge and, in those circumstances, he rightly did not pursue the argument vigorously before this court. My provisional view is that neither Article 12 nor Article 13 of the Convention gave the court jurisdiction in this case. This was not a matter of urgency, nor were the circumstances such as to warrant the exercise of jurisdiction for the protection of the children.

The appeal

29. I therefore turn to consider the grounds of appeal. It is convenient to deal with them in a different order from that adopted by Mr Devereux in argument. I shall consider the grounds in the following manner.

(1) Did the judge apply the correct legal test when considering if the children were habitually resident in England and Wales?

(2) Was the judge wrong to conclude that the children were not habitually resident in England and Wales at the relevant date?

(3) Was there any other basis upon which the judge had jurisdiction to consider an application under s.8 of the Children Act in this case?

(4) If there was jurisdiction, what order should this court now make in determining this appeal?

30. I deal first with the legal principles to be applied when determining habitual residence. Mr Devereux reminds the court of the series of decisions of the Supreme Court concerning habitual residence - Re A, supra, Re L (A Child) (Custody: Habitual Residence) [2013] UKSC 75, Re LC (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening) [2013] UKSC 75, [2014] AC 1017, Re R (Children) [2015] UKSC 35, [2016] AC 76, and In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] UKSC 4, [2016] 1 FLR 561. His arguments, which draw together the second, third and fourth ground of his appeal are as follows. Save for one very limited passage at the end of his judgment (paragraph 39 (c)), the judge directed himself throughout with reference to whether the "relocation" to England and Wales was "permanent". By doing so, he inadvertently required the father to prove or meet a higher threshold for habitual residence that that required by the authorities of the Supreme Court. Secondly, the judge placed too much weight on the intentions of the parties and insufficient weight on factual matters that pointed towards the integration of the family into England and Wales - the fact that the father's car and possessions belonging to the family had been shipped to this country; the fact that the father had given notice to the tenant of the Camberley property; the fact that the father had obtained employment in this country; the fact that the children were registered with a GP; the fact that the mother applied for a passport using the father's property in Camberley as her address; and the fact that the mother obtained a six month visa on entering this country in May 2016.

31. Finally on the question of habitual residence, Mr Devereux submits that the judge's conclusion – "in my judgment the children are not habitually resident in this country" – failed to address two further questions which Mr Devereux submits he was obliged to consider, namely whether the children remained habitually resident in Canada or alternatively whether they had lost that habitual residence and not yet acquired a habitual residence in England and Wales. Mr Devereux submits that it was necessary for him to do so in order to address the question whether the courts of England and Wales had jurisdiction under Article 13 of Brussels IIA

32. In reply, Miss Renton, rightly in my view, invites the court to look "holistically" at the judge's approach to the issue of habitual residence and address the three grounds of appeal together. She points out that the judge heard oral evidence from the parties and formed a clear view as to their credibility, a view which, as she notes, was not challenged on appeal. That assessment in turn informed his conclusions as to the intended nature of the trip to England and Wales and ultimately the issue of habitual residence. Miss Renton concedes that the judgment was summary and robust in its nature but submits that such an approach is entirely appropriate given that the issue of jurisdiction is a preliminary issue. She submits that this was not a case that merited an overly detailed consideration of the children's circumstances, given that they had only been in the country for ten days and that the court concluded that the family's arrival in this country constituted part of a trip to Europe and Morocco while the mother was on maternity leave. She submits that the case did not require an in-depth analysis as regards stability and integration.

33. Miss Renton further submits that the judge was right to consider the intention of the parties as it helped to identify the nature of the move to this country. As to the father's contention that the judge failed to consider a number of factual matters which, on his case, pointed towards the children having acquired habitual residence in this country, Miss Renton retorts that the judge dealt with all the pieces of evidence cited. With regard to belongings shipped to this country, the judge accepted the mother's evidence that she had left the bulk of her clothes and the children's clothes in Canada. With regard to the termination of the tenancy, the judge did not accept that giving notice was inconsistent with the family having a holiday in this country. With regard to the father's employment, the judge noted, and clearly accepted, the mother's account that the father aimed to be transferred back to Canada. As for the registration with the GP, the judge noted that this took place after the father had obtained the ex parte order from the district judge, before he had told the mother about it. The judge considered the father's evidence about the mother's passport application in some detail and rejected it. He also accepted the mother's evidence as to how she came to be granted a six month visa. His conclusions on these issues, and on other matters, were plainly influenced by the strong views he formed as to the credibility of the parties.

34. I accept Miss Renton's submissions concerning the judge's treatment of the issue of habitual residence. His decision, set out in an ex tempore judgment, was robust, but in my judgment on this issue his reasoning was clear and comprehensive. Although he referred to "permanence" at several points in the judgment, I am satisfied that he applied the correct legal principles to his assessment of habitual residence, as evidenced by his citation of the passage from Baroness Hale's judgment in Re A and Lord Reed's dicta in AR v RN. It is true that he referred at various points to the parties' intentions, but in my view he was entitled and indeed obliged to do so when carrying out his analysis of this issue. Furthermore, I do not accept that he failed to consider the relevant factual matters identified by Mr Devereux. I am satisfied that he had those matters in mind. His conclusion on those matters was undoubtedly coloured by his assessment of the parties' credibility, but those matters were manifested within his discretion.

35. With respect to Mr Devereux, I do not consider that there is any force in his final submission on the issue of habitual residence. Although the judge's conclusion was simply that the children were not habitually resident in England and Wales, and he did not expressly state that they had retained their habitual residence in Canada, it is manifestly plain from his judgment that this was his conclusion.

36. Accordingly, I conclude that Judge Nathan was entitled to find that the children were not habitually resident in England and Wales; that he found that they were habitually resident in Canada. It follows therefore that he did not have jurisdiction under Articles 8 or 13.

37. I then turn to consider Mr Devereux's first ground of appeal, namely that the judge focused only on the narrow issue of habitual residence and failed to consider the possibility that the court had jurisdiction on another basis. Mr Devereux submits that it is clear from the transcript and the judgment that both the judge and counsel acting for the parties at the hearing were exclusively focused on the issue of habitual residence. Instead, they should have all considered the question of jurisdiction not solely with regard to that matter but also within the overall scope of Brussels IIA, the 1996 Hague Convention and the Family Law Act 1986. Had they done so, the court would have been in a position to consider whether there was, as Mr Devereux maintains, an alternative basis for jurisdiction aside from that potentially based on habitual residence.

38. In reply, Miss Renton submits that there is no residual jurisdiction under Article 13 on a proper interpretation of s.2(1)(b) of the 1986 Act. For the reasons set out above, I do not accept that this is the correct interpretation of that provision. In the alternative, Miss Renton submits that, although the children were present in England and Wales on 18 May 2016, there was no basis on which Judge Nathan could exercise any other jurisdiction. In the alternative, she submits that it was open to Judge Nathan to decline jurisdiction on the grounds of forum non conveniens and that, given his overall assessment, it was manifestly clear that he would have done so had this been raised as an issue before him. Miss Renton relies in particular on the fact that the children have lived their whole lives in Canada and have a real and substantial connection with that country. In contrast, their connection with this country is highly limited and transient, bearing in mind that at 18 May 2016 they had only been in England and Wales for approximately ten days.

39. Finally, Miss Renton submits that, if this court concludes that Judge Nathan had an alternative basis for jurisdiction which he failed to exercise, this court should refuse to make any order which prolongs these proceedings. She invites the court to conclude that it would not be in the children's interests for proceedings to be resurrected in this country, given that there are ongoing proceedings in Canada. She reminds the court that any judge exercising jurisdiction in respect of children can, in an appropriate case, summarily dismiss the application if he concludes that it lacks sufficient merit to justify pursuing the matter: see Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489 per Munby LJ, as he then was.

Conclusion

40. In my judgment, Judge Nathan did have power under the residual domestic jurisdiction to make orders under s.8 of the Children Act by virtue of the children's presence in this country at the relevant date. I have considerable sympathy for the judge who was not addressed on this issue by the advocates appearing before him. I have some sympathy for the advocates because, as the argument before me has demonstrated, this is not a straightforward area of the law. Nevertheless, I am satisfied that the judge did have jurisdiction and that his declaration to the contrary was wrong.

41. It is equally plain to me, however, that, had he realised that he had jurisdiction to make orders under s.8, he would have exercised his jurisdiction by discharging the prohibited steps order and allowed the mother and the children to return to Canada. He accepted the mother's evidence that the parties had come to Europe for a holiday and that they intended to return to Canada on about 19 June 2016 at the end of her maternity leave. In the circumstances, and in view of his overall assessment of evidence, it is in my view inconceivable that he would have extended the prohibited steps order made by the district judge. If he had realised that he had jurisdiction, he might have made an order regulating contact between the father and the children prior to the children's departure for Canada, but in my judgment he would not have made any other order under s.8. For these reasons, the right course for this court is to dismiss the appeal against the discharge of the prohibited steps order.

42. In the alternative, given the passage of time and the fact that there have been ongoing proceedings in Canada in which both parties have participated, it would in my judgment be manifestly wrong for this court to make any substantive order itself, or order any retrial. It is now established that the courts of England and Wales exercising the jurisdiction bestowed by Brussels IIA have the power to stay proceedings under the Children Act 1989: see Mittal, supra. Were it necessary for me to do so, I would unhesitatingly exercise that power. On any view, the Canadian courts have been seised of this matter for some time and are obviously the more appropriate forum to consider all issues concerning the exercise of parental responsibility and child arrangements in this case.

43. In oral submissions, Mr Devereux strongly rebutted Miss Renton's contention that the appeal was pointless. He contended that, if the judge had got something plainly wrong, it was right that the father should have an opportunity to challenge it. When I granted permission to appeal, it seemed to me that the father had a prima facie case for saying that the judge had overlooked his residual jurisdiction under the Family Law Act 1986. For the reasons set out above, having had the benefit of full argument, I have indeed concluded that the judge did overlook the residual jurisdiction and wrongly declared that the court had no jurisdiction to entertain the father's application. However, having now had the opportunity of considering the whole history, I am satisfied that, had he realised that he did have jurisdiction by reason of the children's presence in this country, the judge would nevertheless have made the same order discharging the prohibited steps order made by the district judge.

44. The outcome of this appeal is therefore as follows. I conclude that (1) the judge was not wrong in concluding that the children were not habitually resident in England and Wales; (2) by virtue of Article 14 of Brussels IIA, s.2(1) and 3(1) of the Family Law Act 1996, the court had jurisdiction to hear an application for an order under s.8 of the Children Act and the judge was wrong to conclude that the court had no jurisdiction, but (3) for the reasons set out above, his order discharging the prohibited steps order was not wrong.

45. The appeal is therefore dismissed.

46. I anticipate that there may be ancillary applications, including as to costs, which I will consider when the judgment is handed down.