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International Children Law Update - February 2011

Jacqueline Renton of 4 Paper Buildings reviews the latest key decisions in international children law.

Jacqueline Renton, barrister, 4 Paper Buildings
Jacqueline Renton, Barrister, 4 Paper Buildings

Introduction
In this review, I shall focus on the following areas:-

1) Hague Convention 1980 proceedings
(a) Human Rights;
(b) Habitual Residence / article 3;
(c) Procedure

2) Jurisdiction 
The impact of the Brussels II Revised Regulation 2003

1) Hague Convention 1980 proceedings
(a) Human Rights 
Neulinger & Shuruk v. Switzerland (Application no. 41615/07), Grand Chamber of European Court of Human Rights is a very important and controversial case in the development of human rights in international child abduction. Some signatory states have expressed concern that the article 13(b) threshold will now be lowered, thus undermining the policy of the Hague Convention 1980.

The facts are as follows:- In June 2005, the defendant mother abducted the child from Israel to Switzerland. In May 2006, the Israeli court declared that the child's place of habitual residence is Israel. On 29th August 2006, first instance Swiss court declined to order return on the basis that the mother had established an article 13(b) harm defence, and the court then exercised its discretion in favour of a non-return. On 22nd May 2007, the father's appeal was dismissed by the Swiss Appeal Court. On 16th August 2009, the Swiss federal court allowed the father's appeal and accordingly ordered a return of the child to Israel, pursuant to article 12 of the Hague Convention 1980.. The mother then appealed to the European Court of Human Rights. On 8th January 2009, the European Court of Human Rights dismissed the mother's appeal on the basis that her and the child's rights, pursuant to article 8 of the European Court of Human Rights 1950 ("ECHR 1950"), had not been breached.

On 10th September 2010, the Grand Chamber of the European Court of Human Rights overruled the decision of the first chamber, and accordingly discharged the return order. The court ruled that the mother's and child's article 8 ECHR 1950 rights would be disproportionately breached if a return was ordered.

The Grand Chamber of the European Court of Human Rights commented at [138] that:

"It follows from Article 8 that a child's return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child's best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences (see the UNHCR Guidelines, paragraph 52 above). For that reason, those best interests must be assessed in each individual case.

"That task is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 A, and Kutzner, cited above, §§ 65-66; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69)." [author's emphasis]

And at [141]:

"It is not the Court's task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological harm, within the meaning of Article 13 of the Hague Convention, if he returned to Israel. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child's best interests."

It is important to recognise that the English courts can follow a decision of the European Court of Human Rights to the extent that it represents the court's clear and consistent jurisprudence: R (Alconbury) v Secretary of State for the Environment [2003] 2 AC 295, HL. The way in which Neulinger is to be interpreted by the English courts is currently the subject of much debate.

Two recent English decisions have touched upon the impact of Neulinger:-

Firstly, F v J [2010] EWHC 2909 (Fam). In this case, the children were aged 13 and 12. Mr Justice Baker dismissed the originating summons on the basis of an article 13(B) objections defence having been established. The learned judge also made clear that if he had ordered the return of one child but not the other, the separation of the (full) siblings would have crossed the article 13(b) harm threshold. Consideration was given as to whether or not a defendant could successfully plead a separate article 20 defence. The learned judge stated that it is important to remember that Baroness Hale of Richmond in Re M (Abduction: Zimbabwe) [2007] UKHL 55 made clear that due to the incorporation of the European Convention of Human Rights 1950 into domestic law via the Human Rights Act 1998, the English courts should address the European Convention on Human Rights 1950 as if article 20 of the Hague Convention 1980 were incorporated into the Hague Convention 1980 (England and Wales having not incorporated article 20 of the Hague Convention 1980 at the time that the Child Abduction and Custody Act 1985 was passed.) Further, although this interesting point was not ruled upon, the learned judge made clear that it would be extremely rare for a court to determine that there had been a disproportionate breach of article 8 of the European Convention on Human Rights 1950, but that none of the defences under article 12 and/or article 13 of the Hague Convention 1980 had been established.

Secondly, Re T [2010] EWHC 3177 (Fam). This case concerned three children, aged 7 1/2 , 4 and 2. The 7 ½ year old child suffered from autistic spectrum disorder The plaintiff father sought the summary return of the children to Italy. The defendant mother raised three defences: (a) a challenge to article 3 on the basis that the children were not habitually resident in Italy at the time of the removal, (b) an article 13(b) objections defence (in respect of the 7 ½ year old child) and (c) an article 13(b) harm defence. I shall focus on the third defence in the context of the court's approach to Neulinger

The court held that an article 13(b) defence was established. The mother stated that she would not return to Italy if a return of the children was ordered due to the abuse that she had suffered in Italy at the hands of the father. Mr Justice Peter Jackson held that: (a) an article 13(b) defence would be established if the children were ordered to return without the mother, their primary carer; (b) even if the children were accompanied back to Italy with the mother, the mother would struggle to meet the children's needs due to the emotional and financial circumstances in which she would find herself and (c) in any event, it would be harmful to return the 7 ½ year old child – a return would damage his precarious emotional and educational progress, and further changes upon a return would compound his difficulties. Moreover, the learned judge was satisfied that protective measures in Italy could not mitigate the aforementioned harm. The learned judge stated that the circumstances of the case were "very unusual."

In respect of Neulinger and its potential impact on the article 13(b) harm threshold, the court commented that Neulinger is not a warrant for allowing the defences to be approached in a broad or liberal manner, and that Neulinger should not be seen as a "sea change" or "seismic shift" in the way that Hague Convention 1980 cases should be approached. Further, the court made clear that Neulinger should not be followed as it conflicts with established binding English Hague Convention 1980 jurisprudence. It is interesting to note that neither party in Re T [2010] attempted to argue that the court was now required to conduct an in-depth welfare enquiry in Hague Convention 1980 cases as a result of Neulinger.

Guidance from the Court of Appeal as to the impact, if any, of Neulinger on the article 13(b) harm defence's threshold is awaited in the case of Re E [2011] (citation awaited.)

(b) Habitual Residence
Case C-497/10 PPU Judgment
of ECJ dated 22nd December 2010 is an important decision in respect of the definition of habitual residence in respect of the Brussels II Revised Regulation 2003. The facts were as follows:- The child was removed to France by the defendant mother on 7th October 2009. It was accepted by both parties that prior to the child's removal, the child was habitually resident in England and Wales. On 9th October 2009, the plaintiff father made an application via the telephone and obtained a Tipstaff Location Order. On 12th October 2009, at the return date, the father obtained a return order and applied for parental responsibility, shared residence and contact in respect of the child. On 28th October 2009, the mother applied for exclusive parental responsibility in the Saint-Denis Regional Court, France. On 18th December 2009, the father issued proceedings in the Saint-Denis Regional Court, France for the summary return of the child, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention 1980" and Council Regulation (EC) No.2201/2003 ("the Brussels II Revised Regulation 2003".) On 15th March 2010, the father's application for summary return was dismissed on the basis that the father did not have rights of custody in respect of the child at the time of the removal, within the meaning of article 3 of the Hague Convention 1980, and accordingly the removal was lawful.

On 15th April 2010, a further hearing took place in the English High Court proceedings. The court concluded that the court had rights of custody in respect of the child from 9th October 2009, and as the court made orders in the father's favour, the father also had rights of custody in respect of the child at that time. Further, the court concluded that the English court had jurisdiction over the child as a result of her being habitually resident in England and Wales.

On 12th July 2010, the mother appealed this decision to the Court of Appeal. The Court of Appeal referred the case to the European Court of Justice for determination of the following issues: -
(a) clarification of the appropriate test for determining the habitual residence of a child, pursuant to articles 8 and 10 of the Brussels II Revised Regulation 2003;
(b) whether a court is an "institution or other body" to which rights of custody can be attributed for the purposes of the provisions of the Brussels II Revised Regulation 2003;
(c) whether article 10 of the Brussels II Revised Regulating 2003 has a continuing application after the courts of the requested member state have rejected an application for the return of the child under the Hague Convention 1980 on the basis that articles 3 and 5 of the Hague Convention 1980 are not made out. In particular, how should a conflict between a determination of the requested state that the requirements of articles 3 and 5 of the Hague Convention 1980 are not met and a determination of the requesting state that the requirements of articles 3 and 5 are met be resolved?

On 22nd December 2010, the European Court of Justice (First Chamber) ("ECJ") ruled that:

(a)  "habitual residence" pursuant to articles 8 and 10 of the Brussels II Revised Regulation 2003 must be given an independent and uniform interpretation throughout the European Union, having regard to the context of the Brussels II Regulation 2003 and the objection pursued by the legalisation in question. Articles 8 and 10 do not make express reference to the law of the member states for the purpose of determining the meaning and scope of "habitual residence". The European Court of Justice has previously provided a definition of "habitual residence" – see Re A (Freedom, Security, Justice) (Case C-523/07), [2009] 2 FLR 1.

(b) It is unnecessary to determine whether a court is an "institution or other body" given that it was common ground between the parties that the removal of the child was lawful, and accordingly article 10 of the Brussels II Revised Regulation 2003 cannot apply.

(c) In cases of conflicting jurisdictions, article 19(2) of the Brussels II Revised Regulation 2003 is applicable. If a member state refuses to order the prompt return of a child under the Hague Convention 1980, such an order will have no effect on judgments which have to be delivered in the other member states relating to earlier and extant proceedings concerning issues of parental responsibility.

Consideration as to whether or not the test for "habitual residence" under English law should be the same as the ECJ's test for "habitual residence" in matrimonial cases (see Marinos v Marinos [2007] EWHC 2047) was dealt with in the case of Re S (Habitual Residence) [2009) EWCA Civ 1021, [2010] FLR 1146. In Re S [2009], Mrs Justice Parker determined that the test for "habitual residence" had developed its own autonomous meaning under the Hague Convention 1980, but that the test was broadly in line with the definition of ordinary residence. Accordingly, a "centre of interests" test was rejected. The point of law was not further contested in the Court of Appeal as in the intervening time between the first instance and appellate hearing, the definition of habitual residence given by Mrs Justice Parker was upheld by the then President (Sir Mark Potter) in Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 558, [2009] 2 FLR 1051. Further, the European Court of Justice ruled in the case of Re A (Freedom, Security, Justice) (Case C-523/07), [2009] 2 FLR 1 that a fact-based enquiry was to be favoured over the application of a "centre of interests" test.

Case C-497/10 PPU was referred to the European Court of Justice by the Court of Appeal as it was argued that the test in Re A [2009] was not necessarily the same as the test for "habitual residence" set down in English jurisprudence.

Case C-497/10 PPU is a case of great importance. The case has now been referred back to the Court of Appeal. Further clarification on the interpretation of "habitual residence" under the Brussels II Revised Regulation 2003 is eagerly awaited.

The case of Re T [2010] EWHC 3177 (Fam) (as discussed above in the context of Neulinger) also raised a novel point of law in respect of habitual residence. It was submitted by the defendant mother that although the children had been living in Italy for just under 9 months (more than an appreciable period of time) prior to the removal, the children were not habitually resident in Italy because the mother had been bullied into living in Italy by the father. In other words, the mother had been under duress, and thus a common intention could not be established. On the facts of the case, Mr Justice Peter Jackson found that the children were habitually resident in Italy, stating: "I am satisfied that it would be a misunderstanding to regard the mother as someone who had lost her free will to such an extent that she was not responsible for her actions. My conclusion is that this was the habitual resident for the children, albeit reluctant and unhappy habitual residence for the mother."  As this case was determined on its facts, it would be interesting to see whether such a submission would be accepted in another case.

(c) Procedure
F v J [2010] EWHC 2909 (Fam)
was a case concerning two children, aged 13 and 12 years old (see full details above). The 13 year old child was represented by her own solicitor and the 12 year old child was represented by a solicitor from Cafcass Legal who instructed a Guardian ad Litem. A preliminary issue was raised as to the basis upon which the 13 year old child had directly instructed her solicitor, it being commented that such a course of action was outside of the provisions of the Family Proceedings Rules 1991 (as amended). Rule 9.2A of the Family Proceedings Rules 1991 (as amended) makes clear that:

"Where a person entitled to begin, prosecute or defend any proceedings to which this rule applies is a child to whom this Part applies, he may, subject to paragraph (4), begin, prosecute or defend, as the case may be, such proceedings without a next friend or guardian ad litem: 

(a) where he has attained the leave of the court for that purpose; or
(b) where a solicitor –

(i) considers that the child is ale, having regard to his understanding, to give instructions in relation to the proceedings; and
(ii) has accepted instructions from the child to act for him in the proceedings and, where the proceedings have begun, is so acting."

However, rule 9.2A does not apply to proceedings under the Hague Convention 1980, but does apply to proceedings under the inherent jurisdiction of the High Court (together with proceedings under the Children Act 1989 and Part 4A of the Family Law Act 1996). In many applications for summary return of children, applications are brought under the Hague Convention 1980 and the inherent jurisdiction of the High Court.

Mr Justice Baker commented that there was a lacuna in the rules and that he hoped the Family Proceedings Rules Committee would find time to review this matter in the near future. In this case, the court took the pragmatic step of appointing the child's solicitor as litigation friend.

In Re G (Children) [2010] EWCA Civ 1232, the Court of Appeal overturned the first instance decision to summarily return two children, aged 13 and 9, to Canada. Although the defendant mother pleaded the defences of article 13(a) acquiescence, article 13(b) harm and article 13(b) objections, the proceedings focused on the article 13(b) objections defence. The Court of Appeal held that the first instance decision was correct on the evidence before it, but overturned the said decision on the basis of fresh evidence. The fresh evidence consisted of two statements from the 13 year old child, and a meeting the court conducted with the child. The meeting between the court and child was a highly unusual step. Indeed, it was the first time that Lord Justice Thorpe had ever conducted such a meeting. However, the learned judge took the view that such a step was justified and necessary in the case. It is important to draw attention to the fact that the first instance judge did not meet with the child, and it would be interesting to see whether if the first instance judge had done so, such a step would have been taken by the Court of Appeal. Lord Justice Thorpe commented at [15] that:

"In this jurisdiction, judges in the High Court have not traditionally in modern timers heard the voice of the child directly but through the officer of the court, the CAFCASS Officer. That tradition is now under scrutiny, debate and revision. The subcommittee of the Family Justice Council that is concerned to ensure the safeguarding of the rights of children has forcefully expressed the view that judges in this jurisdiction should be meeting children and hearing their voice in carefully arranged conditions; given the fact that Emily was seeking to communicate her views to the decision maker it is perhaps with hindsight a pity that HHJ Barnett did not have the opportunity of meeting her and hearing from her own lips."

2) Jurisdiction
The impact of the Brussels II Revised Regulation 2003
The case of Butt v Butt [2010] EWHC 1989 was a case before Mr Justice Holman that addressed various issues of jurisdiction under the Brussels II Revised Regulation 2003. The facts were as follows:- In October 2008, the mother was granted leave to permanently remove the parties' child, aged 3 ¾ at the time of the hearing before Mr Justice Holman, to Germany. Contact in 2009 was directed in respect of the father and child. The mother was due to relocate on or after 1st February 2009, but the relocation did not in fact take place until 13th September 2009. Pursuant to article 9 of the Brussels II Revised Regulation 2003, the English court had a continuing jurisdiction for 3 months until the middle of December 2009. The English jurisdiction was utilised by the father in respect of contact. In the middle of December 2009, the mother invoked the Germany jurisdiction and at the time of the hearing before Mr Justice Holman the German jurisdiction remained seised. On 3rd March 2010, there was a further hearing in the Principal Registry of the Family Division. The court ordered that the hearing already listed for 9th March 2010 should continue but that the court should also consider the appropriate forum for future hearings. On 9th March 2010, the proceedings were transferred to the High Court, and no substantive orders were directed, save for an indirect contact order. On 23rd April 2010, a hearing was listed to determine whether the initial leave to remove order should be confirmed as a final order or discharged. The court also made clear that the said hearing should be a final hearing, and all future hearings should be determined in Germany. An important facet of the case was the father's immigration status. The Secretary of State had determined that the father was an over-stayer. The father had attempted to resist a removal on the basis of article 8 of the European Convention on Human Rights 1950, the foundation of his article 8 claim being the Children Act 1989 proceedings. The father's article 8 claim was dismissed, but there remained an extant appeal against that decision at the time of the hearing before Mr Justice Holman.

At the hearing before Mr Justice Holman, the father accepted that the said hearing should be the last hearing before an English court, but asked that the leave to remove order be confirmed as a final order. The learned judge considered the jurisdictional basis for making a final order, and stated that: 

"The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a) the child has a substantial connection with that Member State, in particular 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…"

(b) the child has been habitually resident in Germany for about 10 months; this is a significant period of time given the age of the child;
(c) the father was not in a financial position to facilitate contact – implementation was therefore an important consideration;
(d) the father's immigration status was extremely tenuous and therefore in the circumstances a long-term order in this jurisdiction was inappropriate;
(e) the contact order directed upon the court granting permanent leave to remove was extremely confined to 2009 and did not purport to be an order of longer term duration.

Further, the learned judge commented that if article 15 (transfer) was on point, he would unhesitatingly conclude that the German court was the appropriate forum for determining future issues in respect of the child.