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SH v HH [2011] EWCA Civ 796

Appeal concerning SH, a child born in Afghanistan to an Afghan mother and a British father of Afghan origin. The father contended that the English courts did not have jurisdiction and that the hearing had been procedurally flawed.

SH had resided with an uncle since the age of 20 days, when the mother came to join the father in England, and had not seen either parent since that time.

In August 2010 the mother left the father, moving to a refuge and alleging domestic violence. In January 2011 SH disappeared in mysterious circumstances, although the mother suspected that the father had abducted him. The mother therefore issued wardship proceedings and the child was warded; an order being made for the father to return the child to this jurisdiction.

At the return date the father took issue with jurisdiction on the basis that SH had never been to England, and a hearing was listed to deal with the matter. The trial judge claimed jurisdiction based on habitual residence, despite the fact that SH had never been to England, on the basis that when SH was born, the father was a British national and the mother had a settled intention to live and become habitually resident in England, and was now so habitually resident. A finding was also made that the father had been responsible for, and complicit in, SH's removal and the judge ordered the father to return SH to the jurisdiction, which order was backed by a penal notice.

On appeal, the father contended that the trial judge had not had jurisdiction, and that the hearing had been procedurally flawed. The mother conceded that there was no jurisdiction based on habitual residence, but argued that the court had jurisdiction based on prorogation and Article 12(3) of Brussels II Revised.

The Court of Appeal dismissed the father's complaint as to procedural fairness, but allowed the appeal on the basis that the court had no jurisdiction: SH was not, and never had been habitually resident in England, nor had the father accepted prorogued jurisdiction or acquiesced or agreed to the English court taking jurisdiction.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


______________________

Neutral Citation Number: [2011] EWCA Civ 796
Case No: B4/2011/1157
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Cliffe
FD11P00337
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 08/07/2011
Before :

THE RIGHT HONOURABLE LORD JUSTICE THORPE
THE RIGHT HONOURABLE LADY JUSTICE BLACK
and
THE RIGHT HONOURABLE SIR HENRY BROOKE
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Between :

SH Appellant

- and - 

HH Respondent

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Ms Ruth Kirby (instructed by Messrs Jones Myers LLP) for the Appellant
Mr Teertha Gupta (instructed by Messrs Dawson Cornwell solicitors) for the Respondent

Hearing date: 20th May 2011
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Judgment
 
Lord Justice Thorpe:
1. This is an appeal, with the permission of my lady, Black LJ, from the judgment of His Honour Judge Cliffe sitting as a judge of the High Court in Leeds on 8th April 2011.

2. In order to explain that hearing and to resolve the issues on this appeal it is necessary to set out in some detail the course of the proceedings prior to that hearing. 

Family Background
3. However, before doing so I will record in briefest detail the family history.  The father is an Afghani who came to this country in 2001.  He has acquired British citizenship.  However, it was in Afghanistan that he subsequently married his first cousin.  She gave birth to their son SH on [a date] 2009.  There is a second child of the marriage, born after its breakdown, with whom this appeal is hardly concerned.

4. SH was born in Afghanistan and when he was about 20 days of age his mother came to this country on a visa.  SH was left in the care of an uncle.  He has not seen either parent since his mother's departure. 

5. Last autumn the mother left the marital home for a refuge alleging domestic violence.

6. SH left his uncle's care in January 2011.  Mystery surrounds the circumstances as well as his location thereafter.  The uncle and the father say that he was abducted from the garden.  The mother believes that the husband has conveniently concealed his whereabouts having arranged his removal.

The Proceedings
7. On 3rd February 2011 the mother issued wardship proceedings and at a hearing without notice on that day, Mostyn J confirmed the wardship and ordered the father to bring SH within the jurisdiction.

8. The return on notice was before Her Honour Judge Cahill QC sitting as a Deputy.  The position statement of the mother's counsel in preparation for that hearing recorded that the wardship jurisdiction was challenged by the father.  The position statement filed by the father's counsel contained a firm challenge to jurisdiction on the simple ground that since SH has never been within this jurisdiction it could not be held that he was habitually resident here.

9. The order of Judge Cahill is prefaced with a recital that the father contested jurisdiction and then ordered determination, or further consideration, of the jurisdiction issue before a judge of the division on 31st March. 

10. In preparation for that hearing counsel for the mother recorded the father's challenge to jurisdiction and continued:

"It must be accepted that there is a valid jurisdictional question in this case that must be determined."

11. It was then acknowledged that the issue was not yet properly prepared for determination and an order was sought that the issue of jurisdiction should be listed upon receipt of the evidence with a time estimate of half a day.

12. However, the writer commented that it would be open to the father, if he sought the assistance of the courts of this jurisdiction in locating SH to vest the court with jurisdiction pursuant to Article 12(3) of Brussels II Revised. 

13. The position statement filed by the father's counsel on the eve of the hearing repeated and developed his case that the English Court had no jurisdiction and that the continuation of the proceedings risked the waste of public funds.

14. It was submitted that the issue of jurisdiction should be determined as a preliminary point at an early hearing before a judge of the division.  However an agreement between the parties that the issue was not yet ready for trial was finally recorded.

15. We have a transcript of the hearing before Mostyn J. on 31st March.  In opening, the mother's counsel submitted that the issue of jurisdiction should be adjourned with a timetable for the filing of evidence in preparation for a half day hearing before a judge of the division.

16. Mr Justice Mostyn took a pro-active line.  He questioned the need for a preliminary issue since both parents sought to locate their lost child.

17. Ms Kirby did not retreat from her challenge to jurisdiction. Mostyn J then sought to record mutual acceptance of the intention of the parties to bring SH to this jurisdiction when arrangements could be made. Ms Kirby accepted that could be recorded as a matter of fact but on the basis that it did not invalidate her case on jurisdiction. 

18. The judge then turned to practicality and said that the half-day hearing should be listed before a Section 9 Judge on 8th April in Leeds.

19. In response counsel for the mother suggested that the issue merited listing before a judge of the division and added that the issue would hardly be ready for determination on 8th April.

20. Mostyn J was not impressed and by his order in paragraph 6 directed that the hearing on 8th April should be before Judge Cliffe, in Leeds on 8th April:

"For further directions upon, and if possible determination of, the following issues:

(a) the ongoing wardship of the subject children and, if appropriate, what, if any, further orders the court may wish to make in its exercise of its inherent jurisdiction, informed by the evidence of the parties, in seeking to ascertain the location of the child SH and to secure his return to the jurisdiction of England and Wales."

21. The other two issues need not be recorded for the purposes of this appeal. 

22. Thus Judge Cliffe's first task was to determine, and if not, give directions upon, the ongoing wardship of SH and what further orders might be made in the exercise of its inherent jurisdiction.

23. What did that mean?  The language is unfortunately ambiguous.  Was it a direction for trial of the preliminary issue of jurisdiction or was it a determination of the court's powers to make protective orders pending the resolution of the jurisdiction issue?  The latter alternative is live given observations made by Mostyn J on 31st March in that regard.

24. Paragraph 6(a) of the order was drafted by counsel on 31st March but its language is essentially adoptive of the judge's words which we now see at page 8 of the transcript.

25. The lack of clarity in the definition of the first issue to be determined by Judge Cliffe is regrettable and certainly contributed to the difficulties that surfaced on 8th April.

26. The father's public funding on 31st March was for that day only.  Funding for 8th April was sought but not authorised until late on 7th and that authorisation was not communicated to his solicitors in Leeds until the morning of the 8th.  That was too late to instruct counsel and the solicitor with conduct of the case was not available.  Mr Fox, another member of the firm, went to court to represent the father who he did not know. Nor had he had any previous acquaintance with the father's case.  However a position statement was drafted on the eve of the hearing.  Paragraph 2 records that despite the funding difficulties a sworn statement on the jurisdiction issue had been filed by the father, whilst the mother's affidavit was awaited.

27. Then in paragraph 5 the father's core case was repeated: no jurisdiction and a wrongful expenditure of public funds.

28. As well as the judgment of Judge Cliffe we have a transcript of the proceedings.  At page 7 the record demonstrates Mr Fox plainly challenging jurisdiction on the obvious ground that even had there been parental intention to import SH it could never be said that he was habitually resident here.

29. The judge then invited submissions from Mrs Cross who represented the mother.  She had clearly prepared to meet the challenge to jurisdiction since she handed in an authorities bundle which certainly included B v H [2002] 1 FLR 388, RB v FB and MA [2008] 2 FLR 1624 and Re I [2009] UK SC 10.

30. In response, and in relation to Re I, Mr Fox pointed out the requirement for unequivocal acceptance.  This exchange then followed:

"Judge Cliffe: I know that he is not accepting it in this case.

Mr Fox
: He is not.

Judge Cliffe
: I accept that he is not accepting it.  I need to look at the issue of habitual residence.  What is the habitual residence of this child and where does he get it from?"

31. Debate between Mr Fox and the judge continued until the judge asked Mr Fox what was SH's habitual residence at 14 days of age. When Mr Fox responded "Afghanistan" the judge stated:

"He had one parent habitually resident in England, one parent wanting to be habitually resident in England and both parents with parental responsibility agreeing that he should live in England."

32. When Mr Fox conceded those facts the judge asked if there was anything else he wanted to say on the issue of habitual residence.  Mr Fox responded:

"My Lord, no.  I sense the way the wind is blowing in relation to this matter."

33. Mr Fox had not misjudged the situation.  Judge Cliffe claimed habitual residence jurisdiction.  His reasoning is all contained in paragraph 15 of his judgment:

"This, it seems to me, goes to the central issue of determining the habitual residence of SH.  He was born in Afghanistan to parents who were married and therefore, according to English law, had parental responsibility for him.  He was born at a time when it was the settled intention of both parents that he should reside in England with them.  He was born to a father who had British nationality and a British passport and to a mother whose settled intention, as I have indicated, was to live in England and become habitually resident in England and who now can properly say that she is habitually resident in England.  The child took his habitual residence as a result of those circumstances and it is absolutely clear that in considering those matters he was habitually resident in England, notwithstanding the fact that he had never been here.  There is no other person who has any say in the matter who could have argued differently and that, in my view, gives this court the jurisdiction to continue to consider the application for wardship and what arrangements might be made to secure this child coming to England, which is actually what both parties want, and that is again confirmed to me today."

34. As well as legal argument the judge tackled an issue not defined in paragraph 6 of the order of 31st March, namely the circumstances surrounding SH's removal from his uncle's house.  On that issue he heard oral evidence from the mother by video link and from the father.  An interpreter was found at short notice on Mr Fox's submission that it was necessary for the father.  Judge Cliffe terminated the investigation on the completion of the father's evidence in chief, accepted the mother's evidence, rejected the father's evidence and held that the father was responsible for, and complicit in, SH's removal.  He went on to make swingeing orders against the father.  He said that the father must bring SH within the jurisdiction by 4pm on 1st May.  He continued:

"There will be a penal notice attached to that order because, as I have found, he is a man who can make sure that that happens.  If he fails to do it he will be in contempt of court and the matter will be listed for further directions in the week commencing 3rd May.  If the child is not then back in England I shall deal with the father's contempt. What HH needs to understand is that the court is not going to be hoodwinked by these stories.  The court has now made an order based on hearing evidence.  The order will be complied with or HH will be sent to prison.  2pm, 3rd May.  The case will be heard in Leeds."

35. Judge Cliffe was not deterred by the consideration that SH did not have either a passport or visa clearance.

36. On this appeal for the father Ms Ruth Kirby settled a full skeleton argument in which she developed her primary contention that Judge Cliffe was wrong in law to find jurisdiction.  She rightly submits that jurisdiction is governed by section 1((i)(d)) section 2(iii) and section 3(i) of the Family Law Act 1986.

37. She relies on the decision of this court in Al Habtoor v Fotheringham [2001] 1 FLR 951, recently confirmed by the decision in this court Re P-J [2009] 2 FLR 1051.

38. She emphasised that the decision of Mr Justice Charles in Re B v H was reached on exceptional facts and contains no proposition of general application. She relies upon the subsequent judgment of Hedley J in Re F [2007] 1 FLR 627 in which he observed:

"It seems to me that if Charles J's proposition cited above, if taken out of the context of his particular case, run the very risk against which the Court of Appeal have repeatedly warned namely confusing a legal and a factual proposition.  If Charles J is asserting as a matter of law that a baby takes the habitual residence of his parents then that is to confuse domicile with habitual residence and I would have to respectfully disagree.  If what he asserts is a proposition of fact, then, by definition, it cannot be good for all cases.  Each one must stand alone."

39. Of RB v FB and MA, Ms Kirby submits that the decision was driven by the circumstances of a marriage forced on a 15 year old and that the Judge had relied on "dire circumstances" in order to "rescue her".

40. Finally, Ms Kirby submits that Judge Cliffe's reasoning is not sustainable in the light of the decisions in the Court of Justice of the European Community, namely Re A [2009] 2 FLR 1 and Mercredi v Chaffe [2011] 1 FLR 1293.

41. I have taken Ms Kirby's legal submission at a pace because at the close of his submissions Mr Teertha Gupta made the concession implicit in his skeleton argument that he could not support the judge's finding of jurisdiction based on SH's habitual residence.

42. Ms Kirby also advanced a well prepared argument that the hearing before Judge Cliffe was procedurally deficient and flawed and violated her client's Article 6 rights.  Although that submission appeared arguable on a reading of her skeleton, it dissipates on an examination of the full transcript.  The father was represented throughout by Mr Fox.  Mr Fox laboured under very great difficulties.  However, he did not unfold those difficulties to the judge as grounds of an application for adjournment.  He did not object to the judge's determination of the issue on the grounds that it had not been anticipated by either side as fit for determination on 8th April.  Having asserted his challenge he found himself drawn into a determination for which he was hardly prepared.  He asked for an interpreter and the judge ensured that an interpreter was found.

43. In all the circumstances Judge Cliffe is not be criticised for the robust way in which he went to the heart of the dispute both factually and legally.  Counsel for the mother cited the authorities that supported her core submission and the judge's attention was not drawn to the authorities that undermined her submission.  It would hardly be fair to criticise Mr Fox who was doing his best in very difficult circumstances.

44. In conclusion I would not uphold Ms Kirby's submissions of procedural unfairness and violation of Article 6 rights.

45. It remains to deal with the submissions raised by Mr Gupta to support a basis of jurisdiction which cannot rest on the foundation of habitual residence.  He seeks to shore up the judge's conclusion by reliance on prorogation and Article 12(3) of Brussels II Revised.  Despite all the skill with which the argument is advanced it is, in my view, hopeless.

46. At the first hearing on notice before Judge Cahill the father's challenge to jurisdiction is clearly recorded.  Mr Gupta seeks to suggest that the father accepted the court's jurisdiction at the hearing before Mostyn J on 31st March.

47. Whilst Ms Kirby's submissions were not as clear as they might have been in asserting a steadfast challenge to jurisdiction, she certainly never conceded jurisdiction even implicitly and her case overall is one of persistent challenge.

48. Mr Gupta relies upon a sentence in paragraph 13 in Ms Kirby's skeleton for the purposes of this appeal:

"The issue of jurisdiction was not on the 'agenda' for the hearing on 8th April."

That statement can only be justified by a construction of paragraph 6(a) of the  order of 31st March which is not tenable.

49. Mr Gupta points to the fact that the position statement of 30th March expressly drew attention to the father's option to confer jurisdiction under Article 12(3) in order to enlist the aid of the court to safeguard SH. However, that is no more than a paragraph in a position statement which was pursued by no one on 31st March. 

50. Thus the clearest picture emerges.  Jurisdiction was challenged on 16th February.  The challenge was not withdrawn but maintained on 31st March, albeit not in the clearest of language. It was emphatically maintained on 8th April and the judge himself recorded that the father was not accepting a prorogued jurisdiction.

51. Even more fatal for Mr Gupta is that Mrs Cross, in her submissions on the authority of Re I, accepted that there was no acquiescence or agreement.

52. The consequence of my conclusions is clear: the appeal should be allowed, the orders of Judge Cliffe should be set aside and the wardship in relation to both the children discharged.  The wardship in relation to SH is discharged because there is no jurisdiction over a child who is not and has never been habitually resident or present here.  The wardship is discharged in relation to his sister, who is here, because whatever orders are required in her case can more properly be made under the provisions of the Children Act 1989.  Once the proceedings in relation to SH are dismissed the father is clearly entitled to the return of his passport and this court will make whatever order or direction is necessary for its release.

Lady Justice Black: I agree.

Sir Henry Brooke: I agree.

ORDER

UPON hearing counsel for the Appellant father and counsel for the Respondent mother

IT IS ORDERED THAT:

1. Permission to appeal is granted.

2. The appeal against the order of His Honour Judge Cliffe on 8th April 2011 is allowed.

3. The wardship in respect of SH (born [a date] 2009) and MH (born [a date] 2010) is discharged.

4. The parties' names are to be anonymised in any law report of the judgment of the Court of Appeal herein. 

5. The Tipstaff shall forthwith release to the father's solicitors for onward release by them to the father his passport and any other documents held by them pursuant to the orders of the High Court Family Division.

6. The port alert in relation to the Father is hereby discharged.

7. There shall be no order as to costs save detailed assessment of the parties' publicly funded costs.

20th May 2011