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International Children Law Update - September 2011

Jacqueline Renton, Barrister, 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

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

1 Hague Convention 1980 proceedings 

2 Brussels II Revised Regulation 2003 proceedings 

3 Jurisdiction outside of Brussels II Revised Regulation 2003 

4 Procedure 

1 Hague Convention 1980 proceedings

Habitual residence
A v P [2011] EWHC 1530 (Fam) was an incoming Hague application from Poland. The father sought the return of the parties' child to Poland. The mother defended the proceedings on the basis that: (a) the child was habitually resident in England at the time of the removal and thus article 3 of the Hague Convention 1980 was not established and (b) in the alternative, the father had acquiesced in the removal.

The President found that: (a) the child was habitually resident in Poland at the time of the removal and (b) the father had not acquiesced as he had issued proceedings expediently. In respect of habitual residence, the President made clear that: 

In O (Children) [2011] EWCA Civ 128, the Court of Appeal overturned an order of HHJ Wallwork (sitting as a Deputy High Court Judge) that directed the children, aged 7 and 5, should be returned to the jurisdiction of the U.S.A. The mother had abducted the children from the U.S.A to England. The mother pleaded the following defences:- article 12 /settlement; article 13(a) / acquiescence; and article 13(b) / harm. The key defence was that of settlement. HHJ Wallwork found that the children were settled but nonetheless exercised his discretion in favour of the children being returned.

The Court of Appeal (Black LJ giving the lead judgment) made clear that HHJ Wallwork had wrongly applied the principles underpinning his exercise of discretion, as set down by the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55. Black LJ made clear that:

2 Brussels II Revised Regulation 2003 proceedings 

Article 11(6)-(8) applications
In AF v T and another [2011] EWHC 1315, the child had been removed from this jurisdiction to the jurisdiction of Germany in the midst of lengthy welfare proceedings concerning the parties, the mother latterly having applied for leave to remove the child to Germany. Prior to the determination of the mother's leave to remove application, the mother abducted the child to Germany. At that point, the father was having supervised contact with the child. The father issued Hague Convention 1980 proceedings in Germany but a return was not ordered (either at first instance or appeal.) The father was then unable to trace the whereabouts of the child as the German authorities took a protective stance and actively concealed the mother and child from the father. The father then applied in the English High Court for the return of the child, pursuant to article 11 of the Brussels II Revised Regulation 2003. The mother did not engage in the proceedings. Short reports were obtained from the Youth Welfare Office in Stuttgart, but the child's guardian was unable to meet with the child as the mother refused to engage in the proceedings. Despite the mother's stance, the father accepted that she was the child's primary carer. Accordingly, Jackson J granted the mother a residence order and awarded the father a contact order (supervised contact 6 times a year). The court issued an Annex III certificate so that the contact order could be enforced. 

The court applied the principles set down by Theis J in Re D, D v N [2011] EWHC 471 (Fam), namely: 

Jurisdictional issues

SH v HH [2011] EWCA Civ 796 is a recent decision of the Court of Appeal in respect of issues of jurisdiction under the Brussels II Revised Regulation 2003.

The facts were as follows. The child was born in Afghanistan. When the child was about 20 days of age the mother came to England on a visa; the mother had already married the father in Afghanistan. The father was an Afghan who had acquired British citizenship. The child was left in Afghanistan in the care of the uncle. In Autumn 2010, the mother left the marital home (in this jurisdiction) for a refuge alleging domestic violence at the hands of the father. In January 2011, the child disappeared. The father and uncle said that the child had been abducted from the garden. The mother believed that the father was concealing the child, having arranged for the child's removal. 

The proceedings commenced in February 2011 and the court ordered the father to bring the child within this jurisdiction on a without notice basis. At the return date, the father made clear that he challenged the English court's jurisdiction on the basis that the child was not habitually resident in England as the child had never set foot in England and thus the English court could not be seised on that basis. The proceedings were then listed for a jurisdictional hearing. At a further hearing, it was recorded that both parties had the intention to bring the child to this jurisdiction, but the father nonetheless maintained his challenge to the court's jurisdiction over the child. At the jurisdictional hearing, the judge accepted that the father was not accepting the English court's jurisdiction (within the wording of article 12(3) of the Brussels II Revised Regulation 2003) and focused on the child's habitual residence. The judge held that the child was habitually resident in England on the basis that both parties had the settled intention that the child should reside in England with them. The judge and went on to make an order that the father must return the child to England, having heard full evidence from the mother but no cross-examination of the father. The judge found that the father was responsible for, and complicit in, the child's removal.

On appeal, the father sought to overturn the return order on two bases: (a) the trial judge erred in finding that the English jurisdiction was validly seised on the basis that the child was habitually resident in England and (b) the trial judge violated the father's article 6 rights in the way in which he conducted the fact finding exercise that led to the return order being directed.

The Court of Appeal upheld ground (a) but rejected ground (b). In respect of ground (a), the mother conceded that she could not support the judge's finding in respect of  habitual residence, but attempted without success to argue that the father had prorogued the English court's jurisdiction, pursuant to article 12(3) of the Brussels II Revised Regulation 2003. Accordingly, the return order was overturned, the wardship was discharged and the father had his passport returned to him.

As habitual residence was not properly challenged in the Court of Appeal, the court did not grapple with the application of Re B v H in light of Re F [2006] EWHC 2199 (Fam), [2007] 1 FLR 627, and Re A [2009] 2 FLR 1 and Mercredi v Chaffe [2011] EWCA Civ 272, [2011] 1 FLR 1293.

Mercredi v Chaffe [2011] EWCA Civ 272 is an important decision within the field of jurisdiction under the Brussels II Revised Regulation 2003. The facts are as follows. The child was nearly 8 months old. The father did not have parental responsibility for the child. The mother removed the child to the jurisdiction of La Reunion, France, less than two months after the child was born. Two days after the removal, the father started proceedings in this jurisdiction on a without notice basis by way of an application for a Tipstaff location order. At the return date, the father had issued an application for s.8 orders under the Children Act 1989 and for parental responsibility in respect of the child, and Holman J ordered the forthwith return of the child and granted the father a parental responsibility order. The father then started proceedings under the Hague Convention 1980 for the return of the child in France. The mother applied to the court in La Reunion, France, for sole parental responsibility of the chid and residence / contact. A further return order was granted in this jurisdiction, the jurisdictional foundation of the proceedings being an originating summons issued by the father. A jurisdictional hearing was listed in this jurisdiction. The father's Hague Convention 1980 application was then dismissed on the basis that he had not established rights of custody under article 3. At the time of the Court of Appeal hearing, the father's appeal against the decision in the Hague Convention 1980 proceedings remained extant. McFarlane J (as he then was) ordered the return of the child, together with 15 separate declarations which included declarations relating to issues of habitual residence, parental responsibility, rights of custody and wrongful retention. The order and judgment were sent to the Paris Central Authority to assist in the Father's Hague Convention 1980 appeal, but this was not done until after the father was out of time in respect o his appeal. The court in La Reunion rejected the order of McFarlane J  and granted sole parental responsibility to the mother. The mother appealed the return order of McFarlane J. The Court of Appeal then referred the proceedings under the PPU procedure to the European Court of Justice to deal with three questions, namely: 

The European Court of Justice ("ECJ") ruled as follows:

The Court of Appeal then handed down its judgment, which can be summarised as follows: 

The father's appeal to the Supreme Court was refused on paper.

3 Jurisdiction outside of the Brussels II Revised Regulation 2003 

Mirror orders
In SW v CW (Mirror orders jurisdiction) [2011] EWCA Civ 703, the Court of Appeal considered the issue of mirror orders. The facts were as follows. The father had an order for custody / care and control of the child from a Malaysian court. The mother had a contact order but contact had not taken place for three years as a result of her ill health and thus inability to travel to Malaysia (from England) for contact. In 2009, the father applied to the PRFD for a 'mirror order' and Moylan J granted a 'mirror order'. The mother applied for residence / variation of contact. The father stated that the English court had no jurisdiction, but failed to attend the hearing. The court accepted jurisdiction, pursuant to article 12(3) of BIIR. The father appealed, arguing that the 'mirror order' application did not engage article 12(3) of BIIR as he had not expressly and unequivocally accepted the English jurisdiction, and that in any event it would not be in the child's interests for there to be a competing Malaysian and English jurisdiction.

The Court of Appeal allowed the father's appeal, stating that: 

4 Procedure
[2011] EWHC 1277 (Fam) is a reminder to practitioners of the appropriate procedure to adopt in without notice applications for a Tipstaff order. In this case, a without notice application was made before Theis J. A two-page affidavit was produced for the application setting out the reasons as to why a Tipstaff order needed to be made, it being alleged the father was a flight risk. Further information was supplied to the court orally by counsel to further substantiate the flight risk. Theis J made a Tipstaff order on the basis of the oral submissions. Later that afternoon, counsel emailed Theis J, indicating that the facts supplied to the court orally in fact related to another case. Theis J asked for a full written explanation from counsel and his instructing solicitors.

Theis J endorsed the procedure for without notice applications set down in the decision of Munby J (as he then was) in Re W (ex parte orders) [2000] and Baker J in B Borough Council v S and Anor [2006]. Theis J also made the following points: