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International Children Law Update: April 2013

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) Habitual residence

2) Enforcement and procedure in Hague Convention 1980 proceedings

3) Re-return in Hague Convention 1980 proceedings

4) The use of arbitration in international children law proceedings

5) Jurisdiction in the context of Brussels II Revised Regulation 2003.

1) Habitual residence
The law on habitual residence has been the subject of many reported decisions and much debate, both on a domestic and international level.

The first recent case of note is ZA & Anor v NA [2012] EWCA Civ 1396. In this case at first instance, Mrs Justice Parker ordered the return of the parties' four children from Pakistan to England. The elder three children had resided in England until October 2009 when the mother took them to Pakistan for a holiday. After a period of time, the mother's stay in Pakistan became involuntary and during her involuntary stay in Pakistan she gave birth to the fourth child. The mother managed to escape from Pakistan in 2011 and travelled back to England, leaving all four children in Pakistan. The father issued custody proceedings in Pakistan but these proceedings were not served on the mother. In the English High Court, the mother obtained a without notice order for the immediate return of the children under the wardship jurisdiction and was also granted a freezing injunction in respect of the father's properties in England. After various hearings, the proceedings came before Mrs Justice Parker. At that hearing, the mother and seven members of the paternal family were represented. The court heard evidence from the mother and made clear findings in support of a return. Accordingly, the court reiterated the return order in respect of all four children. This order was then appealed by the paternal family to the Court of Appeal on four grounds: (a) the judge was wrong in law to determine that the fourth child was habitually resident in England; (b) the Pakistani proceedings were first in time and so the English court had no jurisdiction under the concept of lis alibi pendens; (c) the judge disregarded the rule in paragraph 5 of the Pakistan Protocol; (d) the judge failed to recognise that the jurisdictional question should have been determined under the habitual residence jurisprudence of the ECJ, not domestic jurisprudence.

Lord Justice Thorpe dismissed the appeal, upholding the decision that all four children were habitually resident in England. In considering ground (a), Lord Justice Thorpe found that the case of B v H (Habitual Residence: Wardship) [2002] 1 FLR 388 was rightly decided by Mr Justice Charles. B v H allows the court to determine that a child can be habitually resident in a state in which the child has never been physically present. Lord Justice Thorpe felt that habitual residence, in the absence of physical presence, should be reserved to exceptional cases but still accepted that this was a legal possibility. B v H is the only decision in this jurisdiction involving a child who was deemed to have acquired at birth the habitual residence of his custodial parents even if the child had never set foot in the state deemed to be his habitual residence. However, Lord Justice Rimer and Lord Justice Patten disagreed with Lord Justice Thorpe's habitual residence analysis regarding the fourth child and stated that physical presence was an essential ingredient of habitual residence and that accordingly the decision of B v H was wrong and this led to Mrs Justice Parker's decision in respect of the fourth child being overturned.

None of the Lord Justices thought that the habitual residence analysis would have been different if the ECJ, not domestic jurisprudence, was applied at first instance. 

It is also important to note that all of the judges accepted that the elder three children's habitual residence could not be shifted by the unilateral action of one parent.

In December 2012, Mr Justice Peter Jackson gave judgment in two cases that had an impact on the law of habitual residence – Re J (Habitual Residence) [2012] EWHC 3364 (Fam) and Re I (Habitual Residence) [2012] EWHC 3363 (Fam). In Re J the proceedings concerned a 7½ year-old child who was removed from England to USA by her maternal grandmother. The child was born in England and when she was 1 year old the mother went to live in the USA. The child spent the next six years being raised by the paternal grandparents. In July 2007, the maternal grandmother obtained a residence order in respect of the child. The child had regular contact with her father and her paternal grandmother. On 9th June 2012, the maternal grandmother removed the child to USA without the consent of the paternal grandmother or father, and in due course placed the child with the mother. After the removal, the father was granted parental responsibility for the child and then a return order. The mother and maternal grandparents challenged the jurisdictional basis of the return order. The mother and maternal grandparents made clear that they were the only ones with parental responsibility at the time of the removal and were therefore entitled to remove the child from England to USA, and that the lawful move of the child to USA led to her losing her habitual residence in England. Mr Justice Peter Jackson determined that the child was habitually resident in England at the time that the return order was made. The key point made by the learned judge was as follows:

"In conclusion, the determination of issues of habitual residence is therefore a question of fact.  The assessment must survey facts of all kinds.  Some will consist of events, some will arise from less tangible things such as feelings, relationships and intentions, and others will concern legal rights and wrongs.  As to the last, whether something is legal or not is a fact.  But unless there is a specific mandate for doing so, the overall assessment does not give automatic precedence to one kind of fact over another.  In particular, there may be circumstances in which habitual residence can be lost following an unlawful removal (for example, with the passage of time), and circumstances in which it will not be lost following a removal that is technically lawful (for example, removal by a parent with sole parental responsibility who has no actual relationship with the child)."

The same analysis of habitual residence was stated by the learned judge in Re I. In this case, the child was removed to Nigeria by his parents, the child having previously been in the care of his maternal uncle and wife who did not have parental responsibility for the child. The child had been in the care of his maternal uncle and wife for five years prior to the removal. Mr Justice Peter Jackson determined that the child remained habitually resident in England at the time that the return order was made. Permission to appeal has been granted in both of these cases and the Court of Appeal will hear the cases on 23rd May 2013.

2) Enforcement and procedure in Hague Convention 1980 proceedings
In C (A Child) [2012] EWCA Civ 1144, the Court of Appeal determined a relatively unusual application in Hague Convention 1980 proceedings. There had been Hague Convention 1980 proceedings at first instance that had led to a consent order which ordered the return of a child, almost 15 years old at the time, to Canada. At the time of the consent order, the child was keen to return to Canada. However, after the consent order had been made, the child made clear that she had changed her mind and was firmly against a return to Canada. Mr Justice Wood (the trial judge) had a meeting with the child and made clear after that meeting that it would be profoundly worrying to him to return the child against her will. The case was sent to the Court of Appeal for further consideration. By then, the child was 15 years old. The child asked for the appeal to be allowed and for the father's return application to be dismissed. This application was supported by the mother and Children's Guardian, but opposed by the father who posited various alternatives to the Court of Appeal, including a retrial. The Court of Appeal, on balance, felt that a re-trial was appropriate but made clear that there were significant problems with enforcement of any return order made given the child's current emotional state. Lord Justice Thorpe and Lord Justice McFarlane commented that the parents should in the interim try to agree a way forward that prevented future litigation for the child which could be damaging, especially conscious that even if the child was returned to Canada there would then be an application for relocation back to England.

In Cambra v Jones [2013] EWHC 88 (Fam), Mrs Justice Theis had to grapple with the issue of enforcement in a highly unusual case. The mother had wrongfully retained the parties' five children in England after a Summer holiday in August 2012; the children were habitually resident in Spain. There had been previous Hague Convention 1980 / BIIR proceedings concerning the parents and children in 2008 and 2009, the father having applied for the children to be returned to Spain. Those proceedings led to the mother being ordered to return the children to Spain – see Re P-J (Abduction: Consent: Habitual Residence) [2009] EWCA Civ 588, [2009] 2 FLR 1051 for the Court of Appeal judgment in those proceedings (the Court of Appeal upheld the first instance return order). After the wrongful retention in England in August 2012, the father once again instigated Hague Convention 1980 / BIIR proceedings for the return of the four younger children to Spain, together with a wardship summons for the return of the eldest child to Spain. The children were again ordered to be returned to Spain at first instance and that decision was upheld by the Court of Appeal. Before the first instance trial, the eldest child (Sara) decided to voluntarily return to Spain.

The mother did not comply with the return order and instead ran away with the four younger children within Wales. A collection order was then made, together with a publicity order, and the mother and children were found shortly thereafter. The mother and her partner were arrested, the children were placed into local authority foster care and the father flew over to Spain with the eldest child to pick up the children and effect the return to Spain. Two of the children returned to Spain with the father, but the other two children refused to return to Spain. The social worker described a "sad scene" at the airport. The mother and her partner were then released from custody and the proceedings were restored back to court before Mr Justice Wood. At that hearing, the learned judge disclosed the papers to the Attorney General so he could determine whether to instigate contempt proceedings, refused an application for the two children to be joined as parties and placed a stay on the return order for ten days. The children continued to be placed with foster carer. Meanwhile in Spain, there had been domestic private law proceedings going on and the mother's application for a transfer of custody to her was refused. The appeal against the first instance return order was then dismissed by the Court of Appeal, and the matter returned to first instance to deal with issues of enforcement. The proceedings then came before Mrs Justice Theis who had to determine the way forward in respect of enforcement. The learned judge spoke to both children with two social workers present. The mother then made clear that she would not return to Spain with the children and a plan was put in place for the father to come over and spend time with the children. The children presented as confused after this period of contact but the contact seemed to go well. After this contact, a further period of contact in London was attempted but it did not go well as the father became very angry with the children. The children were then interviewed by Mr Mellor, an experienced member of the Cafcass High court team. Mr Mellor made clear to the court that the children ultimately resisted a return to Spain and that their resistance was "exceptional". The children were then returned to the care of their mother. Mr Mellor spoke to the children again 1½ months later and he made clear that the children remained "steadfast" in their refusal to return and determined to resist any effort to enforce a return. He thought it was "extremely unlikely" that the children could be prevailed upon to return to Spain and that it was a very difficult and "very unusual" situation. The court joined the children as parties, this application having been made by Cafcass. Sara then sought and was granted permission to be discharged as a party to the proceedings; she was concerned about the implications for relationship within the family if she remained a party.

After all of these developments, Mrs Justice Theis had to determine how to progress the case. The learned judge concluded as follows, having made clear that the position that the court was faced with was "truly exceptional":

In Re Y [2013] EWCA Civ 129, the Court of Appeal had to consider the issue of enforcement in the context of enforcement of undertakings in a Hague Convention 1980 / BIIR case. At first instance, Mrs Justice Parker had ordered the return of a child (4½) to Cyprus. The respondent mother had defended the proceedings on the basis of an article 13(b) harm defence and the learned judge felt that the allegations raised were highly contentious and would be best dealt with in the Cypriot courts, taking into account the high threshold inherent with article 13(b) and article 11(4) of Brussels II Revised Regulation 2003. The applicant father gave 11 undertakings to the court so as to mitigate any alleged harm. It was also made clear in the order that the undertakings would effectively be as valid in Cyprus as here, pursuant to article 23 of Hague Convention 1996. Article 23 states: "The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States." The respondent mother had required that, prior to the order being approved by the court, the father was required to seek a specific determination of the recognition of the order from the Cypriot court. This point was not accepted by the learned judge and formed the basis of an appeal. Subsequent to the first instance hearing and before the appellate hearing, the father obtained an order from the Cypriot court that ordered the registration / recognition / execution of the English order. Despite this order, the mother maintained her appeal and sought to adduce 'fresh evidence' which demonstrated that any undertakings given by the father in the English court were unenforceable in Cyprus and that the undertakings would need to be converted into a Cypriot order. The fact that the father had obtained recognition under article 24 of Hague Convention 1996 did not detract from the evidence that the undertakings were enforceable. The Court of Appeal refused the father's appeal and made two specific points:

3) Re-return in Hague Convention 1980 proceedings
The issue of 're-return' in Hague Convention 1980 proceedings has been a topic of much interest recently in this jurisdiction and in the USA. The United States Supreme Court looked at the issue first in Chafin v Chafin 568 US [2013], albeit the court's focus was whether a case was 'moot' once the child had been returned. In Chafin, the court was dealing with a child (aged 6 at the time of the appeal) who had been returned to Scotland by the US Hague court as the court determined that the child was habitably resident in Scotland at the time that the father instigated Hague Convention 1980 proceedings in the US court. That decision was in October 2011. The father requested a stay of the return order and this was refused. The mother and child then went to Scotland and shortly thereafter the mother instigated custody proceedings in the Scottish court. In the meantime, the father appealed the decision of the Hague court at first instance.  In February 2012, the father's appeal was dismissed as moot on the basis that the court had become powerless to grant relief as a result of the child having already been moved to Scotland. The father further appealed this decision to the United State Supreme Court and was granted certiorari. The decision for the Untied States Supreme Court was whether or not the father's appeal was moot. This involved the United States Supreme Court considering the doctrine of mootness in US constitutional law.

The court concluded (Chief Justice Roberts delivered the opinion of the court) that the appeal was not moot as the dispute was very much alive. Having said that, the court did accept that the policy of the Convention 1980 was to secure the prompt return of children who had been wrongfully removed / retained, and were sympathetic to the concern that shuttling of a child back and forth across international borders would be detrimental to the child, but felt that these ills could be mitigated by an expedited appellate process and the implementation of stays where appropriate. Indeed, Justice Ginsberg in his judgment took note of the points made by the Centre for Family Law and Practice in England (who had filed an amicus curiae brief in these proceedings) in respect of the English expedited appellate process and implementation of stays when an appeal is well founded. In light of the court's judgement, this case was remanded to first instance.

Issues of welfare were the backbone of the judgement given by Sir Peter Singer in the English case – DL v EL (Hague Abduction Convention – Effect of Reversal of Return Order on Appeal) [2012] EWHC 49 (Fam). In this case, the father issued divorce proceedings in Texas. Those proceedings were stayed during the period that the father was on deployment to Afghanistan, and in the meant time the mother and child came to England. After his return from Afghanistan, the father applied for and was granted a residence order in respect of the child. Following the hearing, the child stayed in Texas, USA with the child and mother returned to appeal. The mother initially appealed the order but then withdrew her appeal. The mother instead applied under the Hague Convention 1980 on the basis that the child was habitually resident in England and that the child's residence with the father in the USA was wrongful retention. The mother's application was successful – the child was deemed to be habitually resident in England and an order was made for the child to be returned to the care of the mother in England. The father did not apply to stay the order.

The child duly returned to England and was placed in the care of the mother. Over a month later, the father appealed the Hague court's decision. Within a month, the mother issued Children Act 1989 proceedings in England. A residence order was made, together with a contact order to father. The father made his own applications under the Children Act 1989, and then came the US appellate decision. The father succeeded on appeal – the court determining that the child was habitually resident in USA. The mother then appealed to the US Supreme Court and requested that her case be consolidated with that of Chafin (consolidation did not in fact occur). The father then issued Hague Convention 1980 and inherent jurisdiction proceedings in England for the return of the child to USA on the basis of the US appellate decision. At the time of this trial, the decision in Chafin was awaited but neither party asked the court to adjourn its decision pending the outcome of Chafin. Sir Peter Singer refused to order the return of the child, now aged 6 years old, to USA for the following reasons:

In his endnote, Sir Peter Singer made some very interesting observations regarding the leading ECJ case on the interpretation of habitual residence under article 8 of BIIR – Mercredi v Chaffe [2011] 1 FLR 1293. He observed that the English translation of this case had used the word "permanence" in various passages of the judgment. However, the official French version of the judgment used the word "stability". Accordingly, in light of this development, there is good reason to downplay (if not indeed eliminate) the implications of permanence as an ingredient of habitual residence. This undoubtedly renders the ECJ interpretation of habitual residence far more similar to the English, domestic interpretation.

4) The use of arbitration in international children law proceedings
In Re AI and MT [2013] EWHC 100 (Fam), the court dealt with the interplay between religious arbitration and the court's secular jurisdiction. The parties were both Orthodox Jews. The father had originally started proceedings under the Hague Convention 1980 for the return of the child to Canada. Prior to the final hearing, there were extensive negotiations between the parties and they eventually agreed that they would explore the possibility of entering a process of alternative dispute resolution overseen by the New York Beth Din. At the listed final hearing, the parties submitted an order which provided for the father to withdraw his proceedings and for the parties to enter into arbitration. Mr Justice Baker made clear that the court's jurisdiction could not be ousted by agreement and he sought further information as to the principles and approach to be adopted by the Beth Din in resolving disputes, especially in relation to the children. The court was then provided with documentary evidence as to the principles and approach which would be adopted, and then endorsed the parties' proposal to refer their disputes to the Beth Din. The court made clear though that although considerable weight would be placed on agreement, it would not be binding on the court and would not preclude either party from pursuing applications to the court. The proceedings were adjourned on many occasions so as to allow the arbitration process to continue, with the court in the meantime determining the issue of contact over Passover. After 18 months, the Beth Din handed down its ruling on arbitration. All outstanding issues were then resolved by the parties in Spring 2012 – 2 years after the original hearing – and the process was restored to Mr Justice Baker for final consideration. The only remaining impediment to a final agreement was that the mother had not yet been given her Get by the father. Under Jewish law, it is necessary for the father to give the Get, so as to prevent the mother from being an 'agunah' – a 'chained' woman. The stigma of 'agunah' is quite devastating. The father made clear that he would not give the Get until the court had approved the arbitration award and would agree to the award being placed into a court order. A solution was found – the proceedings were convened before Mr Justice Baker who indicated that he would be prepared to make an order on the basis of the arbitration award. The parties then attended at the Beth Din and the Get was given. Shortly thereafter, that same day, the order was made.

Mr Justice Baker made the following interesting observations:

5) Jurisdiction in the context of Brussels II Revised Regulation 2003
In the matter of L (A Child) [2012] EWCA Civ 1157, the court was concerned with a child who was one year old. The mother was English and the Father was Portuguese. The parties lived in Portugal from June 2011. In December 2011 the parties, having decided to separate, signed an agreement in the Portuguese court. The parties agreed to an equal shared care arrangement which allowed for the child to live in England and Portugal on a rotating two-monthly basis until the child was three. An Annex II and Annex II certificate were issued in respect of the judgment. After the mother and child had arrived in Portugal, the mother applied to Oxford County Court for a residence order and prohibited steps order. A PSO was granted and the proceedings were transferred to the High Court. The father contested the jurisdiction of the English court and the PSO was discharged (both parties gave equivalent undertakings). The father sought to enforce the Portuguese decision, pursuant to article 41 and in reliance on the Annex III certificate. The final hearing was heard before Mrs Justice Macur. During the course of that hearing, the father applied to also enforce the Portuguese decision, pursuant to article 21 of BIIR and in reliance on the Annex II certificate. Mrs Justice Macur dismissed the father's applications and held that the English court had jurisdiction as it was in the child's best interests to conduct proceedings in England. The learned judge dismissed the father's application under article 41 as procedurally incorrect, and refused to order recognition and enforcement of his article 21 application on the basis that article 23(a) was established by the mother (non-recognition on the grounds of public policy). Accordingly, she lifted the stay of the English proceedings and placed a stay on the Portuguese proceedings under article 20 of BIIR. She also provided for interim contact between the father and child. The father appealed.

The Court of Appeal upheld the father's appeal (having dismissed the father's ground of appeal in respect of article 41 but determined that the father's grounds of appeal regarding article 21 and jurisdiction should be upheld). The Court of Appeal stated the following: