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In the matter of A (Children) [2013] UKSC 60 – An Analysis

Alex Verdan QC, Jacqueline Renton and Michael Gration, all of 4 Paper Buildings, consider the significance and impact of the Supreme Court’s recent judgment in A (Children), in which they represented interveners Children and Families Across Borders.

Alex Verdan QC, 4 Paper BuildingsJacqueline Renton, barrister, 4 Paper BuildingsMichael Gration, barrister, 4 Paper Buildings






Alex Verdan QC, Jacqueline Renton and Michael Gration of 4 Paper Buildings

The judgment in In the matter of A (Children) [2013] UKSC 60 was handed down on the 9th September 2013. The cases raises interesting and important issues as regards jurisdiction in international children law cases, with particular reference to the way in which habitual residence is defined and the use of the parens patriae jurisdiction (the nationality jurisdiction).

The parties entered into an arranged marriage in Pakistan. One year after marriage, M joined F in England. They had three children who were born in England. The marriage became unhappy – M complained of physical abuse and moved into a refuge with the three children. M and the three children went on a trip to Pakistan. M did not know F was going to be in Pakistan. F's family forced M into a reconciliation with him. M then returned to the family home in Pakistan with F and was forced to give up her and her children's passports (although she later got back her passports). M then gave birth to the parties' fourth child in Pakistan. Proceedings were started by both parties in Pakistan, but then dropped. M eventually managed to get out of Pakistan, without the children, on the premise that she wanted to stay with relatives in England for a few days. M then commenced proceedings in the English High Court for the return of all four children to England.

Freezing orders were obtained in respect of F's assets in England and Wales, with a view to then sequestering the assets, as a means of persuading F to comply with the orders of the court, or at least provide M with a 'fighting fund' so that she could litigate in Pakistan. As a result of these orders, F's brother was brought into the proceedings as he was a co-owner of one of the properties named in the order.

At first instance, Mrs Justice Parker ordered the return of all four children to England and Wales on the basis that: (a) the three elder children had retained their habitual residence in England and Wales and (b) in relation to the fourth child, he was habitually resident in England, on the basis of Charles J's decision in B v H (Habitual Residence): Wardship) [2002] 1 FLR 388. The child was born to M who remained habitual resident in England and was kept in Pakistan against her will. The child did not need to be physically present in England to be habitually resident.

Court of Appeal
F and his brother then appealed out of time to the Court of Appeal. The Court of Appeal hearing took place 5 months after the first instance decision. All three Lord Justices dismissed F's appeal in respect of the three elder children (the judgment was reported as ZA & Another v NA [2012] EWCA Civ 1396). However, in relation to the fourth child, F's appeal was upheld by a majority (Lord Justice Rimer and Lord Justice Patten, with Lord Justice Thorpe dissenting). The reasoning of the majority was that the acquisition of habitual residence in any country requires the child in question to be physically present there. A rule that a newly born child is presumed to take the habitual residence of his parents is a "legal construct divorced from actual fact" and inconsistent with the approach of the Court of Justice of The European Union ("CJEU"). Accordingly, the decision of Mr Justice Charles in B v H [2002] should be overruled.  As a result of the decision, the issue of forum conveniens arose. This issue was ultimately adjourned to be considered after the Supreme Court had determined M's appeal in respect of fourth child. M contended that the child did not need to be physically present or have spent any time in England to be habitually resident in England and Wales, and that in the alternative the court could and should exercise a parens patriae jurisdiction over the child.

In mounting her appeal in the Supreme Court, M submitted (for the first time in the proceedings) that the English High Court had jurisdiction in relation to the child on the basis of the parens patriae jurisdiction, in the event that the child was not found to be habitually resident in England and Wales. The Supreme Court granted permission to appeal and went on to consider over the course of two days whether: (a) presence is a prerequisite of habitual residence and (b) the parens patriae jurisdiction could be utilised. As part and parcel of these considerations, the court also looked at the basis on which the return orders were made and the jurisdictional scheme that applied.

The involvement of Children and Families Across Borders and its formal intervention as a party in the Supreme Court
is a specialist charitable organisation dedicated to the identification and protection of children who have been separated from family members as a consequence of abduction, trafficking, migration, divorce, conflict and asylum. Upon identifying cases with the aforementioned characteristics, CFAB seeks to support those involved (whether the child or children concerned, or other vulnerable individuals, including parents) by providing professional services and emotional support. In particular CFAB seeks to advocate on behalf of the child or children at the heart of such cases, by ensuring that their best interests are always the paramount consideration in decisions taken in respect of them, and that their right to family life is respected.

Organisations such as CFAB can be instrumental in the process of evidence gathering from abroad for use within proceedings or otherwise, but from experience on the ground it seems that their services are currently significantly under-utilised. This is a particular concern in cases involving states which are not signatories to Council Regulation (EC) No.2201/2003 (Brussels II Revised Regulation 2003 ("Brussels II Revised Regulation 2003"), the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996 ("1996 Hague Convention") or Hague Convention on the Civil Aspects of International Child Abduction 1980 ("Hague Convention 1980") (as in this case) as such states do not have the benefit of a Central Authority or other administrative body with which courts and other bodies in England and Wales (such as the Central Authority of England and Wales) can liaise and exchange information.

CFAB sought to intervene in these proceedings because of the concern that insufficient attention may have been given to the possibility of evidence-gathering in respect of the subject child's circumstances in Pakistan. CFAB considered that a better understanding of the children's circumstances in Pakistan might well have helped the lower courts in their evaluation of the fundamental issue of habitual residence, and later within the wider welfare enquiry if/when that stage was reached. It was CFAB's submission that as a matter of good practice, courts should ensure that at the very least a 'safe and well' check is carried out in respect of the child (or children) who are in a foreign state pending the determination of a jurisdictional issue in the courts of England and Wales. It may even be that courts would want to go further than that in considering a more extensive welfare based, evidence-gathering process pending the determination of a jurisdictional issue as this evidence may in fact be relevant to issues of jurisdiction and / or forum conveniens.

CFAB were pleased to note that the Supreme Court shared the concerns that had been raised. Particularly, [at 65(vi) of the judgment] Baroness Hale held that:

"It is troubling that these proceedings have been continuing for so long without any inquiry being made about how the children are. Children and Families Across Borders (formerly International Social Service) have helpfully intervened to suggest how this might be done, and the judge may wish to consider what they say."

Basis on which the return orders were made and applicable jurisdictional scheme
The Supreme Court determined that the wardship return order made by Mrs Justice Parker was not a "Part I" order within the meaning of the Family Law Act 1986, but was an order in relation to "Parental Responsibility" under article 3 of Council Regulation (EC) No.2201/2003 (Brussels II Revised Regulation 2003). As a result of this decision, the Supreme Court was not bound by the jurisdictional provisions under Family Law Act 1986, but had to look to whether there was jurisdiction under Brussels II Revised Regulation 2003.  Brussels II Revised Regulation 2003 applies in cases such as this where only one state is a signatory to the Regulation. This had already been concluded by the Supreme Court in Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10 in relation to article 12 of Brussels II Revised Regulation 2003 and in this case the Supreme Court made clear that there was no reason to distinguish article 12 from other bases for jurisdiction pursuant to the Regulation.

Habitual residence
A significant part of the lead judgment delivered by Baroness Hale was devoted to the issue of the child's habitual residence, and particularly whether or not it could be said that the child had upon his birth acquired an English habitual residence, notwithstanding that he was born in Pakistan and had lived in that jurisdiction for the entirety of his life.

That there was such focus on the habitual residence argument is unsurprising. Firstly, had M been able to establish that the child was habitually resident in England and Wales there would have been jurisdiction in respect of him pursuant to Article 8 of Brussels II Revised Regulation 2003 (applicable on the basis of the reasoning described above) and no further investigation of the issue of parens patriae would have been required. Secondly, this was the only argument that had been run at first instance and on appeal, and the Court of Appeal had been split as to the answer (with Lord Justice Thorpe, a family judge of pre-eminent experience, having delivered the dissenting judgment). Third and finally, the issue of habitual residence and the appropriate test to be applied in seeking to determine where a child's habitual residence may lie had generated considerable controversy at first instance and on appeal, particularly due to a perceived conflict between the test established by the CJEU in Re A (Area of Freedom, Security and Justice) (C-523/07) [2009] 2 FLR 1 and Mercredi v Chaffe (Case C-497/10) [2011] 1 FLR 1293 and the 'English' test as established by R v Barnet Borough Council ex parte Shah [1983] 2 AC 309, [1983] 2 WLR 16, [1983] 1 All ER 226, HL and the line of authority that followed it.

Looking at the more general argument as to the appropriate test to be adopted when attempting to determine a child's habitual residence, Baroness Hale commented that as the only issue strictly before the court was how habitual residence should be determined pursuant to Brussels II Revised Regulation 2003 it was not strictly necessary to address and potentially resolve the issue in any other context. Nonetheless the Supreme Court felt able to give some helpful guidance as to the proper approach.

Baroness Hale suggested at [35] that "it is highly desirable that the same test be adopted and that, if there is any difference, it is that adopted by the Court of Justice." In so holding, it was further suggested that the test previously adopted (as originated in the aforementioned case of ex parte Shah) was inapposite, based as it was on the analogous but not directly comparable concept of domicile. Such an approach was considered to be disadvantageous as "the Law Commission's deliberately adopted 'habitual' rather than 'ordinary' residence, because the latter frequently occurred in tax and immigration statutes and they thought that its use in the wholly different context of family law was a potential source of confusion (Law Com No 138, para 4.15). Furthermore, the reference to adopting an abode "voluntarily and for settled purposes" is not readily applicable to a child, who usually has little choice about where he lives and no settled purpose, other than survival, in living there. If this test is adopted, the focus inevitably shifts from the actual situation of the child to the intentions of his parents." (at [38]).

The outcome of this distortion of the habitual residence enquiry may have been "to overlay the factual concept of habitual residence with legal constructs", the most notable of which "is the "rule" that where two parents have parental responsibility for a child, one cannot change the child's habitual residence unilaterally" of which there is "not a hint … in the European jurisprudence". Notwithstanding this interesting diversion into the apparent differences between the European and domestic approaches, however, the discussion concludes with the acceptance that "[t]he matter may therefore require fuller consideration in another case, but it is not necessary for us to express a concluded view." (at [39-40]).

The Supreme Court did, however, re-emphasise that the determination of a person's habitual residence is a question of fact. Previous guidance on the divination of habitual residence which had perhaps been elevated to the status of a legal rule was appropriate declassified, perhaps leading to a reduction in arguments about what might be an 'appreciable time' for the purposes of the factual enquiry (see Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at [578-579]). Baroness Hale noted the emphasis within the applicable CJEU decisions on the factual nature of habitual residence (at [48]).

Bringing the strands together, at [54] Baroness Hale held as follows:

"i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is "the place which reflects some degree of integration by the child in a social and family environment" in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time."

As to the application of those rules to this case, and particularly to the question as to whether a child could acquire habitual residence in a country in which he had never been present, the Supreme Court did not reach a concluded view. Baroness Hale appears to suggest that as a matter of fact a child could not be habitually resident in a country to which he or she had never been (at [55]), although it is not apparent that in offering that opinion she sought to establish (or to suggest the existence of) an operable rule that would prevent such a finding.  Lord Hughes appeared to reach the opposite view, on the basis that there was no operable rule that could prevent such a finding.
Due to the approach taken to the parens patriae jurisdiction (see below) it was not necessary for the court to determine whether or not habitual residence could arise without presence. This is perhaps fortuitous, as the prevailing view was that determination of such a question would require a reference to the CJEU (see [58]), which would have engendered some further (albeit small, as no doubt the PPU procedure would be invoked) delay in reaching a final decision for these children.

So where does that leave the question as to whether habitual residence can be acquired without presence? In one sense it may be said that the decision of the Court of Appeal was not overturned on this issue, and that as such the majority judgments of Lord Justice Patten and Rimer stand with the result that habitual residence is not possible without physical presence. An alternative view is that the intention of the judgments (as in this sense Baroness Hale and Lord Hughes were united) was to move away from the application of legalistic rules (save, perhaps, for that which prevents a unilateral change of habitual residence) to an otherwise factual enquiry. If that is correct, there may be no reason why habitual residence could not be acquired without physical presence (as Lord Hughes found), though the arguments foreshadowed by Baroness Hale at [55] may present a number of good reasons why such a finding would be unlikely.

As things stand, any future reliance on the Court of Appeal judgments on this issue may result in a reference to the CJEU, at least if the lack of physical presence is the only bar to habitual residence otherwise being found to be in a particular state.

Certainly, the judgments did not determine all of the issues that are frequently raised in cases involving a dispute about habitual residence, which are therefore maintained for another case, perhaps on similarly extreme facts.

Parens patriae
Article 14 of Brussels II Revised Regulation 203 applies where no court of a member state has jurisdiction under articles 8 – 13 of Brussels II Revised Regulation 2003. In applying article 14 of Brussels II Revised Regulation 2003, the jurisdiction of England and Wales is determined in accordance with the domestic laws of England and Wales.

Both parties agreed that the parens patriae jurisdiction existed. The issue between them was whether or not the parens patriae jurisdiction should be exercised in the circumstances of this case.

As regards the parens patriae jurisdiction, the jurisdiction derived from an archaic concept that a child owed allegiance to the Crown and in return the Crown had a protective (parens patriae) jurisdiction over the child wherever he was. The jurisdiction was considered as long ago as 1854 in the case of Hope v Hope [1854] De GM & G 328. In more recent times, Lord Justice Thorpe in al Habtoor v Fotheringham [2001] EWCA Civ 186 made clear that the court should "refrain from exorbitant jurisdictional claims based on nationality". However, in Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) [2008] EWHC 1436 (Fam), [2008 2 FLR 1624, Mrs Justice Hogg exercised the parens patriae jurisdiction in respect of a 15 year old Pakistan girl who had never set foot in England and Wales, but who had dual Pakistani and British nationality. The girl sought assistance and protection from the English High Court as a result of her being concerned that she would be forced into marriage in Pakistan. Mrs Justice Hogg commented that the circumstances of the case were "sufficiently dire and exceptional" so as to justify the exercise of the jurisdiction. In Re N (Abduction Appeal) [2013] 1 FLR 457, Lord Justice McFarlane made clear that if the jurisdiction exists, it does so in case that are at the "very extreme end of the spectrum" (he did not exercise the jurisdiction).

Ultimately, the case has been remitted to Mrs Justice Parker for her to consider whether or not the jurisdiction should be exercised. At paragraph [65] of her judgment, Baroness Hale of Richmond sets out a number of factors which may be relevant in this case to the issue as to whether or not the jurisdiction should be exercised. Those factors include the practicality of M litigating in the Pakistani courts, the circumstances in which the children came to be in Pakistan (the coercion of M being a highly relevant factor), the fact that the other three children are habitually resident in England and Wales and the fact that if there is a jurisdiction in England and Wales for the fourth child, the issue of forum conveniens no longer applies in reality given that the forum conveniens argument raised by F was on the basis that the English court had no jurisdiction over the  fourth child.

Clearly, if Mrs Justice Parker goes on to determine that the parens patriae jurisdiction should not be exercised in relation to fourth child, then there will need to be a PPU referral to the Court of Justice of European Union in relation to the habitual residence issue.

We await the outcome of the hearing before Mrs Justice Parker. It is hoped that there will now be a swift resolution of the case given that the elder three children have been in Pakistan since the end of 2009 and the fourth child has been in Pakistan since his birth at the end of 2010.

Alex Verdan QC
Jacqueline Renton
Michael Gration
Counsel for CFAB, one of the Interveners (instructed by Simon Bruce and Josephine Fay of Farrer & Co LLP)