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International Children Law Update: February 2014

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

Jacqueline Renton, barrister, 4 Paper Buildings

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

Habitual residence
The Supreme Court has recently given three judgments, all of which are of crucial importance to all practitioners.

A (Children) [2013] UKSC 60
The background to this case at first instance and in the Court of Appeal - ZA & Anor v NA [2012] EWCA Civ 1396 - can be found in my earlier Family Law Week Update from March 2013. In the Supreme Court, the appeal dealt only with the fourth child who had never set foot in England and Wales and considered whether or not the fourth child could be said to be habitually resident in England and Wales, and in the alterative whether the parens patriae (nationality) jurisdiction existed and could be exercised in relation to the fourth child. Baroness Hale of Richmond (who gave the lead judgment) made clear that the question as to whether or not physical presence was a requisite ingredient of habitual residence was a question which would have to be determined by the Court of Justice of European Union, if necessary. In this case, a referral to the CJEU was not necessary as Baroness Hale went on to make clear that there was a parens patriae jurisdiction that existed in relation to the fourth child, who was of dual British and Pakistani nationality. The key points from Baroness Hale of Richmond's judgment are as follows:-

Lord Hughes, who gave the minority judgment, took the view that he could decide the issue of habitual residence. He stated that habitual residence is a question of fact and that a legal rule that physical presence is a necessary prerequisite for habitual residence is not appropriate and should not overlay what is a factual enquiry. When assessing habitual residence, a factual enquiry as to a child's integration into the family unit should be undertaken. If current physical presence is not essential for habitual residence, then habitual residence can also exist without physical presence, especially where physical presence has not occurred as the result of an unexpected force majeure.

In the matter of KL (A Child) [2013] UKSC 75
The Supreme Court ordered the return of a child, aged 7 to Texas, USA. The courts at first instance and in the Court of Appeal had refused to order the child's return.  The case was unusual on its facts – the child had been brought to this jurisdiction by the respondent mother pursuant to an order of the USA Hague court. Subsequent to the child's return, the USA appeal court then overturned that order and ordered the child's return. By the time the appeal court had made its decision, the child had been living in this jurisdiction for 11 months. The respondent mother argued that the return order was moot as the child had already left the USA. The mother's case was very similar to the case of Chafin v Chafin (Case no. 11-1347) (and was not consolidated with that appeal) heard by the USSC. As regards habitual residence, the Supreme Court stated the following:-

Ultimately, the Supreme Court dismissed the appellant father's Hague Convention 1980 appeal on the basis that the child was habitually resident in England and Wales at the relevant time, but went on to find in the father's favour in respect of his inherent jurisdiction application. Comity was an important factor: the parties had been engaged in litigation in respect of the child – a Texan child,  in Texas, USA for 5 years. The Supreme Court considered that it was for the Texan court to determine the child's future and that the child had the best chance of developing a proper relationship with both of his parents if he was returned to Texas. The child could not be said to suffer significant harm if returned to Texas. The case is likely to be helpful to practitioners seeking to obtain a 'summary' return of a child in wardship proceedings, despite a child having been in this jurisdiction for a significant period of time.

In the matter of LC (Children) (No 2) [2013] UKSC 221
The Supreme Court upheld the appeal of the appellant father and eldest child of the family, T aged 13 years old. There were four children of the family, aged 13, 11, 9 and nearly 15 at the time of the Supreme Court hearing. The mother had applied at first instance for the summary return of all four children to Spain. The children had been in Spain since July 2012 and then returned in Christmas 2012 for a holiday with the father who then did not bring them back to Spain as he stated that the children did not wish to return. At first instance, Cobb J ordered the summary return of all four children. That order was appealed successfully by the father in the Court of Appeal. The Court of Appeal determined that Cobb J was wrong to exercise his discretion in favour of a return of T having found that T objected to returning to Spain, pursuant to article 13(b) of Hague Convention 1980. Further, as a result of their decisions in respect of T, the Court of Appeal accepted that the case would have to be remitted to the High Court for consideration as to whether or not it would be intolerable to separate T from her siblings (the younger siblings' appeal grounds having been unsuccessful and Cobb J having not dealt specifically with this issue at trial). The Court of Appeal rejected the ground of appeal in respect of habitual residence, pursuant to article 3 of Hague Convention 1980.

Subsequent to the appellate decision, the mother made clear that she was going to pursue her application for the return of all four children to Spain in the Spanish courts, pursuant to articles 11(6)-(8) of BIIR. This application was possible as a result of the English courts having only refused to return the children under article 13 of Hague Convention 1980. As a consequence, the only way of stopping this application was for the father, T and her siblings to appeal the habitual residence decision to the Supreme Court as a finding that T and her siblings were always habitually resident in England and Wales under article 3 of Hague Convention 1980 which would prevent the mother pursuing an articles 11(6)-(8) of BIIR application.

Lord Wilson (giving the majority judgment) stated that:

Baroness Hale stated that:

The interplay between care proceedings and international law
A growing area in the field of international children law is the interplay between care proceedings and international law. An increasing number of parents are attempting to remove their child/ren to another jurisdiction to escape care proceedings. There have been various important decisions that address the legal issues in respect of this growing phenomenon:-

In Re LM (A Child) [2013] EWHC 646 (Fam), the parents had three children who had all been subject to English care proceedings and were all placed in kinship placements away from the mother. The parents travelled to the Republic of Ireland to give birth to their fourth child so as to avoid care proceedings in respect of that child. The Health Services Executive of Ireland ("HSE") then started proceedings in relation to the fourth child as they had been made aware of the previous care proceedings. As a consequence, the child was placed into foster are. The mother then returned to England and the father went to Scotland. The mother asked for the child to be returned to England and Wales and sought an order that the care proceedings in the Republic of Ireland be transferred to the English court. All parties in the Irish care proceedings consented to the transfer and the Irish High Court duly made a request to the English court to assume jurisdiction in relation to the child. The request was transmitted via the English Central Authority. The Irish court made a request for the High Court of England and Wales to accept jurisdiction. Cobb J granted the application as he accepted that the English court was best placed to hear the case and it was accordingly in the child's best interests for the English courts to assume a welfare jurisdiction. Cobb J also made clear that the course that the parents had taken was futile and potentially damaging to the child and then went on to  give detailed guidance as to the approach to be adopted in article 15 of BIIR transfer applications:-

In HJ (A Child) [2013] EWHC 1867 (Fam), the court was dealing with a mother who had fled to the Republic of Ireland when heavily pregnant with her child. The mother also had two elder children who had been the subject of English care proceedings. After fleeing, the mother gave birth to the child in the Republic of Ireland and an emergency care order was made by the Irish court on the same day. The HSE then applied to the Irish High Court for a transfer of the case to England and Wales, pursuant to article 15 of BIIR. An article 15 transfer was made, together with an order that HSE be at liberty to introduce a request before the English court.

A request was then introduced before the English court and came before the President. The President endorsed the judgment of Re L-M [2013]. It was plainly in the child's best interests for his future to be determined in England and Wales. The President also made clear that the article 15 BIIR procedure should be conducted swiftly as the proper answer to an article 15 request is often fairly obvious. In some cases where the case appears clear cut, it is appropriate for the court to make an order nisi, namely that an order will take effect without further hearing unless the parents (or local authority) give notice of their wish to make representations as to why the transfer order should not be made.  It is also helpful for the foreign local authority (HSE in this case) to attend the first hearing in the English court in case there were issues with the transfer of the case, and thereafter during the course of, or after the said hearing (as the court may direct), they would cease to have responsibility for the child.

In E (A Child) [2014] EWHC 6 (Fam), the President observed that there was a wider context to the case, namely that there was a frequent complaint made that the courts of England and Wales were exorbitant in the exercise of their care jurisdiction over children from other European countries, and that those concerns were exacerbated by the fact that the United Kingdom is unusual within Europe in permitting the total severance of family ties without parental consent. Further, the President made clear that it would be wrong for practitioners and / or the court system in United Kingdom to adopt a 'chauvinistic' appraoch to other European states practices – it is not right to descend into a decisive value judgement as to the laws and procedures of other European countries. International comity is the daily reality of the courts. The President went on to give guidance in three particular areas:

In this case, it is important to note that the President also made a reporting restriction order on the basis that the mother was allowed to tell her story, but could not do so in the English print or broadcast media or by using the English language on the internet in such a way as to identify the child. The court should not interfere with foreign media as that is a matter for the foreign court to control, if necessary, but could place restrictions on publication via internet or satellite technically as there the foreign media have extra-territorial effect. See Re J (A Child) [2013] EWHC 2694 (Fam) and Re P (A Child) [2013] EWHC 4048 (Fam) for earlier guidance.

Returns to a third state under Hague Convention 1980
In O v O [2013] EWHC 2970 (Fam), the court was dealing with an application under the Hague Convention 1980 and inherent jurisdiction for the return of a child, aged 9 years old, to USA. The child had a sibling, aged 2 years old, who was not subject to the proceedings. The applications were issued by the child's mother. The father opposed both applications and made clear that the child should remain living with him, but in the alternative if there was to be a return it should be to Australia. The family were initially based in USA, but travelled regularly to Australia, Thailand and England. In 2005, the parties moved to Australia and just over one year later they moved back to USA and then subsequently to Australia. The subject child was born in Australia and court proceedings were initiated in that country. The parents then entered into an agreement that the Australian proceedings would be dismissed on the basis that the parents had entered into an agreement to leave Australia and live in USA. The family's possessions were packed into a shopping container for USA and the mother had registered her job on the basis that she had accepted a new post in USA. The father and subject child then went on a holiday to Thailand, with father having indicated he would travel to England for a visit after the holiday in Thailand. After arriving in England, the father made clear that he intended to remain in England with the subject child. The mother issued custody proceedings in the USA and then issued these proceedings.

Keehan J found the father to be a wholly unreliable witness who had repeatedly lied to the court in his oral evidence (to the extent that he considered whether or not to refer the matter to the Attorney General for consideration of prosecution for the offence of perjury), and the mother by contrast to be entirely straightforward. Keehan J went on to find that the father had decided to renege on the parents' plan before he and the child left Australia, and that accordingly the removal of the child from Australia was wrongful, as was the subsequent retention. Further, he found that the article 13(b) objections defence was not established.

Keehan J then dealt with the issue as to which state the child should be returned to and was persuaded to return the child to USA, not Australia, despite Australia being the state of the child's habitual residence and the state from which the child was wrongfully removed. His decision was based on the following:-

Further, Keehan J made clear that even if he was wrong about his decisions under Hague Convention 1989, he would be entitled to use the inherent jurisdiction to order the return of the child to USA, pursuant to article 18 of Hague Convention 1980.

This is the first and only case to date in the law reports (of which I am aware) where a child was retuned to a 'third state' under Hague Convention 1980.