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International Children Law Update: October 2015

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

Jacqueline Renton, barrister of 4 Paper Buildings

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

• Article 13(b) objections in Hague Convention 1980 proceedings 
• Habitual residence in Hague Convention 1980 proceedings 
• 1996 Hague Convention in international child abduction cases
• Wardship and the use of the parens patriae jurisdiction.

Article 13(b) objections

In Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26, the court was concerned with three children aged 13, 11 and 6 who were the subejct to Hague Covnetion 1980 / BIIR proceedings. At first instance, Roberts J ordered their return to the Republic of Ireland. The children had been brought to this jurisdiction by the mother on 12 March 2014. The mother defended the proceedings on the basis of an article 13(b) harm and article 13(b) objections case. The children also had an elder sibling aged 16, who was not subject to the Hague Convention 1980 proceedings.

The mother appealed the decision. The Court of Appeal joined the elder sibling aged 16 to the proceedings (he had consulted a solicitor after the first instance proceedings had been concluded).

The Court of Appeal allowed the appeal and went on to dismiss the father's application for the summary return of the children to the Republic of Ireland. Black LJ (who gave the lead judgment) made it clear that the children's views did amount to objections. Black LJ then went on to consider the exercise of discretion afresh, having taken the view that Roberts J's analyis of the issues at the discretion stage was too narrow, and to this end concluded that the discreiotn should be exercised in favour of a non-return.

Black LJ gave the following guidance in relation to the way in which courts should approach  an article 13(b) objections defence, as well as the issue of joinder of children:

Article 13(b) objections 

• The objections of the child are not determinative. Once the court's discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.
• There is a relatively low threshold requirement in respect of the objections defence; the obligation on the court is to 'take account' of the children's views, nothing more.
• The gateway stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in the at the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. An over-prescriptive or over-intellectualised approach should be discouraged.
• Only at the discretionary stage can the sort of factors set down by Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 be considered.
• At the discretion stage, there is no exhaustive list of factors to be considered. The court should have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. The court must also give weight to Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said in Re M (Abduction: Zimbabwe) [2007] UKHL 55, "the message must go out to potential abductors that there are no safe havens among contracting states."

Joinder of children

• Consideration should be given at the earliest possible stage as to whether the appropriate parties are before the court. That always means considering the position of the children who are the subject of the application. It may also be relevant to consider the position of the non-subject children (as in this case).
• The court may make a child a party to proceedings if it is in that child's best interests – see rule 16.2(1) FPR 2010. Black LJ did not determine whether this rule applied for non-subject children, as well as subject children. If the rule does not apply for non-subject children, then they instead can be joined under the 'sufficient interest' test under rule 12.3(3) FPR 2010.
• Children are able to bring their own appeal, even if they have not been parties to the proceedings in the court below: George Wimpey Ltd v Tewkesbury Borough Council [2008] 1 WLR 1649.

Habitual residence

In AR v RN (Scotland) [2015] UKSC 35b, the Supreme Court dismissed the father's appeal against the decision of the Extra Division of the Inner House of the Court of Session that the parties' children were habitually resident in Scotland by the time the father commenced Hague Convention 1980 proceedings to secure their summary return to France.

The first instance court in Scotland – the Outer House of the Court of Session – determined that the children had remained habitually resident in France at the time that the Hague Convention 1980 proceedings were commenced. This assessment was based on treating a shared parental intention to move permanently to Scotland as an essential element in any alteration of the children's habitual residence from Scotland to France.

On appeal, the Extra Division of the Inner House of the Court of Session concluded that the children had become habitually resident in Scotland. The children had a life in Scotland of a necessary quality for their stability. Their home was in Scotland. Their social life, and predominantly their family life, was also in Scotland. The Supreme Court upheld this decision, making clear that this was a conclusion that the court was entitled to reach on the evidence in the case.

The Supreme Court reiterated that parental intention in relation to the issue of habitual residence is a relevant factor, not the relevant factor. Attention was drawn to the Supreme Court's recent authorities in respect of habitual residence: Re A (Jurisdiction: Return of Child) [2013] UKSC 60; In the matter of KL (A Child) [2013] UKSC 75 and In the Matter of LC (Children) (No 2) [2013] UKSC 221 (see my update from February 2014 for details of these cases).

Further, the Supreme Court made clear that the Court of Appeal was right to conclude in In Re H (Children) (Reunite International Child Abduction Centre Intervening) [2014] EWCA Civ 1101 that there is no 'rule' that one parent cannot unilaterally change the habitual residence of a child.


1996 Hague Convention in international child abduction cases

In Re J (A Child) (1996 Hague Convention) (Morocco) [2015] EWCA Civ 329, the Court of Appeal (Black LJ giving the leading judgement) allowed the mother's appeal in respect of the first instance decision of Wood J, and as a consequence discharged the order that the child be returned to Morocco.

The parties were both from Morocco and also had British nationality. The parties lived in Morocco up until January 2013 (or thereabouts) when the mother removed the child to this jurisdiction without the father's consent (as found by Wood J at trial.) The father commenced proceedings under the court's inherent jurisdiction for the return of the child to Morocco. Those proceedings were commenced six months later. The delay in issuing financial proceedings was due to the father's financial constraints and issues with public funding.

At first instance, Wood J ordered the child's return to Morocco under the court's inherent jurisdiction. He made findings that the mother had wrongfully removed the child to this jurisdiction and that it was in the child's best interests to be returned to Morocco.

On appeal, the mother raised various issues, but in fact the basis on which the appeal was ultimately successful was a result of a different issue, namely whether the court had jurisdiction to make the return order.

In giving her judgment, Black LJ determined as follows:-

• There was no finding that the child was habitually resident in England and Wales. As a consequence, Article 61 of BIIR that affords priority to BIIR over 1996 Hague Convention did not apply in this case.
• The child was habitually resident in Morocco immediately before the mother's wrongful remvoal. Before the wrongful removal, the Moroccan courts had jurisdiction under article 5 of 1996 Hague Convention. After the wrongful removal, the Moroccan courts retained jurisdiction under article 7 of 1996 Hague Convention. At this time, the conditions under article 7(1) of 1996 Hague Convention to allow for a transfer of jurisdiction from Morocco to England and Wales did not apply.
• The governing jurisdictional provisions are therefore 1996 Hague Convention. The only jurisdictional basis under which the courts of England and Wales would have the ability to order the child's return is article 11 of 1996 Hague Convention.
• Whilst there may be cases where a return order can be deemed 'urgent' within the meaning of article 11 of 1996 Hague Convention this was not one of those cases due to the passage of time that elapsed before the father issued proceedings (6 months), and the further passage of time that had elapsed (over 1 year) since the commencement of these proceedings.
• Accordingly, the courts of England and Wales did not have jurisdiction to order the child's return. The father's remedy lay in the courts of Morocco. (For instance, the father could apply for the child's return from the Moroccan courts, who retained the welfare jurisdiction over and in respect of the child, and then seek for that order to be recognised and enforced under 1996 Hague Convention in the courts of England and Wales.)
• An alternative return remedy did not lie with the court's inherent jurisdiction given that there was no jurisdiction under 1996 Hague Convention to order the child's return. Recourse can only be had to the court's inherent jurisdiction if that is permitted by the jurisdictional code that the relevant international instrument establishes. By way of example, in BIIR there is a gateway to the court's inherent jurisdiction under article 14 of BIIR (residual jurisdiction). There is no such gateway under 1996 Hague Convention. 
• However, and for the avoidance of doubt, in cases where the courts of England and Wales did have a substantive jurisdiction under 1996 Hague Convention, the inherent jurisdiction would still apply.

Wardship

In Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886, the Court of Appeal dismissed an appeal by a mother.

These proceedings concerned a child (7) who was conceived by IVF. The child's father was an unknown donor. The child was brought up by two women. The respondent was the child's 'primary carer' but the appellant played a role in her care. The parties separated in December 2011 and the child lived with the respondent. On 3 February 2014, the respondent removed the child to Pakistan and did not return her.

After some unsuccessful attempts at resolving child arrangements amicably, the appellant issued Children Act 1989 proceedings in this jurisdiction and at that time she did not know the child and respondent had left for Pakistan. The respondent challenged the court's jurisdiction in respect of these proceedings. The appellant subsequently issued an application under the court's inherent jurisdiction for the summary return of the child to this jurisdiction. The appellant's case was that the court had jurisdiction on two alternative bases: (a) habitual residence or (b) parens patriae. As regards the exercise of parens patriae jurisdiction (on the basis there was such a jurisdiction), the appellant's case was that she would be unable to litigate in Pakistan because of the approach of that country to homosexuality. Her only forum for litigation in respect of the child's welfare was the courts of England and Wales.

At first instance, Hogg J concluded that:

• The child was not habitually resident in this jurisdiction at the time that the Children Act 1989 proceedings were issued. The child had lost her habitual resident in this jurisdiction upon her departure to Pakistan, albeit she had probably not yet acquired habitual residence in Pakistan.
• Given the child's British nationality, there was an inherent jurisdiction that could be exercised, in theory, pursuant to the parens patriae jurisdiction. A return order is not caught by the jurisdictional prohibitions in section 2(3) of Family Law Act 1986: Re A (Jurisdiction: Return of Child) [2013] UKSC 60. However, Hogg J refused to exercise this jurisdiction on the basis that effectively the appellant's application was a contact application and did not come within the 'extreme circumspection' or 'dire circumstances' that needed to be shown in jurisprudence for a court to consider that the parens patriae jurisdiction should be exercised.

On appeal, the appellant challenged both of Hogg J's conclusions as regards jurisdiction. Black LJ (giving the lead judgment) determined as follows:-

• Hogg J applied the proper legal principles to the relevant facts and there was no reason to interfere with her finding as regards habitual residence.
• Hogg J was not wrong to determine that the parens patriae jurisdiction should not be exercised. It was not accepted that the UK Supreme Court's decision in Re A [2013] had led to the parens patriae jurisdiction being 'resuscitated' and freed from the 'inhibiting effect' of Al Habtoor v Fotheringham [2001] EWCA Civ 186. It remained good law, as per Al-Habtoor v Fortheringham [2001], and more recent authorities such as that of the President's in Re M (Children) [2015] EWHC 1433 (Fam) that there is the need for 'extreme circumspection' when deciding whether or not to exercise the parens patriae jurisdiction. It is important to note that in Re M [2015] the jurisdiction was utilised in relation to a fear that a child had been taken abroad so as to be subjected to FGM. Other examples given are the use of the parens patriae jurisdiction in cases where a child has been taken abroad so as to be forced into marriage – see, for instance – Re B, RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) [2008] EWHC 1436 (Fam), and A v A (Return Order on the Basis of British Nationality) [2013] EWHC 3298 (Fam) (the remitted hearing after the successful appeal by the mother in Re A [2013]) where Parker J stated that the circumstances of the case were "if not unique, certainty of a very special nature."
• The use of the parens patriae jurisdiction should remain limited to cases where the circumstances are 'extraordinary', 'the rarest possible thing', 'very unusual', 'really exceptional', 'dire and exceptional', 'at the very extreme end of the spectrum', to name but a few descriptions. Ultimately, the jurisdiction should be exercised 'sparingly' and with 'great caution'.
• The appellant's case was that she could not litigate in Pakistan given the risk involved by way of the disclosure of the sexuality of the parties and the child's origins. In considering this part of the case, the court was unable to reach any firm conclusions as to the law of Pakistan as regards lesbianism, or what stance the courts of Pakistan would take in cases involving lesbianism. However, the material presented did show that there was widespread and pervasive, societal and stage discrimination, social stigma, harassment and violence against gay men and lesbian women in Pakistan, together with a lack of effective protection by the state from the activities of non-state actors. The official view in Pakistan seems to be that same-sex relationships involved 'abnormal sexual behaviour' and that lesbians are 'invisible' in Pakistan society.
• Accordingly, the court was willing to accept that the appellant would have no realistic opportunity to advance her claim in a Pakistan court. However, despite this, the court concluded that this state of affairs was not by itself enough to justify the intervention of the English court. The case did not reach the very high threshold necessary to justify the exercise of the parens patriae jurisdiction, even if the absence of an English jurisdiction leads to the attenuation, or even ultimate loss, of the relationship between the appellant and child.
• Ultimately, every case turns on its facts as regards the exercise of the parens patriae jurisdiction.
• It should also be noted (although this was not part of the court's reasoning in dismissing the appeal) that there is an inherent difficulty in the courts of England and Wales exercising jurisdiction if it is clear that the exercise of that jurisdiction will be futile, in other words the courts in Pakistan would not enforce any orders made in the court of England and Wales in any event. The argument as regards 'anticipated futility' may lead to the court declining to exercise its jurisdiction. However, it is worth noting that the court did not come to a concluded view as regards whether or not a court should decline to exercise its jurisdiction on the basis of 'anticipated futility', albeit the court did make it clear that courts should be alive to this issue, and that a court should have evidence as to the applicable law and practice in the foreign court, in particular as regards the ability to enforce an order in the foreign court.

The watch list

Given the fast pace at which international children law develops, I thought it might be helpful for readers to have a 'watch list' so that they can keep track of any important decisions that are, or may be, subject to appeal.

• MD v AA & Another [2014] EWHC 2756. This appeal addresses the interpretation of various grounds of non-recognition under article 23 of BIIR. The appeal was heard in May 2015. Judgment from the Court of Appeal is awaited.
• At end of November 2015, the UK Supreme Court will hear the appeal in the case of: Re J (A Child) (1996 Hague Convention) (Morocco) [2015] EWCA Civ 329,  [2015] 2 FLR 513. This appeal will address the use of article 11 of 1996 Hague Convention in child abduction cases, the general interpretation of article 11 of 1996 Hague Convention and the ability for the court to utilise the inherent jurisdiction to return an abducted child if article 11 of 1996 Hague Convention does not apply.
• The outcome of the appellant's permission to appeal application is awaited in the case of: Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2015] EWCA Civ 886. The appeal, if granted, will address the use of the parens patriae jurisdiction.

19/10/15

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