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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, 4 Paper Buildings

Jacqueline Renton, barrister of 4 Paper Buildings

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

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 

Joinder of children

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:-


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:

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

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.