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International Children Law Update: June 2016

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

Jacqueline Renton, barrister of 4 Paper Buildings


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

1. 1996 Hague Convention proceedings
2. Habitual residence
3. Enforcement of foreign orders
4. 1980 Hague Convention proceedings 
a. Joinder of a child
b. Withdrawing proceedings.

1996 Hague Convention in international child abduction cases
In The matter of J (A Child) [2015] UKSC 70
, the UK Supreme Court allowed the father's appeal against the judgment of Black LJ in the Court of Appeal, ruling that the jurisdiction under article 11 of the 1996 Hague Convention can be utilised by the court in abduction cases. This case was the first time that the 1996 Hague Convention had been utilised in an abduction case involving England and Wales and a state that is a signatory to 1996 Hague Convention, but not 1980 Hague Convention.

The parties were both Moroccan 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 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.

The mother appealed to the Court of Appeal, which held that the English courts did not have jurisdiction under the 1996 Hague Convention, or under any other jurisdictional framework, in the circumstances of this case.  The case was not "urgent" due to the passage of time that had elapsed before the father issued proceedings (six months) and since commencement of the proceedings (one year), and therefore article 11 of 1996 Hague Convention could not be invoked.  Further, and in any event, the father had an alternative remedy – the father could apply to the Moroccan courts for an order for the return of the child, and any return order made could then be recognised and enforced under Chapter IV of the 1996 Hague Convention by the English court.

The net effect of the Court of Appeal's decision was to oust the jurisdiction of the English court to order the return of a child to a state that it not a signatory to 1980 Hague Convention, as a consequence of the 1996 Hague Convention coming into force, in circumstances where before the 1996 Hague Convention came into force the left-behind parent would have had a return remedy in the English court under the wardship jurisdiction.

The father further appealed to the UK Supreme Court. In allowing the father's appeal, Baroness Hale concluded that:

• The focus of the 1996 Hague Convention is on the care and upbringing of the child.  An order for the return of a child to the country of his or her habitual residence is a "measure of protection" within the meaning of article 11 of 1996 Hague Convention.

• Article 11 of 1996 Hague Convention is dis-analogous to article 20 of BIIR. Article 20 merely allows a member state to take provisional, including protective, measures in respect of persons or assets in that state as may be available under the law of that member state, even if the court of another member state has jurisdiction under Brussels II Revised Regulation 2003 ("BIIR"). By contrast, article 11 confers an additional jurisdiction on a member state where the child or property is. Further, an order under article 20 of BIIR is not enforceable in another member state (Purrucker v Valles Perez (No 1) (Case C-256/09) [2011] Fam 254), whereas an order under article 11 is enforceable under Chapter IV of 1996 Hague Convention. The interpretation of "urgency" therefore has to be seen in the context of interpreting a substantive, additional jurisdiction, as opposed to a purely ancillary jurisdiction.

• Article 11 is not limited to cases involving the wrongful removal or retention of a child covered by article 7. For example, article 11 may be utilised in cases where a local authority needs to take steps to protect a child who comes to a member state on holiday. Accordingly, article 11 cannot be limited to cases where it has been shown impossible for the courts of the state of the child's habitual residence to act as this would undermine the ability to utilise article 11 to safeguard children;

• The article 11 jurisdiction should not interfere in issues that are more properly dealt with in the child's state of habitual residence. It is a secondary, not primary, jurisdiction.;

• It is difficult to envisage a case in which the court should not consider an abduction case to be "urgent" and therefore falling within the article 11 jurisdiction, and then go on to consider whether it is appropriate to exercise the said jurisdiction.

As a consequence of the appeal being allowed, the case was remitted to Wood J in the High Court.

Habitual residence
The most recent guidance on the subject of habitual residence flows from the latest decision of the UK Supreme Court: Re B (A child) [2016] UKSC 4.  In this appeal, the UK Supreme Court allowed the appeal, determining that the English court had jurisdiction to make orders concerning a child who had been taken by her biological mother to live in Pakistan as a consequence of the child having retained her habitual residence in England and Wales at the time that the child's non-biological mother issued proceedings in England and Wales in respect of the child.

The case concerned a child (7) conceived through fertility treatment. The parties were two women who were previously in a same-sex relationship from 2004–2011. In preparation for the child's conception, the biological mother ("the respondent") attended pre-treatment counselling with the non-biological mother ("the appellant".)  After the child's birth in April 2008, the women lived together and co-parented the child, but they never became civil partners.  The respondent undertook most of B's care, but the appellant also played a significant role in the child's life, but never applied for parental responsibility in respect of the child.

In December 2011, the relationship between the parties broke down acrimoniously and the respondent left the family home.  Over the next two years, the respondent progressively reduced the level of the appellant's time with the child. In February 2014, the respondent took the child to live permanently in Pakistan, without the appellant's knowledge or consent.  Although the appellant did not consent to it, the child's removal to Pakistan was technically lawful as the appellant did not have parental responsibility for the child at the time of the removal.

On 13 February 2014, the appellant issued proceedings under the Children Act 1989 in this jurisdiction for shared residence to, or contact with, the child.  At the stage of issuing, the appellant was aware that the respondent had removed the child from the home, but was unaware that she had taken the child abroad. On 6 June 2014, the appellant learned that the respondent had taken the child to Pakistan, and accordingly the appellant also applied for orders that the child be made a ward of court and returned to England and Wales.

At first instance, Hogg J dismissed the appellant's applications on the basis that the courts of England and Wales had no jurisdiction in respect of the child as a result of the following:-

• Immediately upon her departure from England and Wale, the child had lost her habitual residence in England and Wales and so article 8 of BIIR did not apply at the time that the appellant issued her proceedings on 13 February 2014, albeit it was probable that nether the child nor respondent had acquired habitual residence in Pakistan by that date;

• Since the case was "at heart ... one of contact", this was not an appropriate case in which to exercise the parens patriae jurisdiction to consider ordering the child's return from Pakistan, such a jurisdiction being reserved to cases that were "dire and exceptional". In passing Hogg J noted the appellant's central contention that, in light of Pakistan society's attitude towards homosexual acts, she would not be able to present her case as a same-sex parent to the courts in Pakistan, that the respondent and child were at risk by living in Pakistan and that whilst the child would need to develop in time a fuller understanding of the circumstances of her conception and early home life she would put herself at risk by speaking about them in Pakistan.

The appellant appealed and the Court of Appeal dismissed her appeal. The Court of Appeal concluded that:-

• Hogg J was entitled to make the findings she did in respect of habitual residence;

• Although the attenuation – or even, ultimately, loss – of the appellant's relationship with the child would be a real detriment to the child, the circumstances were not so exceptionally grave so as to justify the exercise of the parens patriae jurisdiction.  To this end, the Court of Appeal did accept that the appellant would have no realistic opportunity to issue proceedings in respect of the child in Pakistan as her relationship with the child would be unlikely to be recognised.

The appellant further appealed, and the UK Supreme Court allowed her appeal, concluding that Hogg J's finding in respect of habitual residence should be overturned. Lord Wilson (for the majority) gave clear and helpful guidance in respect of the issue of habitual residence:-

• The English concept of habitual residence should be governed by the criterion established in European jurisprudence as set out in A v A (Children: Habitual Residence) [2013] UKSC 60; [2014] AC 1: namely, that there be some degree of integration by the child in a social and family environment;

• The modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed this child. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. The court adopted the analogy of a see-saw: as the child puts down roots in the new country (integration), the roots he had in the country where he was previously habitually resident will come up (de-integrating or disengagement);

• The deeper the child's integration in the old state, probably the less fast will be his achievement of the requisite degree of integration in the new state;

• The greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement will be of that requisite degree of integration in the new state.

• Were all the central members of the child's life in the old state to have moved with him, probably the faster will be his achievement of the requisite degree of integration in the new state.  Conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement will be of the requisite degree of integration in the new state.

• Parental intention, as outlined in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, is only one relevant factor in assessing the degree of integration by the child in a social and family environment.

As regards the parens patriae jurisdiction, the court did not go on to consider whether Hogg J was entitled to decline to exercise this jurisdiction in respect of the child as a result of its judgment on habitual residence. However, the court did make clear that the parens patriae jurisdiction should not only be exercised in cases at "the extreme end of the spectrum."

Enforcement of foreign orders
In D (A Child) (International Recognition) [2016] EWCA Civ 12, the Court of Appeal determined the father's appeal against the decision of Peter Jackson J to not recognise (and therefore enforce) his Romanian custody order dated 27 November 2013. The background and the decision of Peter Jackson J can be found in my update from February 2015.

The Court of Appeal dismissed the father's appeal in respect of article 23(b), and upheld the father's appeal in respect of articles 23(c) and (d). However, as a result of the appeal being upheld in respect of one ground of non-recognition (article 23(b)), the appeal was dismissed and the father's custody order was not recognised and enforced.

In dismissing the appeal in respect of article 23(b) of BIIR, Ryder LJ determined as follows:

• For reasons of comity or mutual respect, there is a high threshold to the identification of a "fundamental principle.";

• The Romanian Court of Appeal's failure to hear the child constituted a "violation of a fundamental principle of procedure", pursuant to article 23(b) of BIIR.  Ryder LJ found such a violation despite the fact that 8 months prior to the Romanian Court of Appeal's judgment, the lower Romanian court considered whether to hear the child, and deemed him to be too young to be heard.  Consequently, Ryder LJ emphasised that the question of whether and how the child should be heard should be asked at all stages of proceedings;

• Time passes quickly for a child and what might be clear at the age of 5 or 6 is not necessarily so at the age of 7 or 8. Therefore, each court should be astute to consider participation in context;

• Section 1(3)(a) of the Children Act 1989 is an example of domestic legislation giving effect to the fundamental principle of procedure, namely the need for the court to have regard to the "ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)". The same principle is to be found in international law - see article 11(2) of BIIR and article 12 of UNCRC. It is also important to note the domestic, procedural practice that should be adopted in respect of a child's participation in proceedings – see paragraph 4.2 of Child Arrangements Programme;

• The importance of hearing the child was emphasised by Baroness Hale in Re D (A Child) [2006] UKHL 51, [2007] 1 AC 619. Indeed, the participation of the child in domestic proceedings has been the subject of a growing body of jurisprudence over the last decade or more – see, for instance, Mabon v Mabon [2005] EWCA Civ 634, [2005] 2 FLR 1011. Such participation is also evident in international proceedings – see Re F (Abduction: Child's Wishes [2007] EWCA Civ 468, [2007] 2 FLR 697 (in the 1980 Hague Convention context) and S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, [2015] 2 FLR 588) (in the wardship, abduction context).

The father attempted, unsuccessfully, to appeal the decision to the UK Supreme Court. 

It is important to note that the decision of the Court of Appeal has wide ranging ramifications for all children litigation. Practitioners and courts need to acutely aware of the need to consider whether or not a child needs to be heard in proceedings, and the issue of the child being heard should arguably be considered afresh at every stage of the proceedings in light of this decision.

1980 Hague Convention proceedings
Joinder of a child
In Ciccone v Ritchie (No 1) [2016] EWHC 608 (Fam), a 15-year old was joined as a party to proceedings under the 1980 Hague Convention.

The case concerned a child (15) who was the child of Ms Madonna Ciccone ("the mother") and Mr Guy Ritchie ("the father").

In December 2000, the parties married. In September 2008, a divorce petition was issued and decree absolute was given in January 2009. The arrangements for the child were agreed by way of a consent order, approved by the Senior District Judge in the Principal Registry of the Family Division in February 2009. The consent order provided the mother with permission to permanently relocate the child, and his younger brother, to the State of New York, U.S.A. The order also provided for the child to spend time with the father in England and Wales, and U.S.A. The order was subsequently registered in the State of New York, U.S.A. In November 2015, pursuant to the terms of the order the child came over to England to spend Christmas with the father. The child did not return to the mother from 6 December 2015 as had been intended. The child indicated, through his solicitors, that he did not wish to return to the State of New York, U.S.A. The parties attempted mediation, but this was unfortunately unsuccessful. The mother then issued 1980 Hague Convention proceedings seeking the summary return of the child to the State of New York, U.S.A.

At the first inter partes hearing in the proceedings, MacDonald J had to determine an application for the child to be joined to the proceedings, that application being made by specialist counsel and solicitors on behalf of the child (not Cafcass). MacDonald J acceded to the joinder application, and in doing so reviewed the authorities on joinder and stated as follows:-

• Baroness Hale in Re D (A Child) [2007] 1 AC 619 made clear the importance of listening to children involved in children cases. In 1980 Hague Convention cases, there are a number of different ways for a child's views to be brought before the court, and in most cases an interview by Cafcass will suffice. Only in a few cases will party status for a child be necessary;

• In respect of a child's views being conveyed to the court by way of a report from Cafcass, it is important to note that the process of reporting does not allow a child to actively engage in proceedings. A reporting officer may not be able to elicit a child's views through questioning and will not be able to give the child's response to evidence and submissions as they are presented. The process of reporting does not allow a child to engage in the proceedings: Re C (Abduction: Separate Representation of Children) [2008] 2 FLR 6);

• The test for granting party status to a child in proceedings is whether it is in the child's best interests to do so: Re LC (Reunite: International Child Abduction Centre Intervening) [2014] AC 1038 and Rule 16.2 of Family Procedure Rules 2010;

• In Mabon v Mabon [2005] 2 FLR 1011, the Court of Appeal recognised that party status can, in an appropriate case, allow the child to emerge from the proceedings with the knowledge that his or her position has been independently represented and his or her perspective fully advanced to the judge;

• It is also important to note that there are plain disadvantages to a child becoming a party to proceedings. The intrusion of the child into the forensic arena, and adopting a directly confrontational stance with an applicant parent, can be very damaging to family relationship even in the long term. Delay can also be detrimental to a child's interests, if such delay is created by virtue of joinder: Re LC [2014]. However, it can also be equally damaging (potentially even emotionally harmful) to a child to deny them participation in proceedings of which they have knowledge: Mabon v Mabon [2005];

Ultimately, in acceding to the joinder application, McDonald J concluded as follows:-

• The child is 15 years and 4 months old and is, accordingly, close to the upper age limit that has been placed on the jurisdiction conferred by the 1980 Hague Convention. Ms Ray, his experienced solicitor, is satisfied he is a mature, articulate and reflective young man and fully competent to instruct a solicitor direct (as he had then been doing for two weeks);

• The child is clear he opposes a return to U.S.A at this time. A child's objection cases may justify the making of an order for joinder, depending on the particular circumstances of the case: Practice Direction 16A of Family Procedure Rules 2010;

• The child is actively engaged in the proceedings.  In deciding to remain in England and Wales with his father, the child instigated the circumstances that ground the alleged retention.  Further, he attended mediation represented by a solicitor. Confining the child to a passive role in the proceedings would be detrimental to him, given the nature and extent of his involvement in the proceedings, and because he has a distinct view, which he wishes to argue positively;

• In allowing the child to participate fully in the decision making process, he will find it easier to recognise the legitimacy of the court's decision on the issue of whether he must return to U.S.A;

• Participation through an interview and a paper report by Cafcass would limit the child's involvement and agency to such an extent that it would be emotionally harmful to him;

• Granting the child party status will add significantly to the court's understanding of the issues, particularly the issue of habitual residence.  The court will be assisted by the child responding to his parents' arguments concerning his position, wishes and feelings.

Withdrawal of Proceedings
In Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam), the mother was granted permission to withdraw her application under the 1980 Hague Convention. The mother accepted, as a consequence, the child would not be summarily returned to the State of New York, U.S.A, pursuant to article 12 of 1980 Hague Convention. Instead, the mother made clear that she simply wished to continue the welfare litigation in the State of New York, U.S.A in respect of the child, the court in New York having become seised very shortly after the mother issued the 1980 Hague Convention proceedings.

At the time of his judgment, no party to the proceedings resisted the mother's application to withdraw her 1980 Hague Convention application, but nonetheless MacDonald J determined the legal issue as to whether or not the mother required permission to withdraw such proceedings. The mother contended that no such permission was required.

MacDonald J determined that permission was required to withdraw proceedings under the 1980 Hague Convention 1980 for the following reasons:

• Rule 29.4 of Family Procedure Rules 2010 does apply to applications in proceedings under the 1980 Hague Convention, governed as they are by Part 12, Chapter 6 of Family Procedure Rules 2010, and therefore the permission of the court is required to withdraw such proceedings. This is the plain meaning of Rule 29.4(1)(b), on the basis that Rule 29.4(1)(b) is to be read disjunctively such that the words "where the application relates to the welfare or upbringing of a child" are intended to qualify only the words "any other Part" and not the words "under Parts 10 to 14".  This view is reinforced by the fact that Parts 10 to 14 deal with a wide range of applications that do not, or need not concern the welfare or upbringing of a child, such as applications under the 1980 Hague Convention. Further, such an interpretation is consistent with the overall aim of the Family Procedure Rules 2010 generally, and in particular Part 1 of the Family Procedure Rules 2010, which requires the court to actively manage the case so as to further the overriding objective of dealing with it justly, having regard to any welfare issue involved;

• The Family Procedure Rules 2010 place an increased emphasis on the duty of the court to control its own process. It is important to remember that any withdrawal of proceedings under the 1980 Hague Convention (and other applications under Parts 10 to 14) will often give rise to the need to consider the terms of the withdrawal and any consequential steps that need to be taken to settle the child's arrangements. It therefore makes sense for the court to have an increased and more proactive role across a wider range of applications in the context of withdrawal of those applications, particularly in the absence of any provision for giving written notice of withdrawal;

• As regards the test that will apply when considering the withdrawal of the 1980 Hague Convention proceedings, such a test will not be a welfare test (in other words, whether withdrawal is in the child's best interests), as a 1980 Hague Convention application is not a welfare application. The test should be instead centred on those matters set out in the overriding objective, pursuant to Rule 1(2) of Family Procedure Rules 2010, including the need to deal with proceedings expeditiously and fairly, the need to deal with cases proportionately, the need to save expenses and the need to ensure the appropriate sharing of the court's resources. The court can consider welfare issues only in the context of Rule 1(1) which requires the court to deal with cases justly "having regard to any welfare issues involved", albeit in most applications to withdraw which do not concern the welfare or upbringing of the child this is unlikely to be an important factor, or even a factor at all.

In granting permission to the mother withdraw, MacDonald J noted that it would not serve the ends of justice to compel a party to pursue an application under the 1980 Hague Convention that they wished to bring to an end, and it was very difficult to think of a circumstances where such conclusion should take place. Further, in this case, there were positive merits in the mother withdrawing her application as it would stop the existence of parallel proceedings in two jurisdictions.

MacDonald J also dealt with various other issues in his judgment, including that of publication. On publication, MacDonald J allowed full reporting of the case, save for a small list of issues that the press remained prohibited from reporting. This was the first time that the High Court of England and Wales had allowed such extensive publication in a private children law case, and to this end it is important to note that the case was fairly exceptional given the high profile nature of the parties involved, coupled with the extensive press coverage that the dispute had already created.