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Re X (Care Proceedings: Jurisdiction and Fact Finding) (Rev 1) [2020] EWHC 2742 (Fam)

Private law proceedings, which became public law proceedings, in a legally and factually complex case concerning a young person, X. Issues of jurisdiction are considered in detail by Knowles J, as well as a decision to discontinue a fact finding hearing.

Factual Background 
This case concerns X, a young person aged 15. 'The father', an American citizen living in Tennessee, is named on X's birth certification. He is not X's biological father but has acted as X's father throughout her life. X's biological father has played no role in her life since her birth; his identity and whereabouts are unknown. 'The mother', who was married to the father, is also an American citizen living in Ohio. Divorce and custody proceedings as between the mother and father took place in Tennessee in 2013-2015. From her parents' separation X lived in Tennessee with her father until July 2018 when both came to England to visit her father's fiancé, AB, X's future stepmother. X entered the UK on a six month visitor visa and was, at the time of the hearing, an overstayer. Apart from short trips to the USA in November and December 2018, X lived in England with AB from July 2018. In September 2018 X's father returned to Tennessee for work, leaving X in the care of AB, who has a history of depression, suicide attempts and self-harm. AB and the father's marriage broke down in late February 2019 and divorce proceedings were initiated in Tennessee by the father. 

Between October 2018 and February 2019 various incidents and events occurred, as set out in the judgment of Knowles J, including: issues with X's mental health; AB and the father's marriage; reports by AB to the police and the local authority that the father had raped her; AB reporting that one of X's stepsisters had telephoned X and told her that the father had sexually abused one of X's other half-siblings when a child; AB asserting that the father threatened to come to England and kill her with his gun; the father flying to England and arriving at AB's home frightening X who locked herself in a wardrobe; and, the father being arrested interviewed by the police (no further action was taken).

The Proceedings

On 28 February 2019 the court made a prohibited steps order, on AB's ex parte application, preventing X's removal from AB's care. On 14 March 2019 the prohibited steps order was confirmed until further order and the father and AB were directed to file statements.

At some point the father and the mother jointly commenced proceedings in the Tennessee Court to determine X's home state. On 2 May 2019, the Tennessee Court declared that (a) it had continuing and legal jurisdiction over X; (b) X was habitually resident in Tennessee and Tennessee was declared to be X's home state; and (c) the order was to remain in full force and effect until such time as the court could communicate with any other court that might claim jurisdiction with respect to X. On 7 May 2019, the Family Court had before it the 2019 orders made in Tennessee and made further directions to progress the case, including a section 37 report. The order recited that there had been no determination of substantive jurisdiction with respect to X but that the Family Court continued to exercise protective jurisdiction pursuant to Article 20 of Brussels IIA. Permission was given to disclose the order to the Tennessee court.

On 16 July 2019, the local authority issued care proceedings with respect to X, raising jurisdiction as an issue. Theis J, exercising a protective jurisdiction in the private law proceedings, made a child arrangements order providing that X was to live with the stepmother. She made clear that this order was a "holding position" only and that no findings had been made with respect to X's habitual residence. She also directed that any application pursuant to the 1980 Hague Convention should be joined to the proceedings and determined as part of them and directed the parties to file statements as to habitual residence. AB was joined as a party to the care proceedings, an expert was instructed to advise on how X's immigration position might be regularised and a four day contested hearing in the private law proceedings was listed to consider jurisdiction, habitual residence and any issued application for X's summary return to the United States pursuant either to the 1980 Hague Convention or in the exercise of the court's inherent jurisdiction. In the care proceedings X was made the subject of an interim supervision order and permission was granted to the solicitor for X to instruct an expert to undertake an assessment of X in respect of parental alienation and her ability to instruct a solicitor directly. A recital to the order confirmed the father's intention to issue an application for the summary return of X to the USA, and the mother and the father were directed to serve narrative statements relevant to the issue of habitual residence.

In statements X and the mother confirmed their understanding that X was habitually resident in England. The father did not file a statement on time and no application was made to invoke the Hague Convention or the inherent jurisdiction for X's summary return. Subject to the issue of jurisdiction and/or a 1980 Hague Convention application being determined, Theis J listed a fact-finding and welfare hearing commencing on 16 March 2020. On 10 December 2019, the father confirmed he did not seek to assert that X was not habitually resident in the United Kingdom in February 2019 when he was not permitted to remove her back to the USA and in July 2019 when the care proceedings commenced. He further confirmed he would not be making an application under the 1980 Hague Convention and no party sought to suggest that X was not habitually resident in the United Kingdom at the relevant date. Theis J found that X was habitually resident in the United Kingdom on 16 July 2019 when the care proceedings were issued. The court gave directions for the filing of further evidence and vacated the hearing to consider habitual residence and jurisdiction as it was no longer required. A fact finding hearing was listed in March.

The fact finding hearing commenced, but was adjourned to May 2020 as a result of AB experiencing Covid-19 symptoms. Pending recommencement of the hearing, Knowles J endeavoured to put contact between X and her father on a more even footing and on 8 April 2020 she endorsed a plan for the father to contact via remote means. On the morning of 4 May 2020, Knowles J received an email informing her that X had made a suicide attempt the previous evening and had been admitted to hospital that night. This resulted in X being discharged into the care of her stepmother, having been assessed by CAMHS, and a further adjournment. 

The case was restored to Knowles J due to concern about the fragility of X's placement with AB and their mental and emotional health. At that time, both the stepmother and X proposed that X should travel to the United States to visit her half-sister, EF. On 1 June 2020, there was a general consensus amongst the parties that X should be permitted to travel US to visit EF. Given the developments in this case, it seemed to Knowles J that the real problem lay with the inability of the adults to consider where X's needs, both in the short, medium, and long-term, could be met. In an attempt to focus the adults on what was important for X, Knowles J addressed both the father and the stepmother directly during the hearing to ask them to consider X's overall welfare needs and to abandon what was a contest which neither could win without harming X in the process. The mother, father and AB, after advice, all agreed and on 5 June 2020 Knowles J endorsed a plan for X to return to the USA so that she could live with EF for the remainder of her minority if this is what she wished (and she did).

Advice from an expert in Tennessee law and from an expert in Michigan law (the state in which EF lived) was received and resulted in the parties' agreement that Knowles J should make a separate order containing a respectful request to the court in Tennessee that it defer its jurisdiction to the Family Court and discharge the parenting order made in April 2015 in respect of X that she should live with her father. The father and mother confirmed to the court that they would make an application as a matter of urgency to the court in Tennessee to seek deferral of jurisdiction in respect of X to this court. All were further agreed that, as soon as possible after receipt of confirmation that the court in Tennessee had deferred jurisdiction, practical arrangements could be made for X to travel to the USA to live with EF. Soon after X's placement broke down with AB and she was cared for in foster care.

On 31 July 2020,  the court in Tennessee refused the father's application to defer jurisdiction to this court and asserted its jurisdiction with respect to X. In so doing, the court in Tennessee expressed the view that the Family Court was in breach of the provisions of the 1980 Hague Convention.

At the final hearing on 12 and 14 August 2020, the parties continued to endorse X's placement with EF, who had then been positively assessed by social workers in the US as a long-term carer for X. Further, there was agreement that EF and her husband should seek an order in whichever court was appropriate, be that either Tennessee or Michigan, which would mirror the order Knowles J made in respect of care and contact arrangements for X. To conclude these proceedings, Knowles J made an order for X to live with EF and her husband and discharged the child arrangements order for X to live with the stepmother.

The Legal Framework

Knowles J set out the jurisdictional basis upon which she made final orders with respect to X.

Jurisdiction

• At all relevant dates in this case, jurisdiction in matters relating to X's welfare fell to be determined in accordance with Council Regulation 2201/2003 EC, ie: Brussels IIA.

• Article 8: General Jurisdiction.

• In A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening); sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 AC 1, the Supreme Court made clear that Brussels IIA applied when determining the question of jurisdiction regardless of whether there was an alternative jurisdiction in a non-member state.

• The Court of Justice of the European Union in UD v XB (ECJ) KC-393/18 PPU [2019] 1 WLR 3083 confirmed that Article 8(1) of Brussels IIA is not limited to disputes involving relations between the courts of member states.

• Declarations of jurisdiction by a foreign court are not binding on the English court, which founds jurisdiction in accordance with English law.

Habitual Residence 

• The law relating to habitual residence been set out in the following Supreme Court authorities:

A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening); sub nom Re A (Children) (Jurisdiction: Return of Child) [2013] UKSC 60, [2014] 1 AC 1;

Re L (A Child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre Intervening) sub nom Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, [2014] AC 1017;

Re LC (Children) (Reunite International Child Abduction Centre Intervening) [2014] UKSC 1, [2014] AC 1038;

Re R (Children) (Reunite International Child Abduction Centre Intervening) [2015] UKSC 35, [2016] AC 76; and

Re B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2016] UKSC 4, [2016] AC 606.

• In Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam), Hayden J reviewed the Supreme Court authorities and summarised in paragraphs [17]-[20] the legal principles deriving from them.

• In Re M (Children: Habitual Residence: 1980 Hague Child Abduction Convention) [2020] EWCA Civ 1105, the Court of Appeal commented on the above factors and recommended the omission from consideration of one of the factors that Hayden J considered to be relevant: see paragraph 63.

Forum

• Absent the issue being raised or pursued by the parties, unlike with the issue of jurisdiction, there is no positive obligation on the court to consider the issue of forum once a substantive jurisdiction has been established.

• MacDonald J summarised the law relating to forum in W v L (Forum Non Conveniens) [2019] EWHC 1995 (Fam); [2020] 1 FLR 78. Whilst W v L was a private law case, Knowles J found that the same principles apply in a public law context.

• Where the English court does have jurisdiction under Article 8 but there are proceedings also in a third-party non-member state, the issue becomes one of forum conveniens. This is to be determined by reference to the principles set out in the case of Spiliada Maritime Corporation v Consulex [1997] AC 460 which are:

o It is upon the party seeking a stay of the English proceedings to establish that it is appropriate;

o A stay will only be granted where the court is satisfied that there is some other forum available where the case may be more suitably tried for the interests of all parties and the ends of justice;

o The court must first consider what is the 'natural forum', namely that place with which the case has the most real and substantial connection. Connecting factors will include not only matters of convenience and expense but also factors such as the relevant law governing the proceedings and the places where the parties reside;

o If the court concludes having regard to the foregoing matters that another forum is more suitable than England it should normally grant a stay unless the other party can show that there are circumstances by reason of which justice requires that a stay should nevertheless be refused. In determining this, the court will consider all the circumstances of the case, including those which go beyond those taken into account when considering connecting factors.

• In determining the appropriate forum in cases concerning children, the child's best interests would not appear to be paramount, but rather are an important consideration.

• The starting point, when determining whether the party seeking the stay has established that England is not the appropriate forum for a case concerning a child, is that the court with the pre-eminent claim to jurisdiction is the place where the child habitually resident (although habitual residence will not be a conclusive factor).

• Within the context of the above principles, the Court of Appeal in Re K [2015] EWCA Civ 352 at [26] made clear that, in determining the issues of jurisdiction and forum, the court should adopt the following structure:

o First, the court determines whether or not the court in England and Wales has jurisdiction. It does so, depending on the countries involved, with or without reference to various international provisions. In a case which is not one between Member States of the European Union, the approach is straightforward. The court decides jurisdiction and decides it with regard to the habitual residence of child at the relevant time.

o Second, if the parties wish to do so and despite a finding that the English court has jurisdiction, it is then possible for the English court to be invited to consider the question of the convenient forum. The court approaches that issue on the well-known basis applicable to civil proceedings set out in the Spiliada case (see above);

o Again, as a matter of structure, the normal approach is for the party asserting that England and Wales is not the convenient forum to apply for the English proceedings to be stayed. The burden is upon the applicant for such a stay to persuade the court a stay should be granted and that, despite having jurisdiction, the English court should cede to another court which is the more convenient forum. The welfare of the child is a relevant consideration in determining the question of convenient forum, but it is not an issue to which the paramountcy principle in section 1 of the Children Act 1989 applies; and

o The final structural step is that, if jurisdiction is established and if a stay is not imposed because of forum conveniens considerations, then the court is free to go on to make more generally based welfare determinations with respect to the child's future.

• In VM (A Child) (Stranding: Forum Conveniens: Anti-suit Injunction) [2019] 4 WLR 38, Williams J set out a helpful summary of the factors that will be relevant to the court's determination of the question of 'natural forum': paragprah 35(iii).

Foreign Custody Orders

• Whilst no party sought recognition of the original Tennessee custody order made in January 2015, and whilst no subsequent custody order of the Tennessee court has been made, for completeness, Knowles J set out the approach of the English court to such a foreign order:

o The USA is not a party to Brussels IIA, the 1980 European Custody Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on the Registration of Custody of Children and has signed, but has yet to ratify, the 1996 Hague Child Protection Convention. In such circumstances, recognition of the US custody order will be governed by common law principles which are summarised in AB v EM (Jurisdiction: Foreign Custody Order) [2020] 2 FLR 107 at paras [42]-[43].

o In declining to be bound by foreign custody orders, English courts are prompted by two considerations:

The first is that a custody order by its nature is not final and is at all times subject to review by the court which made it.

The second is that, by statute, the welfare of the child is the first and paramount consideration. This has been interpreted to apply not only to domestic English cases, but also to cases involving a previous custody order made by a foreign court.

o With respect to the weight to be given to the foreign order the position is such an order deserves grave consideration, but the weight given to it must depend on the circumstances of the case.

o An order made very recently, with no relevant change of circumstances being alleged, will carry great weight. Its persuasive effect is diminished by the passage of time and by a significant change of circumstances, for example the removal of the child to another country or the supervening illness of one of the claimants.

o The status of the foreign court, and the nature of the proceedings in that court and the legal approach taken by the court may all be taken into account.

o The effect of the foreign order will be weakest when it was made many years ago and has since been modified by consent and where the child has nearly attained the age of her/his majority and so can decide for himself with which parent s/he wishes to live.

1980 Hague Convention/Inherent Jurisdiction Summary Return

• Finally, and for completeness, Article 1 of the 1980 Hague Child Abduction Convention makes clear that one of the objects of the Convention is to secure the prompt return of children wrongfully removed to or retained in any Contracting State.

• The wrongful nature of a removal or retention is governed by Article 3.

• Article 12 sets out the obligation to return. "

• There are limited exceptions to the obligation to return which are set out in Article 13.

• Turning to the inherent jurisdiction, the Supreme Court in Re NY [2019] UKSC 49 affirmed that the inherent jurisdiction remained available for the making of a summary order for a child's return abroad. The court will consider whether, in order sufficiently to identify what the child's welfare requires, it should conduct an inquiry into any or all of the matters set out in s 1(3)(a)-(f) of the Children Act 1989 and, if so, how extensive that inquiry should be. The child's welfare is the court's paramount consideration.

Decision
Jurisdiction

Having considered the relevant legal principles, Knowles J was satisfied that:

(1) The Family Court has substantive jurisdiction pursuant to Article 8 of Brussels IIA.

(2) X's habitual residence was, at all relevant times, in this jurisdiction of England and Wales.

(3) The existence of the Tennessee court orders do not alter her conclusion on habitual residence given the principles set out in N v K.

(4) Whilst no party sought to argue that England and Wales was not the most convenient forum to determine matters relating to X's welfare had they done so, Knowles J would have concluded that this jurisdiction was the most convenient forum to determine welfare matters concerning X. 

(5) Despite the decision by the Tennessee court on 31 July 2020, Knowles J, after reflection, was satisfied that the Family Court's approach was correct, the basis of which she sets out in her judgment.

(6) Whilst international judicial liaison can be a useful tool to try and resolve forum difficulties, this would not have been fruitful on the facts of this case given the parties' concessions on jurisdiction and habitual residence.

(7) The Family Court's approach to the 1980 Hague Convention was correct.

Fact Finding: Discontinuance
On 5 June 2020 Her Ladyship brought an end to the part-heard fact-finding hearing. Though doubtful whether her decision in this unusual case has wider application, Her Ladyship's reasons for taking the course were as follows:

• The starting point for any case management decision in family proceedings is r 1.1 of the FPR.

• Rule 1.4(a)(c)(i) provides that, in furthering the overriding objective by actively managing cases, the court should decide promptly which issues need full investigation and which do not.

• Rule 4.1(2)(l) permits the court, in the exercise of its general powers of management, to exclude an issue from consideration.

• All the above rules make clear that the court had jurisdiction to bring to an end a part-heard fact-finding inquiry.

• These rules should be read with an understanding of the particular nature of family proceedings. In Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, Munby LJ (as he then was) distinguished family proceedings from civil proceeding in this way: see paras 14-15.

• The overriding objective makes clear that welfare is the first consideration when the court determines how to deal justly with a case. That is reinforced by Re C (above) which emphasises the welfare context to any case management decision and moreover, as is entirely proper, given that the lives of children and their families are rarely if ever static, stresses the flexible nature of case management decisions which concern children.

Based on what was going on at the time of the decision to discontinue including: (i) X's well-being had taken a turn for the worse and her making an attempt at self-harm; (ii) X's placement with AB becoming increasingly tenuous; and, (iii) X and AB struggling with emotional and mental health difficulties, it struck Knowles J as foreseeable that, under the pressure generated by a resumed fact-finding hearing, AB would simply be unable to manage her own stress let alone provide the loving, consistent and containing care that a vulnerable teenager required. X's placement was clearly at significant risk.

Further, as a result of the concession made by the father and AB at the hearing on 1 June 2020, it had become clear that X's future lay in the US rather than in this jurisdiction. The continuance of the fact-finding hearing represented an exercise whose value was questionable.

The Court acceded to the submission that it could, based on concessions made by the parties in their response to the schedules of allegations prepared for the fact-finding hearing, make certain findings, which are set out in the judgment.

Summary by Emily Ward, Barrister & Deputy Head of Family at Broadway House Chambers

Read the full judgment of Re X (Care Proceedings: Jurisdiction and Fact Finding) (Rev 1) [2020] EWHC 2742 (Fam) on BAILII