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TK v. ML [2021] EWFC 8

Mostyn J emphasises the prime criterion of temporal proximity when seeking to establish a causal link for the purposes of relying on residual jurisdiction The preliminary issue before the court was whether it had jurisdiction to hear M’s C100 application pursuant to s.8 CA 1989.

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Background


The extensive background to the case is set out in paragraphs 6-22.

M and F were both British citizens with an Irish background. They married in 2001.

O was born in 2005 in Nepal, where she was abandoned by her natural parents and placed in an orphanage. O was adopted by M and F in July 2008 under Nepalese laws. After the adopting, M and F took O to live in Dubai. O grew up in Dubai, although she gained British citizenship in September 2008 [6-8].

In 2011 the marriage broke down and M was deported from Dubai. M issued divorce proceedings in Guildford. Decree nisi was pronounced in 2013 and made absolute a year later in 2014 [9].

Custody proceedings concerning O were initiated in Dubai. The court at first instance awarded custody to M in 2012 [10]. In reliance on the Dubai decision, one month later M applied ex parte to the High Court in London to make O a ward of court. That application was granted and an order was made placing O in the care and control of M to be exercised in England and Wales [11].

F appealed the first instance Dubai decision. He was unsuccessful in the Dubai Court of Appeal but ultimately successful in his further appeal to the Court of Cassation. He was awarded custody of O [12].

F applied in 2015 to discharge the wardship made in 2012. A question arose at that time as to whether the court had jurisdiction to entertain F's application. The parties reached an agreement that the court did have jurisdiction at this time. This was pursuant to: (i) s.2(1)(b)(i) FLA 1986 in circumstances where there was a recently concluded divorce in 2014; and (ii) Art 12(3) of Council Regulation No. 2201/200 ("Brussels 2"), this being established by virtue of M being habitually resident and O being a British Citizen [13]. Mostyn was clear that F's agreement to established jurisdiction was only for the purposes of the matter before the court at this time; F was not giving any jurisdictional blank cheque to the court of England and Wales for any future proceedings that M might commence [14]. Macdonald J's judgment recording the parties jurisdiction agreement and the court's approval is recorded at QS v. RS [2015] EWHC 4050 (Fam).

In 2016, the parties jointly applied for recognition of O's Nepalese adoption under the common law. Mostyn J observed that:


'[16]… On 10 October 2016 Macdonald J gave an extensive judgment in which he navigated formidable legal obstacles on the way to his conclusion that the adoption could be validly recognised at common law. He further made a declaration under section 57 of the Family Law Act 1986 that O was the adopted child of the mother and father. He made a child arrangements order that she live with her father in the UAE and spend time with her mother both in the UAE and England: see QS v. RS & Anor [2016] EWHC 2470 (Fam).
[17] That order remains in force, although its status is somewhat uncertain. As I will explain, there is no jurisdiction in this case for the court to entertain any child arrangements dispute of any nature, and that want of jurisdiction extends for sure, to any application to discharge or vary the residence or contact terms in the order of 10 October 2016.'


O was briefly made a ward of court for the second time in January 2019, after M did not return O following a period of Christmas contact. Mostyn J observes his assumption that the jurisdictional basis for this was O's presence in England and Wales for that contact (ss.2(1)(b)(ii) and 3(1)(b) FLA 1986) [18]. A collection order was duly executed and wardship discharged on 08 January 2019. O returned to Dubai with F the following day. She has not returned to England since [19].

On 05 August 2020, O and F relocated from Dubai to Ireland. This was a permanent relocation. O began school in Ireland on 28 August 2020 [20].
On 11 September 2020, M issued her application with the court in England and Wales to determine 'with whom the child should live' under s.8 CA 1989. This was issued in the context of communications between O and M where M alleged that O had expressed a desire to move to live with M in England [22].

Jurisdictional Question

The preliminary issue for Mostyn J was whether the court had jurisdiction to entertain M's application.

O was not habitually resident in England. Jurisdiction could not be established under Article 8 of Brussels 2, nor under Article 12(3) [25]. There was no other ground within Brussels 2 or under the Hague Convention 1996 to establish jurisdiction to hear M's application [26].  There was no doubt that O and F had established habitual residence in Ireland [33].

Mostyn J therefore turned to consider the so-called residual jurisdiction under ss.2(1)(b)(1) and 2A(1)(a)(i) of FLA 1986:

'[27] …conflating these provisions, they say that where neither Brussels 2 nor the 1996 Hague Convention applies, the court here has jurisdiction where the question of making the child arrangements order "arises in or in connection with" divorce proceedings which are "continuing". However, s.42(2) gives an extended meaning to "continuing". It provides:


"For the purposes of this Part proceedings in England and Wales or in Northern Ireland for divorce, nullity or judicial separation in respect of the marriage of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of eighteen (whether or not a decree has been granted and whether or not, in the case of a decree of divorce or nullity of marriage, that decree has been made absolute."

...

[28] Section 2A(4) allows the court, where the residual jurisdiction is established, to make an order that no child arrangements order shall be made by any court under that jurisdiction if it considers that it would be more appropriate for that matter to be determined outside England and Wales.'


As the divorce proceedings were finalised, in such a situation the residual jurisdiction could only be invoked if the current application is "in connection with" those finalised divorce proceedings [39].

Mostyn J agreed that a clear causal link between the child arrangements application and the divorce must be demonstrated. 'A causal link requires the facts giving rise to the present application to be fairly traceable to the now concluded divorce. This must be so because any other interpretation would make a mockery of the statutory requirement that the question of making the child arrangements order arises "in connection with" divorce proceedings' [42].

Mostyn J agreed with the analysis of Parker J in AP v. TD [2010] EWHC 2040 (Fam), [122], where she stated:


'[122]… in my judgment to fall within the residual jurisdiction there must be proximity between the divorce proceedings and the court being asked to determine a question of making an order in relation to children. in any case it may be that essentially the same application or issue has been before the court, unresolved, for some time, but once an order has been made, then in my view the connection with the matrimonial proceedings would terminate.'


Mostyn J saw the criterion of temporal proximity to be the prime metric, (albeit it not the only one), for establishing whether there was a causal link between the child arrangements application and an earlier now concluded divorce [43].


In the presence case, this criterion led Mostyn J to the unambiguous conclusion that M's application for a child arrangements order dated 11 September 2020 was neither "in" nor "in connection with" the parties divorce proceedings, which had concluded with Decree Absolute in 2014, c. 6½ years earlier [44].

Procedural Footnote

Mostyn J highlights that several case management orders in these proceedings were recorded as being made in the High Court. This was despite the application being (correctly) issued in the Family Court, and no order providing for the transfer to the High Court pursuant to r.29.17 [48, 49].

Mostyn J notes that he is highlighting this matter 'wearily'. He described it was 'remarkable' that almost 7 years after the creation of the Family Court there remains a 'seemingly ineradicable belief' that if a case deserves to be heard by a High Court judge then it has to be transferred to, or commenced in, the high Court itself [50].

Mostyn J reminds us of the President's Guidance: Jurisdiction of the Family Court (published 28 February 2018), which painstakingly explained how High Court judges routinely sit in the Family Court to hear complex cases [50].

Mostyn J concluded that only matters in Schedule A or B to that President's Guidance have to be heard in the High Court, and this case was not one of them. He made clear that he had heard this case in the Family Court [52].

Case Summary by Bethany Scarsbrook, Barrister, St John's Chambers

For full case please see BAILII