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JC v PC [2021] EWHC 2305 (Fam)

In the context of an application for children’s summary return to this jurisdiction Mrs Justice Roberts considers the preliminary issue of whether children remain habitually resident here or have acquired habitual residence in Brazil. (Judgment given 9th August 2021)

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Factual background

The children C (13) and P (6) lived until March 2021 with both parents, who were Brazilian by birth and have acquired British nationality. They and the children are all dual nationals. The family has lived in the UK since 2004 although they spent a year in São Paolo in 2014/15 and P was born there. They had a firmly established pattern of life in London. The health of the mother (M) has been fragile during the marriage; she has suffered from anxiety, depression and an eating disorder. The marriage came under increasing strain during the Covid-19 "lockdowns" and in November 2020 M flew to Brazil for planned surgery, leaving the children in London with father (F). He and the children joined her a few days later. At this stage nobody intended this to be a permanent relocation and return tickets were booked; F left his car in Heathrow's short-stay carpark. It was not possible to return as planned, initially because of travel restrictions and then because M issued proceedings in Brazil.

M says that her intention to relocate permanently took shape over the following weeks and months. In February she engaged matrimonial solicitors without notifying F until divorce proceedings were served on him the following month, at a time when the parents were in the process of buying a property in São Paolo; F says this was intended as a holiday home but M says the purchase was part of an intended relocation plan.

There are two sets of proceedings about the children in Brazil namely the mother's application for custody and father's for the children's summary return to this jurisdiction pursuant to the 1980 Hague Convention. M was granted sole custody on an interim basis and F's application for an interlocutory order allowing him to return the children to London was refused on the basis that his Hague application should take its course. In June C voted with her feet, refusing to return to M after contact with F. The Brazilian court has granted a change of custody pending mediation between the parents, noting that C had suffered emotional damage due to the parental conflict and uncertainty about her living arrangements. The Brazilian court has yet to make any finding about the children's habitual residence and has exercised its welfare jurisdiction on the basis of the children's presence and the pressing need for interim orders.

Expert evidence suggests that if M puts forward one or more defence to F's Hague application it could be some six years before the Hague proceedings are concluded in Brazil.

On 24th March 2021 F brought proceedings in the High Court seeking s8 orders and an order under the inherent jurisdiction for the children's summary return from Brazil. This hearing concerned the preliminary issue of whether the court had jurisdiction to make such orders.

The Law (paragraphs 20-42)

Ss 2 & 3 of Family Law Act 1986, which governs jurisdiction in respect of the father's applications, has been amended post-Brexit to remove all mention of BIIR. For the purpose of these applications jurisdiction derives from the 1996 Hague Convention if it applies; if not, pursuant to s3, it relies on the children being habitually resident in England and Wales on the date the proceedings were issued. Brazil is not a signatory to the 1996 Hague Convention.
The major practical difference pre and post Brexit when considering habitual residence is that under BIIR the principle of perpetuatio fori applied but if the 1996 Hague Convention applies Art 5 provides that jurisdiction can shift if the child's habitual residence changes during proceedings, save in cases of wrongful removal or retention.

The judge did not accede to the mother's argument that it should not even consider whether the court has jurisdiction but instead leave it to the Brazilian courts to make welfare decisions. She stressed the urgent welfare need for decisions to be made, given that F had to return to London in September for work, and the general principle that welfare decisions are best made in the jurisdiction of children's habitual residence.

At §31-35 she summarises the well-established principles she must apply. At §36-42 she sets out the competing arguments about the relevant date for considering where the children were HR. M argued that this should be the date of any hearing, based on what was said to be the proper construction of s2 FLA 1986 and Art 5 of the 1996 Hague Convention. If the court decided that the relevant date is the date of issue (24th March 2021), M would argue that the children had already by that date become HR in Brazil.

F relied on the domestic jurisdiction derived from ss 3 and 7 FLA 1986 and argued that the relevant date was 24th March. His secondary position was that jurisdiction would not shift in accordance with Art 5 of the 1996 Convention but remain fixed as at 24th March pursuant to Art 7 because the mother had wrongfully retained the children in Brazil. Although Brazil is not a signatory to that convention he suggested Art 7 (which is very similar in terms to Art 10 BIIR) would apply by analogy with the position with respect to Art 12 BIIR established by Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10 at para 17.

Discussion and analysis

Roberts J concluded that the relevant date for consideration of the children's HR was 24th March; if jurisdiction is found via the primary domestic route it is not necessary to consider whether the mother's proposed construction of Art 5 of the 1996 Convention applies. She observed, while not seeking to pre-judge the outcome of the father's Hague Convention application, that she had difficulty seeing this as a clear case of wrongful retention.

At §48-76 she analyses in detail the evidence in respect of HR at that date, taking each child separately. The position was relatively clear cut for C, who even by the date of the hearing had not really settled in any meaningful way in Brazil; she does not go to school there and participates remotely in lessons at her London school, all her socialising is online with her London friends and she is desperate to return. P had started school in Brazil just a couple of weeks before F's application was issued; unlike his sister he is happy in his current situation but the fabric of both children's lives remains at their home in London. It is difficult to see how their roots could have been "pulled up" by 24th March given that up until F was served with divorce papers the plan had been to return to London that month. There had been several moves during their time in Brazil and the children's peripatetic existence militated against a finding that they had established sufficient integration in a new setting.

Decision

The children's time in Brazil from November to 24th March was essentially an extension of a planned break for an international family and there was insufficient integration to justify a finding that their HR had changed, albeit the decision was more nuanced in respect of P.

Next steps

The court had then to consider whether to exercise its jurisdiction. M's argument that it should not because any order made here could not be enforced in Brazil, was rejected as the judge saw no reason why she should disobey the order of the court in proceedings in which she had engaged and was represented by an expert legal team.

M's further argument that it was for the Brazilian court to decide the issue of summary return pursuant to the 1980 Hague Convention, given that F had chosen to engage that jurisdiction, was roundly rejected after consideration of the relevant authorities and of the children's pressing need for a welfare decision particularly in light of F, who has the care of C, having to return to London imminently. (§87-89)

A declaration was made that the children are habitually resident here and the welfare hearing will proceed in September.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII