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Warrington BC v T, R, W and K [2021] EWFC 68

The case concerned K, aged 7, a child of Gabonese nationality. K was the subject of care proceedings instigated following allegations made by the mother concerning sexual abuse of K by his step father, and consequential discovery of very poor home conditions.

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Introduction

This is a decision of Mr Justice MacDonald delivered on 31 July following a hearing on 9 July 2021.

K's step-father W (the mother's husband), had acquired parental responsibility for K via an order made in Gabon.

The issue was whether the court had jurisdiction to deal with the care proceedings. Whilst the LA, G and M contended that K was habitually resident in the UK, W contended that he was habitually resident in Gabon and that the court did not have or should cede jurisdiction.

Habitual residence

The judgment of MacDonald J sets out in some detail the factual background insofar as relevant to the question of habitual residence. This summary does not attempt to set that out in full, but suffice to say that: the child had lived for most of his life in Gabon, his mother was Gabonese, and the family had visited the UK on various occasions, mostly for short periods, at least annually between 2016-2019, but in 2019 for almost 6 months. The family own property in the UK. In December 2020, the mother and K had entered the UK on a visitors visa, having separated from the step-father some 17 months prior, and it appears had later been joined by the step-father. All agreed that K had been habitually resident in Gabon up to the point of entry to the UK. The mother and K were overstayers by the time of the hearing. The step-father appears to have given different accounts over time about the family's plans (at one point saying there was talk of the family moving to France to live, later that the plan was to return to Gabon), but on any basis his position was that there was no intention to stay in the UK.

The family had come to the attention of the authorities on 31 March 2021 when the mother, by then living with the father and K, had made allegations of sexual abuse by W on K, but which she was reluctant to be reported onwards. On enquiry the home conditions were found to be very poor, with the home described as 'derelict'. K was accommodated pursuant to s20 CA 1989, and the step-father arrested and interviewed under caution. In interview he made allegations that the mother physically assaulted K. On his release the mother returned to him. K had not been registered with a school and, according to MacDonald J, had rarely left the home other than to go shopping.

Since 31 March 2021 K had settled well into his foster placement, and was described as 'well integrated' into their family. He was registered with a GP, had begun attending school on 24 June, and his English was improving. K has been having contact with his mother.

The hearing took place on 9 July.

The law

Gabon is not a signatory to the 1996 Convention, and the parties did not agree as to the mechanism through which the court could or should request that it cede jurisdiction in the event that K was not in fact habitually resident here. The step-father argued that the court had no jurisdiction over the child save pursuant to Article 11 (urgent protective measures). Other parties argued that the inherent jurisdiction could be used to make the request, or that Article 11 itself could be used as a framework for the request. Ultimately these arguments fell away, as the court concluded it did have jurisdiction based on habitual residence.

The court considered Re K [2015] EWCA Civ 352, in which the Court of Appeal laid out the analytical structure for determining the question of jurisdiction in respect of a child, the first step being to decide whether or not it has jurisdiction, and if so it may go on to decide whether the other jurisdiction should nonetheless determine the matter. Where there is no international legal instrument operating between the two jurisdictions concerned the latter question will ordinarily be decided by reference to the principle of forum conveniens.

The court ss1-3 Family Law Act 1986, which deal with various bases of jurisdiction to make Part I (private law CA orders) based upon international treaties or provisions or upon habitual residence or presence of the child, and case law concerning the applicability of those provisions to public law cases (in particular Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, which establishes that the jurisdictional basis for a Part IV order is effectively the same as in relation to section 8 orders).

In this case Brussels IIa was no longer applicable as the case was issued after the end of the transition period. However, Article 5 of the 1996 Convention provides for jurisdiction based on habitual residence or, where the child's habitual residence cannot be determined, presence.

The court took the view that notwithstanding the fact that Gabon is not a signatory, it was nonetheless appropriate for the UK court to determine jurisdiction with reference to Article 5, in circumstances where the court seised of the matter was located in a signatory state.

Reviewing the applicable principles in determining habitual residence, MacDonald J held that :

• Habitual residence falls to be established by reference to the extent to which a child is, as a matter of fact, sufficiently connected to the jurisdiction in question. The test with respect to Brussels IIa, namely that for the child to be habitually resident the residence of the child must reflect some degree of integration in a social and family environment, was apt when determining habitual residence for the purposes of Art 5 of the 1996 Convention.  (36)

• Whether there is some degree of integration by the child in a social and family environment is a question of fact to be determined by the national court, taking into account all the circumstances specific to the individual case. (37)

• habitual residence must be established on the basis of all the circumstances specific to the individual case. Here the court referred to the non-exhaustive list of potentially relevant circumstances identified by the Court of Justice of the EU when looking at Brussels IIa cases

o Duration, regularity and conditions for the stay in the country in question.

o Reasons for the parents move to and the stay in the jurisdiction in question.

o The child's nationality.

o The place and conditions of attendance at school.

o The child's linguistic knowledge.

o The family and social relationships the child has.

o Whether possessions were brought, whether there is a right of abode and whether there are durable ties with the country of residence or intended residence.

MacDonald J went on to distil the principles of general application which could be derived from various Supreme Court authorities as follows :

• It is the child's habitual residence which is in question and hence the child's level of integration in a social and family environment which is under consideration by the court determining the question of habitual residence.

• In common with the other rules of jurisdiction, the meaning of habitual residence is shaped in the light of the best interests of the child, in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.

• In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must also weigh up the degree of connection which the child had with the state in which he resided before the move.

• The relevant question is whether a child has achieved some degree of integration in a social and family environment.  It is not necessary for a child to be fully integrated before becoming habitually resident.

• It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there.

• In circumstances where the social and family environment of an infant or young child is shared with those on whom she is dependent, it is necessary to assess the integration of that person or persons (usually the parent or parents) in the social and family environment of the country concerned.

• In respect of a pre-school child, the circumstances to be considered will include the geographic and family origins of the parents who effected the move.

• The requisite degree of integration can, in certain circumstances, develop quite quickly. There is no requirement that the child should have been resident in the country in question for a particular period of time. The deeper the child's integration in the old state, probably the less fast his or her  achievement of the requisite degree of integration in the new state.  Likewise, 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 or her achievement of that requisite degree.  In circumstances where all of the central members of the child's life in the old state to have moved with him or her, probably the faster his or her achievement of habitual residence.  Conversely, were any of the central family members have remained behind and thus represent for the child a continuing link with the old state, probably the less fast his or her achievement of habitual residence.

• A child will usually, but not necessarily, have the same habitual residence as the parent(s) who care for her. The younger the child the more likely that proposition but this is not to eclipse the fact that the investigation is child focused.

• Parental intention is relevant to the assessment, but not determinative. There is no requirement that there be an intention on the part of one or both parents to reside in the country in question permanently or indefinitely. Parental intent is only one factor, along with all other relevant factors, that must be taken into account when determining the issue of habitual residence.

All the above principles were, said MacDonald J applicable to 1996 Convention cases.

There was a separate point regarding the point at which habitual residence is to be determined: Whilst Brussels IIa specifies the date the court is seised, Article 5 does not specify the point at which HR is to be determined for the purposes of establishing jurisdiction. MacDonald J concurred with Cobb J's obiter remarks in Re NH (1996 Child Protection Convention: Habitual Residence) [2016] 1FCR 16, that the appropriate date in a Hague case was the date of trial (Cobb J's remarks were obiter because the difference in date would not in that case have made any difference). This was on the basis that the principle of perpetuatio fori does not form part of the Convention, and thus a change of habitual residence during proceedings leads to a change of jurisdiction.

A consequence of this conclusion was that it is important that the question of habitual residence in cases engaging the 1996 Hague Convention is determined without delay, in order to avoid the question of habitual residence being determined simply by mere effluxion of time over the course of protracted proceedings (42).

The court was 'on a fine balance' satisfied that the court had jurisdiction pursuant to Article 5 of the 1996 Hague Convention by reason of K's now being habitually resident in the UK at the date of trial (Implicitly, the decision might have been different, had the relevant date been 12 April 2021, when proceedings were issued). Further, the court was satisfied that England was the most appropriate forum for determining the substantive issues relating to K's welfare. 

That 'fine balance' was achieved, noting that the degree of integration required is not qualified with other words such as "substantial" or "significant", and that it is not necessary for a child to be fully integrated to have acquired habitual residence.

The judgment contains a detailed analysis of the factual circumstances for K, in order to evaluate his habitual residence had switched from Gabon to the UK by the date of trial. Of particular note, are the following aspects of that analysis:

'In examining the duration, regularity and conditions for K's stay in the jurisdiction of England and Wales since December 2020 I bear in mind that, in this context, that it is the stability of a K's residence, as opposed to its permanence, which is relevant. This is a qualitative and not quantitative assessment, in the sense that it is the integration of the K into a social and family environment rather than a mere measurement of the time he has spent in the same that is important.' (52)

On the issue of K having achieved a change of Habitual residence during a period when he was largely living in foster care, the court said:

"I have of course had regard to the fact that, by its nature, foster care is a temporary arrangement pending the determination of K's future welfare and that the family in which K is currently placed is not his birth family. However, I am satisfied that this does not by itself prevent K from being habitually resident in this jurisdiction as at the date of this hearing.  As I have noted above, in determining the issue of habitual residence as a matter of fact, it is the stability of a K's residence, as opposed to its permanence, which is relevant and which is a qualitative and not a quantitative assessment. Foster care is designed to emulate, qualitatively, a stable "family" environment for children who are not able to remain with their birth family.  Within this context, I note that Art 1(e) of the 1996 Hague Convention makes clear that the measures that can be taken under the 1996 Convention include measures in respect of the placement of the child in a foster family.  In these circumstances, whilst the temporary nature of foster care will be a factor to be considered in determining the question of habitual residence, I am satisfied that the fact that K is in foster care does not, by itself, prevent him from being habitually resident in this jurisdiction if that placement is demonstrated, along with the other relevant factors that fall for consideration, to provide K with the requisite degree of integration in a social and family environment.  Within this context, I am satisfied that the evidence before the court demonstrates that since coming into foster care in March of this year K has made significant progress in integrating in a social and family environment in this jurisdiction." (55)

As to the issue of the family's intentions to settle in the UK, France or to return to Gabon, MacDonald J said that :

'parental intention is relevant […] but not determinative and that there is no requirement that there be an intention on the part of one or both of those with parental responsibility to reside in the country in question permanently or indefinitely.  Within this context, the position of the mother and the step-father is somewhat opaque on the currently available evidence.  Their respective plans in December 2020 appear to have been, to a degree, in flux.  […] the evidence suggests that whilst they had not settled on a final destination, the mother and the step-father were giving serious consideration to relocating to Europe.' (56)

In considering the step-father's contention that the court should apply forum conveniens and cede jurisdiction to Gabon, MacDonald J applied the principles set out in Spiliada Maritime Corporation v Consulex [1997] AC 460, saying that it was clear that England is the place with which the case has the most real and substantial connection :

"The allegations of sexual abuse and poor home conditions that triggered these proceedings concern alleged conduct that took place in this jurisdiction.  The evidence to which the court will have to have regard arose in this jurisdiction and the agencies investigating those matters are based in this jurisdiction.  As matters stand, the witnesses who will be required to give evidence are located in this jurisdiction. Within this context, there is in my judgment very little prospect of the step-father demonstrating not only that England is not the natural and appropriate forum but that the jurisdiction of Gabon is clearly and distinctly more appropriate." (61)

Obiter: Articles 8 and 9 of the 1996 Convention could not be used to effect transfer between one contracting and one non-contracting state. The Hague Convention would not be engaged nor applicable in the non-contracting state.

"The question of jurisdiction and forum as between England and Wales and a non-contracting State in public law proceedings would ordinarily fall to be determined by reference to domestic law, namely the principles set out in the Family Law Act 1986 Part I as applied to public law orders by reference to the decisions in Re R (Care Orders: Jurisdiction and Re M (Care Orders: Jurisdiction). In those circumstances, and in the absence of an international instrument governing the position between the jurisdictions in question, the English court would proceed to decide whether it had jurisdiction based on presence for the purposes of s.2(1)(b)(ii) and s.3(1)(b) of the Family Law Act 1986 and, if so, would go on to determine the question of which of the two jurisdictions in question was best placed to determine the matter by reference to the common law principles of forum conveniens." (62)

 

Case summary by Lucy Reed, Barrister, St John's Chambers

For full case, please see BAILII