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S (A Child) (Jurisdiction) [2022] EWHC 1720 (Fam)

A High Court decision that the court in England & Wales had no continuing jurisdiction with respect to a child who had been born and was living in Antigua, simply because a limited contact direction had been made by the English court when she had been covertly brough to England by her father for a total of 10 days.

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The decision includes a factual determination of events at a hearing in December 2021, but the judgment also contains a useful review of the post-Brexit law governing jurisdiction at paragraphs 7-13 and commentary on whether an oral application is capable of triggering ongoing jurisdiction to make section 8 orders.

Background

Both parents and child (now an 18-month-old baby girl) had dual British and Antiguan nationality, but it was accepted the child was not and never has been habitually resident in England & Wales. She had been brought covertly by her father to England on 15 December 2021, when she was a year old. The mother immediately commenced proceedings under the inherent jurisdiction of the High Court in England & Wales seeking an order for the child's immediate return home.

One of the many hearings in the High Court proceedings was before Ms Justice Russell on 23 December 2021, when the child was still in England. It was claimed on behalf of the child's father that at that hearing, an oral application had been made by the father for direct contact between him and his daughter. The court declined to order contact other than any contact which could be arranged and could be professionally supervised prior to the child's return to Antigua the following day.

The law

The law relating to jurisdiction follows a winding path, which is fully set out in paragraphs 7-13 of the judgment. In summary, section 2(1)(b)(ii) of the Family Law Act 1986 (as amended) (FLA86), gives an English court the jurisdiction to make a contact order when section 3(1)(b) of the FLA86 is satisfied, which is triggered when the child is present in England & Wales, as this child was on 23 December 2021. If an application was made to make or vary an application on that "relevant date", per FLA86, s 7(c)(i), the court would retain jurisdiction to make further contact orders.

The arguments

At the hearing in which this judgment was given, which was before Sir Andrew McFarlene P, on 25 May 2022, it was argued on behalf of the child's father that the oral application for contact made during the 23 December 2021 hearing was 'an application' within the terms of FLA86, s 7(c)(i). His secondary argument was that because the mother had provided an undertaking to the court on 23 December 2021 to return the child to the jurisdiction if so ordered, it remains open to the court to order the mother to return the child to England and Wales whereupon the court would have jurisdiction based upon the child's presence here.

The question of whether an application for contact had been made before Ms Justice Russell was in dispute. On behalf of the mother, it was noted that the only reference to "contact" in the father's counsel's Position Statement for 23 December 2021 was in the final sentence, which stated that "The father would wish to re-establish contact with her as soon as possible". For the child's mother, it was argued that neither that sentence, nor anything said during the hearing by counsel, could amount to an 'application' within s 7(c)(i). The order made by Russell J, which was drafted by counsel after the hearing, did not contain any recital or other reference to the father having made an application for contact. Paragraph 10 of that December 2021 order stated, however (emphasis added):

"Pending the hearing before the High Court of Antigua and Barbuda on 29 December 2021, the mother is to make the child available for indirect contact to the respondent by video on times and dates as agreed between the parties. Any agreed direct contact must be professionally supervised…."

The decision

It was noted that, with substantive proceedings concerning the child ongoing in Antigua, the English court would need to identify a clear and substantial basis upon which to base a decision that it continues to have some continuing ancillary jurisdiction.

Sir Andrew McFarlane P determined that paragraph 10 was expressed to run only until the next hearing in Antigua on 29 December 2021. He concluded that the court could not use paragraph 10 of the 23 December 2021 order to seize itself of an ongoing application for contact that had been made by the father.

In commentary, the court noted that it remained undecided whether an oral application was capable of being an application under FLA 1986, s 7(c)(i) but pointed to the following facts against (at paragraph 24) that include the imprecise and unclear nature of oral applications and the Family Procedure Rules 2010, r 5.3. This was followed (paragraph 26) by an observation that an oral request would not have a procedural life of its own and does not remain live, as an undetermined formal application would. An oral request is a live matter during the hearing in which it is made, but unless some further provision is made to carry it forward, it would cease to be of relevance after the close of that hearing.

The court took an even dimmer view of the father's secondary argument, noting that even if there was jurisdiction triggered by ordering the mother to bring the child back to England, it would not be a decision benefitting the child's welfare and that the only likely way to view the father's behaviour in unilaterally bringing the child to England was in a negative light (paragraph 27).

The result of the court's determination on jurisdiction was that the mother's application for these proceedings to conclude succeeded and the existing orders and undertakings were discharged.

Case summary by Lauren Suding, Barrister, Field Court Chambers

For full case, please see BAILII