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International Children Law Update - March 2012

Jacqueline Renton of 4 Paper Buildings reviews the latest key decisions in international children law.

Jacqueline Renton, barrister, 4 Paper Buildings









Jacqueline Renton, Barrister, 4 Paper Buildings 

In this review, I shall focus on the following areas:-

1) Hague Convention 1980 proceedings

(a) Habitual residence;
(b) Child's objections;
(c) Article 13(b) harm – Re E.

2) Article 11(6)-(8) Brussels II Revised Regulation 2003 proceedings.

1) Hague Convention 1980 proceedings
(a) Habitual residence
In Re H-K (Children) [2011] EWCA Civ 1100, the Court of Appeal overturned the decision of Mrs Justice Hogg at first instance to order the return of the parties' two children (8 and 2) to the jurisdiction of Australia. The family lived in Australia but came to England for one year to live in a house owned by the respondent mother. The applicant father went back to Australia at the end of the one year period, but allowed the mother and children to stay in this jurisdiction for a further period. The father anticipated that the mother would be returning with the children to Australia after the agreed, further period in this jurisdiction. The mother then informed the father that she was not returning to Australia. The father started Hague Convention 1980 proceedings stating that the mother was wrongfully retaining the children in this jurisdiction.

The Court of Appeal concluded that the family had been in England for a sufficient duration to establish a settled way of life in England, and accordingly the children were habitually resident in England by the time that the mother informed the father that she would not be returning to Australia. Consequently, the Hague proceedings were struck out as article 3 was not established.

When considering the jurisprudence on habitual residence, the Court of Appeal made clear that:

The Supreme Court refused the father leave to appeal this decision.

In EF v MGS [2011] EWHC 3139 (Fam), Mr Justice Holman refused to order the return of the parties' child (aged 6) to the jurisdiction of the Kingdom of Spain. The applicant mother stated that the child had been wrongfully retained in this jurisdiction since 26th August 2011 by the respondent father. Prior to 26th August 2011, the parties had been living in England for two years from August 2009 – 30th June 2011. On 4th July 2011, the parties' relationship broke down, but prior to that the Learned Judge found that the parties had agreed they would remain in England for a further two years. After 4th July 2011, the mother took steps to re-start her life in Spain, and the parties attempted to discus the future. In mid-July 2011, the parties travelled with the child to Spain and entered into mediation. The parties differed in their evidence as to whether a concluded agreement was reached about the child's future during / after the mediation. The mother contended that the father had consented to the child living in Spain with her, and on that basis she let the child return with the father to England for a 'goodbye visit'. Mr Justice Holman found (having heard oral evidence from both parties) that the father had not agreed to the child living in Spain. The father returned with the child to England and the father then commenced proceedings in the local county court for residence / prohibited steps order (alleging that the mother would try and remove the child without his consent to Spain).

Mr Justice Holman concluded that:

(b) Child's objections
In AJJ v JJ & Others [2011] EWCA Civ 1448, the Court of Appeal considered an appeal against a decision of Mr Justice Wood at first instance to order the return of three children (15, 13 and 10) to Poland. The applicant father sought the return of the three children in circumstances where the respondent mother had wrongfully retained the children in this jurisdiction, The main defence to the Hague Convention 1980 application was an article 13(b) objections defence.

At trial, the mother gave oral evidence to the judge recounting her conversation with the 15 year old in an attempt to fortify her objections defence. In her oral evidence, the mother also made clear for the first time that she would return with the children if a return order was made and live in a different town from the father until the Polish court had determined her extant application to relocate the children to this jurisdiction.

The Learned Judge determined that the article 13(b) objections defence was established, but then exercised his discretion in favour of a return of the children.

The children were not separately represented at first instance, but applied successfully for leave to intervene in the Court of Appeal. The children's two grounds of appeal were that: (a) the judge failed to make a clear finding about the children's objections and (b) the judge had failed to engage the children in the process.

The Court of Appeal upheld the children's appeal (but not the mother's appeal) and ordered that the case be remitted to a different first instance judge for fresh consideration (without hearing oral evidence) on the following basis:

The Court of Appeal did not accept a further appeal ground that the judge was plainly wrong not to join the children to the proceedings of his own motion.

Upon the matter being remitted to the High Court, Mr Justice Mostyn exercised his discretion in favour of a non-return of the children.

(c) Article 13(b) harm – post Re E
Practitioners should note that judgment from the Supreme Court is imminent in respect of In the matter of S (A Child) [2012] UKSC 2011/0265 (at Court of Appeal stage – S v C [2011] EWCA Civ 1385.) This case focuses on the interpretation of article 13(b), especially in light of the Supreme Court case of Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. A full analysis of this judgment will be available in the next international children law update. In the meantime, practitioners should note that the Court of Appeal in S  v C [2011] made clear that Re E [2011] was a restatement and not an evolution of the law of the Hague Convention 1980. [Note: Since this article was prepared, judgment has been given by the Supreme Court and can be found here.]

2) Article 11(6)-(8) Brussels II Revised 2003 Proceedings
In SJ and Another v JJ and Another [2011] EWHC 3450 (Fam), Mr Justice Baker had before him an application by the applicant father for the return of the parties' child (2) to Poland, pursuant to article 11(6)-(8) of Brussels II Revised Regulation 2003. The child had been wrongful retained in Poland by the respondent mother when he was only 3 months old. The mother had been granted permission from the Exeter County Court to remove the child for a holiday to Poland but had not come back at the end of the holiday. 

The first instance Hague court in Poland ordered the child's return, but the appellate court overturned the return order on the basis that the mother's article 13(b) harm defence was established and the court then exercised its discretion in favour of a non-return. The entire Hague process took 10 months.

Prior to the Hague proceedings, the father had commenced wardship proceedings in the local county court seeking the return of the child under Brussels II Revised Regulation 2003. The father had obtained a return order with an Annex II certificate, but his application in Poland for the recognition and enforcement of the return order under articles 23-39 of Brussels II Revised Regulation 2003 was subsumed under his Hague Convention 1980 application by the Polish court.

By the time that the father issued proceedings under article 11(6)-(8) of Brussels II Revised Regulation 2003 for the return of the child to this jurisdiction (in light of the non-return judgment by the Polish appellate court under article 13 of the Hague Convention 1980) the child had been in Poland for over a year. The child was joined to the proceedings at an early stage and was appointed a Children's Guardian from the CAFCASS High Court team. The Children's Guardian conducted investigations in Poland and England. The Children's Guardian prepared a report which recommended that the child remain in Poland, with regular contact to the father in England and Poland and the paternal grand-parents in Poland (who lived near the mother).

The Learned Judge followed the recommendations of the Children's Guardian, but did not order a non-return at the conclusion of the hearing. Instead, the Learned Judge directed a detailed schedule of contact and a review hearing in 6 months time. By not ordering the child's non-return at this stage, the court had not given a "judgment on custody", and thus continued to exercise jurisdiction under article 10(b)(iv) of Brussels II Revised Regulation 2003. The court adopted this approach as it wanted to be assured that the mother was committed to contact between the father and paternal grand-parents in England and Poland before considering making a final judgment on custody and bringing the jurisdiction in England to a close.

During the course of the proceedings, there was discussion as to whether the court was seised of an application for the child's return under articles 11(6)-(8) of Brussels II Revised Regulation 2003, or under article 10(b)(iv) of the Regulation. The Learned Judge concluded that the jurisdictional foundation of the proceedings was article 10(b)(iv) on the basis that the wardship proceedings which pre-dated the article 11(6)-(8) application were extant proceedings. The court considered that the test to be applied when considering the child's return was the same irrespective of the jurisdictional foundation – the test being whether it was in the child's best interests to be returned to this jurisdiction.

The Learned Judge reviewed the earlier article 11(6)-(8) Brussels II Revised Regulation 2003 jurisprudence in his judgment.