An imaginary judgment, written in the fevered mind of Suesspicious Minds during a force 8 gale off the coast of Denmark. (As ever, this is not legal advice, and I have no idea how such a case might develop in reality)
Before Mr Justice Snowater
Before I embark upon my judgment in this unusual and vexing case, I will take a brief detour – by way of even a preliminary detour I will let you know that “tangent” is my middle name and I say this not by way of boast or hyperbolae but that it is literally true, and I pause for a moment to show the usher my driving licence, and you may take his nod as assurance, for he is a more honest man than even I.
Long ago, many scholars and intellectuals were fascinated by the notion that there was a pure language, beyond that of English, French or Flemish, which was the language of God and the Angels, called Enochian. They pondered as to whether a child, unburdened by our own clumsy imitations of this beautiful and radiant language, might naturally speak the language of Angels.
This thought experiment was carried out by King James IV of Scotland, who placed two twin babies on the Scottish island of Inchkieth, with a mute housekeeper to tend to their needs, to be visited years later to see what language they spoke. It is reported (perhaps not reliably) that they spoke pure Hebrew.
It is alleged by the applicant in this case, the maternal grandmother of the child, a Mrs Wasteland, that the child’s parents have embarked upon an experiment with their own child, not to deprive the child of language but to deprive the child of dry land and that the State should intervene to prevent it.
Mr and Mrs Pugwash were residents of England, until such time as they won a considerable sum on the lottery. At that stage, they began banking in Monaco, for reasons which would not be considered inexplicable. They also purchased themselves a luxury yacht and began sailing around the world. They developed a firm feeling amongst themselves that in effect a sailor’s life was for them, hoping perhaps that the mermaids who sang each to each might one day sing to them. They therefore determined to try to live as much as humanly possible at sea.
Having both considerable means, and staff who could come ashore and shop for them, they found that this was an achievable, rather than a merely fanciful ambition.
Bathed as they were both in happiness and the sunsets of the Azores, it is only natural that they became increasingly close, and a baby was conceived in the usual manner.
Midwives were brought on board the yacht, and the couple were delivered of a son, J Alfred.
That son J is now four years old and has never set foot upon dry land, having spent his entire life on board the yacht, or swimming just nearby.
Mrs Wasteland, his maternal grandmother, has sought to have contact with J, but the parents have declined to come ashore to allow this. She says that they are thwarting her relationship with J and subjecting him to emotional harm by not allowing him to live on land, or even to have a temporary visit on land. They in turn say that Mrs Wasteland is welcome to come aboard the yacht (for short periods) to visit J. She has declined, being a lady who suffers profoundly from sea-sickness.
Representing the grandmother, Mr Raymond Luxury QC, set out admirably the concerns that she holds about the unusual lifestyle for a boy being raised entirely at sea, and invites the Court to make a section 37 direction, compelling the responsible local authority to prepare a report setting out whether J is being harmed in any way and whether public law proceedings should be issued. He invites the Court to make some preliminary findings in relation to significant harm.
Mr Luxury says, inter alia
(i) There will be consequences in socialisation, education and physical fitness
(ii) The unknown health implications of spending ones entire childhood at sea , impact on sleep patterns, balance, inner ear development and what he describes loosely as ‘seafarers fatigue’ http://occmed.oxfordjournals.org/content/58/3/198.full He accepts that the risk of scurvy is fairly low, given the parents wealth and resources
(iii) The unknown psychological effects, such as lack of space, monotony, living in close proximity to others http://pvs.kcc.hawaii.edu/ike/canoe_living/effects.html
(iv) The risk of mal de debarquement (which candidly, I suspect Mr Luxury QC snuck into his submissions purely to pique my interest, but is a form of long-term illness with the effects that one encounters in the days following leaving a cruise, long airflight or other sustained motion event, but that do not subside)
(v) The inevitable adjustment that J would have to make to a life ashore in adulthood, which may impair his opportunities in life.
In broad terms on threshold, Mr Mangrove for the parents, says, with some merit, that if growing up on your millionaire parents luxury yacht is deprivation and neglect, our court rooms are going to be very busy indeed.
For the parents part however, the substantial case is one of jurisdiction.
Mr Mangrove, representing them, says that before any issues of significant harm can properly be dissected, there are issues of jurisdiction to consider.
These are the broad facts :-
- The parents reside entirely on their yacht, as does J.
- The parents have a firm intention to continue to do so.
- They have no intention to reside in any town, village or hamlet of the British Isles.
- The yacht moves around frequently, it is around Britain for just under three months of the year. The Captain’s log makes that clear.
- On the occasions when the yacht is moored in England, it does so in different ports or harbours and has not, during the entireity of J’s life, been moored in the same Local Authority area for longer than one consecutive night.
Mr Mangrove therefore pleads :-
1. Using the guidance in Shah [Barnet LBC v Shah 1983 2 AC 309] ordinary residence refers to a person’s “abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration”.
2. The ordinary residence of a child is that of his parents In Re: J (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562, 579:
“… where a child of J.’s age [about 3 years old] is in the sole lawful custody of her mother, his situation with regard to habitual residence will necessarily be the same as hers.”
3. These parents have no settled intention to live in England, and do not do so. Even the dreaded taxman has accepted that the parents do not live in England.
4. It is accepted by Mr Mangrove that were the parents to be living in their yacht, moored more or less permanently in one location, they would be rightly said to be ordinarily resident there pace John Reeves v Randy Northrop [2013] EWCA Civ 362 [which, going off at yet another tangent, is a beautiful judgment ending very poetically http://www.bailii.org/ew/cases/EWCA/Civ/2013/362.html ]
5. Mr Mangrove thus says, with considerable force, that if J does not live in England or Wales, and I must be driven to that conclusion on the evidence, then the Children Act 1989 has as much application to him as it does a child living in Swaziland, and thus the application for a section 8 contact order, and the request for a section 37 direction, and the proceedings themselves, should be dismissed.
I sought further clarification on this point.
It arises from section 2 of the Family Law Act 1986
The English Court has jurisdiction under the Children Act 1989 in respect of a child IF
(a) Brussels II applies
(b) If on the ‘relevant date’ (when the application was made) the child was habitually resident in England and Wales OR has no habitual residence in England or Wales BUT was present in England or Wales
From the ships log, I ascertain that on the date when Mrs Wasteland made her application, the yacht was in Helsinki, which unless Mr Raymond Luxury QC has the benefit of some very old (but still standing) treaties following wars which makes Helsinki a territory of the UK, is not in England or Wales.
Although Mr Pugwash has reluctantly come ashore to deal with these matters, the yacht itself and J, are not in English waters at present.
Brussels II makes it plain that the presence of the child must not be in any way temporary or intermittent {Re A (Area of Freedom Security and Justice 2009 2 FLR 1} and if I had been in any doubt, that would have settled the matter.
Given that Brussels II deals with habitual residence in the member state or presence in the member state, and I find that on the facts of this case, J Alfred Pugwash was neither, it must therefore be the case that I have no jurisdiction to make a section 8 order, or a section 37 direction, or to continue hearing this case, as delightful as it would be to maintain a hold on it.
By way of consolation, with this judgment, I am handing to Mr Raymond Luxury QC two items to be passed to his client. The first is a sachet of Dramamine, which I understood is very good for sea-sickness. The second is a copy of Italo Calvino’s novella, The Baron in the Trees, a particular favourite of mine, involving a tenacious young lad, Cosimo, who vows to live his entire life in trees and to never set foot upon the ground again. As I recall, it worked out rather pleasantly for all concerned.
To the parents, and to young J, I bid them good luck on their voyages, and that they continue to dare to disturb the universe.
suesspiciousminds 