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Ruling on ‘the rule’

 

 
In which I ameliorate some of the pain of reading a Brussels II judgment by digressions into betrayal by the BBC, Tarzan wrestling an alligator, James Joyce and Tommy Steele…

The Court of Appeal in Re H (jurisdiction) 2014 were asked to determine whether the trial judge, Mr Justice Peter Jackson, had been wrong to consider that he was not bound by the old ‘rule’ that if two people had parental responsibility neither can unilaterally change child’s habitual residence to another country.

That ‘rule’ is what stops one parent legging it to Spain with the kids and then saying, “well if you want to go to Court about it, I’m afraid we’re all Spanish now, so you’ll have to do it in the Spanish Courts. And I know your Spanish doesn’t stretch further than Dos Cervaza por favor, so good luck with THAT, pal”

[Or at least, it doesn’t stop them doing the legging, but it historically meant that if the other parent hadn’t agreed, then the habitual residence of the children, and the right Court to hear the case in was going to be English]

In the trial itself, it had been argued that the changes to the test of ‘habitual residence’ had meant that this issue was one of a raft of factors rather than being finally determinative of habitual residence, and thus ‘the rule’ was dead.

At appeal, the other side argued that if ‘the rule’ was going to be abolished, then it needed to be done so explicitly, and in the absence of such an explicit abolition it was still good law and binding – thus Mr Justice Peter Jackson had been wrong in diverting from it.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/1101.html
Frankly, if you are interested enough to care about the WHY, then you will love the Court of Appeal judgment and can read it all there, it is set out in paragraphs 19 to 37 (It just SEEMS like it is in paragraphs 19 to 64,912)

What you want is the answer, which is that ‘the rule’ is no more. It may be a part of the relevant factual matrix, but just because mum moves the children to Spain against dad’s wishes, doesn’t mean that the children can’t be habitually resident in Spain.
it was submitted to us that a parent’s ability to change their child’s habitual residence unilaterally will be limited by the inclusion of the purposes and intentions of the parents as one of the relevant factors in the factual determination of where a child is habitually resident (see Baroness Hale at §54(ii) of Re A and also at §23 of Re L). I accept that submission. Furthermore, as Baroness Hale said at §26 of Re L, the fact that the child’s residence is precarious (as it may well be where one parent has acted unilaterally) may prevent it from acquiring the necessary quality of stability for habitual residence. However, the fact that one parent neither wanted nor sanctioned the move will not inevitably prevent the child from becoming habitually resident somewhere. If that were the case, the ‘rule’ would be alive and well, albeit dressed up in the new clothes of parental intention as one of the factors in the court’s determination.

Given the Supreme Court’s clear emphasis that habitual residence is essentially a factual question and its distaste for subsidiary rules about it, and given that the parents’ purpose and intention in any event play a part in the factual enquiry, I would now consign the ‘rule’, whether it was truly a binding rule or whether it was just a well-established method of approaching cases, to history in favour of a factual enquiry tailored to the circumstances of the individual case.
The Court of Appeal also go on to say that Parens Patriae jurisdiction [inherent jurisdiction] has no place in these matters, and that the Court should use Article 10 of Brussels II forum conveniens even in a case where the other country is not in Europe. And if for some reason, you are interested in that, may I suggest that you open a window and get yourself some fresh air.

[but it is all at paras 38 to 54. I’m afraid that there is not a sentence there that I was able to read and make sense of first time out. Every single sentence was something of a wrestling match with language, where I had to deconstruct every single aspect and put it back together again to try to work out what was going on, much like Tarzan wrestling with an alligator in a black and white Johnny Weissmuller movie. I ran out of enthusiasm for that exercise at about para 40]

 

That is probably deeply annoying for anyone who does international law and child abduction cases, because this seems to me to be a double whammy of

1. We are going to be arguing about habitual residence in every case on minute detail, rather than applying a simple ‘they ARE in Spain, but against dad’s wishes, so they are still habitually resident in England” test and

2. We’ve just lost the jedi hand-wave of “What’s my power to do this?” “The inherent jurisdiction” – and now need to find chapter and verse on Brussels II article 10.

And more to the point, the last thing anyone needs is more Brussels II.

If a lot of legislation has the ‘bet you can’t read all of this’ quality of “A Brief History of Time” then Brussels II is the equivalent of reading the entireity of “Finnegans Wake” whilst you have both a migraine and a nearby six year old boy who just got a One-Man-Band kit* for his birthday.

[* To play “Crash Bang Wallop What a Picture” on a one man band kit, with Tommy Steele was the second Jim’ll Fix It request I sent in. The first was to meet Enid Blyton, who was long dead at the time. In retrospect, I am no longer bitter and twisted that the BBC never granted my opportunity to go on Jim’ll Fix It]

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. Suess….prepare your headache pills now! And if you can answer it’s a free cheesecake and beer on me!
    9 year old child lived with Parents in UK; Mother USA national; Father Scots (sorry no dirty joke to follow up with) Parents agreed SGO to Grandparents in the USA. Child (as advised in writing with Home Office) not entitled to UK passport and was originally only allowed to remain in UK based on Mother’s over 20 years ILTR.
    Grandparents decided 4 years later ‘Is almost a teenager and we have done our time in hell- take back your kid. He will be at X airport at Y time on Z date. Good Luck.’
    Mother collects child from airport and all is going spiffingly well for 6 weeks. LA get a hunch; EPO issued at 3:30pm on a Friday; hearing ended at 8 pm. Judge ‘I have territorial jurisdiction; even though habitual residence has been revoked as non resident for more than 2 years, I grant the EPO. I don’t have any evidence of any harm, but will give it to the LA.’
    Explain in less than 1000 words…discuss.
    *Same LA tried it again in another case two weeks later with the same Judge; ‘You really want to play this game AGAIN and make me sit here until 8 pm? Again, no evidence of harm, so EPO denied.’……. (So no EPO on a baby but an EPO on a 12 year old….???0

    • Oh god, there’s a lot there. Firstly, I’m surprised that they were able to get the child placed in America under an SGO, whenever I’ve had an American family placement it has had to be adoption to get the child through immigration (maybe the dual-citizenship helps with that)

      Secondly, looks to me like child has acquired habitual residence in England – it is possible to acquire it overnight, it is about a raft of factors – it looks like it was everyone’s plan that the child remain in England. [Not necessarily LAWFUL habitual residence, and you’d need a specialist international lawyer to say whether the fact that the child wasn’t lawfully physically present in England defeats the physical presence when determining jurisdiction]

      Third, the EPO is tricky – I think there is a quirky case about an EPO of a 14 or 15 year old where there were allegations about a man the child was spending time with, and weirdly all of the parties bar the LA were not allowed to know about the specific nature of those allegations. I don’t think that would stand up these days, there’s a different culture. That’s the only reported EPO case I have heard of with a teenager. The LA would have jurisdiction to seek one if the child was at some sort of risk whilst being physically present in their area, but it is quite hard to think of a situation with a teenager that warrants going for an EPO (in light of the two Re X cases).

      Obviously don’t know the full facts and background, but it does raise some curious questions. I should have a look at whether EPOs are in the President’s transparency guidelines – if not, they probably ought to be, because of the huge stakes and the real possibilities of bad decisions being made.

      “riverrun past Eve and Adam’s, from swerve of shore to bend of bay,bring us by a commodious vicus of recirculation back to Howth Castle and environs”

      [A quick scan of the first page suggests that the opening line is about as clear as it gets… Seriously, this is paragraph four – on the first page if you were idly reading this in a book-shop considering an impulse buy

      What clashes here of wills gen wonts, oystrygods gaggin fishy-gods! Brékkek Kékkek Kékkek Kékkek! Kóax Kóax Kóax! Ualu Ualu Ualu! Quaouauh! Where the Baddelaries partisans are still out to mathmaster Malachus Micgranes and the Verdons cata-pelting the camibalistics out of the Whoyteboyce of Hoodie Head. Assiegates and boomeringstroms. Sod’s brood, be me fear! Sanglorians, save! Arms apeal with larms, appalling. Killykill-killy: a toll, a toll. What chance cuddleys, what cashels aired and ventilated! What bidimetoloves sinduced by what tegotetab-solvers! What true feeling for their’s hayair with what strawng voice of false jiccup! O here here how hoth sprowled met the duskt the father of fornicationists but, (O my shining stars and body!) how hath fanespanned most high heaven the skysign of soft advertisement! But was iz? Iseut? Ere were sewers? The oaks of ald now they lie in peat yet elms leap where askes lay. Phall if you but will, rise you must: and none so soon either shall the pharce for the nunce come to a setdown secular phoenish.]

      Bloody hell

      • Child is not dual national; indeed, the Home Office has said child only allowed in UK IF in care of Mother (must ‘piggy back’ Mother’s ILTR other wise is an illegal.) SGO never registered in the USA because the child has an American Passport ONLY and Mother signed equivalent document of agreeing to share PR with Grandparents; (grab another beer….)
        quote
        I think there is a quirky case about an EPO of a 14 or 15 year old where there were allegations about a man the child was spending time with, and weirdly all of the parties bar the LA were not allowed to know about the specific nature of those allegations. unquote.

        Yep LA refuses to share why they wanted an EPO on a 12 year old except it is a man that apparently no one knows but he has been arrested…police won’t tell anyone but LA anything….LA won’t tell anyone who it is and why arrested (all they will say is a stranger and arrest was over 200 miles away)) So no idea why child was at such a level of risk…

        This has got to be a weird one…even experienced specialists in Family and International Law can’t make sense of it…..*I just took my headache pills…didn’t have time to have a beer to get my head around it…..managed the cheesecake though.

  2. Pingback: Ruling on ‘the rule’ | Children In ...

  3. Have all you lawyers forgotten about this case? Surely that makes all this “habitual residence” chit chat a load of rubbish??
    The Hague Convention demands that children be returned to or allowed to remain in the country where they are “habitually resident” .There are however important exceptions.

    “Child objections

    The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

    Article 13(b)

    … the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return wo

    The Grand Chamber of the European Court of Human Rights Decided (above) that the best interests of the child would be the deciding factor to determine whether that child could remain in Ireland. Previously the question concerned “habitual residence”.
    Neulinger & Shuruk v. Switzerland
    A Momentous and Disturbing Ruling in Europe on the Hague Abduction Convention ..

    • Well no, those are both things that are within the existing English framework of how these cases are decided. This is about the factual issue of whether a child HAS habitual residence.

  4. forcedadoption

    Yes but if the child has habitual residence in one country but the court decides that the best interests of the child would be best served in the “other country” then surely the question of habitual residence becomes an irrelevance?Lawyers who so often say the interests of the child are not the issue and therefore not to discussed at all, but that habitual residence is the only issue are therefore mistaken;

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