RSS Feed

Tag Archives: jurisdiction

Ruling on ‘the rule’

Posted on August 4, 2014 by suesspiciousminds

 

 
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]

 

8 Comments

Posted in case law, international and tagged , , , , , , , . Bookmark the permalink.

“All at sea”

Posted on July 4, 2013 by suesspiciousminds

 

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 :-

 

  1. The parents reside entirely on their yacht, as does J.
  2. The parents have a firm intention to continue to do so.
  3. They have no intention to reside in any town, village or hamlet of the British Isles.
  4. The yacht moves around frequently, it is around Britain for just under three months of the year. The Captain’s log makes that clear.
  5. 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.

 

Comments Off on “All at sea”

Posted in imaginary judgment and tagged , , , , . Bookmark the permalink.

“If you ever go across the sea to Ireland”

Posted on April 3, 2013 by suesspiciousminds

 A discussion of two cases dealing with parents who fled to Ireland to avoid pending care proceedings. We are having a curious burst of the Higher Courts dealing with similar issues coincidentally in batches, and this is another example.

The longer judgment is in  Re LM (A Child) 2013, a High Court decision determined by Mr Justice Cobb

 http://www.bailii.org/ew/cases/EWHC/Fam/2013/646.html

and the shorter is a Court of Appeal decision

 Re OC and OE (Children) 2012 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/162.html

 

In the Court of Appeal case, the Local Authority had concerns about the children, though probably not sufficient to warrant removal, and the mother fled to Ireland with them. The LA sought Interim Care Orders and a return to the jurisdiction. The Court of Appeal agreed that the English Courts had jurisdiction and that making orders compelling the return of the children to the jurisdiction was correct, but reminded themselves, that the status quo prior to the move to another country ought to be restored, and that the Judge had erred in making Interim Care Orders and sanctioning removal of the children in the absence of (a) the parents being there to oppose and (b) the LA demonstrating that the grounds for removal were made out.

 

I felt for the LA lawyer,  “their advocate frankly conceded to the judge that he was not operating in legal territory familiar to him”   and of course, LA lawyers don’t tend to be specialists in international law. If we were, we would wear much more expensive shoes, and work shorter hours.

 The Re LM case is probably more interesting.  Justice Cobb sets out the background here

 

  1. In June 2012, AM (hereafter “the mother”), then in an advanced stage of pregnancy, travelled with her husband, MM (hereafter “the father”) to the Republic of Ireland. In the following month, she gave birth to a baby girl (“LM”). LM is the mother’s fourth child. The mother’s older three children have been the subject of public law proceedings in this country, and are subject to public law final orders, all in kinship placements away from the mother.
  1. At this hearing, in London, the mother told me that she and her husband made that journey to Ireland “purposely to avoid my child [i.e. the baby] being stolen” by the local authority who had taken proceedings in relation to her older three children. It is common ground that this local authority would indeed have issued care proceedings in relation to the baby, had the mother remained in their area.
  1. The mother went on to tell me that “unfortunately” their plan has “backfired.”

 

The plan backfired, because the authorities in Ireland issued their equivalent of care proceedings, and the child was placed in foster care. Having fled there only to avoid care proceedings, the parents had no real interest in staying or living in Ireland – the mother came back to England [although to a different LA than the one she had been living in, and which was 200 miles away] , the father for work purposes moved to Scotland. That obviously had a huge impact on their contact.

 

It was therefore the mother’s application for the proceedings relating to the child to be brought into the English jurisdiction.

 

The High Court went on to identify the main aims of the judgment, and one of them is particularly noteworthy (I know that the ‘flee to avoid proceedings’ is a common school of thought on the internet, and Ireland has been a popular choice – proximity, no language barrier, and their constitutional opposition to adoption being key factors in this. In this case, it seems that it was discussion on the internet that led mother to make that decision to flee to Ireland )

 

  1. This judgment serves two principal purposes:

i) It discusses the legal and practical complications arising in seeking to achieve a transfer of jurisdiction in these circumstances;

ii) It seeks to provide solutions in the instant case, to achieve the move of LM to this jurisdiction in the near future, and the transfer of care proceedings to this Court, initially to the Family Division of the High Court.

  1. This judgment further serves to highlight how futile, and potentially damaging to the infant child, was the course which the parents embarked upon in June 2012. I am advised that there are other parents who have considered leaving this jurisdiction (and indeed been advised by campaigning groups to do so, as the mother indicated she had been) to avoid public authority intervention in their lives, and to achieve some juridical advantage through process in the Irish Courts. Quite apart from the fact that the parents themselves in this case apparently soon came to realise that this was not a good solution for LM or themselves, this judgment will underline how effectively the Courts of England and Wales and the Courts in Ireland, and the public authorities in each State, are able to co-operate to achieve the transfer of a child, and the public law proceedings concerning that child under the Council Regulation (EC) 2201/2003 of 27th November 2003 (hereafter ‘BIIR’), where it is demonstrated to be in the interests of the child to do so. The approach of the English Courts and the Irish Courts appears to be similar; the Irish Constitution exhibits no intention to establish Ireland as a sanctuary for families from other jurisdictions: see the Irish Supreme Court’s decision in Nottinghamshire County Council v B [2011] IESC 48 (at paragraph 72, per O’Donnell J.).

 

[The Irish case is worth reading, and I had not encountered it before. It sets out the very interesting analysis of the Irish constitutional situation with regard to adoption, particularly adoption of children of MARRIED couples http://www.bailii.org/ie/cases/IESC/2011/S48.html    which would probably be an entire article on its own. There certainly has been a school of thought, which this judgment corrects, that the Irish Courts and authorities could not and would not sanction a return of a child to a jurisdiction where adoption was a possible consequence of that return. It is rather more complex than that, and at the very least, the Irish courts would need to be satisfied that the risk of adoption was a very real and proximate one, rather than a possibility ]

The procedure is another Article 15 of Brussels II one [you may remember my recent blog on the Slovak case where the Slovak authorities used it to take over proceedings that were very advanced in the English Courts]

 

https://suesspiciousminds.com/2013/03/22/ambassador-with-these-brussels-2-applications-you-are-really-spoiling-us/ 

For that reason, I won’t set out all of the principles again. (Phew)

 

  1. At this hearing, on the matters relevant to and consequent upon the Article 15 transfer request, the position of the parties is as follows:

i) The mother: The mother initially proposed, and continues to support, a transfer of the proceedings to this jurisdiction, stating that it is clearly in LM’s interests that such a transfer should be effected. Towards the conclusion of her submissions, she appeared to suggest that her agreement to the Article 15 transfer was in fact conditional upon the receiving authority being identified as Y County Council rather than X County Council. I note the mother’s position in this regard and discuss it further below. That her acceptance of transfer is said to be conditional on the identification of a specific local authority as applicant in this country is of no real consequence, given that effective transfer relies on ‘acceptance’ by one party only to the Irish proceedings; in the instant case, the HSE has indicated its unconditional acceptance.

ii) The father: By letter dated 6th March 2013 from the father’s Irish solicitors, I was advised that he “continues to support his wife’s Article 15 request and consents to the transfer of the public law proceedings in their entirety to the jurisdiction of England and Wales. Our client is content that his position be confirmed by Counsel on behalf of the HSE to the English court on 12th March 2013.” In fact the father attended, from Scotland, for the second day of this hearing and confirmed that he supported the transfer but (corresponding to the position of his wife) wished me to identify the proposed applicant authority as Y County Council;

iii) The HSE: The HSE unconditionally ‘accepts’ the transfer and supports the court taking effective steps to achieve transfer of the proceedings to this jurisdiction; it invites me to be satisfied that it is in the best interests of LM that the proceedings are so transferred; the HSE is neutral on the identification of the appropriate ‘receiving’ authority;

iv) The Guardian ad Litem in the Irish proceedings: The Guardian, by letter dated 11th March 2013, confirms that it is her opinion:

“that the application being made is in the interests of [LM] and should be proceeded with as a matter of urgency ….”

The Guardian expresses her concern that “a transition plan” should be devised to achieve the physical transfer of the infant LM to this jurisdiction ideally to “a long term placement …. should the decision outcome of care proceedings in England and Wales be that [LM] remain in long term State care”. She supports a transition plan “strictly on the basis that” LM is placed in the care of a specific local authority (she had proposed X County Council) and recommends that a Guardian ad Litem be appointed for LM.

And then

 

  1. The request for transfer under Article 15 was further predicated upon a conclusion that it is in LM’s “best interests” for the transfer to be made to this court. It is suggested on behalf of HSE that the best interests test is amply satisfied by a combination of the following factors, in summary:

i) LM is British; her parents, siblings and kinship carers are British.

ii) LM has no family in Ireland. Her only connection with Ireland is that she is physically present there because of a tactical international move made by the mother to avoid the jurisdiction of the English courts.

iii) The mother is now in this jurisdiction and has indicated a wish to remain here. Were LM to be returned to this jurisdiction, this would render easier the facilitation of contact between her and her mother. Assessments of family relationships will be more effective if mother and daughter can be seen regularly together;

and

iv) The background history of LM’s older half siblings originates entirely in the area of X County Council; this evidence is likely to be important in any determination of LM’s future care

 

 

[You will note that HSE, who are the Health Service Executive of Ireland, were agreeing to the transfer of jurisdiction, thus showing comprehensively that the theory that Irish authorities are constitutionally bound to stand guard over parents who might run the risk of their children being adopted and ensure they are not removed, doesn’t work in practice, much as the “freeman of the land” devices don’t actually work in practice]

The case then got into a consideration of which of the two local authorities in England (the one mum had fled from, or the one in which she was now living) would be responsible for the new proceedings.

 I won’t repeat any of that argument, as the authorities are all well known, but I did like Justice Cobb’s asides here

 

The hopes of Thorpe LJ in the Northamptonshire case that the statutory sub-sections could provide “a simple test” to be “operated by the court in what should be the unlikely event of dispute, to determine which Local Authority is to be responsible for the care plan and its implementation” (p.891A) have not entirely been fulfilled, as the subsequent case-law demonstrates. What he hoped would be a “rapid and not over sophisticated review of the history to make a purely factual determination” (p.890G ibid.) in any given case has equally proved forlorn.

 

 

On the facts of the case, the Court found that the designated authority was the one that mother had originally fled from and that she had not become ordinarily or habitually resident in the new one (she was effectively sofa-surfing)

 

12 Comments

Posted in case law, international and tagged , , , , , , , , , , , , , , . Bookmark the permalink.