BIIR: Recognition of orders and habitual residence

Whilst we were all enjoying our summer holidays Lord Justice Munby was delivering the judgment of the Court of Appeal in Re L (A child) [2012] EWCA Civ 1157 in which the decision of Macur J not to recognise a Portuguese order and to accept jurisdiction in England was over-turned.
The two principle issues were
(a) the interpretation of Article 23(a) BIIR  'manifestly incompatible with public policy having regard to the best interests of the child', and
(b) habitual residence

The Court of Appeal confirmed the very high threshold for non-recognition that is set by Art 23(a). They considered that BIIR already incorporated the best interests of the child in the same way the UKSC considered the 1980 Hague Convention incorporated them. Only in exceptional cases would it be possible to say that the enforcing court's assessment of the child's best interests meant Art 23(a) was engaged. In order to meet the very high bar the court would have to conclude that there was a very high degree of disparity between the orders effects if enforced and the child's current welfare interests. The CA endorsed the previous approaches of Holman J in Re S, Singer J in W-v-W and Roderic Wood J in LAB -v-KAB.
The court considered that a procedural flaw in the process by which the order was originally generated could (theoretically) meet the Art 23 (a) test (as well as (b) and (d)) but only where it was so fundamental it resulted in an 'egregiously unfair trial'.

In respect of habitual residence Munby LJ confirmed
(i) habitual residence for BIIR has an autonomous meaning (and interestingly that it is different from our domestic interpretation)
(ii) that a child cannot have 2 habitual residences within the EU,
(iii) that a child who moves between two countries on a 2 monthly cycle will retain his habitual residence in the country where he was habitually resident before the cycle commenced and which had the original jurisdiction to make the order sought to be enforced. To hold either that habitual residence switched every 2 months or that the child had no habitual residence was a recipe for jurisdictional chaos and was contrary to the principle of BIIR.  

The limits of the Inherent Jurisdiction

The Court of Appeal addressed the perenially thorny problem of the limits of the Inherent Jurisdiction of the court with respect to children in Re N [2012] EWCA Civ 1086 , a decision of  McFarlane LJ, Thorpe LJ, Sullivan LJ on 11th July 2012. The issue was whether the High Court had jurisdiciton over a British child who was neither habitually resident nor present in England (and where there was no prorogation of jurisdiction). Without ruling out the possibility completely McFarlane LJ(with whom Thorpe and SUllivan LJJ agreed) cast considerable doubt on the jurisdiction and expressed the view that if it did exist it was only in the most extreme cases.

"It seems to me that if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum. Hogg J spoke of very dire circumstances justifying what Thorpe LJ in Al Habtoor was rightly concerned should be a very careful exercise of the jurisdiction if it is to be exercised at all. In Re B the dire circumstances referred to were the circumstances of the 15-year--old young person concerned, who had thrown herself on the mercy of the British authorities and the British authorities had sought orders from the High Court to assist their ability to protect her."

Parental Rights in Germany, Austria and Switzerland

One of the lessons which I learned from the Anglo-Germanophone Conference was not to pass judgment too swiftly in respect of judicial attitudes to the Hague Convention in these Germanophone countries. Whilst we in England have grown accustomed to the fact that unmarried fathers acquire parental authority by being named on the birth certificate or by a relatively straight-forward application to the court the position for unmarried fathers in the Germanophone countries has only recently begun to change. In Germany as a result of the ECtHR decision in Zaunegger and a Federal Constitutional Court decision the German Constitution is being changed to make it easier for unmarried father's to acquire PR. A similar situation exists in Austria.
So when dealing with a case involving an unmarried father from these countries it would seem wise to pause for a moment to consider the possible implications and to recognise that judges in those countries are applying a laws which are (or were until recently) very different from ours in respect of the rights of unmarried fathers.

Bearing that in mind the suggestion that the 1980 Hague Convention distinction between rights of custody and rights of access is redundant is far from being the case. A far greater alignment of the laws of the signatory states would be required before one could contemplate a change to the Conventions to eradicate that distinction.

Children and Families Bill

The draft Children and Families Bill was published on 3rd September 2012. It can be found at:
http://www.official-documents.gov.uk/document/cm84/8437/8437.pdf

The proposals for shared parenting have not yet been published and will be published later in the autumn.

The Justice Select Committee is calling for evidence and submissions are required by 19th October: see
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/new-inquiry-pre-legislative-scrutiny-of-the--children-and-families-bill/

Bi-cultural mediation in international child disputes

An organisation call MiKK can provide mediation in cross border child disputes which involves co-mediation in two languages. http://www.mikk-ev.de/english/bi-national-projects/. The project is still developing.

X-v-Latvia: ECHR Grand Chamber: Art 13b

The Grand Chamber is hearing X-v-Latvia in October. Surprisinglyu only a few national governments are seeking to intervene (apparently Finland and the Czech Republic are) and the UK charity reunite is filing a written intervention. Issues of EU/national external competence may be getting in the way of other EU governments intervening - budget issues may also be playing a part.
In the UK the the 'Neulinger' issues were definitively settled in Re E and Re S by the UK Supreme Court. Whether the ECtHR will adopt the approach of the UKSC will be seen (assuming someone argues it). If the ECtHR does not adopt that approach then the issue will continue to cause problems within the EU in particular but in reality in all ECHR signatory states. The CJEU has said that the EU Charter on Fundamental Rights and Freedoms is a mirror to the ECHR and that it would follow the jurisprudence of the ECtHR on these issues (JMcB -v-LE 2010). What will happen though if divergent approaches develop between the UK/Ireland and other EU countries (who might follow an ECtHR line of authority? As the UK is not a party to the EU Charter (we entered a derogation in the Lisbon Treaty) a schism could develop. We await the decision of the Grand Chamber with interest.

News from Thun.

The Anglophone -Germanophone Judicial Conference took place on 6-8th September 2012. It was attended by judges, government representatives and practitioners from the UK and Ireland, Germany, Austria, Switzerland, Lichtenstein and Holland.