Article 12 BIIR - Prorogation - Court of Justice of the European Union hand down decision in E-v-B

E-v-B; Case C-436/13
On 1st October 2014 the Court of Justice of the European Union handed down their decision on this Preliminary Reference from the Court of Appeal of England and Wales. The questions posed by the Court of Appeal were

(1)   Where there has been a prorogation of the jurisdiction of a court of a Member State in relation to matters of parental responsibility pursuant to Article 12(3) of [Regulation No 2201/2003], does that prorogation of jurisdiction only continue until there has been a final judgment in those proceedings or does it continue even after the making of a final judgment?

(2)    Does Article 15 of [Regulation No 2201/2003] allow the courts of a Member State to transfer a jurisdiction in circumstances where there are no current proceedings concerning the child?’

The CJEU did not answer the second question.

The answer to the first question is

Jurisdiction in matters of parental responsibility which has been prorogued, under Article 12(3) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, in favour of a court of a Member State before which proceedings have been brought by mutual agreement by the holders of parental responsibility ceases following a final judgment in those proceedings.

So prorogation can only occur in relation to a particular application and ends when those proceedings conclude.  In reaching this conclusion the CJEU made the following points
(a) in considering issues of jurisdiction we must look at the situation at the time the court is 'seised'; which means when the document institutin the proceedings is lodged. [#38]
(b) the parties consent under Article 12(3) must be assessed at the time the court is seised. [#39] {the inference in the paragraph is that the consent is given contemporaneous with seising and in relation that application; rather than an advance and general consent. There is a potential tension with the approach of the Supreme Court in Re I [2010] 1 FLR 361 which considered advance consent.}
(c) that under Articles 8 and  12(3) jurisdiction must be established in relation to each specific case  which implies it does not continue after the proceedings end [#40]
(d) Jurisdiction must be determined in the light of the best interests of the child, which is usually linked to habitual residence/proximity [#44/5] but under Article 12(3) may be different.
(e) It could not be assumed that prorogation would be in the child's best interests after proceedings conclude and the best interests of the child must be reviewed in each specific case of whether the prorogation sought is consistent with those best interests.
(f) Thus prorogation can only take place for a specific case and ends with the conclusion of that case.


As will be readily apparent this creates a significant difficulty in seeking to retain jurisdiction. Most obviously this might be sought in temporary leave to remove cases (not holidays but sabbaticals/extended work placements etc).
The practise of asserting that habitual residence will be retained during such sabbaticals is not consistent with the Supreme Court Trilogy of cases on habitual residence [See 'The Supreme Court trilogy: a new habitual residence rises! David Williams QC  International Family Law June 2014 83]

The approach of the CJEU would also seem to prevent the parties stating that they provide their unequivocal consent to the English jurisdiction determining any future application concerning the child because the consent has to be at the time the court is seised of a specific case. Whilst it could be argued that an advance and general consent incorporates (unless withdrawn prior to the issue of specific procedings) consent to anything at any time this does not sit easily with the CJEU 'specific case' approach.

Furthermore the parties could not determine that it would be in the child's best interests to prorogue. That also has to be looked at on a specific case basis.


Within the EU this may not seem to be a problem - although not all courts operate to the same procedural, legal or cultural expectations - it will still act as a brake on temporary relocations.

In respect of moves to non-EU states it presents a considerably greater problem. The UKSC Trilogy cases confirm that the jurisdictional provisions of BIIR apply in relation to the establishment of jurisdiciton in England even if the competing jurisdiction is non-EU. So the English court always has to apply BIIR to assessing it's own jurisdiction. That means that even in a 3 year relocation to Dubai the court could not - acting consistently with E-v-B - accept an order which purported to prorogue generally and indefinitely to England.

The only way around such problems would seem to be by not making a final order on the application and thus retaining jurisdiction as a result of the proceedings not being finally concluded. There is a problem with this on temporary relocation cases though because the decision in Re G (A Child) [2014] EWCA Civ 680 (see Blogpost on 29.7.14) confirms that an order granting temporary leave to remove is a final order so as to conclude those proceedings.

One could circumvent this by issuing a CAO application, making an interim CAO order with a review on return or earlier application but this is  in many cases will just be artifice for the purposes of retaining jurisdiciton rather than a real reflection of the need for an interim order in the child's welfare interests.

At present there seems no obvious solution. All ideas welcome.

David Williams QC

[NB I appeared on behalf of the Appellant Father together with Michael Gration of 4PB]

Boosting Judicial Diversity: Lord Neuberger

The Constitutional Affairs Group of the Society of Labour Lawyers advocated for a career judiciary way back in their response to the DCA Consultation on Judicial Diversity in 2005. It is good to see that 9 years on Lord Neuberger is promoting the issue. It is not about quota's or being PC it is about the community having faith in the justice system and justice being dispensed by a group of people who reflect the community they serve.
If you would like a copy of that response let me know.

Declarations and Human Rights in Abduction Cases

L v C

[2014] EWFC 1; [2014] WLR (D) 188

Fam Ct: Peter Jackson J: 2 May 2014

There was nothing explicit in the Human Rights Act 1998 to state that declarations could not be granted in the absence of proceedings brought under section 7 and there was no good reason to infer such a restriction. The terms of the 1998 Act did not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and such an application could be approached in the same manner as any other application for a declaration.

(1) granting an application by Ms L for a declaration that she shared family life within the meaning of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms with G, the child, at the point at which G departed from England in January 2014,
(2) refusing to make a declaration that Ms L was acting as G’s “psychological parent” at that time, and
(3) dismissing Ms L’s applications for a residence order and a contact order under section 8 of the Children Act 1989 on the grounds that at the time Ms L’s proceedings were issued G was not habitually resident in England and Wales. The respondent, Ms C, G’s biological mother, opposed the applications on the grounds that the English court lacked jurisdiction.

Although the court did not have jurisdiction to make substantive orders over the child the court did have jurisdiction to make Declarations which might assist in the progress of applications made elsewhere.

Without Prejudice

BE-v-DE [2014] EWHC 2318 (Fam)

Bodey J summarises the law on without prejudice as follows:

THE LAW

20. I have been provided with a lever arch file of 17 authorities. I have not however gleaned that there is any, or any significant, disagreement between counsel about the principles to be applied. I can therefore refer essentially to Phipson on Evidence 18^th edition. The starting-point is that written or oral communications made in a genuine attempt to settle a dispute between the parties will not generally be admitted into evidence: Phipson paras.24-09 and 24-13. The policy is that parties should be encouraged to settle their disputes without resort to litigation and such that they can speak freely: Cutts v. Head [1984] Ch 290 at 306 per Oliver LJ. A first unsolicited letter offering settlement or negotiations marked 'without prejudice' will as a matter of policy therefore be protected; and so it is that the without prejudice principle is said to rest partly (a) on that public policy just mentioned and partly (b) on an express or implied agreement between the parties that they will not later rely in an open context on the contents of settlement negotiations. There has to be a bona fide attempt to resolve a dispute, in the absence of which the without prejudice principle is not engaged: Phipson 24-11. As Mr. Bishop QC says, the words "without prejudice" are not essential, although clearly persuasive. When they are not used, the occasion or document may still be found to be without prejudice "...if it is clear from the surrounding circumstances that the parties were seeking to compromise the action": Rush & Tompkins v. GLC [1989] 1 AC 1280 at 1299 per Lord Griffiths. At para.24-13(d) Phipson puts it in this way:
    
    

    "Even if the words 'without prejudice' were not used, the without prejudice principle will still apply if the circumstances, judged objectively, were such that it can be assumed to have been intended that the communications in question, being made with a view to settlement, be not admitted in evidence."

    
    
21. There is a modest and, in my judgment, obiter suggestion in South Shropshire DC v. Amos [1986] 1 WLR 1271 at 1277 by Parker LJ that the applicable test might be subjective, i.e. that the subjective intent of the person making the proposal - here the husband – is critical as to whether the circumstances of an alleged negotiation showed it to be without prejudice. I read the relevant sentence in South Shropshire as being said in the context of the particular facts of that case. Further, in Pearson Education Ltd. v. Prentice Hall India Private Ltd. [2005] EWHC 636, Crane J declined to follow any such suggestion as may be read in South Shropshire, noting that it would be contrary to the tenets of contractual construction and would lead to the undesirable need for oral evidence and cross-examination on interlocutory applications (such as this one before me). He cited from a decision of Laddie J in Schering Corporation v. CIPLA Ltd. and Neolab Ltd. [2004] EWHC 2587 where Laddie J said at para.17 of his Judgment:
    
    

    "... Can the document be regarded as a negotiating document? If so, and if it is clear that it is intended by the author to be treated as without prejudice, it must be covered by the privilege."

    
    But he, Crane J, further noted that Laddie J had earlier said at para.14 of his judgment:
    
    

    "The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient." [Emphasis added].

    
    
22. Accordingly, in para.22 of his judgment in Pearson, Crane J said that in his view the test is an objective one. I respectfully agree. So too do the editors of Phipson, when they say that the question "... must surely be determined objectively": para.24-14. That is therefore the test which I propose to apply in determining this case. This hearing has in any event not been set up for any examination of the parties' respective subjective views of what was happening or intended to happen on 22^nd April 2013 (ie according to the husband, a start of negotiations by way of his giving the wife 'the document', as his offer; and, according to the wife, a cynical ambush to bully and coerce her into conceding the country X property regime and giving up many of her rights). I therefore have to and shall determine the issue on the paper evidence of the parties, which will almost always be the appropriate approach in any event, if the proper test is an objective one.

Inchoate Rights of Custody: Supreme Court considers the rights of carers

RE K [2014] UKSC 29 The key issue in the case was whether at the time Karl was removed from Lithuania and taken to Northern Ireland his grand mother had ‘rights of custody’ over him so as to make the kidnapping (for that is what it was) of him wrongful (i.e. a breach of the grandmother’s legal rights of custody over him). It is clear that underpinning the analysis was both a moral and philosophical rationale that ‘real world effects’ should take priority over strict legal rights. The decision is, unsurprisingly given that Baronness Hale wrote the judgment, firmly rooted in child welfare and pragmatism. The decision is a majority of 4-1. The majority concluded that where the care of a child is wholly delegated to a third party another by the holder/s of parental responsibility that the third party will acquire rights of custody over the child. They identified 5 criteria which would be required to confer such rights. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. (b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child-related benefits or parental maintenance for the child. (e) there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction. The justices reached this conclusion by asserting that a distinction is to be drawn between the ‘domestic’ question (namely what rights did the Applicant have under the laws of the country of habitual residence at the time of removal) and the ‘Convention’ question of whether the factual situation resulted in inchoate rights which amounted to ‘right of custody’ for the purposes of the Hague Convention. The 1980 Hague Convention covers rights of custody acquired by operation of law, by court order or by agreement having legal effect under the laws of the country where the child was habitually resident immediately before removal. The justices concluded that ‘inchoate’ rights might fall into the category of an agreement having legal effect. The answer is both yes and no. It has long been a feature of English law (both domestic and Convention) that ‘rights of custody’ can be acquired by a person to whom exclusive care of a child has been delegated by the holder/s of PR. It has long been clear that those sharing the care of a child with the holder/s of PR do NOT acquire inchoate rights. So in that sense this decision does not add much , save to set out some criteria by which the court can evaluate whether inchoate rights have been acquired. The answer is also no because the decision was reached in the face of evidence from Lithuania which made it clear that the Lithuanian authorities did not regard the grandmother as having any rights of custody under Lithuanian law. The decision does place England is head-on conflict with many other jurisdictions who delineate far more clearly between legal and moral rights. The civil law jurisdictions in the EU will find it hard to understand, still less accept the sort of approach the Supreme Court took. Lord Wilson took an approach and delivered a judgment which lawyers will find far easier to understand and accept; based as it was, so firmly in black letter law. The decision of the majority is consistent with the approach the English courts have taken over many years but is difficult to square with the previous appellate decisions in Hunter-v-Murrow (CA) and Re D (HL). The critical difficulty and where the Supreme Court decision may have a dangerous side effect is that it may lull lawyers and others into a false sense of security in thinking that a client has ‘rights of custody’ when for the majority of Hague countries, in particular the EU, they won’t be so viewed. EU countries struggle to accept that a prohibited steps order amounts to a right of custody and still less are they likely to accept that ‘inchoate’ rights of custody are acquired by caring for a child. If this decision results in lawyers or carers delaying an application to court for PR or a CAP it could have lasting consequences for the child. A local authority to whom a parent has delegated care under section 20 CA 1989 will almost certainly not have rights of custody for most other countries, ditto grand-parents with sole and exclusive care. The advice MUST be to apply to court as soon as possible to secure an order which actually gives PR under the Children Act 1989. If there is a threat of sudden removal the MIAM’s exemption should be applied and an immediate application made.

BIIR: Articles 16 and 19: Court First Seised

Re G (A Child) [2014] EWCA Civ 680 The key issue in the case was whether an order for temporary leave to remove a child (made on an application for temporary leave to remove) was a final order so as to conclude proceedings in England with the result that a later application (within the time-span of the temporary leave) in the courts of another EU Member State would result in that court being first seised for the purposes of Article 19 of BIIR. The Court of Appeal decision that such an order concluded the proceedings in England so that there was no ‘lis pendens’ or pending suit in England is a triumph of logic and Europeanism. Whilst this decision on Article 19 does not obviously dove-tail with other recent decisions on other Articles of BIIR which have recently been considered by the English or European Courts the overall approach is wholly consistent with the gradual divesting of Anglo-centric interpretations and tests and the adoption of a European approach. In the “Trilogy’ of UK Supreme Court cases we saw the jettisoning of the long –established and firmly rooted ‘Ex parte Shah’ test for the evaluation of habitual residence in favour of the CJEU approach in Mercredi-v-Chaffe. In Re E in January 2014 we saw the President trenchantly reminding judges and practitioners of both the need to clearly deal with jurisdictional issues but also firmly rejecting any suggestion that the English approach to social work or judicial process was inherently superior to others. All systems are created equal in eyes of EU law. The Court of Appeal rejected the argument (based in large measure on the English concept that orders relating to children are never final) that an order giving temporary leave to remove meant that the English court remained seised of proceedings during the period for which leave to remove was given. The Court of Appeal noted that whilst orders relating to children were not final in the substantive sense that they could not be varied where circumstances required, they were final in the procedural sense that they finally determined that application. Such an interpretation was consistent with the scheme of BIIR which accepted that jurisdiction would shift when there was a change in the child’s habitual residence. To have adopted the Appellant’s contention would have run counter to the fact-based assessment of habitual residence and created an obstacle to the way BIIR was intended to operate. The decision is significant in 2 ways. Firstly it marks another step along the path to a real acceptance of the spirit as well as the letter of BIIR. Secondly the Court of Appeal highlight the fundamental and much mis-understood distinction between jurisdiction and seisin. Much of the Appellant’s argument was in truth an assertion that the English court had retained jurisdiction (based on the child remaining habitually resident during the temporary relocation), rather than an assertion that the court had remained seised of proceedings. The Court of Appeal made very clear that whilst a court might have jurisdiction, it was the job of the court first seised to consider its own jurisdiction and if it concluded another court had jurisdiction, it was obliged to declare that and stay its own proceedings in favour of the court with jurisdiction (Articles 17 and 19 BIIR). Equally if a court was second seised, even though it might be clear that it had jurisdiction, it was obliged under Article 19 to stay its own proceedings until the court first seised determined its own jurisdiction. Mutual trust amongst Member States are key to the proper operation of the Regulation. They are enshrined in Recitals 2 and 21 to the Regulation. This means trusting the courts of other Member States to operate the Regulation according to both the spirit and letter. Without such trust and respect the Regulation could not operate as intended. That in 2014 we are coming to a true appreciation of how BIIR impacts upon the day to day business of families, lawyers and courts shows what a slow-burn EU law is. Slowly the English and European Courts are exploring not only the main darker recesses of BIIR but also the main structures. In the sense that such exploration is highlighting some of the difficulties in interpretation and creating a body of case-law that is harder to keep abreast of (particularly if it originates from the CJEU) it is becoming a more difficult area. However light is being shed and it is undoubtedly becoming easier to see how BIIR operates in practise and to understand (if you know where to look) what the real meaning of various Articles is. The decision highlights the real practical implications of temporary leave to remove decisions and the impact that has on jurisdiction and seisin of a court. Can jurisdiction be retained on such applications? Can proceedings remain live? Both are very uncertain. If you want to attempt to retain ‘live’ proceedings any order will have to be very clearly a provisional order to be reviewed on the return of the child – probably with a hearing date set. Even that might not be enough if it is really only a device to maintain pending proceedings despite a change in habitual residence and a shift in jurisdiction. The CJEU heard the case of E-v-B on 15th May 2014 in which the ability of the parties to permanently prorogue jurisdiction was considered. Declarations that habitual residence will endure whilst the child lives abroad are almost certainly untenable following the “Trilogy” of Supreme Court cases. Very careful consideration needs to be given to the wording of temporary leave to remove orders if the parties wish to retain jurisdiction in England and to prevent a court in another EU Member State (or 1996 Hague Convention Contracting State) becoming first seised of an application over a child.

European Commission Consultation on BIIR

The International Child Law Group submitted a response to the European Commission consultation on the operation of BIIR. Our response can be found at http://www.4pb.com/media/PDFs/ICLG_Response_on_Consultation_on_the_functioning_of_the_Brussels_IIa_Regulation_16_7_14_2.pdf

Passports and other orders against third parties: coercion and legitimate use.

In the matter of B (A Child) [2014] EWCA Civ 814 Many of the Family Division judges have expressed reservations over recent years about the way in which the powers of the court, in particular those under the inherent jurisdiction, have been deployed without sufficient consideration to the often draconian impact they have on the rights of individuals who have not been heard and who may be entirely innocent of any role in the abduction: KY v DD (injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 and B v A [2012] EWHC 3127 (Fam), [2012] All ER (D) 87 (Dec), per Charles J.. Im this case the President identifies the question of general public importance, namely to what extent can a court compel third parties without parental responsibility to take steps to assist in the return of an abducted child, but only gives a partial answer. On the facts of the case he did not need to give the issue a complete review and restatement of the principles; indeed he specifically refrained from doing so and expressed himself in terms which did not seek to place strict parameters around the courts powers. That being said Munby P did make some very clear statements about certain aspects of the use of the supposedly unlimited powers of the inherent jurisdiction. In particular he made very clear that the court cannot deploy its powers as a means of placing pressure on relatives or friends in order to coerce them to assist or to coerce the abducting parent into taking action. He made clear that this was simply unacceptable. Orders can only be made against third parties if they are lawful, have a legitimate purpose and are necessary and proportionate. What the case does not tell us, and deliberately so, are the extent to which the court can make orders preventing a third party from assisting an abductor (by sending money for instance) or requiring them to take steps which might have an effect on the mind of the abductor. Great care needs to be taken in regard to these sorts of orders as in respect of any close family member of the abductor, they will impact on the ability of that person to exercise ordinary rights to family life with the abductor. Care also needs to be taken in respect of the ambit of disclosure orders. The Court of Appeal made clear that a passport order is a form of deprivation of liberty. It restricts the right to freedom of movement which is guaranteed by domestic and EU law. The removal or restriction of that right is a serious matter which can only be applied if it is in support of some other legitimate obligation which the ‘target’ is under. Thus a passport order can be made to prevent an anticipated abduction. A passport could be removed (probably) if there was evidence the ‘target’ had assisted in the abduction and might be guilty of contempt (but only to ensure they remain subject to the court’s jurisdiction). A passport can be removed pending compliance by the target with a disclosure order. A passport could be removed to ensure the target remains within the jurisdiction pending compliance with another legitimate order or until any court process to which the ‘target’ was subject was completed. A passport cannot be removed to restrict the ‘target’s movement in order to induce the abductor to return. When applying for such orders great care should be taken to ensure that it is not applied for or granted on the basis that restricting international movement might induce the abductor to return because they cant see their family or it might result in the target putting pressure on the abductor. The particular issue in the case was that the non-subject child might have been able to provide information about the whereabouts of his mother and sister. The judge required him to give evidence. The Court of Appeal were clear that if a child was to give evidence the court had to carry out a balancing exercise considering the welfare of the child and any harm that giving evidence might result in against the benefit to the court process of such evidence being given. In particular with a child who has Article 8 rights in respect of his family life with the abductor great care needs to be taken to ensure that the child is not put in the invidious position of ‘snitching’ on his parent/sibling with the possible result that all remaining communications are cut. The President was careful to ensure that the decision was not interpreted as a sea-change in the way the powers of the court are deployed in abduction situations. It is unlikely that we will see a dramatic change in the approach of judges or practitioners. What the case should result in is a more measured assessment of the ambit of the orders sought and their potential impact on the target and the reason why they are being sought. In the heat of an abduction situation with the focus on the harm to the child and the left behind parent it is very easy to lose sight of the fact that others, in particular family members also are effected and have rights that are engaged. When considering what orders should be sought the practitioner should be applying (in the background at least) a mental cross check of (a) is the order I am contemplating lawful, (b) is there a legitimate purpose in seeking this order against this individual (c) What rights of that party are engaged? (d) What is the extent to which it is necessary to over-ride those rights in order to protect the child. (e) Where the ‘target’ is a child there must be very careful consideration given to the welfare of the child and the interference with his own Article 8 rights. (f) Is the order proportionate? Bearing in mind applications for these orders will often be done ex parte where the target has no say the duty on practitioners to ensure that only those orders are made which are lawful, have a legitimate purpose, are necessary and proportionate is enhanced.

Costs Allowances in Abduction and Relocation Cases

Legal Services Orders and Costs Allowances. In England the possibility of securing funds from the other party to pay for litigation against that party have expanded significantly in recent years as a result of statutory and judge-led developments. In part this has been to fill the void created by the reduction in availability of legal aid but also has been a natural evolution from the ‘sharing’ principles and from a greater judicial willingness to be more flexible in interpreting the provisions of Schedule 1. A return perhaps to unlocking the principles of equity which lie captive in the judicial breast. Legal services orders are available under the MCA 1973 and costs allowances can be applied for under Schedule 1 Children Act 1989. Recent examples include Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014) - this contains a very helpful analysis of the criteria and explores the possibility that such orders might be available in Hague Convention cases. Re PG AND TW (No 1) (Child: Financial Provision: Legal Funding) [2012] EWHC 1892 (Fam)(Theis J; 4 May 2012) For a useful overview of both, see the articles by David Burrows in Family Law: ‘Costs allowances and legal services orders: MCA 1973, s 22ZAQ and 22ZB' [2013] Fam Law 318 and ‘Costs allowances in family proceedings' [2013] Fam Law 457).

Lament to Legal Aid in Hague Convention cases AND a solution?

In Kinderis v Kineriene [2013] EWHC 4139 (Fam) (18 December 2013)Holman J highlights the inequality in provision of legal aid to Applicants and Respondents in Hague Convention Cases. Three months later Mostyn J considered the possibility that costs allowances might be available to plug that gap: Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014). Although he did not make an order in that case he rejected the submission that such orders were inimical to the Hague summary process. Watch this space.

Transition to Child Arrangement orders

A question on everyone's lips (well that is a slight exaggeration) for the 22nd April 2014 is what happens to old residence and contact orders? The relevant statutory instrument on the transitional provisions is: The Children and Families Act 2014 (Transitional Provisions) Order 2014 which can be found here: http://www.legislation.gov.uk/uksi/2014/1042/contents/made. Essentially Article 6 provides that any old residence order or contact order is deemed to become a child arrangements order. The holder of a residence order will then be the person ‘with whom the child is to live’ under the CAO, and the holder of a contact order will then be the person ‘with whom the child is to spend time/otherwise have contact’ under the CAO. The full provision can be found at Article 6 and in the rest of the instrument. Many thanks to Julia Townend at 4PB for clarifying this.

Prorogation and Transfer of Jurisdiction: Preliminary Reference to CJEU C-436/13

The CJEU has set a hearing date of 15th May 2014 for this Preliminary Reference. The Court is being asked to consider whether a prorogation under Article 12 endures for the child's minority or whether it lasts only for the applicaiton/proceedings in connection with which the prorogation was made. It is also considering whether there need to be proceedings in place for an Article 15 transfer of jurisdiction to be effected. The reference was made by the Court of Appeal in connection with the father's appeal from the decision of Cobb J in Re S (Jurisdiction: Prorogation) [2013] EWHC 647 (Fam) [2013] 2 FLR 1584 [2013] 2 FLR 1584. I am appearing with Michael Gration on behalf of the father. Henry Setright QC and Edward Devereux are appearing for the Respondent.

Legal Aid for committal proceedings

Munby P granted criminal legal aid to the alleged contemnor in respect of committal proceedings within Hague Convention proceedings on 6th March 2014. In doing so he referred back to his earlier judgment in Chelmsford County Court-v-Ramet [2014] EWHC 56 (Fam) delivered on 22 January 2014 http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Fam/2014/56.html&query=Ramet&method=boolean In that case he said "I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says: "The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) – … (v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights." The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings." It is therefore possible to obtain criminal legal aid for an alleged contemnor even if they are not eligible on means or merits or scope for the main family proceedings in connection with which the alleged contempt occurred. Anyone representing an Applicant on committal should draw this to the attention of the alleged contemnor and of the court to ensure that the committal process is Article 6 compliant. If that is not done there must be a risk that any contempt finding will be susceptible to appeal on the basis of serious procedural irregularity within CPR 52.11(3).

Radical Islam and Care Cases

The issue of whether the personal politics or religion of a parent might form the basis for the removal of a child from, their care has ben considered by the courts in recent times. It seems to me that it is only where those religious or other views translate into views or behaviour in the child which manifest themselves in the child’s daily life such that the child’s functioning in her school/community is seriously impaired so as amount to a significant impairment of development that the threshold would be met. Or perhaps where a real and identifiable risk of the child being radicalised to the extent that they will expose themselves or be exposed to the risks of involvement in acts of violence that the threshold could be crossed. In Re L (Care: Threshold Criteria) [2007] 1 FLR 2050, Hedley J said “society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent”; and that “significant harm is fact-specific and must retain the breadth of meaning that human fallibility may require of it” but that “it is clear that it must be something unusual; at least something more than the commonplace human failure or inadequacy”. The Supreme Court agreed with Frank Feehan QC that “many parents are hypochondriacs, many parents are criminals or benefit cheats, many parents discriminate against ethnic or sexual minorities, many parents support vile political parties or belong to unusual or militant religions. All of these follies are visited upon their children, who may well adopt or ‘model’ them in their own lives but those children could not be removed for those reasons.” A child can only be removed if the court is satisfied that the child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A likelihood of significant harm means no more than a real possibility that it will occur but a conclusion to that effect must be based upon a fact or facts established on a balance of probabilities. (in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 2 WLR 649) By section 31(9), “harm” means “ill-treatment or the impairment of health or development...” and “development” includes “emotional...development”. The word “significant” is not defined but section 31(10) Children Act 1989 provides that “Where the question of whether harm suffered by a child is significant turns on the child’s health or development, his health or development shall be compared with that which could reasonably be expected of a similar child.” So whereas the concept of “ill-treatment” is absolute, the concept of “impairment of health or development” is relative to the health or development which could reasonably be expected of a similar child. In Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, Hale LJ said, at para 28, that “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not”. It is difficult to see how radicalisation per se could be ill-treatment. It could be that a sufficient degree of radicalisation would impair the child’s ability to function in his or her society and one could see how specific risks or harm could arise if the radicalisation progressed to involvement in acts which involved the use of or exposure to a risk of violence. Unless it reaches that level of risk or of harm though it would seem that removal of children would simply be a form of religious discrimination and societal conditioning. I don’t subscribe to the view that our society is so fragile that we cannot cope with radical religious or other views nor that a healthy democracy should contemplate interference in families whose views we disagree with.

Latest Migration Statistics

The latest provisional data from the Office for National Statistics show Net migration to the UK rose to 212,000 in the year to September 2013. Some 532,000 people immigrated to the UK in the year ending September, up from the 497,000 people who arrived during the previous year, while 320,000 emigrants left the country, down from the 343,000 the previous year. The Office for National Statistics said the net flow - the numbers moving here minus the numbers leaving the UK - rose from 154,000 in the previous year. The increase has been driven by a big increase in the number of European Union citizens coming to Britain. There was an increase in new arrivals from Poland, Spain, Italy and Portugal. The number of EU citizens arriving in the UK rose to 209,000 from 149,000 the previous year, the ONS said. But immigration of non-EU citizens decreased to 244,000 in the period, down from 269,000 the previous year. In 2012 there was a net flow of 176,000 Long-Term migrants to the UK in the year ending December 2012. 497,000 people immigrated to the UK and 321,000 emigrants left the UK and the previous falls seen since June 2011 have gone into reverse. Immigration of New Commonwealth citizens decreased significantly from 151,000 in the year ending December 2011 to 97,000. Of the 497,000 arrivals, 179,000 immigrants came to the UK for work related reasons and 181,000 people migrated away from the UK for work related reasons The number of visas issued, excluding visitor and transit visas, was 501,840 in the year ending June 2013. 562,000 National Insurance numbers (NINos) were allocated to non-UK nationals in the year to March 2013, a decrease of 6% on the year to March 2012. In 2011 Long-Term migration statistics show that 566,000 people immigrated to the UK in 2011 with 351,000 people emigrating and net migration was 215,000. In 2012 nearly half of all babies were born outside marriage/civil partnership (47.5%), compared with 47.2% in 2011 and 40.6% in 2002. The percentage of live births in England and Wales to mothers born outside the UK continued to rise in 2012, reaching 25.9% compared with 25.5% in 2011 and 17.7% in 2002. The proportion of births to mothers born outside the UK has increased every year since 1990 when it was 11.6%. Not surprisingly these figures are mirrored in the available statistics for court cases with an international element. The Annual Report of the Office of the Head of International Family Justice provides a real insight into the activities of the Office of the International Liaison Judge together with an evaluation of developments and a statistical analysis of the cases it has dealt with. The central message is the continually growing need for international judicial liaison as global families increase and the undoubted benefits that this can bring in resolving litigation. The 2012 report shows that, a. In 2012 there was a 40.5% rise in applications for assistance to 253. The requests for assistance involved 71 separate jurisdictions. This included liaison with Sudan. Of the 71 jurisdictions involved tangible assistance was given in 46. Given only 2 countries (England and Netherlands) have a permanent office as opposed to a judge alone this is very positive. b. 50% of all the cases were intra-European, 14% the Americas and Carribean, 10% Africa, 15% Middle East and Asia and 6% Australia/NZ. Within the EU the largest number of applications was in respect of Poland (14) but as Poland has not appointed a sitting judge as the IHLJ or EJN judge (same for Italy) this has impeded liaison. France, Germany, Spain and Ireland also generated significant numbers of requests. Liaison with the USA has proved easy to facilitate as they are accustomed to inter-State liaison. Good links have been made with Kenya, Nigeria and with a number of South American countries. c. The office has dealt with queries relating to public and private law children cases, relocation, inter-country adoptions, surrogacy, forced marriage and financial remedy cases as well as abductions. d. Of the requests most were 'outgoing' where the English courts were seeking assistance from another jurisdiction. Only 11% were incoming requests from other countries seeking information about our systems. e. The Pakistan Protocol has been used in a nearly 200 cases since 2003, some to achieve returns many as a protective measure in temporary leave to remove 'holiday' cases. The Cairo Declaration has not borne the fruit that the Pakistan Protocol has. The figures from the International Child Abduction and Contact Unit also show a long term upward trend of applications made in respect of in-coming and out-going applications in respect of ‘abducted children’. Applications under the 1980 Hague increased by 100% in the decade to 2008 and increased further in 2011 to 249 applications, compared with 200 applications in 2008, and 142 in 2003.

Service Abroad: The Foreign Process Section weblink

For anyone dealing with service of proceedings abroad under the EU Service Regulation or otherwise here is a useful link to the Foreign Process Section of the QBD which is the designated authority for service under the Regulation. They can provide advice on how to serve and should issue certificates of service or non-service. http://www.justice.gov.uk/courts/rcj-rolls-building/queens-bench/foreign-process

BIIR, Jurisdictional issues: Court first seised and lis pendens

In I-v-G [2013] EWHC 4017 (Fam) Mostyn J considered the working of Article 19 of BIIR and stayed English proceedings pursuant to Article 19(2) of BIIR to allow the Italian court to determine whether it was first seised of proceedings concerning the child. In the course of the judgment Mostyn J had to consider a number of important issues in relation to the operation of Article 19. Firstly he had to determine whether an order granting residence and temporary leave to remove a child was a 'final' order so as to terminate the proceedings or whether they remained in being and thus the court remained 'seised'. Mostyn J accepted our submissions that an application for temporary leave to remove was brought to an end when an order granting temporary leave to remove was made. Thus the English court was no longer seised of proceedings. The effect of this meant that proceedings issues subsequently in Italy rendered the Italian court first seised and so on the face of it the English court had to stay the proceedings brought by the mother in England, but after the father's Italian proceedings. The mother submitted that although the Italian court was chronologically first seised the father had failed to serve and therefore the Italian court was not legally first seised; Article 16(1)(a). Mostyn J accepted that (applying ECJ/CJEU case-law) that whether adequate steps to serve had been taken was a matter for the Italian court to determine. He therefore stayed the English proceedings. Other issues which he commented on were A. The need for clarity of drafting in orders with an international dimension, in particular in relation to whether the order was final or provisional B. He condemned the growing practise of post-hearing applications being made by e-mail for judges to reconsider issues determined at court. The mother has appealed and a permission hearing is listed for 19th February 2014. The full judgment can be found on BAILII at: http://www.bailii.org/ew/cases/EWHC/Fam/2013/4017.html

Hague Abduction Conventions enters into effect with Japan

Japan ratified the Convention on 24th January 2014 and it enters into force on 1st April 2014. Countries who were Members of the Hague Conference at the time the 1980 Hague Convention was adopted can subsequently ratify. This means that the Convention automatically enters into effect between that country and all other members at the relevant date. For countries who were not members at the relevant date they can accede to the Convention. Such accessions have to be accepted on a country by country basis. Hence South Korea has acceded but the Convention is not in force between UK and Korea because we have not accepted their accession. The Convention will enter into force between Japan and all Member States of the European Union on 1 April 2014: - With regards to Member States of the European Union that ratified the Convention, it will enter into force “automatically”. This applies to Austria, Belgium, Croatia, Czech Republic, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Slovakia, Spain, Sweden, UK. - For those Member States having acceded to the Convention, Japan would need to declare acceptance of their accession, which it has done in the case of Bulgaria, Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Romania and Slovenia. You can find more accessions that Japan has accepted in the spreadsheet showing acceptances of accessions to the Child Abduction Convention which is available at the Hague Conference website (see here).

In the Matter of E: further thoughts

In my last post I analysed the President's decision in The Matter of E (A Child) [2014] EWHC 6 (Fam) in which the Sir James Munby considered the obligations imposed by the Vienna Convention on Consular Relations. One of these is that where a national is detained his consulate must be informed. Another is that where a guardian is appointed for a child the consulate must be informed. That would seem to mean that if (a) the tipstaff executes an order and takes a person into custody, (b) the court joins a foreign national child as a party that steps should be taken to inform the relevant consulate.

Japan becomes 91st signatory to 1980 Hague Convention

On Friday 24 January 2014, Japan became the 91st Contracting State to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Japan’s instrument of ratification was deposited by H.E. Mr Masaru Tsuji, Japan’s Ambassador to the Netherlands, who was accompanied by several other officials. The broad delegation underlines the importance that the Japanese Government attaches to this event. Japan’s ratification of the Convention is indeed a milestone in the history of the Convention, which will provide a key tool to return children victims of cross-border abduction involving a Japanese parent. The Convention will enter into force for Japan on 1 April 2014. In May 2013, the Diet had approved Japan’s compliance to the treaty, sending out a clear indicator that the country was steadily moving toward participation. Until today, Japan was the only country in the Group of Eight (G8) that has not affirmed the 1980 Hague Child Abduction Convention. The following month (June) Japan’s Parliament enacted a law stipulating domestic implementation procedures for the Hague child abduction treaty. Japan’s Parliament established procedures requiring the country to create a Central Authority under the auspices of the Foreign Ministry. The Central Authority’s responsibilities include the tasks of locating children who have been abducted and encourage families involved in international parental child abduction claims to settle disputes through consultations. If the consultations fail, family courts in Tokyo and Osaka specifically trained in 1980 Hague Child Abduction Convention matters will decide on matters. The Central Authority will be staffed with legal experts in international private law as well child psychologist and domestic violence counselors. A third Hague Court location could later be added.

EU Nationals and English Care Proceedings: In the Matter of E (A Child) [2014] EWHC 6 (Fam)

The President of the Family Division, Sir James Munby has delivered a judgment giving guidance on the approach to jurisdiction and practice in care proceedings in respect of children who are nationals of other EU Member States. http://www.bailii.org/ew/cases/EWHC/Fam/2014/6.html The case involved care proceedings in respect of a child who was a Slovakian national. There has been considerable parliamentary and media interest in Slovakia over the last 2 years or so where children of Slovakian origin have been the subject of English care proceedings. This in part arises from the difference between England and much of Europe in that a care order will often lead to adoption and a complete termination of the child-parent relationship which is not possible in many other EU jurisdictions. As a result there have been a number of cases where the Slovakian authorities have been involved in seeking to intervene in English care proceedings or to make representations on issues connected with jurisdiction and transfer. See Re T (A Child) (Care Proceedings: Request to Assume Jurisdiction) [2013] Fam 253; LA v ML & Ors [2013] EWHC 2062; (Fam); LA v ML & Ors [2013] EWHC 2063 (Fam) . The President made the following observations. The EU dimension Sir James emphasises time and again that within the European Union respect for the law and procedures of other Member States is fundamental to the proper operation of BIIR; even if those laws and procedures seem very different to our own. We must assume that child protection and judicial services are no less competent than our own. (As a matter of practise, if in fact it could be shown that in that city/region/state they were deficient it must be possible to rely on this but it would have to be fact specific rather than based on generalisations.) Jurisdiction Although the Children Act 1989 does not specify the jurisdictional basis of care proceedings the effect of BIIR (which applies to care proceedings as much as private law proceedings) is that care proceedings must be based on one of the jurisdictional grounds set out in Art 8, 12, 13 and 14 and that Arts 17 and 20 must also be considered. Thus the court must first ask: is the child habitually resident here or is the child habitually resident in another EU Member State. If the child is habitually resident in another Member State then the English court does not have jurisdiction and must pursuant to Article 17 decline to exercise jurisdiction although protective measures can be taken under Article 20 and a request for a transfer of jurisdiction could be made under Article 15. If the court cannot establish where the child is habitually resident but the child is present in England then the court may have jurisdiction under Article 13 (presence). In Re B [2013] EWCA Civ 1434 care proceedings had proceeded for a year and ultimately the Court of Appeal concluded that the child had been and might still be habitually resident in Sweden; hence they issued an Article 17 declaration declining jurisdiction. Guidance: Munby said in future in cases with a European dimension the court should (i) set out the basis of its accepting or rejecting jurisdiction (ii) the basis upon which it has decided to or not exercise its powers under Article 15 in relation to a transfer of jurisdiction. Judicial Liaison and Exchanges of Information The Court of Appeal had pointed out in Re B (above) the limits to judicial liaison both in the Hague Network and the European Judicial Network. In this case Munby P emphasised the importance of Article 55 BIIR in securing exchanges of information. The relevance of nationality Sir James drew attention to the provisions of the Vienna Convention on Consular Relations which imposes obligations where nationals of another state are either ‘detained’ or where a ‘guardian’ is appointed for a minor or an adult who lacks capacity. The primary obligation is to inform the consular authorities of the position. In the case itself Munby P permitted a member of the consular staff to attend all hearings in a non-participatory role. Guidance for judges: The consular authorities for the country concerned should be informed where; - A child national is subject to a secure accommodation order ( ‘detained’) - A child national has had a guardian appointed. In addition the court should restrict communication between a national and his consular authority and section 12 AJA should not be permitted to have this effect Permission should be granted for a consular official to attend hearings which would be private and to obtain transcripts. Reporting Restrictions In imposing reporting restrictions involving a foreign national great care must be taken not to attempt to control foreign media. A parent cannot be prevented from publishing what they like in foreign print or broadcast media and can publish on the internet what they like provided it is not in the English language. Munby P referred to the precedent for a reporting restriction order that he set out in Re P[2013] EWHC 4048 (Fam).

L-C: UK Supreme Court decision on habitual residence

The UK Supreme Court is today handing down judgment in the Matter of L-C. This completes the trio of international family law cases involving the interpretation of habitual residence that the UKSC granted permission to appeal on in 2013. The hearing took place on 11th November 2012 and so the judgment has taken longer to complete than that in the Matter of KL which was heard on 18th November and delivered on 4th December. I, along with Jacqueline Renton of 4PB, appeared on behalf of the eldest child and we appealed on 2 grounds: that the child's state of mind on matters relevant to integration should have been considered by the court in evaluating habitual residence and that she should have been joined as a party to the proceedings because of the evidence she could give which could not be satisfactorily advanced by the parents. We succeeded on both Grounds. The UKSC was split 3-2 with Lord Wilson delivering judgment on behalf of himself and Lord Hodge and Toulson and Baroness Hale delivering a judgment for herself and Lord Sumption. The outcome is the remittal of the case to the HIgh Court to determine whether the 4 children were habitually residence in Spain at the time of their retention in England. The central issue in relation to the evaluation of habitual residence was the relevance of the 'state of mind' of a child on the issue of whether the child was sufficiently integrated into a social and family environment to be habitually resident. The UKSC affirmed as they had in the Matter of A (July 2013) and KL (December 2013) that the test set out by the CJEU in Mercredi-v-Chaffe and Re A is the definitive test for evaluating habitual residence in ALL matters concerning children; whether domestically or for the purposes of the 1980 Hague Convention or any other family law purpose. The previous English authorities of Ex Parte Shah and others are consigned to legal history. The majority held that the state of mind of an adolescent is relevant to the evaluation of habitual residence and must be considered. In this regard Lord Wilson specifically disapproved of Lord Scarman's dicta in Shah that habitual residence should be evaluated by reference to matters susceptible of objective proof rather than matters of 'state of mind' or 'intention'. The underlying rationale is that in the digital age when most people leave digital footprints by which their contemporaneous state of mind can be evaluated there is no reason to exclude this from consideration or to prioritise objective matters rather than subjective. However the minority considered that the 'state of mind' of a child of any age could be relevant. The UKSC also confirmed that the intentions of the parents, even those with sole parental responsibility are only a part of the evaluation which is a matter of fact. This confirms that even if a parent with sole PR determines to permanently leave the jurisdiction they cannot by that act of will alone terminate the habitual residence of the child. The court will still have to look at all the facts relevant to integration to determine whether at the relevant time the child remained habitually resident in the country. This is a significant change from the previous law where since Re J our courts had applied a rule that if a sole holder of PR determined to leave permanently they could end habitual residence almost the moment they left the shores (or airspace). This will no longer be possible - or at least in most cases will not be. The removing parent will have to severe or very substantially eradicate the integration of the child in order to terminate habitual residence in a short space of time. Whilst with a very young child who has no independent links in school or the community, this may be possible, with school age children and those who have regular contact with extended family (in particular a parent without PR) this will become much more difficult. It has to be said that this approach introduces some tension with the approach taken by the CJEU in JMcB-v-LE in which the right to freedom of movement and the custodial rights of a sole holder of PR were emphasised and which would suggest that a sole holder of PR can lawfully move and consequently shift jurisdiction to the new country of residence. However a fact based assessment will allow of a situation where the parent has lawfully removed the child but the child may remain habitually resident at the time the court is seised and thus the lawful removal can be reversed. On the basis that decisions should be taken on the basis of 'best interests' and not 'parental rights' this must be right but it may take another reference to the CJEU to clarify the tension. The second point of the appeal was the circumstances in which children should be join to Hague Convention proceedings. The court confirmed that the test for joinder is whether it is in the best interests of the child to be joined. This is an argument that I had been advancing since the decision of the House of Lords in Re M and the decision of Ryder J (as he then was) in Re C. Those cases had (inadvertently in respect of the Re M decision) led to a much narrower approach that the FPR provided. Lord Wilson confirmed the FPR test of 'best interests' was the overriding one and that in considering that the court should also consider the contents of PD16. Whilst he stated he did not expect this clarification to routinely lead to representation of children in Hague cases this clarification undoubtedly loosens the constraints which had been created by Re C and Re M. Taken together with in the Matter of A and In the Matter of KL this case represents a clear change of direction on the evaluation of habitual residence of children. The judgment can be found on the UKSC website at : www.supremecourt.gov.uk/news/latest-judgments.html David Williams QC