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