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.