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

X -v- Latvia: Judgment of ECHR

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of X v. Latvia (application no. 27853/09) at a public hearing on 26 November 2013 at 11 a.m. – local time – in the Human Rights Building, Strasbourg. The case concerns the application of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 by the Latvian courts in ordering the return of the applicant’s daughter to Australia with her father, and its compatibility with the provisions of Article 8 of the Convention.

Forum Conveniens, BIIR and Owusu-v-Jackson

The Court of Appeal on Friday 18 October, handed down a landmark judgment for international families with connections to England and non-EU countries who are divorcing. The decision confirms that where there are divorce proceedings in both England and a non-EU country, the English court retains the discretionary power to decide that it is more appropriate for the proceedings to take place in the other country and accordingly to stay the proceedings in England on forum non conveniens grounds. Many non-EU countries around the world apply a similar test when deciding in which forum the proceedings should take place. There was much debate following the controversial decision of the European Court of Justice in Owusu v Jackson (2005)in which the ECJ said that the discretion to stay proceedings no longer existed in cases where England or other EU countries had jurisdiction under an EU Regulation to hear proceedings. The question of whether it applied in family law, particularly divorce, has been debated since. The appeal, which will be reported as Mittal v Mittal [2013] EWCA Civ 1255, The Court of Appeal was comprised of a non-family law bench, with Lord Justice Lewison giving the lead judgment to which Rimer and Jackson LLJ concurred.

Legal Aid in International Cases: The latest on the legal aid consultation.

Paras 125 of Annex B sets out some specific exemptions to the ‘residence test’. The exemptions are made by reference to particular paragraphs of Schedule 1 of LASPO. (a) Forced Marriage cases will not be covered by the 1 year residence test. (b) Various child protection cases will not be covered by the 1 year residence test including care (LASPO Sch 1, para 1) child abduction cases (para 10) (c) Inherent jurisdiction will not be covered by the 1 year residence test. We consider it to be significant that there is no express reference to Paragraph 17 of Sch 1, LASPO which deals with 1980 Hague and BIIR matters. However to confuse matters at para 116 of The Response it is stated that ‘...we would ensure that legal aid would continue to be available where necessary to comply with our obligations under EU or international law set out in Schedule 1 to LASPO .’ Para 17 of Sch 1 of LASPO is titled’ EU and international agreements concerning children’. However it is not apparent what the MoJ consider their obligations to be. Arguably this would only cover Applicants for 1980 Hague orders or which fall under Art 50 BIIR. This might therefore mean that all Respondents’ to 1980 Hague applications and all applications under BIIR (Art 11(6-8), registration and enforcement applications not covered by Art 50) would be subject to the 1 year residence test. For most of them (save in settlement cases) they would fail a residence test. Given the complexities in these cases this would be counter-productive to the efficient handling of them. There is an argument that 1980 Hague cases are also in the Inherent Jurisdiction and so would be ok. Although many 1980 Hague cases are also entitled ‘In the Inherent Jurisdiction’ we are not sure that they truly are within that. The Tipstaff orders are often framed in that jurisdiction but arguably are made under Section 5 CACA 1985 and Article 7 1980 Hague. The recent guidance from the President about drafting orders specifically disapproves of the use of ‘In the Inherent Jurisdiction’ as part of the title. In reality the ‘Inherent Jurisdiction’ plays a minor role in 1980 Hague cases (save for unusual circumstances; for instance where 1 child is not covered by the Hague and a return is sought under the Inherent Jurisdiction. I very much doubt that the Legal Aid Agency will accept applications for inherent jurisdiction certificates where the primary application is under the 1980 Hague Convention. The legal aid certificates granted to applicants are to make an application under the 1980 Hague Convention/Child Abduction and Custody Act 1985 and do NOT refer to the Inherent Jurisdiction. Issues have arisen in the past when ‘dual’ applications have been made for Applicants, or where reference is made to the Inherent Jurisdiction because legal aid is non-means non-merits for the 198 Hague/CACA but is means and merits tested for Inherent Jurisdiction and the LSC has then questioned whether there should be apportionment of costs etc. I doubt that the LAA will accept applications for inherent jurisdiction certificates to defend a Hague. We will be responding seeking confirmation of express exemption of matters falling within Para 17 of Sch 1 of LASPO. I am afraid we are working on the assumption that the failure specifically to exempt all matters falling under Para 17 is significant (rather than inadvertent) and that the residence test would apply save where there are very tightly defined ‘obligations’ to provide Legal Aid. Inherent jurisdiction is not likely to provide a life-boat. Annex B ‘s get out clause is that if you, as a legal aid provider, think that failure to grant legal aid as a matter falls outside of scope would be a breach of EU / International law, they expect you to make an application for exceptional funding under section 10 of LASPO. In the context of an applicant or a respondent to a Hague convention case this would mean that we would be expected to explain to the LAA why failure to grant funding would amount to this breach. I don’t think the exceptional funding provisions are intended to apply to entire categories of case but instead are intended to apply to individual cases which warrant funding on their facts so that obligations under EU / International law can be met. The arguments you would made for the grant of exceptional funding would always be the same in an abduction case. Which I think means that s.10 LASPO is not an appropriate safeguard to ensure that abductions are funded.

Habitual Residence: The UK Supreme Court Judgment in A

On 9th September the UKSC delivered its judgment in A: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2013_0106_Judgment.pdf There is much of interest but 2 principal points are (a)the courts of England retain jurisdiction in respect of children who are UK subjects in certain limited circumstances. (b) the test for determining the habitual residence of a child is the European test set out in Mercredi-v-Chaffe and Re A. The English authorities including Shah-v-Barnet should no longer be followed. In particular they place too much emphasis on the intentions of the adults and too little on the factual situaiton of the child.

EU issues Best Practice Guide on 1980 Hague Abduction and Art 11(6-8) applications

The European Union Working Group on Article 11 of BIIR has now issued some best practice guidance on both Central Authority and Judicial processes in relation to how 1980 Hague Abduction Convention applications are handled and how Article 11(6-8) 'second bite of the cherry' applications are dealt with. The Guidance can be found at: https://e-justice.europa.eu/content_parental_responsibility-46-en.do and https://e-justice.europa.eu/fileDownload.do?id=6c30ffe7-40e7-4d9a-96b0-7c9a14370c3c

Legal Aid Consultation

The new consultation is out. https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/consult_view My preliminary reading (paras 125 on) suggests that the 1 year residence (a) The government have said that obligations under EU or international law as specified in Sch 1 LASPO (http://www.legislation.gov.uk/ukpga/2012/10/schedule/1 )will not be covered by the 1 year residence test and will be covered by legal aid. Para 17 of Sch 1 of LASPO covers EU and International Agreements relating to children (which includes 1980 Hague) and so I assume legal aid continues for Hague (b) Forced Marriage cases will not be covered by the 1 year residence test. (c) Various child protection cases will not be covered by the 1 year residence test including care (LASPO Sch 1, para 1) child abduction cases (para 10) (d) Inherent jurisdiction will not be covered by the 1 year residence test.