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05 JAN 2015

Re LR (Jurisdiction: Habitual Residence: Acceptance of Jurisdiction) [2014] EWCA Civ 1624

Re LR (Jurisdiction: Habitual Residence: Acceptance of Jurisdiction) [2014] EWCA Civ 1624
(Court of Appeal, Sir James Munby, the President of the Family Division, Sharp, King LJJ, 16 December 2014)

[The judicially approved judgment and accompanying headnote has published in Family Law Reports [2015] 2 FLR 1066]

Jurisdiction - Habitual residence - Father's private law application in respect of the child - Whether the court had jurisdiction

The full judgment is available below

The mother's appeal from a determination that the court had jurisdiction to hear the father's private law application based upon the child's habitual residence and Art 12 was allowed.

The child lived for the first 6 years of her life in the UK before moving with her mother to Germany to live with relatives. In 2012 the mother returned to the UK leaving the child in Germany with the maternal grandparents and aunt. They later began living in Luxembourg, where the child was now attending school, during the week and only staying in Germany at weekends. In 2013 the child returned to the UK for a short period where she had contact with the father.

The father made a private law application in respect of the child but the issue arose of whether the English court had jurisdiction to hear the proceedings in accordance with BIIR.

The judge determined that the English court did have jurisdiction based upon the fact that there was a strong argument that for the purposes of Art 8 of BIIR that the child remained habitually resident in the UK and that the court had jurisdiction by virtue of Art 12. He found that the mother had not expressly accepted the jurisdiction of the English court but found that she had done so in an unequivocal manner. Furthermore he held that acceptance of the jurisdiction was in the superior interests of the child. The mother appealed.

The appeal was allowed. It was clear that since 2012 the child had not been habitually resident in the UK. She was plainly either habitually resident in Germany or Luxembourg.

The factors identified by the judge had not individually nor collectively begun to demonstrate unequivocal acceptance of jurisdiction by the mother. Her failure to raise the issue of jurisdiction could not be said to have amounted to an unequivocal acceptance of jurisdiction. Furthermore, everything pointed to it having been in the child’s best interests for her future to be decided in the court of the country of her habitual residence and not in the court of a country she had not lived in since 2011.

The order would be set aside and replaced with a declaration in accordance with BIIR that the English court did not have jurisdiction to determine the father’s application.

Neutral Citation Number: [2014] EWCA Civ 1624

Case No: B4/2014/2301

His Honour Judge Altman

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 December 2014

Before :

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Re LR (A Child)

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Mr Martin Scott (instructed by Williams & Co) for the appellant (the mother)
The respondent (the father) was neither present nor represented

Hearing date : 9 December 2014

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Sir James Munby, President of the Family Division :

[1]  This is an appeal, pursuant to permission granted by McFarlane LJ on 30 July 2014, from a judgment given on 15 May 2014 by His Honour Judge Altman sitting at the Central Family Court. The judge was hearing a private law application brought by a father in relation to his daughter, LR, born in July 2005. The application had been issued on 1 November 2013. In accordance with an earlier order made on 30 January 2014 the issue before the judge was whether the court had jurisdiction to hear the proceedings in accordance with Council Regulation (EC) 2201/2003, commonly referred to as Brussels II revised (BIIR).

[2]  There were two issues for the judge. The first was whether, in accordance with BIIR Article 8, LR was habitually resident in England and Wales. The second was whether, if not, the court could and should nonetheless assume jurisdiction in accordance with BIIR Article 12. (The judge correctly held that BIIR Article 10 did not confer jurisdiction.) The judge held that the court had jurisdiction. He held, first, that there was “a strong argument” that LR was still habitually resident in this country and, secondly, that in any event the court had jurisdiction in accordance with Article 12.

[3]  Mr Martin Scott, on behalf of the mother, challenges both aspects of the judge’s decision. The father, though notified of the appeal, was neither present nor represented.

[4]  In my judgment, the judge was wrong on both points.

[5]  The relevant facts were set out in two statements, the one dated 20 March 2014 by the mother and the other, dated 27 March 2014, by the father. The judge decided the case on the basis of submissions, without hearing any oral evidence.

[6]  The essential history can be very shortly stated. From her birth in July 2005 until February 2011, LR lived with her mother (and during the very early part of her life with her father) in this country. In February 2011 she moved with her mother to live with her maternal grandmother, maternal step-grandfather and aunt (the mother’s half-sister) in Langsur in Germany. In April 2012 the mother moved back to this country, leaving LR in Germany with her grandparents and aunt. In February 2013 LR and her grandparents and aunt began living in Wasserbillig in Luxembourg, which is some five miles from Langsur, just over the German / Luxembourg border at the confluence of the Moselle and Sauer rivers. At Easter 2013 LR came back to this county for a few days, during which she had contact with her father, before returning abroad. Initially LR was at school in Germany, since 2013 she has been at school in Luxembourg.

[7]  The mother’s statement, on any sensible reading, gave the impression that in February 2013 LR had moved with her grandparents and aunt from Germany to Luxembourg. In fact, as the judge was informed by Mr Scott on the basis of more detailed instructions he had obtained at court from his client, what had happened was that in February 2013 her family rented the property in Luxembourg, thereafter, as they still do, living in the Luxembourg property during the week and in their German property at weekends.

[8]  Mr Scott’s case was, and is, very simple. LR has been living abroad ever since February 2011, initially with her mother, her grandparents and aunt and, since April 2012, with her grandparents and aunt. She is, within the principles expounded by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 54, habitually resident, he says, abroad and not in this country:

“The test adopted by the European court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends on numerous factors, including the reasons for the family’s stay in the country in question.
… The social and family environment of an infant or young child is shared with those (whether parents or others) on whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.”

[9]  I agree. It is plain that LR is, and has since April 2012 at the latest been, integrated in the social and family environment of her grandparents and aunt. It is equally plain that they are, and have since before February 2011 been, integrated in a social and family environment abroad and not in this country. LR goes to school in Luxembourg. It is plain that by well before February 2013 LR was habitually resident in Germany. There may be a nice question as to whether, since February 2013, she has been habitually resident in Germany or in Luxembourg, but that for present purposes is beside the point. It is plain that she is habitually resident either in Germany or in Luxembourg and not in this country. That suffices to determine the question of jurisdiction under Article 8.

[10]  The judge seems to have attached some weight to the father’s evidence that LR had told him during contact at Easter 2013 that “She didn’t have any friends and … was left alone for much of the time.” He expressed his conclusions as follows:

“I have found that until removal to Germany the habitual residence was in the UK, alongside that of the mother. I find that there was confusion in the case as presented for the mother as to where the child was residing after that. At one point it was said that the maternal grandparents with the child had moved to Luxembourg, but at the hearing it was less clear and Mr Scott on behalf of the mother said that it was, as he expressed it, ‘Germany/Luxembourg that was the place of residence. The following features emerge:

1 the child may not have settled in either place, may not have a social circle of friends of which to form part, and may not be an integrated part of the grandparents’ family. I find that there is not the clear evidence before me that an ingredient of the child’s life in Germany or Luxembourg is that the child has been integrated into the social and family environment.
2 the child appears to return to the UK frequently to be with her mother.
3 the child has spent time with the father in the UK
4 There seems to have been uncertainty as to where the mother expressed the residence of the child
5 Both parents are British nationals, the child is a British Citizen, and certainly the mother has her habitual residence in the uk, and in so far as the father may have changed his habitual residence from the UK to Ghana, it is not contended that this has affected the child.

I find that in all the circumstances there is a strong argument that the child has not acquired habitual residence in Germany or Luxembourg, and is still habitually resident in the UK, under the provisions of Article 8.”

[11]  With all respect to the judge this is very far from compelling. As I have already said, the fact that it may be a nice question as to whether LR is now habitually resident in Germany or in Luxembourg is beside the point. It is, at the end of the day a matter for argument, but the primary facts, as I have set them out, are clear enough. I struggle to reconcile the judge’s observations at 1 with the evidence: the fact, if fact it be, that LR has, or says she has, no friends, cannot, in the circumstances affect the question of habitual residence. It is not clear where the finding in 2 comes from, for there is nothing in the evidence to indicate that LR returns “frequently” to this country; the mother’s statement merely refers, without elaboration, to “short visits to the United Kingdom”. Even if LR has from time to time returned to this country it is clear that her settled base – where she lives – has since February 2011 been abroad. The time spent with the father referred to in 3 was, as we have seen, no more than a few days on one occasion. The facts in 4 and 5 are, no doubt, correct, but do not really bear on the question of LR’s habitual residence, given the salient facts as I have set them out.

[12]  In my judgment, LR is not, and has not, since at the latest April 2012, been habitually resident in this country.

[13]  I turn to the issue which arises under BIIR Article 12. The relevant provision is Article 12.3:

“The courts of a Member State shall also have jurisdiction in relation to parental responsibility in proceedings other than those referred to in paragraph 1 where:

(a) the child has a substantial connection with that Member State, in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and
(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best interests of the child.”

It is apparent that the requirements of paragraph (a) are satisfied. There are two questions which arise under paragraph (b): first, was the jurisdiction of this court “accepted expressly or otherwise in an unequivocal manner by [the mother] at the time the court [was] seised”, and, secondly, is the exercise of jurisdiction by this court “in the best interests of the child”?

[14]  In relation to the these two questions, Judge Altman was appropriately referred to the decision of my Lady, then Eleanor King J, in VC v GC (Jurisdiction: Brussels II Revised Art 12) [2012] EWHC 1246 (Fam), [2013] 1 FLR 244, a decision on the corresponding wording of Article 12.1(b).

[15]  The judge correctly found that the mother had not “expressly” accepted this jurisdiction, but went on to hold that she had done so “in an unequivocal manner.”

[16]  In support of this conclusion he drew attention to certain pre-proceedings correspondence between the parties’ solicitors. In a letter from his solicitors to the mother dated 16 October 2013, the father set out his understanding that LR “is now residing in Germany with her maternal grandmother”, asserted his parental responsibility for LR, and said that he would “like to organise some regular contact” with LR. In their reply dated 22 October 2013, the mother’s solicitors said that “Contact can be agreed but it must be supervised as your client cannot be trusted.” The letter continued:

“[The mother] does not, under any circumstances, agree to your client removing LR from her care and control bearing in mind that he took her in the past and court orders were obtained against him.”

The father’s argument before the judge was, apparently, that the letter showed that, just before the application was made, but some time after the child had gone to Germany, the mother was praying in aid the previous protection of the English court, as the judge expressed it “carried forward to October 2013”.

[17]  With all respect, I do not see how this correspondence begins to demonstrate an “unequivocal” (or, indeed, any) acceptance of the jurisdiction by the mother in 2013, particularly at a time when no proceedings had yet been begun and, not least, bearing in mind that when the proceedings were begun it was at the suit of the father and not the mother. True it is that she had invoked the jurisdiction years earlier, before LR went to Germany, but so what.

[18]  The other matter to which the judge drew attention was what the mother said in the acknowledgment of the proceedings which she signed on 13 November 2013. In answer to Question 5, “Do you oppose the application?”, she left both the Yes box and the No box unticked, writing in:

“In part. I am not objecting to supervised contact. I do not want to return my daughter to the UK. I intend to go + live in Germany with her. Father lives in Ghana.”

In answer to Question 8, “Do you intend to apply to the court for an order?”, she ticked the Yes box, but without providing, no doubt because the form did not seek, any elaboration as to what order she was seeking. As the judge noted, she made no assertion that this court lacked jurisdiction.

[19]  The judge expressed his conclusions as follows:

“Neither party raised the issue of jurisdiction, which, I find in the case of the mother, is some support for the clear acceptance of jurisdiction, consistent to being unequivocal. I find that this is one of the factors to be taken into account in considering whether acceptance is unequivocal, being without challenge to the jurisdiction. The mother dealt specifically with the issue of return to the UK of the child (which had not been raised by the father in his application in any event). Yet at the same time the mother made no representation as to jurisdiction. I find that the reference to return of the child makes it more likely that her mind was directed to this issue and that she accepted such jurisdiction. I find that the acceptance of jurisdiction is to be seen when in answer to the question “do you intend to apply to the court for an order?”, the mother had replied “Yes”.”

He continued:

“I find that this case is not one of acceptance being only in the entry of appearance” – this is a reference to what was said in Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, para 53 – “for I find that there is acceptance to be also inferred from the letter from the mother’s solicitors before the institution of proceedings and also from the statement in the answer that the mother wishes herself to apply for an order which goes, I find, beyond simple entry of appearance … I find that the mother did accept in an unequivocal manner the jurisdiction of the court. I rely in particular on the pre-proceeding correspondence and the answer to the application.”

[20]  What had to be demonstrated was unequivocal acceptance by the mother of the English court’s jurisdiction. As Lawrence Collins LJ observed in Bush v Bush [2008] EWCA Civ 865, [2008] 2 FLR 1437, para 53, “acceptance of jurisdiction of a court other than that of the child’s habitual residence is not lightly to be inferred”.

[21]  With all respect to him, the judge’s reasons as I have set them out above are vulnerable to serious criticism. I do not see how the mother’s failure to raise the question of jurisdiction can be said to amount to an unequivocal acceptance of jurisdiction, and the judge’s suggestion that it is “consistent” with such a finding takes the argument no further. I do not understand how it is said that the mother’s purely factual statement that “I do not want to return my daughter to the UK” throws any light on the point, let alone, as the judge found, that it shows her as accepting the jurisdiction. The fact that the mother indicated, without giving particulars, that she was intending to apply for an order is far from unequivocal – it is, after all, consistent with an intention to apply for an order dismissing the proceedings for want of jurisdiction. The previous correspondence, for reasons I have already indicated, is of no support.

[22]  In my judgment, the various factors identified by the judge do not, whether taken individually or together, begin to demonstrate an unequivocal acceptance of jurisdiction.

[23]  In relation to the second question, the judge’s decision was as follows:

“I also find that it is in the superior interests of the child, as required by Article 12. I conclude this particularly because both parents are resident in this country, the proceedings have been launched and it is in the interests of the child for them to be brought to a conclusion in the most expedient manner which will be achieved by continuing the proceedings here, and that in any event the issues before the court relate to the regulation of contact when the child is in the UK, and does not threaten decisions as to where the child should be living at the present time.”

I note that the judge, in explaining his decision, did not refer to, and it is to be assumed therefore did not attach much weight to, various other factors which, as is apparent from his counsel’s skeleton argument dated 14 May 2014, had been relied upon by the father.

[24]  The judge was in error in stating that both parents are resident in this country. The father is not. The fact that the proceedings have been launched is a fact, but cannot be a reason for concluding that the requirements of Article 12.3(b) are met, even when joined with the undoubted fact that it is in LR’s best interests that the matter be dealt with as speedily and effectively as possible – for that is necessarily so in every case in which Article 12.3(b) is sought to be brought into play. The judge gives no reasons for concluding that the proceedings can be concluded “in the most expedient manner” here rather than abroad. The judge’s final observation is particularly puzzling, because as the father had made clear in his statement, and as the judge in fact noted in his judgment, the father’s stance was that LR should be moved to a boarding school in this country or go to live with the father in Ghana.

[25]  The question is essentially one of forum conveniens. The question, as Baroness Hale explained in In re I (A Child) (Contact Application: Jurisdiction) (Centre for Family Law and Practice and another intervening) [2009] UHSC 10, [2010] 1 AC 319, para 36, is whether it is in the child’s interests for the case to be determined in the courts of this country rather than elsewhere. The judge’s answer to that question is, in my judgment, unsupportable on his own reasoning. Everything points to it being in LR’s best interests for her future to be decided locally, in the court of the country of her habitual residence and not in the court of a country where she has not lived since 2011. One must always sternly resist the temptation to compare cases on their facts, but I cannot help thinking that Holman J’s analysis in B v B (Brussels II Revised: Jurisdiction) [2010] EWHC 1989 (Fam), [2011] 1 FLR 54, paras 30-33, has a certain resonance here.

[26]  For all these reasons, this appeal must, in my judgment, be allowed. The order made by Judge Altman, declaring and ordering that the court has jurisdiction in accordance with BIIR, must be set aside. In its place we should declare, in accordance with BIIR, that the English court does not have jurisdiction to determine the father’s application.

Lady Justice Sharp :

[27]  I agree.

Lady Justice King :

[28]  I also agree.
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