B (A Child)

Miss B, who is now aged 28, was first referred to a psychiatrist because of concerns surrounding her mental health when she was only eight years old. In her mid-teens she spent a year as a patient in the adolescent mental health unit of the Cassell hospital. Despite the therapy that she was able to access there, and despite continued attempts to provide therapy to her in the years that have followed, her behaviour has continued to demonstrate that she does not enjoy robust and sustained mental good health. Throughout this long period the principal presentation of her underlying mental health difficulties has been that of attending accident and emergency departments, or other health resources, and giving fabricated accounts of symptoms in order to access treatment. A recent psychiatric report, based upon an assessment with which Miss B co-operated in January 2013, summarises the history of disturbed behaviour, lists the various possible diagnoses that have, in the past, been put forward, and concludes that the “pattern of psychological experience and behaviour suggests borderline personality disorder, somatising disorder and factitious disorder”.

In 2007 Miss B became pregnant as a result of a relationship with a man who is also said to have suffered from serious psychiatric problems. Once the local authority for the area in which she was living became aware of the pregnancy, a pre-birth assessment was made and as a result of Miss B’s history of sustained and severe mental ill health the local authority resolved to issue care proceedings immediately following the child’s birth with a view to separating mother and child at that point, prior to conducting a structured assessment of her ability to care for the baby. Having heard of these plans Miss B moved to another area of England and Wales but, upon learning that the local authority in that new area also proposed to implement a similar child protection plan, Miss B, without notice to the father or any of the authorities, moved to Sweden. Although as an autonomous adult Miss B was entirely free to make that move, Sweden does not appear to have been a country with which she had any links of family, community or language. During a number of media interviews Miss B made it very clear that her sole purpose in moving to Sweden was to escape the attention of the social work authorities in England.

In due course, on 13^th January 2008, the child that she had been carrying was born in Stockholm. That child, a girl, M, now aged 5 years, is the focus of the proceedings which are the subject of this appeal.

The issue raised by the appeal can be shortly stated. On 12^th September 2012, during a short period in which Miss B and M were in England, the local authority for the area in which Miss B’s mother lives issued an application for a care order with respect to M under Children Act 1989, s 31. All the parties to the proceedings accept that at that time M was habitually resident in Sweden. In consequence, Miss B asserts that the courts in England and Wales do not have jurisdiction to make orders relating to M’s welfare and her protection (save for the making of short term provisional protective measures if required). The local authority, M’s father and the Children’s Guardian appointed for M in the care proceedings assert that, notwithstanding M’s Swedish habitual residence, the English court does have jurisdiction.

In a judgment given on 13^th June 2013 Her Honour Judge Lesley Newton, sitting as a deputy High Court Judge, concluded that the English court did indeed have full jurisdiction over M in relation to matters concerning parental responsibility, child protection and welfare. In consequence of that ruling the care proceedings are now set down for final determination in November 2013.

By this appeal, which she brings with the permission of Lady Justice Black, Miss B challenges HHJ Newton’s conclusion on jurisdiction.

As this appeal concerns matters of jurisdiction and, in particular, the interpretation of European Council regulation No. 2201/2003 (Brussels II Revised – “BIIR”) it is not necessary to summarise the troubling history of Miss B’s behaviour in any more detail than I have already provided. I have however read the recent psychiatric report of Dr G A, a consultant forensic psychotherapist based at Broadmoor Hospital together with an extensive multi-disciplinary assessment prepared, again with the co-operation of Miss B, in May 2013. Those documents, which of course have yet to be scrutinised by any first instance court, present the clear opinion that, even with intensive treatment and risk management, Miss B will continue to pose a high risk to M of emotional abuse and/or neglect for many years to come as a result of the extent and depth of Miss B’s psychological difficulties.

In relating the necessary factual history, I will concentrate on those matters that more directly impact upon the question of jurisdiction.

Following M’s birth, and having no doubt been alerted to the situation by the English authorities, the Swedish social services conducted a detailed investigation and concluded that Miss B did not present such a risk to M so as to necessitate the instigation of the Swedish equivalent of care proceedings. Concern was apparently again raised towards the end of 2009 when care proceedings were commenced in Sweden; those proceedings were dismissed after a short time on 26^th February 2010. Throughout this period M continued to live with Miss B in Sweden.

M’s father applied to the Stockholm District Court for joint custody and contact on 30^th September 2010. Progress in those proceedings was delayed because at that stage Miss B and M undertook a pre-planned move to Paris for six months followed by a further visit to the USA. During her return journey from America Miss B stopped off in the UK on 29^th September 2011 with the intention of visiting family and friends. On that day the father applied to the English High Court for an order making M a Ward of Court. He subsequently made applications for contact and parental responsibility orders. The question of whether or not the English court had jurisdiction was immediately raised in those proceedings with the issue being determined by Sir Nicholas Wall, the then President of the Family Division, on 1^st November 2011 (reported as A v B (Jurisdiction) [2011] EWHC 2752 (Fam); [2012] 1 FLR 768). At that time the father’s Swedish custody application was still pending and Sir Nicholas Wall therefore declined jurisdiction pursuant to the lis pendens provisions in BIIR, Article 19 on the basis that the Swedish court was already seised of the issues.

During the currency of the wardship proceedings, the local authority had issued care proceedings under CA 1989, s 31. Those proceedings were brought to an end by the order of Peter Jackson J on 15^th December 2011. During the English court process in the Autumn of 2011 Miss B and M had been obliged to remain within this jurisdiction. In order to facilitate an orderly return to Sweden, and, more importantly, in order to ensure, so far as was possible, engagement by the mother with the Swedish social services, the mother gave a number of undertakings to the English court. In particular she undertook to engage and co-operate with any assessment that the Swedish social services wished to carry out and with any psychiatric assessment that those professionals might recommend.

Miss B and M returned to Sweden in mid-January. Records obtained from Sweden indicate that the social services undertook an enquiry into Miss B’s care of M between January and May 2012. The conclusion of the enquiry was that it was not necessary to institute care proceedings and an order of the Stockholm Administrative Court dated 14^th June 2012 records that fact.

At around the same time the father had made an application to withdraw his outstanding private law applications in Sweden and, by an order dated 16^th August 2012, the Swedish private law proceedings were set aside.

In the summer of 2012 Miss B and M made two short visits to England. During that period there was increased professional concern following Miss B’s attendance at various hospitals in England on a number of occasions. Ultimately, on 11^th September 2012 Miss B was taken to Hillingdon Hospital as a result of her behaviour at Heathrow Airport and M was received into foster care, initially under the protective powers of the police contained in CA 1989, s 46. The following day, on 12^th September 2012, the local authority issued the current application for a care order.

Following her initial stay in foster care, M was placed with her maternal grandmother. At the time that the case was last before Judge Newton in June 2013 the preferred proposal for M’s long term care, if she could not return to the care of her mother, was to remain in the care of the maternal grandmother. However, this court was told during submissions that the grandmother no longer felt able to put herself forward in that role and the option of adoption for M has therefore become a live consideration.

Before turning to the judge’s decision, it is necessary to set out the relevant provisions of the BIIR Regulation.

There is no dispute that the BIIR Regulation applies to public law care proceedings under CA 1989, Part 4. Recital (5) to the Regulation expressly provides that it ‘covers all decisions on parental responsibility, including measures for the protection of the child, independently of any link with a matrimonial proceeding’.

Recital (12) refers to the grounds for jurisdiction:

Recital (16) deals with provisional measures in urgent cases:

As will become apparent, the operation of the European Judicial Network is relevant to the issues in this appeal; recital (25) provides:

In the definitions provision (Article 2) ‘parental responsibility’ is defined as:

Section 2 of the Regulation (Articles 8 to 15) specifically deals with ‘parental responsibility’ and Article 8 makes provision for ‘general jurisdiction’ as follows:

Although not directly relevant to the issues in this case, Article 9(1), which deals with the situation where a child has moved from the state in which he had previously been habitually resident, makes some reference to jurisdiction:

In like manner, the opening provisions of Article 10, which deals with jurisdiction in cases of child abduction, has some relevance here arising from the reference to retention of jurisdiction:

Article 13(1) deals with jurisdiction based on the child’s presence:

Article 14 makes provision for ‘residual jurisdiction’:

Finally in Section 2, Article 15 deals with ‘transfer to a court better placed to hear the case’:

Section 3 of BIIR sets out certain ‘common provisions’, of which Articles 16, 17 and 20 are of note. Article 16 deals with ‘seising of a court’:

Article 17 provides for ‘examination as to jurisdiction’:

Finally, Article 20 sets out ‘provisional, including protective, measures’:

In her judgment given on 1^st November 2012, at the conclusion of an application for an interim care order with respect to M, HHJ Newton gave an extensive, ex tempore, judgment in which she reviewed the factual background (which was largely agreed) and the relevant EC and domestic law. The application was not actively opposed by the mother and the only oral evidence given was by the social worker. At that time the judge did not have the benefit of any up to date assessment of the mother’s mental wellbeing or her current parenting capacity. Any findings made were therefore to be seen as provisional. In terms of jurisdiction, the judge was clear that ‘my present jurisdiction extends only to the making of protective orders within [BIIR] Article 20’.

In those circumstances, HHJ Newton was satisfied that [paragraph 60]:

HHJ Newton went on to make a request to the responsible court in Sweden to consider transferring jurisdiction with respect to M to the High Court in England and Wales under BIIR, Article 15 on the basis that the English court was now in a better position to conduct proceedings designed to protect M’s position and to reach decisions as to her future. In making that request the judge helpfully set out a list of factors which would suggest that transfer to the English court was justified. Finally, HHJ Newton indicated that she would be prepared to communicate directly with the Swedish Central Authority and/or any judicial liaison judge or other judge in Sweden.

The decision of the Stockholm District Court with respect to the BIIR Article 15 transfer request was made on 8^th March 2013 and produced the following response:

Thereafter, on 16^th May 2013, HHJ Newton submitted a number of questions through the office in England of the Head of International Family Justice. In due course these were responded to by the Swedish judicial member of the European Judicial Network. The first two questions and response are of note:

On the 10^th June 2013 the matter came back on for hearing before HHJ Newton. The principal matter considered at that hearing was the question of whether or not the English court had full jurisdiction over matters relating to M’s welfare, or whether any jurisdiction remained limited to the making of provisional orders under BIIR, Article 20. In her judgment given on 13^th June the judge concluded that the English court did have full jurisdiction with respect to M. In summary the judge made the following preliminary observations before expressing the reasons for her conclusion:

HHJ Newton’s conclusions were expressed at paragraphs 44 to 47:

Finally, HHJ Newton held that, if she were in error as to this court having jurisdiction, the court was in any event justified to give directions for the assessment of M’s maternal grandmother as a prospective long-term carer under BIIR, Article 20 on the basis that this was a provisional measure which could facilitate the process in Sweden if, in due course, the Swedish court were to assert jurisdiction over these matters.

Miss Scriven QC, for Miss B, summarises the basis of her appeal in the following five points:

The appeal is opposed by the Local Authority, the father and the Children’s Guardian.

In support of the first limb of her appeal, namely the incorrect application of the relevant articles of BIIR, Miss Scriven’s submission is straightforward. On the accepted basis that M was habitually resident in Sweden at the relevant time, namely the commencement of English proceedings in September 2012, the judge had no alternative but to find that the Swedish court had jurisdiction pursuant to BIIR Article 8. It is submitted that at no place in the judgment does the judge identify how the Swedish court did not have jurisdiction given the fact that M was habitually resident there at that point in time. It followed that the Swedish court had jurisdiction pursuant to Article 8, and that conclusion should, in turn, have led the English court to make a declaration of “no jurisdiction” pursuant to BIIR, Article 17.

Miss Scriven submits that the judge was in error in utilising Article 14 as Article 14 is a residual provision to be applied where no court of a member state has jurisdiction. The judge purported to give Article 14 “a broad and purposive” interpretation whereas, it is submitted, that it should have been interpreted narrowly.

In relation to the second limb of her appeal, the approach taken to the opinion of the unnamed Swedish network judge, Miss Scriven submits that the judge failed to distinguish sufficiently between the decision of the Swedish court, which was to reject the request for transfer on the basis that there was no active case, and the opinion of the Swedish network judge, to the effect that it was “highly likely” that, if the issue were raised in fresh proceedings in Sweden, the Swedish court would now consider that there is “no current jurisdiction” and that it is “highly likely” that now the English court has a substantive jurisdiction outside that conferred by Article 20. It is submitted that the only decision of a Swedish court on these points is the straightforward rejection of the Article 15 request. That decision, it is submitted, in no manner determined that the Swedish court lacked jurisdiction.

In relation to the observations of the Swedish network judge, Miss Scriven submits that these statements are mere “opinion” for which no reasoning is given. Further, the opinion relates to the “current” circumstances, whereas the task set by BIIR Article 8 is for the English court to consider jurisdiction at the point at which it is seised of the case, namely September 2012. Miss Scriven also observes that the Swedish network judge failed to address in any manner the significance of M’s habitual residence in Sweden at the start of the English process. Further, there is no reference to the fact that, only some three months earlier, the Stockholm Administrative Court was exercising jurisdiction in concluding the enquiry into M’s welfare that had been conducted by the local social services.

In any event, Miss Scriven submits that the judge’s conclusion at paragraph 46 that “the Swedish courts have, indeed, declined Article 8 jurisdiction” is simply not supported by the Swedish court’s decision to reject the transfer application and the Swedish judge’s opinion that it is “highly unlikely” that jurisdiction would be exercised were a future application to be made.

For the Local Authority Miss Sarah Morgan QC seeks to uphold the judge’s judgment and the judge’s conclusion. Miss Morgan submits that the judge was properly entitled to conclude that she could exercise jurisdiction given the Swedish court’s decision (as clarified by the Swedish network judge) that Sweden would decline jurisdiction on the basis of a lack of extant proceedings in that jurisdiction. It is argued that the English court would only be obliged to decline jurisdiction, under Article 17, if, not only was M habitually resident in Sweden, but also Sweden had had substantive jurisdiction in respect of M.

Miss Morgan submitted that the fact that a child is habitually resident in a particular Member State does not mean that that State has jurisdiction under BIIR in the absence of any live proceedings with respect to the child in that State; there have to be proceedings in existence for Article 8 to bite.

Miss Morgan has referred the court to Emerging Guidance (see paragraph 62 below) regarding the development of the International Hague Network of Judges which was apparently endorsed at the 15^th anniversary conference of the network judges in July 2013. The guidance stresses that a key objective of inter-judicial communication is to address any lack of information that the judge in the requesting state may have as to the situation in the requested state and, in relation to the legal implications, in the state of habitual residence of the child.

On behalf of the father Mr Setright QC sought to assist the court by developing alternative submissions to complement the local authority’s straightforward endorsement of the judge’s approach.

Mr Setright made a preliminary application requesting this court to refer the question or questions raised in this case to the European Court of Justice in the expectation that the circumstances of this child would justify that court expediting its response to the request. For reasons which I will develop, I do not consider that a referral to the ECtJ is required in this case as the relevant provisions of BIIR are sufficiently clear to resolve the current issues.

The alternative courses of action put forward by Mr Setright are twofold:

In developing the first of these two alternative options, Mr Setright drew attention to the fact that, since the judge’s judgment, the Supreme Court had handed down its decision in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2013] 3 WLR 761 concerning habitual residence. In the judgment of Lady Hale DPSC, with whom the majority agreed, her Ladyship reviews the extant domestic and European case law on habitual residence and, at paragraph 54, draws the threads together in the following conclusions:

“i)

All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

ii)

It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

iii)

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 upon numerous factors, including the reasons for the family's stay in the country in question.

iv)

It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.

v)

In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

vi)

The social and family environment of an infant or young child is shared with those (whether parents or others) upon 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.

vii)

The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

viii)

As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.”

Mr Setright submits that M’s current circumstances, having been resident in England for over a year and settled in the care of her grandmother, together with the other significant background features of the case, strongly indicate that M is now habitually resident in England and no longer habitually resident in Sweden. If that is right, says Mr Setright, then the Swedish court would no longer exercise jurisdiction in any fresh proceedings, but, if the jurisdiction of the English court has to be assessed in relation to the circumstances as they were on 12 September 2012, when all accept M was not habitually resident in England, there is a real prospect of both the Swedish court and the English court holding that they do not have jurisdiction with respect to M’s welfare with the result that there is a stalemate and no court in either country can make substantive orders with respect to her. It is, therefore, in that context that Mr Setright suggests the two options to which I have already referred.

The first option, withdrawal of the current proceedings and immediate re-issue of a fresh application for a care order, are not steps that this court can direct. They remain open to the parties and, if such a course is pursued, the court would then have to evaluate whether or not it did indeed achieve jurisdiction for the English court. Mr Setright commented that such an option would be unattractive because it is so blatantly a tactical strategy. However, I would observe that the unattractiveness of such a course reduces when it is set against the blatant and admitted tactical nature of the mother’s own actions in leaving this jurisdiction and going to Sweden in order to avoid court proceedings prior to M’s birth.

Mr Setright’s second option, namely that one of the other parties should make an application to the Swedish court, was not well received by the local authority or those acting for M. There must be a substantial question mark over the locus standi that the local authority would have in Sweden, notwithstanding the fact that currently under the English orders they share parental responsibility for M. Similar concern about locus applies to the child’s representative. The father himself could only apply for private law orders and does not, in any event, have the funds to make any application. The mother, for her part, has plainly not made her own application in Sweden.

On behalf of M and her Children’s Guardian, Mrs Jane Crowley QC made a forceful plea for some finality on the issue of jurisdiction, with a decision upholding the judge’s conclusion so that long term planning can now be undertaken by the English court with a view to settling the arrangements for the remainder of M’s childhood. A primary concern on the part of M is that, if the mother’s appeal is successful, there is nothing to prevent the mother once again “playing the system” by returning to Sweden with her daughter, and then, possibly moving on again to a third country if the Swedish social services show a higher level of concern than has hitherto been the case.

Mrs Crowley took issue with Miss Scriven’s suggested interpretation of BIIR Article 8. The mother’s case is that “the courts” referred to in Article 8 are the courts in England and Wales and that jurisdiction is determined, under that article, by whether the child is habitually resident in that member state at the time that that court, namely the English court, is seised. Miss Crowley’s submission is that the reference to “the courts” in Article 8 must be to the courts in Sweden and, as those courts are not yet seised of any proceedings in relation to M, Article 8 does not apply.

In response, Miss Scriven urged this court to set aside the judge’s order and make a declaration under BIIR, Article 17 that the English court does not have jurisdiction relating to M in these proceedings. Further, Miss Scriven submitted that, flexible though it may be, the outer extent of what is permissible by way of provisional measures under Article 20 has now been reached and any further steps proposed in the continuing proceedings are outside Article 20 and, in Miss Scriven’s submission, therefore made without the English court having jurisdiction in the matter.

The judge’s conclusion as to jurisdiction is based to a significant extent upon the requests and responses made via the International Hague Network of Judges [‘the Judicial Network’]. It is therefore appropriate to commence an analysis of the issues in this case by considering the role of the Judicial Network and its deployment in these proceedings.

The establishment of an international network of judges concerned with the welfare and protection of children was first proposed by Sir Mathew Thorpe (then Lord Justice Thorpe) at an international seminar in 1998. A convenient description of the current situation is to be found in Chapter 3 of the 2012 Annual Report of the Office of the Head of International Family Justice (in England and Wales), the office holder at the time being, naturally, Lord Justice Thorpe:

It is of note that this description of the role of the Judicial Network falls short of describing a mechanism for obtaining binding rulings from the requested Network Judge. The emphasis is upon the practical aspects of resolving international cases, including the provision of ‘information as to the law’, rather than upon obtaining concluded free-standing determinations on matters of jurisdiction or status.

The Special Commission on the Practical Operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention, which met in June 2011 under the auspices of the Hague Conference on Private International Law endorsed a document entitled The Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications (which was Preliminary Document 3A to the Special Commission meeting). The Emerging Guidance was subsequently updated in July 2012.

Although the Guidance expressly relates to the IHNJ, there seems to be no reason to distinguish between the IHNJ and the EJN in this context.

The Guidance describes the two-fold role of a Network Judge. The first element is not case-specific. In relation to the second element of the role the Guidance states:

In a section of the Guidance which deals with requests made with respect to specific cases, the following matters that may be the subject of direct judicial communications are offered by way of example:

Thereafter, the following ‘Communication Safeguards’ are offered:

The focus of this guidance, and it would seem the focus of the work of the Network itself, is upon achieving the exchange of information and cooperation on the practicalities of a case. Nowhere does the Guidance suggest that the Network Judge should give authoritative rulings or legal advice. On that basis the operation of the Network has proved to be valuable in lubricating the arrangements that fall to be made between one jurisdiction and another. It is, however, in my view, outside the scope of the Judicial Network for it to be used to obtain an authoritative determination from the court of the requested Network Judge on the issues relating to a particular child where, either, there are no proceedings relating to that child before that court, or, if there are proceedings, the determination sought is one that is made outside those proceedings.

The primary reason why it would be outside the scope of the Judicial Network scheme for the requested judge to issue an authoritative ruling outside the arena of ongoing court proceedings in his or her court is the one relied upon by Miss Scriven. In the context of liaison between judges in Europe, each will be governed by the fair trial requirements of ECHR, Article 6. One only has to contemplate a requested judge issuing a determination in circumstances where they have not heard any of the parties or their advocates, they probably have not been exposed to all, or to any, of the key documentation in the case and almost certainly, where there are no extant court proceedings, they do not have any jurisdiction to make a binding determination under their domestic law.

Turning to the present case, and against the background relating to the Judicial Network that I have described, I consider that the four questions asked of the Swedish Network Judge fall well outside what can properly be requested via the Judicial Network. To ask (Question 1) ‘does the Swedish Court consider that there is a current Swedish jurisdiction in respect of the child under Article 8 of BIIR?’ or (Question 2) ‘does the Swedish Court consider that the English Court has a substantive jurisdiction outside that conferred by Article 20 of BIIR?’ seeks the determination of fundamental matters of status in a case where those very issues are fully contested. It was wholly inappropriate for the English court to ask such questions both as a matter of substance and also because, had the Swedish court sought to give a binding reply, such a process would have been bound to breach the parties ECHR Article 6 rights.

As matters turned out, the Swedish judge, correctly if I may say so, declined to answer these direct questions on the basis that, in the absence of current proceedings in Sweden the issue of jurisdiction ‘cannot be tried’. No doubt if there had been current Swedish proceedings, then the question would have been answered by a ruling after a full court process within those proceedings, and not outside those proceedings via freestanding communication from the Network Judge.

Of course, the Swedish Network Judge did not limit her response to the narrow point that the Swedish court had no current basis to determine jurisdiction, but went on to offer her opinion that it was ‘highly likely’ that the Swedish Court would consider that jurisdiction with respect to M now lay with England rather than Sweden. It is not for me to offer any view as to whether those additional responses were well, or ill, advised. I have already held that it was wholly inappropriate for the English court to ask these questions in the first place. What is, however, clear is that, even taken at their highest, these expressions of opinion as to the ‘highly likely’ view of the Swedish Court cannot form the basis for a finding that the courts in Sweden have actually ‘declined jurisdiction’, as the judge concluded at paragraph 46. Courts in a Member State can only ‘decline’ jurisdiction, or declare under Article 17 that they do not have jurisdiction, in the context of a proper judicial process, conducted within ongoing court proceedings in that State where, as Article 17 makes plain, that court is ‘seised’ of the case relating to the particular child.

Although the factors that HHJ Newton identifies relating to this child’s welfare needs may point strongly to a resolution of the jurisdiction issue in favour of the English court, and although I would not wish to criticise a judge who, in those circumstances, adopts a ‘realistic, pragmatic and common sense’ approach and does so from a child-focussed perspective, the ‘merits’ of the case, when the central issue is one of jurisdiction, can only carry the analysis so far and no further. Such an approach can not, and should not, justify inflating the communications that took place over the Judicial Network in this case to providing an authoritative determination from Sweden in which it abdicates jurisdiction with respect to M.

It follows from these conclusions, that both the process and the internal reasoning adopted by the judge cannot stand and must be set aside, with the result that it will fall to this court to determine the issue of jurisdiction under BIIR afresh.

The starting point in considering jurisdiction under BIIR is Article 8. It is common ground in this case that at the time that the English court became seised of this case M was habitually resident in Sweden. In consequence Article 8 does not afford jurisdiction to the English court with respect to the current care proceedings.

With respect, I am unable to accept Miss Morgan’s submission that the terms of Article 8 mean that jurisdiction under BIIR only attaches to the State of a child’s habitual residence if and when proceedings are issued in that State. The purpose of the reference in Article 8 to ‘the time the court is seised’ is to crystallise the moment in time at which jurisdiction is to be determined in respect of a particular set of proceedings. The phrase ‘the courts’ and ‘the court’ in Article 8 must refer to the same court and they refer to a court that becomes seised of a case; if the child is habitually resident in that Member State then its courts will have jurisdiction under Article 8. The wording in Articles 9 and 10 (‘retain jurisdiction during a three-month period’ and ‘shall retain jurisdiction’) readily contemplates the courts of the State of former habitual residence (Art 9), or habitual residence immediately prior to abduction (Art 10), having jurisdiction irrespective of whether there are any extant proceedings before those courts. Such an interpretation sits easily with Recital 12: ‘the jurisdiction should lie in the first place with the Member State of the child’s habitual residence’.

It follows that the fact that there were no extant proceedings relating to M before a Swedish court on 12 September 2012 does not mean that the Swedish courts did not have jurisdiction under BIIR when these English proceedings were commenced.

BIIR, Articles 9 to 12 deal with circumstances that do not arise in this case. Article 13, which relates to jurisdiction based on the child’s presence in a Member State where a child’s habitual residence cannot be established and there has been no prorogation of jurisdiction under Article 12, is not relevant as M’s habitual residence can be established. Depending on the date at which it is determined it will either be Sweden or, if the submissions of some of the parties are correct, England.

Article 14 provides for residual jurisdiction where ‘no court of a Member State has jurisdiction pursuant to Articles 8 to 13’. For the reasons that I have given I conclude that, certainly at the time that the English court was ‘seised’ of this case in September 2012 and for a considerable period thereafter, jurisdiction attached to the courts of Sweden as being the State in which M was (and possibly still is) habitually resident. In those circumstances the courts in Sweden did have jurisdiction pursuant to Articles 8 to 13.

It follows from this analysis that the English court has no jurisdiction under BIIR in respect of these care proceedings.

I, therefore, finally come to Article 17. It is in plain and mandatory terms. Where a court is seised of a case over which it has no jurisdiction, and over which a court in another Member State has jurisdiction by virtue of BIIR, ‘it shall declare of its own motion that it has no jurisdiction’. That was the very situation that existed in September 2012. In consequence of Article 17 the English court was required to make a declaration of ‘no jurisdiction’, but did not do so. The fact that more than a year has now gone by and it can be argued that M may now be habitually resident in England, and no longer habitually resident in Sweden, cannot be justification for ignoring the requirement for a declaration to be made in or soon after September 2012. That must be particularly so where the fact that M has been in England for this time has only been achieved by the imposition of compulsory orders keeping her here and despite the opposition of her mother.

If the situation is now that M’s habitual residence has changed (and that is a matter which is expressly not determined in this judgment) then that will be to a large extent as a consequence of the time that has gone by since September 2012 when M has been held here under temporary orders of the English court. If, in turn, this results in neither the Swedish court any longer having jurisdiction with respect to M and the English court not having jurisdiction within these one year old proceedings, that unhelpful situation would seem to be a direct result of the English court not determining the jurisdiction issue at, or near to, the start of the process in September 2012. A relatively prompt hearing on ‘jurisdiction’ did take place on 31^st October 2012. That, however, resulted in what is now accepted to be an erroneous request for Sweden to make a transfer of jurisdiction under BIIR, Article 15. The Swedish court did not respond to that request for over four months [13 March 2013]. By then the potential for M to be drawn into some form of jurisdictional limbo was well established.

In the light of the decision to which I have come on the central issue of jurisdiction, and on the basis that whatever interim steps have been taken thus far by the English courts (for example assessing the maternal grandmother as a long-term carer) have been concluded, it is unnecessary to undertake a detailed audit of those interim measures to determine whether they were, or were not, permissible within the terms of BIIR, Art 20. Miss Scriven did not in any event press this aspect of her appeal and it is not therefore necessary to express any conclusion on the Article 20 points.

As I have indicated at paragraph 50, I do not consider that the issues raised in this case justify the further inevitable delay that would result (even if the case were expedited) by making a reference to the European Court of Justice. In any event no party is actually putting forward a competing construction of the relevant articles of BIIR as an alternative to the interpretation that I have applied in determining the issue of jurisdiction in this case. The judge’s conclusion was based upon a finding that the Swedish court had declined jurisdiction. The local authority and the children’s guardian support the judge’s reasoning and Mr Setright simply puts forward two pragmatic alternative options, as opposed to offering an alternative interpretation.

For the reasons that I have given, I would allow this appeal, set aside the judge’s determination on jurisdiction and replace it with a declaration under BIIR Article 17 that the courts in England and Wales have no jurisdiction with respect to the care proceedings concerning M which were commenced on 12^th September 2012.

The only remaining jurisdiction in the English court in relation to these present proceedings arises under BIIR, Article 20 and must now be focussed upon short-term holding arrangements to facilitate the conclusion of the proceedings in an orderly manner that meets the requirements of M’s welfare. These are matters of important detail that can be dealt with by HHJ Newton in the High Court at the hearing which is already planned for 18 November 2013. In those circumstances I would direct that the existing interim orders made by the High Court, including the interim care order, should remain in force until discharged or varied by orders made at the conclusion of the forthcoming hearing.

I agree.

I also agree.