H, Re

The appellant in this appeal is the father of two young children who are presently in Bangladesh with their mother. His case is that they have been wrongfully retained there by her and that there is evidence to suggest that they are at risk of significant harm. There have been proceedings in Bangladesh relating to the children but they have not resolved the situation to the father’s satisfaction and he sought to bring the matter before the English court by making an application under the inherent jurisdiction of the High Court, issued on 4 February 2013. The order he sought was for the return of the children to this country.

Mr Justice Peter Jackson dismissed the father’s application on 24 September 2013 on the basis that the courts of England and Wales had no jurisdiction to entertain it. His judgment can be found on bailli.org.

The father and mother both originate from Bangladesh. The father came to this country some years ago and obtained British citizenship. He and the mother were married in Bangladesh in 2005 and the mother then came to live here, where the children were born in 2007 and 2008. Both children are British citizens.

In May 2008, the parents and children travelled to Bangladesh when one child was 14 months old and the other 6 weeks old. The father returned here alone in August 2008.

Since then, he has made three extensive visits to Bangladesh between 2009 and 2012, spending two years there in all. He last saw the children in November 2012. Peter Jackson J recorded in his judgment that he frequently speaks to the children on the telephone since returning here.

There seems to be a dispute as to whether the mother’s continued presence in Bangladesh is the result of her refusal to return to England with the children (which is the father’s case) or of the father abandoning her there (which may be the mother’s case). I say that it “may” be the mother’s case because the mother has not participated in these proceedings at all so far so one can only surmise what she has to say about things.

Before Peter Jackson J, the father asserted that the English court had jurisdiction on the basis either that the children were habitually resident here when the proceedings were issued or that they are British citizens.

Peter Jackson J did not consider that the children were habitually resident here. He noted the young age of the children when they left the United Kingdom and the length of time they had since spent in Bangladesh. He said that even if the father was right that they had been unlawfully retained in Bangladesh by the mother, they had long since ceased to be habitually resident here.

He accepted that, on the basis of In the matter of A (Children) [2013] UKSC 60 [2013] 3 WLR 761 (hereafter referred to as Re A), the children’s British citizenship provided a theoretical basis on which the court could exercise jurisdiction but on the facts of this case he considered that it would be inappropriate to do so, the courts of Bangladesh having long since been seised of the matter and providing a forum where the father could present his case and any issue over the welfare of the children could be resolved. He was not impressed with the father’s argument that an order from the English court might assist him in the Bangladeshi proceedings, “particularly” he said “as the father has apparently not taken any active legal steps to enforce the 2011 custody order locally”.

He observed that even if the father had been able to establish that the children continued to be habitually resident here, he would have been unwilling for the same reason to intervene “on the basis of such limited information….when the court in Bangladesh is already engaged and where the relief sought (the peremptory return of the children to this country) has such potential consequences for them”.

When I granted permission to appeal, I joined the children as parties to the appeal. I explained why this was in the judgment I then gave. It is very unusual for new parties to be joined in this way at the appeal stage but I considered that in view of the mother’s failure to participate, it was in the children’s best interests that they were represented separately. CAFCASS interpreted this as an invitation to adopt the role of advocate to the court which was not what I had intended.

Where both parents participate in litigation concerning their children, the court can be sure to receive at least two points of view as to what is in the children’s best interests and, if there is any legal argument that can legitimately be advanced in support of the rival contentions, it will be presented. Where, as here, there is only one active party to the litigation, the case (factual and legal) is inevitably presented in accordance with that party’s view of the children’s interests, which may or may not be the only perspective. In the absence of any argument from the mother to counter the father’s presentation, there was therefore a risk in this case that what was actually in the children’s best interests would not emerge and that the arguments, legal and factual, that would further those interests may be overlooked. It was for that reason that I decided, as I said in my earlier judgment, that in their interests they should be represented separately in the appeal.

This does not presage the frequent joinder of children as parties at the appeal stage, nor is it intended to send a message that whenever only one of the parents appears in proceedings, whether at first instance or on appeal, the children should be joined. My decision was a decision taken on the particular facts of this case.

CAFCASS invited us to give guidance as to the correct approach to the joinder of children as parties at the appeal stage but I do not intend to take up this invitation. The question is not entirely straightforward and it may merit further examination should a case arise in which it requires to be decided. Here, however, as there is nothing for us actually to determine in this respect, attention should be focussed on the other important issues which arise directly. CAFCASS did not contest their involvement in the proceedings and have provided assistance, for which I am grateful. On the facts of this case, there was a role for them not only in presenting the legal arguments in the way that would best serve these children but also in making submissions as to their welfare interests in connection with the question of whether the English court should exercise its jurisdiction over them and if so, how.

Considering that the legal issues in this case potentially had wide implications in international child abduction cases, Reunite sought to intervene to present submissions and was given permission to do so. We have therefore had the assistance of their written and oral assistance too.

The appellant advanced four grounds of appeal which I do not quote directly here but which revolved around the following questions:

Subsidiary arguments arose in the course of exploration of these themes as will become evident as this judgment proceeds.

There was a measure of agreement between the parties but not complete unanimity. As things evolved, the parens patriae issue lost significance and it was the first two grounds of appeal that were important in determining the question of jurisdiction. As to ground 1, only the appellant argued for the continued existence of the ‘rule’ and even he was possibly not a very enthusiastic supporter of it. There was otherwise general acceptance that it had been overtaken by the development of the law on habitual residence in recent Supreme Court decisions. As to ground 2, there was agreement that Article 10 of Brussels IIR applied notwithstanding that the children are now in Bangladesh but there was debate as to how it should be interpreted where a non-Member State was involved. As to whether the English court should exercise such jurisdiction as it had, the appellant naturally said that it should, or alternatively that the question of whether jurisdiction should be exercised should be remitted to the Family Division for determination. I think that CAFCASS took the position that the matter could be determined by us and, in so far as their submissions were in support of any specific course of action as opposed to taking the form of a general review of the relevant factors, my impression was that they tended towards jurisdiction being declined.

For a long time, the approach of English law has been that where both parents have parental responsibility, one of them cannot unilaterally change the child’s habitual residence. Early expressions of this approach can be found in Re P (GE) [1965] Ch 569 and, particularly, in the decision of the Court of Appeal in Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562 @ 572C.

The Supreme Court has had occasion to consider the concept of habitual residence in three cases in the last twelve months: Re A (see above), In re L (A Child: Custody: Habitual Residence) [2013] UKSC 75 and In re LC (Children) [2014] UKSC 1.

The judgments in Re A dominated the debate before us. They provide a considerable amount of material on jurisdiction and habitual residence and we found ourselves being taken back to them many times during the hearing.

The principal legal question in Re A was whether a child who was born in Pakistan and had never been to England and Wales could be habitually resident here. The Supreme Court concluded that jurisdiction was governed by Brussels IIR and that it was not acte clair whether the Regulation required some physical presence as a prerequisite of habitual residence. However, they took the view that the outcome of the case did not turn on that question because, even if the child was not habitually resident here and therefore jurisdiction did not exist under Article 8, it would do so by virtue of Article 14 which deals with residual jurisdiction where no court of a Member State has jurisdiction pursuant to Articles 8 to 13. Under Article 14, jurisdiction would be determined by the laws of England and Wales so could be exercised on the basis of nationality. The court remitted the matter to the High Court for the judge to decide whether to exercise such jurisdiction.

Counsel for the father, Mr Williams QC (who did not appear below, although his junior Ms Allwood did, then led by Mr de Mello) pointed out that nowhere in Re A or in the other two recent Supreme Court cases had that court expressly overruled the ‘rule’ and that in none of them was its continued existence directly in point. He submitted that it would require a clear statement at appellate level in a case where the point did arise to overturn the ‘rule’. In his submission, Peter Jackson J should therefore have applied it here and it would have led to the conclusion that the children remained habitually resident in this country and this court had jurisdiction in relation to them.

To an extent, Mr Williams’ submissions on this point were bound up with his submissions on Article 10. I think it is fair to say that if he could persuade us that Article 10 conferred jurisdiction on the court in circumstances such as the present ones, he was content not to press for the continued existence of the ‘rule’. This was because Article 10 would cater for the policy consideration which influenced the ‘rule’, that is the protection of children from abduction.

Reunite and CAFCASS were more uncompromising in their approach to the ‘rule’. Reunite submitted that it was incompatible with the three recent decisions of the Supreme Court and had been expressly or impliedly overruled. CAFCASS submitted that in the light of the decisions it cannot now be considered to be good law.

To my mind, the three recent Supreme Court decisions represent a new departure for habitual residence and it is appropriate to reconsider the continued existence of the ‘rule’ in the light of them. In so doing, it is worth remembering that no authority has been found in which the ‘rule’ is articulated as part of the ratio; it has simply been taken for granted for many years.

At §54 of her judgment in Re A, Baroness Hale (with the agreement of three members of the court) set out 8 propositions about habitual residence with the intent of, as she said, “[d]rawing the threads together”. Amongst them is the message which is now loud and clear that habitual residence is a question of fact and that “[t]he 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” (see also §20 of her judgment in Re L). This is the context in which what she said about the ‘rule’ at §§39 and 40 should be read. At §39 she said:

“39.

….the English courts have been tempted to overlay the factual concept of habitual residence with legal constructs. The most important of these is the ‘rule’ that where two parents have parental responsibility for a child, one cannot change the child’s habitual residence unilaterally….

She explained that the existence of the rule had not been put in issue by the father in Re A so the question was not before them, but she commented:

40.

….It is worth noting that the "rule" has not been universally adopted: see, for example, Mozes v Mozes 239 F 3^rd 1067 (9th Circuit 2001); SK v KP [2005] 3 NZLR 590. Nor is there a hint of it in the European jurisprudence. It would not inevitably be a charter for abduction. Both the 1986 Act and the Regulation contain provisions designed to retain jurisdiction in the country where a child was formerly habitually resident for at least a year after his wrongful removal or retention: see 1986 Act, s 41 (albeit that it has been held that this does not apply as between the United Kingdom and other countries: Re S (A Child: Abduction) [2002] EWCA Civ 1941, [2003] 1 FLR 1008) and Regulation, article 10….. As Lord Hughes points out, article 10 provides a good reason why the courts of England and Wales retain jurisdiction over the three older children in any event. The Hague Child Abduction Convention is concerned with wrongful removal or retention of a child from the country where he was habitually resident immediately before that wrongful removal or retention: see article 3. As Lord Hughes also points out, the "rule" is more relevant in retention than removal cases, but the answer may lie in treating the unilateral change of habitual residence as the act of wrongful retention, even if it takes place before the child was due to be returned. The matter may therefore require fuller consideration in another case, but it is not necessary for us to express a concluded view.”

Lord Hughes adopted Baroness Hale’s summary at §54 of her judgment (§81) and agreed with most of her reasoning. He too was at pains to return habitual residence to a question of fact. He expressed the view that what have been treated in some quarters as propositions of law emanating from Lord Brandon’s speech in Re J (supra) are much better regarded as “helpful generalisations of fact” (§73, and see also the endorsement of this in §21 of Re L). He then alluded in §76 to the ‘rule’ which he described as “a proposition closer than those above to a rule of law” (§76), identifying its origins in the view that children should normally be returned summarily to the State of their habitual residence so that “the necessary, and often finely balanced, merits decisions” can be made about them there and the need to ensure that the unilateral actions of one parent do not undermine this by achieving a change of habitual residence by wrongful removal or, particularly, retention. He observed that “[t]o hold that parent B’s unilateral actions cannot bring about a change of habitual residence is one route to ensuring that the 1980 Convention is not made ineffective in such a case” (§76). He agreed with Baroness Hale that concluded answers about the ‘rule’ must await another day (§78) but did set out some thoughts on the subject, including a consideration of Article 10 of Brussels IIR which he noted was designed for such a case. I do not think he was yet wholly reassured that it would turn out to be the complete answer although he set out a possible way of resolving matters that may maintain the effectiveness of the 1980 Hague Convention, as follows:

“It may well be that the correct view is that unilateral acts designed to make permanent the child's stay in State B are properly to be regarded as acts of wrongful retention, notwithstanding that the scheduled end of the child's visit has not yet arrived. Such a conclusion is not, to my mind, in any way precluded by the decision of the House of Lords in Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, which holds no more than that a specific act of retention must be identified, and it is consistent with the decision of Wall J in In re S (supra). The significance of the point here is simply twofold. First, Brussels II Revised is, notwithstanding that in the event of conflict it prevails over the 1980 Hague Convention (see Article 60), clearly meant to co-exist consistently with that Convention remaining effective – see for example Articles 10 and 11 – and it ought to be construed wherever possible with that very important objective in mind; in particular the concept of habitual residence needs to be construed similarly in each of the two instruments. Second, providing this approach is adopted, it is unlikely that even in this situation it is necessary to formulate a rule of law that a child's habitual residence cannot unilaterally be changed by one parent where two parents both have parental responsibility.” (§78)

Overall, what to my mind emerges from Lord Hughes’ judgment, as from Baroness Hale’s, is a general disinclination to encumber the factual concept of habitual residence with supplementary rules and in particular to perpetuate the ‘rule’ with which we are concerned here, provided that an approach can be found which prevents a parent undermining the Hague Convention and the jurisdiction provisions of Brussels IIR. The solution that both Lord Hughes (at §78) and Baroness Hale (at §40) had in mind, and seemed to think tenable, involved treating the act of wrongful retention of the child as occurring at an earlier stage than might sometimes be assumed, that is to say as soon as the parent engages in unilateral acts designed to make permanent the child’s stay in the new country rather than only when the end of the child’s scheduled stay there arrives. This would prevent a parent from establishing a habitual residence in the country to which he has abducted the child before the act of wrongful retention occurs.

In Re L, the court was no less hesitant about the continuation of the ‘rule’. Giving the only judgment, Baroness Hale referred back to Re A, saying:

“22.

Both Lord Hughes and I also questioned whether it was necessary to maintain the rule, hitherto firmly established in English law, that (where both parents have equal status in relation to the child) one parent could not unilaterally change the habitual residence of a child (see In re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70, approved by the Court of Appeal in Re M (Abduction: Habitual Residence) [1996] 1 FLR 887). As the US Court of Appeals for the Ninth Circuit pointed out in In re the application of Mozes, 239 F 3d 1067 (9^th Cir 2001), at 1081, such a bright line rule certainly furthers the policy of discouraging child abductions, but if not carefully qualified it is capable of leading to absurd results (referring to EM Clive, "The Concept of Habitual Residence" [1997] Juridical Review 137, at 145). The court continued:

‘Habitual residence is intended to be a description of a factual state of affairs, and a child can lose its [sic] habitual attachment to a place even without a parent's consent. Even when there is no settled intent on the part of the parents to abandon the child's prior habitual residence, courts should find a change in habitual residence if 'the objective facts point unequivocally to a person's ordinary or habitual residence being in a particular place' [referring to the Scottish case of Zenel v Haddow 1993 SLT 975].’

23.

Nevertheless, it is clear that parental intent does play a part in establishing or changing the habitual residence of a child: not parental intent in relation to habitual residence as a legal concept, but parental intent in relation to the reasons for a child's leaving one country and going to stay in another. This will have to be factored in, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence.”

Re L also shows a continuing reluctance on the part of the court to permit legal glosses to be placed on the factual concept of habitual residence. The gloss that counsel for the father in Re L sought unsuccessfully to place on it was that where, as there, the child is permitted to live in a foreign country pursuant to an order which is under appeal, the child does not acquire the habitual residence of the parent with whom he is living until the appeal is determined.

Quite apart from the route contemplated by the Supreme Court in Re A to avoid the continuing need for the ‘rule’, it was submitted to us that a parent’s ability to change their child’s habitual residence unilaterally will be limited by the inclusion of the purposes and intentions of the parents as one of the relevant factors in the factual determination of where a child is habitually resident (see Baroness Hale at §54(ii) of Re A and also at §23 of Re L). I accept that submission. Furthermore, as Baroness Hale said at §26 of Re L, the fact that the child’s residence is precarious (as it may well be where one parent has acted unilaterally) may prevent it from acquiring the necessary quality of stability for habitual residence. However, the fact that one parent neither wanted nor sanctioned the move will not inevitably prevent the child from becoming habitually resident somewhere. If that were the case, the ‘rule’ would be alive and well, albeit dressed up in the new clothes of parental intention as one of the factors in the court’s determination.

Given the Supreme Court’s clear emphasis that habitual residence is essentially a factual question and its distaste for subsidiary rules about it, and given that the parents’ purpose and intention in any event play a part in the factual enquiry, I would now consign the ‘rule’, whether it was truly a binding rule or whether it was just a well-established method of approaching cases, to history in favour of a factual enquiry tailored to the circumstances of the individual case.

It follows that the appellant’s submission that Peter Jackson J was constrained by the ‘rule’ to find that the children had remained habitually resident in this country right up to his issue of proceedings here fails. The judge’s enquiry into habitual residence had to be much more broadly based. That is how he approached the matter. He said:

“I do not consider that these children were habitually resident in this jurisdiction on 4 February 2013, regardless of the circumstances in which they remained in Bangladesh in August 2008. Taking account of all factors and applying the test adopted by the European Court, on no sensible analysis could this country be regarded as ‘the place which reflects some degree of integration by the child in a social and family environment’. The children left the United Kingdom at the age of about 14 months and 6 weeks old, and by the time the proceedings were issued, they had spent nearly 5 years in Bangladesh. Even if (taking the father’s case at its highest) they have been unlawfully retained in that country by the mother, they have as a matter of fact long since ceased to be habitually resident in this country.”

I would not interfere with the judge’s conclusion, there expressed. I will say a little more about the facts when I consider other grounds of appeal but what he said captures the very essence of the matter.

As Peter Jackson J concluded, the High Court could not therefore exercise its jurisdiction on the basis of habitual residence.

That was not, in fact, the end of the matter as far as jurisdiction was concerned. The appellant’s counsel presented Peter Jackson J with the alternative of the parens patriae jurisdiction but they did not submit to him, as has been submitted to us, that there was jurisdiction based upon Article 10 of Brussels IIR. For the reasons I am about to set out, I consider that such jurisdiction does indeed exist.

There may be a natural inclination to think of Brussels IIR only where a matter is entirely concerned with European Union countries. We know from In re I (A Child)(Contact Application: Jurisdiction) [2009] UKSC 10 that it is not in fact limited in this way. The child there was habitually resident in Pakistan but the Supreme Court held that Article 12 of Brussels IIR still applied.

In Re A, the order sought by the mother was (as it was here) an order for the return of the children to England. The Supreme Court held that such an order was an order relating to parental responsibility within Article 1 of Brussels IIR and therefore within the scope of the Regulation and went on to hold that “the jurisdiction provisions of the Regulation do indeed apply regardless of whether there is an alternative jurisdiction in a non-member state” (§33).

I will quote in full §30 of Re A which is the core of the reasoning for this decision:

“Does the Regulation apply where there is a rival jurisdiction in a non-Member State?

30.

The Regulation deals with jurisdiction, recognition and enforcement in matrimonial and parental responsibility matters. Chapter III, dealing with recognition and enforcement, expressly deals with the recognition in one Member State of judgments given in another Member State: see article 21.1. But there is nothing in the various attributions of jurisdiction in Chapter II to limit these to cases in which the rival jurisdiction is another Member State. Article 3 merely asserts that in matters relating to divorce, legal separation or marriage annulment "jurisdiction shall lie with the courts of the Member State" in relation to which the various bases of jurisdiction listed there apply. Article 8 similarly asserts that the courts of a Member State "shall have jurisdiction in matters of parental responsibility . . ." Furthermore, article 12.4 deals with a case where the parties have accepted the jurisdiction of a Member State but the child is habitually resident in a non-Member State, thus clearly asserting jurisdiction as against the third country in question. Hence in Re I (A Child) (Contact Application: Jurisdiction), this Court held that article 12 did apply in a case where the child was habitually resident in Pakistan. There is no reason to distinguish article 12 from the other bases of jurisdiction in the Regulation.”

Both Baroness Hale and Lord Hughes expressly referred to Article 10 in Re A. To put their comments in context, it is necessary to know that the older three children were also wrongly retained in Pakistan as well as the youngest child with whom the Supreme Court was directly concerned. With that in mind, I think one can discern from the passages I am about to set out that neither of them questioned that Article 10 applies where the issue arising relates to a removal/retention of a child to/in a country outside the European Union.

What Lord Hughes said in his minority judgment was:

“93.

There can be no doubt about the jurisdiction of the English court in relation to the elder siblings. This is not because of any rule of law which prevents one of two parents from unilaterally altering the habitual residence of a child. It is because as the 1980 Hague Convention requires, in the case of abduction, whether removal or, as here, retention, the acid test is habitual residence immediately before the event. They were resident in England. They went to Pakistan only for a three week holiday. There they have been wrongfully retained. For the same reason, Article 10 of Brussels II revised maintains the jurisdiction of the English court.” (my emphasis)

Baroness Hale picked this up in her judgment as follows:

“40……As Lord Hughes points out, Article 10 provides a good reason why the courts of England and Wales retain jurisdiction over the three older children in any event.”

In the circumstances, it was no surprise to find the parties in agreement that, in principle, Article 10 applies even where the child concerned is presently in a country which is not a Member State. However, CAFCASS was troubled by how Article 10 would work in that situation. To explain why, I need to set out the provisions of the Article, which I will do in full even though the detail may not matter for these purposes.

Article 10

Jurisdiction in cases of child abduction

In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

(a)

each person, institution or other body having rights of custody has acquiesced in the removal or retention;

or

(b)

the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

(i)

within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

(ii)

a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);

(iii)

a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

(iv)

a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.

It will be seen that Article 10 has two main components. It first ensures that in case of wrongful removal or retention, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention retain their jurisdiction for a period. Secondly it makes provision for that retained jurisdiction to come to an end (hereafter “the ending of jurisdiction provisions”). What troubled CAFCASS was that it would, in their view, be unsatisfactory, where the child has been taken to live somewhere outside the European Union, to have a retained jurisdiction without any provisions to bring it to an end. If the wording of Article 10 were to be given its natural meaning, this is what the position would be, because the requirements for the ending of jurisdiction include that the child has acquired a habitual residence in “another Member State”.

Ms Fottrell for CAFCASS therefore contended for a broad purposive interpretation that would ensure that the ending of jurisdiction provisions were effective even if the child had moved to a non-Member State. In her submission, this would appropriately reflect the scheme of the Article which is to make provision both for retention of jurisdiction and for loss or transfer of jurisdiction. To achieve this, where the Article says that the jurisdiction is retained “until the child has acquired a habitual residence in another Member State”, it would have to be read simply as “until the child has acquired a habitual residence in another State”.

We have to bear in mind that, as Recital (12) of the Regulation says, the grounds of jurisdiction in matters of parental responsibility are shaped in the light of the best interests of the child, in particular on the criterion of proximity. One manifestation of this is the general jurisdiction provision in Article 8 which concentrates on the child’s place of habitual residence. Interpreting Article 10 as Ms Fottrell invites us to do might be seen as serving this objective, because it would tend to fix jurisdiction in the country where the child was now living.

But there are other factors in play as well in cases of wrongful removal/retention. For example, Recital (17) endorses the importance of the Member State where the child was habitually resident prior to the wrongful removal or retention and speaks of the need to obtain the return of the child there without delay.

Furthermore, it can be seen elsewhere in the Regulation that there are situations in which it is deemed that it is in the child’s best interests for a Member State to have jurisdiction rather than the matter being entrusted to the courts of a third State, see Article 12 and in particular Article 12(4) relating to children with their habitual residence in a State which is neither a Member State nor a contracting State to the 1996 Hague Convention (on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children).

It is not plain therefore that policy considerations do, in fact, clearly dictate that Article 10 should be interpreted so as to bring an end to the retained jurisdiction even when it is in a non-Member State that the children are now living and not a Member State.

I would, in any event, find it very difficult to read the language of Article 10 in the way that CAFCASS proposed. The Regulation as a whole differentiates clearly between Member States and other States. I am not aware of anywhere else in it where “Member State” should obviously be read as “any State” and it is clear that in the majority of it, it would play havoc with the sense if that reading were to be adopted. It would have been entirely possible for those drafting the Regulation, conscious as they inevitably and patently were of the Member State/non-Member State divide, to have widened the wording of Article 10 so that it had the effect for which CAFCASS argued, but they did not. I would not do by a purposive interpretation what they did not do expressly.

In those circumstances, working, as the judge did, upon the basis that the father’s case as to wrongful retention is accepted, jurisdiction is retained in the courts of England and Wales by virtue of Article 10 and has not been lost, because the children have not yet acquired a habitual residence in another Member State. To decide that there is jurisdiction is not, of course, the same as deciding that jurisdiction will be exercised. That is separate question, to which I will return.

As, in my view, jurisdiction exists under Article 10, there is no room for the parens patriae jurisdiction and I do not intend to burden this judgment with further examination of the arguments that were advanced in relation to when it should be exercised if it does arise.

Under this heading, I include two aspects of the exercise of the Article 10 jurisdiction. The first concerns whether the court should proceed to exercise that jurisdiction or not. The second concerns what would be the appropriate order for the court to make, if it did exercise it.

It may be material to observe at this juncture that we are now a considerable distance from the way in which the case was presented to the judge below. Article 10 was not even mentioned to him and it may perhaps be thought to have been indulgent of this court to entertain argument about it. Be that as it may, it is now apparent that it is the foundation of the jurisdiction of the courts of this country to hear this case. By the same token, as the mother did not participate before the judge and the children were not joined as parties at first instance, no application was made to him for him to stay the proceedings in favour of the Bangladeshi courts or simply to decline to exercise jurisdiction. That was something that he considered of his own motion. To it I now turn.

Mr Williams’ skeleton made only a fairly brief reference to the issue of whether there was power to decline to exercise the Article 10 jurisdiction on forum conveniens grounds. The other parties barely dealt with it at all. We are therefore not in a good position to determine an issue which is of some significance and of which Baroness Hale remarked at §33 of Re A, having referred to Owusu v Jackson Case C-281/02) [2005] QB 801, JKN v JCN (Divorce: Forum) [2011] 1 FLR 826 and AB v CB (Divorce and Maintenance: Discretion to Stay [2013] 2 FLR 29 (which she understood to be under appeal):

“It would therefore be unwise of us to express a view on the position in children's cases, which might well require us to make a reference to the Court of Justice.”

The appeal in AB v CB has since been heard and determined and is reported as Mittal v Mittal [2013] EWCA Civ 1255. The Court of Appeal held, distinguishing Owusu v Jackson, that there was power to stay matrimonial proceedings here on the ground that India was the more appropriate forum. Mittal hardly featured in the argument before us. Whilst it involved consideration of Brussels IIR, Mittal was not a case about children but about divorce proceedings. It required consideration of the interplay between Article 19 of the Regulation and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. It does not therefore tell us what the position is in children proceedings.

Given the potential importance of the question as to whether a court can decline to exercise the jurisdiction that it has under Brussels IIR in matters of parental responsibility, I would prefer not to determine it without full argument. Fortunately, it is, in my view, unnecessary to do so because there is another answer to this case. It is that the outcome of an exercise of the jurisdiction on the facts of this case would be the dismissal of the proceedings in any event. This is not to be confused with a refusal of jurisdiction. As Baroness Hale said at §40 of Re I:

“There are many conclusions which the court hearing this case might reach. Among them is an order that it would be better for the child to make no order at all: section 1(5) of the Children Act 1989. But this is not a refusal of jurisdiction (cf Owusu v Jackson (Case C-281/02) [2005] QB 801). It is a positive conclusion, reached after the court has exercised its jurisdiction to hear and determine the case, that in all the circumstances it will be better for the child to make no further order about his future.”

There is no doubt that a court entertaining proceedings in relation to a child can bring those proceedings to a speedy end, see for example what Munby LJ (as he then was) said in Re C (Children)(Residence Order: Application Being Dismissed at Fact-Finding Stage) [2012] EWCA Civ 1489 of the powers of a judge in proceedings concerning children:

“§14 …..In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may …decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.

§15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his case management powers and the proper exercise of his discretion so to decide and to determine that the proceedings should go no further.”

As can be seen from my judgment giving permission to appeal, I thought then that it may turn out that the outcome of the hearing before Peter Jackson J was right and that it would not be appropriate to make orders here in relation to two children who have not been resident in this country for five years and in relation to whom the Bangladeshi courts are already involved. The judge did not in terms consider the question of how to exercise his jurisdiction as opposed to whether to exercise it although, on the facts of this case the two issues are very closely allied and what he said was material to both. We are not, therefore, in the position of reviewing the judge’s decision as to the disposal of the case but of deciding on the material available to us first, whether the welfare decision about the children should be remitted to the Family Division for consideration or determined by this court and secondly, if we are in a position to make the welfare decision ourselves, what it should be.

Peter Jackson J dealt with the case on the basis of the written material and submissions only. We are in no worse position than he was, therefore, and in some respects we have more information because the bundle of material that is now available includes material concerning the proceedings in Bangladesh which was not available at the time of the hearing before him. We were invited to take note of this and have done so but it is disappointing that it was not the subject of an application for permission to adduce fresh evidence which would have enabled us to identify the material easily for what it was and to consider whether or not to receive it (CPR Rule 52.11(2)).

The children’s welfare is the paramount consideration in a determination of what, if any, orders to make in relation to them. Mr Williams submitted that it could not be said to be in their best interests to make no order where there were concerns about their welfare in Bangladesh and the court process there was becalmed. He argued that an order for the return here of the children was not the only option open to the court and other courses of action should have been considered. In particular, he argued that Peter Jackson J should have sought further information about the children; by extension, his argument would be that so should we.

I would first make a general point. Even in family litigation, even (or perhaps especially) in international family litigation, there is an obligation on the parties to gather and present their own evidence to the court. There are occasions when the court’s help needs to be sought, for example a location order may be needed so as to find the child or an order may be required to obtain disclosure of material that is in the possession of another party who will not produce it. There are also occasions when permission is required from the court to obtain and adduce evidence. Expert evidence is a notable example of this, see Part 25 Family Procedure Rules 2010, and now section 13(1) Children and Families Act 2014 which provides that a “person may not without the permission of the court instruct a person to provide expert evidence for use in children proceedings”. But subject to these matters, parties cannot expect the family courts to bridge the gaps in their preparation for them or to take things as read which should have been established, nor can they expect the judge to take over completely and direct what steps are be taken to assemble information that is needed to address jurisdictional and welfare questions. Having said that, Mr Williams is of course correct that the courts of this country do attempt, in appropriate cases, to use whatever means are at their disposal to obtain information from abroad about children in order to ensure that their welfare is safeguarded.

The father’s application to Peter Jackson J was for an order for the return of the children to this country so that the court here could “determine what steps to take” (§13 d of the skeleton argument at C3 of the appeal bundle) and also for care and control of the children (§16). The main elements of his case were that the children were being kept in Bangladesh by the mother against his will and he was concerned about her mental state and about her care of the children which he said was inadequate in many ways. He made two statements in support of his case in which he set out his account of events and to which he exhibited various documents, including letters from a doctor and a dentist who have treated the children and criticise the care they have been receiving, and a statement from the mother’s uncle who also makes critical comments about the mother’s care of the children.

The story that emerges is far from clear and the documentation appears to contain allegations and counter-allegations making it very difficult to know precisely what has occurred. Although the father’s account was that the mother refused to return to England with him, there is available a copy of a statement that she made to a magistrate in Sylhet (C75) which suggests the opposite. It is asserted in that statement that the father returned to London in August 2008 with the mother’s passport after saying to her that he was going to Dhaka and that she was “tortured” by her brother-in-law who, if I have understood correctly, was intent on getting the children returned to the father in the UK.

A significant feature of this case is the amount of time that has elapsed since the father returned to the UK without the rest of the family in August 2008 and the proportion of that time that he has spent in Bangladesh, seeing the children regularly and, on his account, acting as their main carer although they were living with the mother. He was there between March and November 2009, from November 2010 to November 2011 and from May 2012 to November 2012. Given the ages of the children when they went to Bangladesh and the nearly 6 years they have now spent there, they will remember nothing of their lives in this country. What they have known is a life in Bangladesh with prolonged visits from their father, up to 18 months ago, since when they have kept in touch on the telephone.

The father attempted to explain why it was only in February 2013 that he brought proceedings in this country. His account was that when he was first unable to get the children back, he consulted solicitors here in 2009 but they were unable to assist him which was why he returned to Bangladesh to try to secure their return. He said that he first filed a case there in April 2009 but that was discharged in October 2009. In January 2011, he applied for custody of the children and restitution of conjugal rights which was granted on 7 July 2011 but the order was not complied with. He said that he then took action to enforce it, which action is ongoing.

It appears from the new documentation that has been placed before us, that in November 2012, the mother belatedly filed an appeal against the July 2011 order. She explained the delay in proceeding with the appeal as being because she hoped to get back to the father’s family, an assertion which runs completely counter to the father’s account. In her documentation, there is reference to the father having filed an appeal himself which was dismissed in April 2012 after trial (see D20 §4). I am not sure that we have any information at all about that. It is not, however, inconceivable that the father would have been dissatisfied with the July 2011 order, which this appeal may have concerned. In translation, it reads:

“Order is given for residing [the mother] with [the father] and maintaining of free relation as husband – wife looking after those minor children under custody of [the father] and for talking to each other and taking care of them. And [another family member] is restricted not to make prevention [the mother] and taking care to her minor children and coming to the house of [the father].” (sic)

It can be seen that it appears to contemplate the parties living together with the children rather than the children being entrusted to the care of the father which appears to be what he seeks.

No English court would be readily inclined to intervene, in circumstances such as those that appear to exist here, in relation to children who are living abroad, and particularly not where the order sought is for the return of the children after such a very long time to a country and life of which they have no recollection.

The father has asserted that an order of the English court will assist in securing the return of the children here and produced a letter from his lawyers in Bangladesh (C91). The letter requests the father to pursue an order here “so that we can use that order(s) to persuade the matter in Bangladesh Court”, saying that such an order “will carry a high persuasive value in the Bangladesh Court to get the justice for your children and return back to their birth country in England” but there is no explanation offered as to what, if any, difficulty there is with the Bangladeshi proceedings and precisely how an English order would help, and no elucidation of the workings of the July 2011 order which appears to contemplate the family living together rather than the children being in the sole care of the father. The father asserted in his statement that the order would also have the benefit of securing assistance from the Foreign and Commonwealth Office in Bangladesh and the British High Commission.

My view is that the father’s wardship proceedings should be dismissed forthwith with no substantive order being made. I bear in mind Mr Williams’ submission that it is incumbent on the court to seek further information from Bangladesh about the welfare of the children by some means. It can be hard to obtain information about the situation of children abroad and the documentation that we already have reveals that that is very likely to be the case here. Furthermore, even if a means could be found to investigate the children’s circumstances further in situ, there would inevitably remain a tangled web of assertions going this way and that. It is unlikely that the mother would be keen to participate in a hearing here that would allow reliable findings of fact to be made and I am not persuaded that it would be possible for the English court to obtain a sufficiently dependable picture for it even to contemplate ordering a return of the children to this country in the care of the father. It is one thing to order the return of children who have recently been taken wrongfully from the country in which they are living to another country; in such a situation the court may sometimes proceed upon fairly limited information. It is quite another to order a return after they have been living abroad for a period of nearly six years, particularly when that represents virtually their whole lives. In those circumstances, the potential for harm to the children from a misguided order is such that the court will want to be on particularly secure ground before acting.

In short, to use the language of Re C (see §59 above), I can see no solid reason in the interests of the children to continue the proceedings further and I consider that the appropriate outcome is that they should end with no order made. It would not help the children if the court were to make an immediate return order without the information required to determine reliably whether that would be conducive to their welfare. Neither would it be in their best interests, in my view, to divert the focus from whatever is being done locally in Bangladesh to resolve the disputes about their care by protracting the English proceedings in an attempt to investigate the situation there so as to provide the English court with more information. In any event, it seems to me so unlikely that an English court would make a return order on the facts of this case, even after further investigation, that it would be futile to remit the case to the Family Division for further hearings.

I would therefore dismiss the father’s appeal. That will result in his proceedings remaining dismissed, albeit that my reasoning for that result is not the same as Peter Jackson J’s.

I agree.

I also agree: