F (A Child), Re

This is an application for permission to appeal against an order made by Coleridge J as long ago as 14 March 2013.

The judge was hearing care proceedings in relation to a girl, F, who was born in August 2007. Her father was born in the United States of America and her mother in Zimbabwe, where F was born. F and her father seem to have arrived in this country on 14 November 2012. The proceedings started on 21 December 2012 when the local authority applied for and obtained an emergency protection order. The care proceedings proper began seven days later on 28 December 2012. Following a contested hearing before a District Judge, which led to the making of an interim care order, the case was transferred to the High Court on 7 January 2013.

It is a matter of very great concern to us that proceedings of a kind that Parliament has now declared are to be concluded within 26 weeks should still be on foot some 76 weeks after they were commenced and seemingly with no early end in sight. I recognise that the parents’ involvement with the proceedings has been fitful, that for some of the time the father has been abroad, that for most of the time the mother has been in South Africa and that the mother’s participation as directed by the court has been hindered by delays in the immigration process (as recorded by Eleanor King J in an order dated 22 January 2014) and then by the refusal of the immigration authorities to grant her the necessary visa. But although this may explain, it can scarcely justify the long delay. F, after all, has been in foster care ever since the emergency protection order was granted over 17 months ago.

What is even worse is that the court’s jurisdiction to deal with the proceedings has still not been settled, for what is challenged before us – and in the event successfully challenged – is Coleridge J’s decision in relation to F’s habitual residence. Even now that fundamental jurisdictional issue remains at large, for the outcome of this appeal is that the question of habitual residence must go back for a proper hearing. Well may the children’s guardian lament that although the court as long ago as 14 August 2013 had endorsed a plan for permanence for F, whereby she would be rehabilitated to the care of her mother (a plan, moreover, of which F has known since then), here we are more than nine months later and only the most preliminary steps in this process have been achieved.

When the matter came before Coleridge J on 14 March 2013, the local authority, the mother and the children’s guardian were all represented. The father was neither present nor represented. I can go straight to the transcript to show how the point with which are now concerned arose:

The outcome was an order dated 14 March 2013 which contained the following recital:

Time passed. Eventually the father re-engaged. On 22 January 2014 Eleanor King J ordered that any application to appeal out of time should be lodged by 5 February 2014. On 5 February 2014 she extended that date until 14 February 2014. The appellant’s notice was finally filed by the father on 11 February 2014. It was followed by a detailed skeleton argument dated 12 February 2014 which drew attention to the fact that there was a hearing listed for 7 April 2014 and appropriately sought expedition of the consideration of the application. I note with dismay that the date passed without the application having been considered. On 30 April 2014 Ryder LJ adjourned the application for permission for an oral hearing with appeal to follow if permission granted. The application came on before us on 19 May 2014.

On behalf of the father Mr David Williams QC identifies four grounds of appeal. He says that Coleridge J was wrong to find that F was habitually resident in England and Wales and did not apply the proper test to determining that issue, in that: (a) he did not consider whether the facts showed an adequate degree of integration of F into a social and family environment in England – this, as will be appreciated, is a reference to the test laid down by the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1; (b) he did not consider whether this test was met at the relevant time, namely 21 or 28 December 2012; (c) he determined the issue without the father having been given notice that it was to be determined, without hearing the father’s case and without giving a reasoned decision; and (d) if he did consider whether F was integrated, he gave undue weight to irrelevant facts and failed to give due weight to relevant matters.

Before addressing these complaints it is convenient to set out some basic propositions which are no longer open to challenge.

In Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR (forthcoming) I referred (para 23) to the fact that the jurisdictional reach of the courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision. By reference to Re R (Care Orders: Jurisdiction) [1995] 1 FLR 711, Re M (Care Orders: Jurisdiction) [1997] 1 FLR 456 and Lewisham London Borough Council v D (Criteria for Territorial Jurisdiction in Public Law Proceedings) [2008] 2 FLR 1449, I said that the rule developed by the judges of the Family Division was that what normally founds jurisdiction in such a case is the child being either habitually resident or actually present in England and Wales at the relevant time. However, as I pointed out (para 24), this is fundamentally modified by the Regulation commonly known as Brussels II revised (BIIR). Re E concerned a child from Slovakia, so my remarks there were directed to cases where there is what I called a European dimension. But the point goes much further, for it is clearly established by decisions of the Supreme Court that BIIR applies to determine the jurisdiction of the English court in care proceedings, irrespective of whether the other country is a Member State of the European Union: see A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, para 30, and In re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597, para 18. So what I said in Re E applies, in principle, to all care cases with a foreign dimension.

The consequences of this can be spelt out very shortly:

Where BIIR applies, the courts of England and Wales do not have jurisdiction merely because the child is present within England and Wales. The basic principle, set out in Article 8(1), is that jurisdiction under BIIR is dependent upon habitual residence. It is well established by both European and domestic case-law that BIIR applies to care proceedings. It follows that the courts of England and Wales do not have jurisdiction to make a care order merely because the child is present within England and Wales. The starting point in every such case where there is a foreign dimension is, therefore, an inquiry as to where the child is habitually resident.

In determining questions of habitual residence the courts will apply the principles explained in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. For present purposes the key principles (para 54) are that the test of habitual residence is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned and that, as the social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent, it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

Jurisdiction under Article 8(1) depends upon where the child is habitually resident “at the time the court is seised.”

Since the point goes to jurisdiction it is imperative that the issue is addressed at the outset. In every care case with a foreign dimension jurisdiction must be considered at the earliest opportunity, that is, when the proceedings are issued and at the Case Management Hearing: see Nottingham City Council v LM and others [2014] EWCA Civ 152, paras 47, 58.

Good practice requires that in every care case with a foreign dimension the court sets out explicitly, both in its judgment and in its order, the basis upon which, in accordance with the relevant provisions of BIIR, it has either accepted or rejected jurisdiction. This is necessary to demonstrate that the court has actually addressed the issue and to identify, so there is no room for argument, the precise basis upon which the court has proceeded: see Re E, paras 35, 36.

Judges must be astute to raise the issue of jurisdiction even if it has been overlooked by the parties: Re E, para 36.

There is a further point to which it is convenient to draw attention. If it is, as it is, imperative that the issue of jurisdiction is addressed at the outset of the proceedings, it is also imperative that it is dealt with in a procedurally appropriate manner:

The form of the order is important. While it is now possible to make an interim declaration, a declaration made on a ‘without notice’ application is valueless, potentially misleading and should accordingly never be granted: see St George’s Healthcare NHS Trust v S, R v Collins and Others ex p S [1999] Fam 26. If it is necessary to address the issue before there has been time for proper investigation and determination, the order should contain a recital along the lines of “Upon it provisionally appearing that the child is habitually resident …” Once the matter has been finally determined the order can contain either a declaration (“It is declared that …”) or a recital (“Upon the court being satisfied that …”) as to the child’s habitual residence.

The court cannot come to any final determination as to habitual residence until a proper opportunity has been given to all relevant parties to adduce evidence and make submissions. If they choose not to avail themselves of the opportunity then that, of course, is a matter for them, though it is important to bear in mind that a declaration cannot be made by default, concession or agreement, but only if the court is satisfied by evidence: see Wallersteiner v Moir [1974] 1 WLR 991.

I return to consider the grounds of appeal.

In justice to Coleridge J it needs to be acknowledged that, as the transcript shows, he had little assistance from counsel (none of them the counsel who appeared before us). Moreover, he had to grapple with the issue at a time when the practice was less clear than it is now and, most significant of all, before the critically important decisions of the Supreme Court in A v A and In re L. Nonetheless it is clear in my judgment that the appeal must be allowed. Indeed, although the mother, the local authority and the children’s guardian all assert, with differing degrees of emphasis, that Coleridge J either was or may well have been right in concluding that F was habitually resident here at the relevant date, their counsel, respectively Mr Teertha Gupta QC, Mr Henry Setright QC and Ms Kerrie Broughton, and Mr Charles Prest, all accept with resignation and understandable regret that the appeal must succeed.

If the matter had related to anything other than jurisdiction, the father might well have been shut out from being given permission to appeal so long after the event. But the delay, however damaging to F, cannot be allowed to stand in the way. As we announced at the conclusion of the hearing, we accordingly extend the father’s time for appealing, give him permission to appeal and allow the appeal.

We have had the great benefit, unlike Coleridge J, of careful and detailed submissions from some of the most experienced counsel in this particular branch of family law and practice. Their submissions have been invaluable in illuminating the wider landscape. But for my part I prefer to proceed on a narrow front, not venturing to express views on matters that may yet fall for decision later in this litigation.

In my judgment Mr Williams succeeds on his first and third grounds of appeal. I can put the points very shortly. Coleridge J did not address the critical question as subsequently identified in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1; he did not adequately explain why he had concluded that F was habitually resident here, and insofar as he did his explanation does not pass muster in the light of A v A; and he decided the point, knowing that the father was challenging the jurisdiction, at a hearing where the father was not present and when no notice had been given to him that the question of jurisdiction was going to be raised.

That suffices to decide the appeal. The matter will have to go back for re-hearing before another judge. It will be for that judge to decide whether or not F was habitually resident here when the court was first seised (and, strictly speaking, though I imagine little will turn on a mere seven days, to decide whether the relevant date for this purpose is when the emergency protection order proceedings began or when the care proceedings began – at that time, though no longer, these were separate proceedings). If the judge decides that F was habitually resident here at the relevant date then so be it. If on the other hand the judge decides that F was not habitually resident here at the relevant date then further questions will arise: as to whether the English court has some other basis for exercising a substantive jurisdiction (as opposed to a limited jurisdiction confined to urgent provisional measures) and whether, even if it has, it should invite another court to assume jurisdiction. These are difficult issues where, as in the case of the United States of America, the relevant foreign country is a party neither to BIIR nor to the 1996 Hague Convention. (Footnote: ¹) Although we heard most interesting submissions on these points, we must, I think, sternly resist the temptation to express even the most tentative views. Accordingly, I say no more on matters which are better left for decision as and when they actually arise, whether in this or in some future case.

Before leaving this unhappy case there are two final points to be made.

This is a case where, as I have noted, the proceedings have been delayed by delays in the immigration process. I take this opportunity of reminding practitioners of what I said in Re M and N (Parallel Family and Immigration Proceedings) [2008] EWHC Fam 2281, [2008] 2 FLR 2030, approved by this court in In re C (A Child) (Adoption: Placement Order) [2013] EWCA Civ 431, [2013] 1 WLR 3720, para 26, and also of the existence of the arrangements variously set out in the President’s Guidance Communicating with the Home Office in Family Proceedings, reissued in March 2013, [2013] Fam Law 762, and in the Protocol on communications between judges of the Family Court and Immigration and Asylum Chambers of the First-tier Tribunal and Upper Tribunal, issued by the Senior President of Tribunals and the President of the Family Division and Head of Family Justice in July 2013, [2013] Fam Law 1197.

The other point is this. On 22 May 2013 Eleanor King J made an order authorising the instruction of an independent social worker. That order, of course, can only have been made on the basis that the use of such an expert was “necessary”. A subsequent order she made on 19 July 2013 recorded that the Legal Aid Agency would not fund the assessment of the independent social worker. We know nothing about why this was and I make no comment of any kind about the decision of the Agency. My point is much more specific. I suggest that in future every order directing the instruction of an expert, whatever the discipline, should contain an express recital to the effect that “the court is satisfied that the appointment of X is, in accordance with section 13(6) of the Children and Families Act 2014, necessary to assist the court to resolve the proceedings justly.”

I agree.

I too agree.