KD v AM & Ors

The issue the court is required to determine is whether it has jurisdiction to make orders concerning parental responsibility in respect of a child, T, age 4, the son of the applicant mother (‘the mother’) and first respondent father (‘the father’) T is a party to these proceedings through his guardian, following the direction on 14 February 2018.

The competing live applications are the mother’s application to continue her interim leave to remove T from the jurisdiction and for leave to remove T from the jurisdiction to live permanently in the US (having been given leave in March 2017 to go for a year) and the father’s application for a child arrangements order, or (probably more realistically) for shared care/defined contact.

For reasons which are set out below, T has been in the US since March 2017 and save for a few occasions (once prior to going to the US in March and a few days in September 2017 in the US) he has not seen his father regularly since October 2016 when the parties separated, although it is right to record he has had twice weekly skype contact since March 2017.

Before turning to the detail in relation to the court’s decision I would like to record that at the start of this hearing I referred the parties to the mediation resource that is available in this court to assist parties with family disputes that cross jurisdictions, as this case does. I would urge the parents in this case to continue with the resource. Whilst the court is always there to make decisions it is recognised that in appropriate cases decisions about children reached with the agreement of both parents often have a more secure and enduring quality than those after long drawn out litigation.

The mother is originally from the US, the father is British. She met the father here in 2012, returned back to the US later that year, returning here in September 2013 following the parent’s engagement in the US. The mother came here with her daughter E, then age 9, but returned to the US with E in November 2013. The parties dispute the reasons; the father says due to financial pressure the mother alleges the father sought to pressure her to have an abortion. The mother did not return to the UK until August 2014 following their wedding in the US. By then T was 6 months old.

The parents lived together with the two children until October 2016, when they separated. The mother alleges domestic abuse and went to a refuge with the children. The father denies any abusive behaviour. The father sought an order in November for disclosure of the child’s whereabouts and a prohibited steps order preventing the mother from removing the child from the jurisdiction. Those orders were granted by DJ Harrison. The mother sought non-molestation orders and that application was resolved by undertakings in January 2017. The father’s application came before the court on 1 February 2017 when DJ Jones adjourned the matter until 22 April 2017 pending further evidence regarding the parents mental and physical health via their GPs.

Very tragically, on 21 February 2017, E was diagnosed with terminal cancer, with only a limited life expectancy. The mother wished to return to the US for E to receive medical treatment, to be near her birth father and for them all to have the support of the wider maternal family. The father did not agree to T going, resulting in the mother making an application to the court. The mother was unrepresented, the father and the child were legally represented.

The matter came before HHJ Oliver who made an order on 6 March 2017 giving the mother conditional leave to remove the child from the jurisdiction until 6 March 2018 on condition that the father sought a mirror order in X US State, which he did. On 9 March 2017 HHJ Oliver gave the mother permission to remove T from the jurisdiction ‘in accordance with the terms of the order made on 6 March 2017’. That order records the parties as being in person, and there having been telephone hearings on 7, 8 and 9 March and that the mother had signed the necessary documentation for the order to be secured in X US State.

In the order dated 6 March the following recitals are recorded:

In addition, the mother gave undertakings

The order dated 6 March 2017 set out in a schedule provision for skype contact twice per week and daily supervised contact in the US for periods up to 6 days in May, September and December. There has been some skype contact and only the September direct contact has taken place.

Very sadly, E died in June 2017 and is buried near the maternal family home in X US State

On 5 December 2017 the mother signed a C100 application seeking, in effect, to extend the time to remain in the US. In the C1A form dated 20 December 2017 she sets out the domestic harm and violence she alleges has taken place and the severe anxiety she states T is suffering, in part due to what is described as being ‘the forced interaction with his father’. In that application she seeks a temporary break in contact between the child and the father.

Following receipt by the father from the court on 5 January 2018 of the mother’s application he filed a C7 acknowledgement on 16 January 2018, in which he sought sole or joint custody.

The application was heard by DJ King on 14 February 2018. Both parties were represented by counsel. The order records the father’s agreement to T remaining in the US until 7 days after the next hearing. He directed the matter should be listed before the DFJ, joined the child as a party, both parties to re-file and re-serve documents and evidence they wish to rely on by 21 February. The Guardian was directed to file an initial analysis by 28 February.

The next hearing was on 8 March 2018 before HHJ Moradifar. The parents were in person and the child was represented by Ms Dail. The order records the application as (a) the applicant has applied for a child arrangements order (CAO) and permission to extend paragraph 13 of the order dated 6 March 2017 and the child’s removal permanently from the jurisdiction to the US and (b) the father seeks a CAO and in the alternative shared care/defined contact order. The order also records the father’s continuing agreement until the next hearing for T to remain in the US and twice weekly skype calls are recorded as being agreed. The local authority were directed to attend the next hearing on 26 March 2018. That hearing was further adjourned twice as the parents were seeking public funding for legal representation and was next effectively listed on 17 May 2018. The Children’s Guardian made a part 25 application for an expert assessment on 17 May, to instruct a psychologist in the light of the information that had been filed by the mother with her application in December which set out that the child was suffering from stress. The purpose of the report was to determine whether the child’s presentation is as a result of his current situation or whether there are any underlying psychological issues, as well as assessing the child’s relationship and attachment with each parent. UK based psychologists were put forward who could report within 13 to 22 weeks.

The matter was listed before HHJ Marshall on 17 May. The mother was in person and joined the hearing by telephone, the father attended in person and the child was represented. The local authority attended and are recorded as stating they were unable to undertake any assessment if the child remained out of the jurisdiction. The parties were directed to file any revised applications and statement by 11 June 2018 addressing the child’s interim placement. The matter was listed for a contested hearing to consider the child’s interim placement and whether the mother should continue to be given permission for the child to remain in the US.

At the hearing on 25 June both parents were legally represented, the matter was adjourned until 12 July with directions for the filing of evidence about the interim arrangements and the mother about hers and T’s health.

At the hearing on 12 July the mother raised for the first time the issue of jurisdiction, that the child was habitually resident in the US. The matter was re-allocated to me and listed on 31 July 2018 for directions. Further directions were made at that hearing and the matter was heard on 8 August. I reserved judgment until 10 August.

There is limited issue between the parties about the essential legal framework, the issues centre on the application of the relevant principles. Both Ms Martin and Ms Dail rely heavily on the helpful legal analysis in Mr Sampson’s skeleton argument.

Jurisdiction in respect of Part 1 orders (including s.8 orders under the Children Act 1989) is derived from two sources: The Family Law Act 1986 as amended and Council Regulation (EC) No 2201/2003 (‘BllR’) of 27 November 2003 ‘concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility’.

The Family Law Act 1986 was amended to recognise the primacy of BIIR and provides at s.2(1) that:

Article 8.1 of BllR provides

“(i)The courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.”

The issue of habitual residence has been the subject of five decisions of the Supreme Court starting with Re I in 2009 and most recently Re C [2018] UKSC 8. It is essentially a fact-based enquiry. In Re B (a minor: habitual residence) [2016] EWHC 2174 (Fam) at para 17 Hayden J provides a helpful non-exclusive list of the key factors the court needs to consider:

The clear message from the cases is that the child is at the centre of the exercise in evaluating the child’s habitual residence. This will involve consideration of the child’s day to day life and experience, family environment, interests and routine.

If the court reaches the conclusion that T remains habitually resident here it is accepted this court has jurisdiction, even though T may remain in the US pending the determination of the competing applications.

If the court concludes T’s habitual residence has changed then it is agreed the court will need to consider prorogation under Article 12, the relevant parts of which are set out below:

There is no issue between the parties that the child has a substantial connection with the member state and the father is habitually resident here. Also, the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner. This is supported by the recitals in the March 2017 order and the fact that the mother issued her application here in December and has submitted to this court’s jurisdiction until relatively recently.

In relation to when the court ‘is seised’ Article 16 provides as follows:

Where subsequent proceedings have been issued (whether fresh proceedings or for variation / enforcement of existing orders under the original case number) the court must consider whether seisin refers back to the issue of the original proceedings or refers to the subsequent application. In E v B Case C – 463/13 the ECJ held that ‘prorogation of jurisdiction, on the basis of Art 12(3) of BIIR, is valid only in relation to the specific proceedings for which the court whose jurisdiction is prorogued is seised and that that jurisdiction comes to an end, in favour of the court benefiting from a general jurisdiction under Art 8(1) of that regulation, following the final conclusion of the proceedings from which the prorogation of jurisdiction derives’ [para 49] pursuant to which jurisdiction ‘ceases following a final judgment in those proceedings’ [para. 50].

The issue of pre-emptive prorogation whether by an undertaking to apply back to the courts of England and Wales and / or not to seek to litigate in the country to which the child is to be taken, have been considered in a number of cases (see Baker J in X v Yand Another - [2015] 1 FLR 1463, following Parker J in AP v TD (Relocation:Retention of Jurisdiction) [2010] EWHC2040(Fam), [2011] 1FLR1851and again

These decisions need to be considered in the light of the ECJ decision in E v B. The situation in this case is that the mother undertook to return the child at the end of the period of the temporary leave and agreed not to issue any proceedings in the US. As Baker J concluded in Re ED (supra) an undertaking to return a child, which amounted to a condition precedent to the granting of temporary permission by this court amounted to unequivocal acceptance of this court’s ongoing jurisdiction for the purposes of Article 12.3.

The focus has been on the last part of Article 12 (3) (b), namelywhether prorogation is ‘in the best interests of the child’.

This issue has been considered in a number of cases, in particular Re I (supra) and E v B (supra). The question is whether ‘it is in the child’s interests for the case to be determined in the courts of this country rather than elsewhere’. As Lady Hale has made clear, this is quite different from the substantive issue in the proceedings.

Holman J considered this issue in B v B (Brussels II Revised: Jurisdiction) [2010] EWHC 1989 (Fam). The fact that a child had been resident in Germany for nearly a year and a welfare investigation of his current circumstances was best carried out in Germany was a relevant factor in Holman J’s finding that the best interests limb of Art 12.3 was not satisfied and that, accordingly, the court should decline to exercise its jurisdiction, meaning that litigation would move to Germany where the child was habitually resident by that time.

Mr Sampson’s attractive and comprehensive written and oral submissions make the following points.

The relevant time for the court to consider whether T was habitually resident here was when the court was first seised. He submits that was January 2018 when the father received her application to extend the temporary leave to remove, which was then deemed by the court as including an application for leave to permanently remove the child from the jurisdiction (see paragraph 7 (a) order dated 8 March). He submits the earlier application in March 2017 had been determined with the orders made by HHJ Oliver on 6 and 9 March 2017.

He submits when considering the factual situation in January 2018 T was well integrated in into life in the US. The evidence establishes that he is settled in the care of his mother and with the wider maternal family, embedded in the local community and receives pastoral, therapeutic and educational input. Whilst it is accepted when T left in March 2017 he was then habitually resident in England and Wales, by January 2018 the position had changed. Mr Sampson relies on what is stated in AR v RN [2015] UKSC 35 that in order to establish habitual residence there was ’no requirement that the child should have been resident in the country in question for a particular period of time.’ [para 16]. As to the state of mind of the parents and the impact this has on the acquisition of habitual residence earlier in that paragraph Lord

Mr Sampson submits during the time T has been in the US and by January 2018 he has become settled, integrated and living not only with his mother but in an environment into which he had fully integrated and was living in the centre of a wider family and community.

If the court accepts his submissions regarding habitual residence he accepts the child has a substantial connection with the England and Wales and that the acceptance of the jurisdiction was expressly accepted by the parties at the time the court was seised of the proceedings on the basis that the undertakings given in March regarding jurisdiction were a condition precedent to the granting of temporary permission by this court and amounted to unequivocal acceptance of the court’s ongoing jurisdiction for the purpose of Article 12.3.

Mr Sampson submits it is the final consideration, namely the best interests of the child, that is the focus of his submissions on Article 12.

He submits the principles that can be drawn from the authorities in relation to the application of the review of best interests is as follows:

As a consequence, applying those considerations in this case, the relevant factors are summarised by him as follows.

The relocation application requires careful analysis of the home environment, wider family support available in the US and evidence relating to T’s welfare. That is best assessed in situ, where it will be most accurate and reliable. T’s specific and psychological needs are such that his assessor must have knowledge of the services and support that are available locally to him. The mother and T have experienced a profound loss and are navigating ongoing bereavement. It is simply not realistic to require a newly bereaved mother to conduct international litigation at arm’s length. In reality the father is not seeking a change of primary residence. Issues in relation to

Mr Sampson candidly recognised that it is unusual for an application for permanent relocation to be conducted in the state to which a parent wishes to move but the reality here is that the court is charged with determining welfare issues relating to a child who has been resident in the US for over a year, in circumstances where that child has suffered a bereavement and whose family still reel from the loss of a sibling. It would be contrary to T’s best interests for litigation to determine his welfare to be conducted in a jurisdiction so far away from his day to day life. The father’s future involvement in T’s life and the mother’s ability to support that can be fully determined within litigation to determine these issues in the US. The mother is willing to undertake, whilst these proceedings are stayed, to issue an application in the US to determine her application to relocate and determine the father’s contact with the child.

Ms Martin, in her full and helpful written and oral submissions on behalf of the father, resists any finding that T is habitually resident in the US and, in the event that he is, submits that all the criteria under Article 12 require this court to retain jurisdiction.

Although in her written submissions she seeks to suggest the date the court should be looking at in relation to habitual residence should be March 2017 as that was ‘when the court was first seised’, she was less forceful on this in her oral submissions recognising that the orders of HHJ Oliver in March 2017 effectively determined the applications that were before him at that time.

In relation to the issue of habitual residence she submits that the fact that T has been in the US since March 2017 is not in dispute ‘However, this time cannot, in the face of clear orders, in both the courts of England and [X US State], usurp the habitual residence in this jurisdiction and which continues’. In oral submissions she recognised that even on her analysis there must come a time when habitual residence could change, and it would depend on the facts. She recognises that ‘T has undoubtedly formed bonds with his relatives in the USA, but that integration was temporary both factually and intentionally’. She submits he has bonds with his father here which have been disrupted by the mother’s actions, by retaining him in the US and not being supportive about contact, relying in particular on the suggestion by the mother than the child’s PTSD diagnosis is due more to the way the father behaves during contact, rather than being due to the other matters such as the loss of his sister and moving to another jurisdiction.

Ms Martin relies on the terms of the US mirror order, in effect, determining that habitual residence is here. She submits that ‘until that order is successfully appealed, revoked or otherwise discharged it stands.’

She submits that to determine that T’s habitual residence has changed to the US would

Ms Dail on behalf of the Children’s Guardian takes a pragmatic approach in her skeleton argument. She doesn’t specifically address the issue of habitual residence but submits this case has proceeded, until very recently, on the basis that this court has jurisdiction. It was expressly conceded in the recitals to the orders made in March 2017 that this court retained jurisdiction. The mother made her application to extend the leave in December 2017 and, in effect, submitted and acceded to this court’s jurisdiction until July 2018. The Guardian does not understand that the father seeks to change T’s residence and the mother’s wish is recorded in the order in May 2018 to ‘put forward a one-year plan for the care and contact arrangements in respect of T acknowledging T needs to develop his relationship with his father. After which contact will be kept under review’. She confirmed the Guardian does not seek T’s return to the jurisdiction ‘although a short visit might become necessary once assessments commence’.

The first question the court has to consider is the question of habitual residence. There is no issue that at the time T left to go to the US his habitual residence was here. That accords with the recital agreed by the parties in March 2017, notably recital 3 records that the child ‘is’habitually resident here.

It seems inescapable that when HHJ Oliver made the orders on 6 and 9 March 2017 the applications that were before him at that time were determined and concluded by the orders made. There were no further hearings and no reviews.

As a consequence when the mother made her application in December 2017, that was issued in January 2018, the court was seised afresh, with the result that the question of the court’s jurisdiction is required to be considered at that time.

Was T’s habitual residence still in England and Wales? At that stage he had been out of the jurisdiction for 8 months. He had been living with his mother in the maternal family home and all the evidence points to him having become integrated there in the sense of the wider maternal family, his involvement with the local community and the other wider support he was receiving. His father remained living here, he had some direct contact in September and retained twice weekly skype contact with him, but apart from that link, the history of his habitual residence here together with the recitals in the March 2017 order and that the leave to remove was expressed as being time limited (albeit with provision to extend) there was little else that connected him

Ms Martin’s submissions regarding habitual residence are anchored on the terms of the March order, coupled with the terms of the mirror order in the US. That view in my judgment is too blinkered when undertaking the factual review the court is required to undertake. What took place in March is clearly relevant but T’s life has not stood still. The court is bound to consider the matter afresh in December.

One of the difficulties in this case is that despite the fact that the mother was represented by previous counsel in February before DJ King no issue about jurisdiction was raised and it does not feature on the order then or subsequently until raised for the first time on the order dated 12 July, some six months after the mother had made her application and prior to then had fully acceded to the court’s jurisdiction, engaged with the hearings and complied with the court directions. However, that, in my judgment is more relevant to issues in relation to Article 12 than habitual residence of the child.

Having considered the relevant considerations and looked at the helpful matters summarised by Hayden J in Re B (supra) I have reached the conclusion that in January 2018 when this court was seised with the current application T’s habitual residence was in the US for the following reasons:

Having reached that conclusion, the court is then required to consider the question of prorogation under Article 12, focussing on the issue relating to the superior or best interests of the child, the other requirements, for the reasons outlined above, not being in issue.

The focus of this is not the welfare issues raised by the substantive application, but more deciding on the most appropriate forum for those issues to be determined.

I have reached the conclusion that the balance when considering the interests of the child come down on this court retaining jurisdiction. This is for the following reasons.

In my judgment the issue of jurisdiction having now been determined the focus now should be effective case management leading to a hearing where all outstanding issues can be determined.

Before considering further case management issues all I can do is return to where I started and encourage these parties to engage in mediation. The adults being able to reach agreement about T’s future care arrangements in whole or even part would no doubt meet T’s welfare needs.