T v T

In this extempore judgment given after reading documentation provided by counsel in the form of their written submissions as to jurisdiction, parts of the witness summonses provided by the mother and father of the two children I am concerned with and a number of authorities, the question before me is: in which jurisdiction should the issues relating to aspects of the welfare of the two children be determined?

The two children are KIT, a little boy born in May 2003, now aged nine and his younger brother, AJT, born in March 2006 and thus now six years of age. They are the children of T (hereinafter referred to as "the father") and M (hereinafter referred to as "the mother").

As long ago as 2008 Children Act proceedings under the Children Act 1989 (hereinafter referred to as "the Act") were considered and Her Honour Judge Cameron on 25th February 2008 made an order which is called a "Shared Residence Order". In fact, the order was a fairly conventional one dealing with issues of residence, the application of the mother for leave to remove the children permanently from the jurisdiction to relocate to the Republic of Ireland on a permanent basis, and for consequential contact to the father. It was, with the greatest of respect to the designation of "Shared Residence Order", quite clearly a conventional order in terms of section 8 of the Act for residence and contact. The adjective "Shared" was something of fiction.

As I understand it, both parties were, by definition, at the time of the 2008 proceedings habitually resident in the jurisdiction of the courts of England and Wales as were the two children. It was only in consequence of the 2008 Act that the mother was permitted to take both children to Eire. Accordingly, questions of the appropriate jurisdiction to determine issues relating to the children pursuant to the provisions of the Act do not arise.

Before I continue with the development of the history, it is worth saying a little bit in more detail about the content of this February 2008 order. The learned judge heard counsel for the mother and a solicitor for the father. She had read the papers. She took oral evidence from a CAFCASS officer, a Mrs. Glencross, from the mother, from the father and from one other person whose role in the affair I know not. That detail matters little.

As I have indicated, a residence order was made, albeit called "Shared," which effectively gave the bulk of the period of residence to the mother. She was given permission to take the children to Eire on the permanent basis she requested. There was provision, albeit called "Shared Residence", for contact to the father as follows: for approximately a week at Easter of that year; for the May half-term, four days; for the summer of that year, just over two weeks; and on one weekend a month from Friday afternoon to Sunday afternoon, the father was to have contact, the mother ensuring the children arrived at Stansted Airport not later than teatime on Friday, and the father to ensure the children returned to the maternal grandparents' home (where the mother was to live with those children at least for a while) on the Sunday afternoon. There was further provision about travel arrangements. There was in addition, as of 2009, provision that the boys could come to their father for about three weeks per annum: for a week at Christmas; for a week at Easter; and for each half term holiday. In addition, the father was given permission to travel to Ireland once a fortnight in order to have the "care of the children from Friday to Sunday".

Unfortunately, matters did not prove to be straightforward and, for reasons I do not propose to go into (it being unnecessary for the purposes of this judgment) the father felt obliged to take enforcement proceedings under the Act in 2010. Her Honour Judge Cameron again heard the matter. On 25th August 2010 a consent order was made. Unfortunately, for whatever reason, the mother did not attend that hearing but careful instructions must have been taken from her. What follows are the agreed terms. The order of February 2008 was varied up to a point. The provision of one weekend a month (referred to above) was changed to once every six weeks and the mother again was to ensure that the children went to the father's house on the Friday in England. There was provision for monetary payments. In respect of a further provision of the order, the period of three weeks per annum was slightly extended to over four weeks. And instead of Christmas for one week, that was to be changed to half the Christmas holiday. Further provision was made, again as I emphasise, all by consent, that the father was to collect and return the children from the airport after visiting during the holiday period. There was also provision recording the agreement of the mother and the father that the boy H should benefit from some counselling. Again, I know not what the background to that was, but I mention in passing that both H and his little brother A had, as I understand it, had some limited counselling although as I emphasise the ambit of it is not before me, quite rightly.

On the above basis the matter was compromised and nothing more was heard of this family for approximately two years.

Unhappily, for reasons I need not go into at this stage, the mother and father took different views about what was in the interests of the children, I do not intend to give a view as to the mother's allegations and her reason for a period of some months now the father has not seen the children at all as to its credibility. It is the mother's case – which I record without making any findings at all, that not being my business today, that the father has behaved unattractively at handovers, been critical of the mother and of her family and that generally his behaviour, not just limited to handovers, has been upsetting to the mother and others. For that reason, as well as others which she mentions in her statement (and again in respect of which I make no findings) she stopped the contact.

The father, this not being the first time that his contact had been interrupted, began proceedings for, on the face of it, a radical re-think of the 2008 arrangements and on paper, at least, his recent case in proceedings issued in the Dartford County Court earlier this year, was that given the breakdown in contact the boys should move back to England to live with him. I need not go into the detail of his proposals for the above is sufficient thrust to permit me to consider the question which arises at this point, that question being: is England and its courts the appropriate jurisdiction in which to determine such an issue?

Once the father issued his proceedings the mother, legally advised and certainly I think the beneficiary of a certificate granted by the Legal Services Commission (even if she is paying privately and, I am wrong about that, it matters little) entered an appearance to the father's application ostensibly if not explicitly consenting to the jurisdiction of these courts to determine these issues.

At a directions appointment heard earlier this year in the Principal Registry of the Family Division, Deputy District Judge Torr raised for the first time the question of jurisdiction. As I understand it, he did not purport to give any indication of what his views were nor did he — quite rightly — purport to determine it, but adjourned the matter for argument before a Judge of the Division. It was thus that it found itself this morning in Ryder J's list but a more wholly inappropriate listing is hard to imagine, he being the urgent Applications Judge and not necessarily nor indeed in fact, as his day has turned out, having the time to hear it. Happily, my one-day case settled and I was able to consider it.

Once the issue became a live one counsel were instructed on both sides. Ms. Islam appears on behalf of the mother. She is unattended by a solicitor and she does not have a lay client. Instead, a letter from the mother's doctor has been provided indicating that the mother is unfit to travel until January 2013 because she is pregnant and her condition with varicose veins is exacerbated by the pregnancy rendering her in difficulties in making the journey.

Father today appears by counsel, Miss Sambrooks-Wright. She has her instructing solicitor or at least a representative of the firm in attendance. The father is also in attendance. He is not the subject of any Legal Services Commission certificate and is paying (from his modest resources) for this litigation privately.

Although in her written submissions, Miss Sambrooks-Wright referred in paragraph 3 to the father not accepting that the habitual residence of the children is now in Eire rather than in this country, as I understand it even before the parties walked through my door the very proper, and indeed inevitable, concession had been made on behalf of the father that, in effect, since their leaving for Eire and the establishment of their home there with their mother, they have been habitually resident in that country and not in England and Wales.

I should mention by way of further background that the mother has a new partner. I do not know her marital status but it matters little. She has one child, a half sibling to H and A and, as the medical issue I have just mentioned elucidates, she has another half sibling to H and A on the way.

It is quite clear that the daily mesh of the children's lives is in Eire.

It is equally clear from a broad arithmetical approach not by any means determinative but illustrative in this case that almost 90% of their lives since transfer back to Eire in 2008 has been spent in that jurisdiction reinforcing the need for the father to make the concession that is now very properly made. I have no hesitation in finding the habitual residence is indeed in Eire.

Now that Deputy District Judge Torr has raised the issue, it must be grappled with but it seems to me to be so fundamental that I cannot take any other course than determine it now. But before I go on to consider the law, let me say something more about how this case developed within the court.

I raised with both counsel, but in particular, Miss Sambrooks-Wright, whether or not the father was actually seeking a change of country for the boys or a change of care, he offering himself on pretty much a full-time basis or, as a result of something she had said to me, that this case was more akin to a wish to reassert the contact provisions so that he could see his boys. Albeit somewhat surprisingly and I do not criticise him for it -- the answer came through counsel after a careful consultation that if the father could be assured that his contact would be preserved and indeed fostered, he would not be seeking to uproot the boys from Eire. Accordingly, subject to negotiation and various discussions which were subsequently had, it might have been possible for this case to have proceeded on the basis that I signed Annex 2 and/or Annex 3 Certificates under a European Instrument called Council Regulation EC Number 2201/2003 otherwise known colloquially as "Brussels II Revised" but referred to hereafter in this judgment only as "the Regulation".

I formally adjourned for a period of almost an hour (taking another case meanwhile) to allow both sides to consider the position and, in particular, for Miss Islam to consult with her instructing solicitor who then took instructions by telephone from the mother. The difference between the parties is slight belying the impression given in the written material. The father, although he did not go into elaborate detail and specify his complaints, does suggest he has been the subject of unattractive behaviour from the mother and/or the members of her family just as she complains that the father has been behaving unattractively towards her.

He would be content to enter into an agreement recorded on the face of any order made today to the effect that both parties agree not to denigrate each other or their respective families to the children or either of them. The mother, through Miss Islam, tells me that that is not acceptable to her. She wants a formal undertaking from the father to that effect and she has not proposed to enter into any such agreement for her own part. Although the father initially seemed to baulk at that, as his counsel's submissions progressed and after she had taken further careful instructions, the father, in order to advance matters, indicated that he would be prepared to give such an undertaking to be reviewed at the next hearing. And even though the mother would not offer her agreement to a similar inhibition on her behaviour, he would as an act of goodwill proceed on that basis himself.

Miss Islam told me subsequently that the mother is also contemplating (although she has done nothing forensically about it to date) seeking a further variation of the 2008 order as modified by the 2010 order, namely, that when the boys see their father at which I should call the six-weekly interval (broadly taking place halfway between the two main school holiday periods on either side of it), that rather than the boys come to England, she would wish the father to come to Ireland. Again, as I understand it, the father acquiesced to that up to January 2013 when the mother will have given birth and recovered from the pregnancy, then the old arrangement taking place again.

It can be seen from the above although I have not done justice to the very fine mesh, but that is the nub, that the difference between the two parties is really an incredibly narrow one and that this issue is, if all goes well, simply about the return to the status quo of carefully constructed contact arrangements.

It thus seems to me not, on the face of it, to require an enormously elaborate investigation by the court of all aspects of the boys' lives. I appreciate that they have had some limited counselling and, as I said earlier, I know not what the subject of that was. But for my part, I can foresee that the essential enquiry, after the mother has set out her case as to why the six-weekly visit (as I shall call it) should be in Ireland or England, she apparently continuing to accept that the longer visit should be in England, that this further enquiry need not, be an extensive one.

Let me turn now to some brief consideration of the law. Pursuant to Article 8 of the Regulation general jurisdiction in relation to questions of parental responsibility lies in the courts of a Member State where the child is habitually resident at the time the court is seised. There is, of course, the period of three months after any child moves from one jurisdiction to another during which the court retains a vestigial jurisdiction: see Article 9 paragraph 1. These children have long been habitually resident in Eire so the English courts are, if I were to look only at that Article, no longer appropriate, Eire being the court of habitual residence for some four years now. But that is not an end of the matter.

I have to look at Article 12 paragraph 3 which reads as follows:

Before I go on to consider the other aspect of Article 12 paragraph 3, I interpolate the following. The father demonstrably has parental responsibility for both boys, both children are nationals of this country. The father remains not only a national of this country but habitually resident here.

Let me continue with the Regulation in particular Article 12 paragraph 3(b) which reads as follows:

In this case the mother had to accept the jurisdiction in 2008 because both parties and both boys were habitually resident here at the time.

The mother expressly and unequivocally accepted the jurisdiction in 2010.

The mother expressly and unequivocally accepted the jurisdiction of this court in 2012 when the father issued his latest proceedings. Thus the only room for manoeuvre available to the mother to argue that Article 12 paragraph 3(b) does not apply is to emphasise the concluding phrase of that subparagraph, namely, "and is in the best interests of the child".

Before I consider that phrase and its application to this hearing in these proceedings I should also mention that Article 15 of the Regulation is relevant. I do not propose to read into this judgment, already over-lengthy as it is, the entire contents of Article 15, but I have directed myself in its terms and in particular have considered the Opening part of Article 15 paragraph 1 which reads as follows:

Article 15 paragraph 3 is for guidance. It reads as follows:

How to construe the phrase in Article 12 paragraph 3(b) "in the best interests of the child"?

How should I construe in this case Article 15 of the Regulation as well? I have been taken in particular to two authorities, both at first instance, the first the decision of my brother Holman J in B v. B (Brussels II Revised Jurisdiction) [2011] 1 FLR 54 et seq and in particular at paragraphs 31 to 33 of his judgment which I incorporate in full:

Whilst many things could be said about the circumstances obtaining in the case, the one I shall refer to is a matter drawn to my attention by Miss Sambrooks-Wright, namely, that the habitual residence of the children had for some considerable time in that case been Germany and that the father who was applying for relief in this country did not have a secure tenure of residence here being an unlawful overstayer. Thus, the likelihood of the litigation continuing throughout its duration in this jurisdiction seemed open to question at the very least and there were many features making it more appropriate for the matter to be heard in the country of habitual residence of the child. I need not further refer to the case specifics which supported that view by Holman J.

The second case was VC v GC[2012] EWHC 1246 (Fam) a private law case heard by Eleanor King J earlier this year.

Once again, I have been taken to paragraphs (as it happens) 31 to 33 of that decision which state as follows:

Eleanor King J in that case was considering, amongst other things, whether or not the mother, by engaging the French proceedings to a minimal level, namely appealing an order made in that jurisdiction, had in effect embraced that jurisdiction. Miss Islam argues, if I understand it correctly, on behalf of the mother that the mother has engaged with this jurisdiction for a very limited period although the obvious distinction between the two cases, this one and the one being determined by Eleanor King J, is that this mother in this case only entertained a reservation for thisjurisdiction once it was highlighted by the Deputy District Judge and had prior thereto not raised any objection. Furthermore, in this case, as indeed in that authority, Miss Islam quotes the fact that the habitual residence of the relevant children was here making the courts of England and Wales the appropriate one for the determination of issues relating to their care.

What to make of all this?

I appreciate that the habitual residence of the children is a very powerful feature. Whether or not it is an inexorable starting point to a consideration of issues such as this, I express no concluded view. But, for the avoidance of doubt, I make it clear that I have considered habitual residence very carefully indeed in coming to my conclusions. It is in the submission of Miss Islam a dominant feature if not a determinative one. Again, I am not convinced that I would go so far, but for the moment and for today's purposes I do not have to determine that question, if indeed it is a relevant question.

As a matter of fact what is the position on the ground?

Having considered the totality of the matters and bearing in mind in particular that this litigation is already (to use a colloquialism) up and running and has the advantages highlighted in paragraph 43, I have come on fine balance to the view that albeit habitual residence of the children is in Eire, this litigation should be allowed to continue in respect of this application in this country.