J v U

The issue for determination is whether the English court has jurisdiction in respect of two children, A, born [date stated], who is ten and B, born [date stated], who is eight. Both children, it is common ground, are habitually resident in Bosnia. Their mother, whom I will call “the mother”, seeks urgently to invoke this court’s jurisdiction to make orders permitting her to relocate with the children to Serbia in two days’ time. Jurisdiction is strongly contested by the children’s father, whom I will call “the father”. He says that such issues relating to the welfare of the children should be resolved in Bosnia where the parents and the children are habitually resident.

The mother has been represented by Charles Hale QC with Ms. Dowse and the father by Mr. Scott QC with Mr. Tyzack. I have read sufficient of the court bundle. The case was listed for half a day which was plainly inadequate, the reading alone taking about that amount of time. Having heard both side’s arguments on Monday, today being Thursday, there was insufficient time left for judgment preparation and delivery. I have, therefore, had to squeeze the preparation of this judgment around the work involved in other hearings, in the evenings and early mornings. This is not ideal but the late stage at which the jurisdiction of this court has been invoked has made an urgent decision unavoidable.

The parents began to cohabit in 2000 in [European city stated] where both were working. The father is now aged [age stated] and is retired from a long career in the English Civil Service where he rose to a very senior level. The mother is aged [age stated] and has made a successful career employed by the European Commission (the “EC”) with status to work [status stated]. The parties were married in [year stated] following which the children came along in [year stated] and [year stated] respectively.

In 2006 the father obtained a secondment with the [agency stated] in Sarajevo, Bosnia, where the mother and the children joined him in February 2009. She has worked for the EC in Sarajevo, Bosnia, since that time. Thus, the family have lived in Sarajevo for the last seven-and-a-half years where the children are settled in the [school stated]. They (the children) have British passports and speak several languages.

Unhappily, difficulties arose between the parties in their marriage and [in the summer of] 2015 the wife issued an English petition. She originally relied on an assertion that both parties are habitually resident in this jurisdiction, but has since abandoned that and now relies only on an alternative assertion of her English domicile. [In the Autumn of] 2015 the father issued a petition for divorce in Sarajevo, Bosnia. Following that, on [date] December 2015 he applied in this jurisdiction to strike out the wife’s petition for lack of jurisdiction on the basis that he asserts she is not domiciled here; or else for a discretionary stay. That application by the father remains pending in this court.

The mother has now obtained a posting to Belgrade, Serbia, and is due to move there on 1^st October 2016, two days’ time. She wants to take the children with her but the father does not agree. There is a substantial issue between the parties as to who is the children’s primary carer and there are various other factual disputes connected with the children’s welfare. On 19^th July 2016 the mother issued a Form C100 in this court seeking a Child Arrangements Order (i.e. residence of the children) and a Specific Issue Order permitting her to relocate. Specifically, in box 4a of her Form C100 she seeks permission to move the children from Bosnia to Serbia and an interim order for the children to live with her. On 16^th August 2016 her application came before a circuit judge who made various directions about the jurisdictional issue regarding the wife’s divorce petition here. Both parties were ordered to file statements in respect of that particular issue. In addition, the judge set the matter down with a time estimate of half a day before me on 26^th September 2016 ‘for an urgent directions appointment to include determination of whether there is jurisdiction to hear the Children Act proceedings’. She made a permissive order too that the father ‘may, if so advised, file a statement in response to the mother’s statement supporting her Form C100 by 15^th September 2016’. The father has not availed himself of that permission. Mr. Scott tells me that the view was taken that, since this hearing was set up only to determine the legal issue of jurisdiction, a response setting out the father’s case on welfare issues seemed unnecessary and premature.

The mother’s statement in support of her Children Act application failed to include the sort of detail which a court would require before granting leave to relocate. By letter dated Friday 23^rd September 2016, however, her solicitors gave a lot more of the necessary details. The father complains through Mr. Scott that he has not had sufficient time properly to consider this.

The applicable law, as it appears in Art.14 of Brussels II Revised (see below) and in the Family Law Act 1986 (see below), is not disputed by counsel. The question is how it is to be applied in the present case. The statutory framework is not entirely straightforward and I need to set out the relevant provisions.

Mr. Hale puts his case for jurisdiction in two ways. His ‘primary’ case, as he describes it, is based on s.2(1)(b)(i) of the Act, namely that the question of making the s.8 orders sought by the mother arises ‘in or in connection with’ matrimonial proceedings which satisfy s.2A (because they are in respect of the marriage of the children’s parents and are continuing proceedings). Alternatively, Mr. Hale relies on s.1(1)(d) in saying that he seeks an order (i.e. a Relocation Order) under the inherent jurisdiction of the High Court not being an order which ‘gives care of a child to any person or provides for contact with or the education of a child’.

As to the inherent jurisdiction, Mr. Hale relies on what he submits is the modern broader approach to the use of the ‘parens patriae’ based on the children’s British nationality as a ground for taking jurisdiction under the inherent jurisdiction. In support of that submission he relies on A v A [2014] AC 1 (Supreme Court); Re B [2016] 2 WLR 556 (Supreme Court); Re H [2016] EWHC 125 (Fam) (Peter Jackson J); and JB v D [2016] EWHC 1607 (Fam) (Hayden J). He stresses the ‘perilous’ position in which the children would find themselves in two days’ time if this application is not granted by this court. The tenancy of the parties’ home expires in two days’ time, the mother having given notice to the landlord, and she is supposed to be taking up her new post in Serbia. Her diplomatic status, and that of the father and children, would cease in Bosnia. The family’s right to remain there would be questionable (says Mr. Hale) and the children would, in his submission, be under no judicial oversight in any country. He relies, in particular, on the statement of the mother’s line manager, Ms D, dated 13^th September 2016 which sets out these matters and which states that if the mother were ‘constrained from accepting her new posting’ in Serbia, then she would have to be considered for much less agreeable countries instead alternative. At worst, Ms. D says that the mother’s employment with the EC might be in jeopardy. At paras.24-27 of his skeleton argument Mr. Hale summarises the disadvantage of this court not taking jurisdiction, and he emphasises the urgency of the situation submitting that the children ‘would be in legal limbo and an unacceptable legal vacuum, intolerable to their welfare as British nationals’. He reminds me of the authorities cited in the decisions of A v A and Re B (above) by way of the rationale of the use of the parens patriae jurisdiction over British citizens and of the dicta of Baroness Hale at para.63 of A v A that:

Mr. Scott argues strongly to the contrary in respect of both limbs of Mr. Hale’s argument. On the s.8 point Mr. Scott submits that a s.8 application under the Children Act 1989 is self-evidently not ‘in or in connection with’ the mother’s pending divorce proceedings. The application is plainly a freestanding one, he says, to which the existence of the divorce proceedings is entirely incidental. He refers to AP v TD [2011] 1 FLR 1851 where at paras.110-124 (obiter and on different facts) Judith Parker J discussed the concept of, and need for, a ‘connection’ between matrimonial proceedings and jurisdiction to make an order relating to the parties’ children. As regards the inherent jurisdiction, Mr. Scott’s simple submission is that the use of it is rendered impermissible by the plain wording of s.1(1)(d) of the Act (above).

If, notwithstanding Mr. Scott’s submissions, I were to find jurisdiction to make orders under s.8 by virtue of the pending divorce proceedings here, then he (Mr Scott) relies on s.2(4) of the Act, arguing that I should find it to be more appropriate that matters relating to the children be determined in Bosnia rather than in this country. He says that there would be no problem in this retired father looking after the children in Bosnia if the mother decided to make the move to take up her posting in Serbia. Her proposals, anyway, are for staying contact to the father if she moves to Serbia and he, the father, was looking after the children during this hearing which the mother attended in person. Mr. Scott says on instructions (and this is not in evidence) that the father would hope to renegotiate a continued rental of the former matrimonial home in Sarajevo or, if that were not possible, would rent somewhere else. Then, it is submitted, the children could stay at the same school where they are settled. The father’s finances are not in evidence (nor is anything which Mr. Scott has said in evidence about the father’s plans) but he, the father, must have his British Civil Service pension and he has a country house in [European country stated] and a house in West London, both purchased before the marriage. Even if they have large mortgages there will be equity. So Mr. Scott asked me to be satisfied that there would not be any financial or other impediment to the father’s caring for the children in Sarajevo whilst the mother went to work in Belgrade, at least until the question of the children’s future could be determined in an orderly manner.

When Mr. Hale started his submissions I understood him to be asking that an urgent interim Relocation Order actually be made at this hearing, if I was with him on jurisdiction. Mr. Scott strongly opposed this relying on the fact that the hearing was only set up for the issue of jurisdiction to be determined. However, on reflection Mr. Hale’s final submissions accepted that there would have to be ‘a process’ to determine the children’s welfare. He suggested, therefore, that the father should now be ordered to make a welfare statement setting out his proposed plans and arrangements for the children; and that there would be some form of report on the children’s wishes and feelings, for example by CFAB (Children and Families Across Borders). This would then be followed by what Mr. Hale described as a ‘holistic analysis’ in this jurisdiction of the children’s best interests: as to which parent should care for them, and whether the mother should be permitted to relocate them from Bosnia to Serbia.

As regards jurisdiction to make a S.8 order (i.e. interim residence to the mother with permission to relocate) on the basis of the pending divorce proceedings, this clearly hinges on the wording of S.2(1)(b)(i) and on whether the ‘question of making the order arises in or in connection with matrimonial proceedings’. Whilst the prayer of the mother’s petition seeks (obviously) a divorce, and seeks financial orders for herself and the children, it does not (as in the old days) seek any decision or order relating to the children’s welfare or upbringing. Mr. Scott and Mr. Tyzack in a supplemental note have traced various statutory amendments back to S.41 of the Matrimonial Causes Act 1973 (which was in force when the Family Law Act 1986 was enacted) and which required the court, before granting a decree of divorce, to certify that the arrangements for the welfare of any children of the family were satisfactory. By S.2 of the Matrimonial Causes Act 1973 the court was at that time empowered on granting a decree of divorce to make orders in relation to the children’s custody. Those of us who did undefended divorces will well remember the procedure. Although we were probably unaware of it at the time, it must have been a predecessor of S.2(1)(b)(i) of the Family Law Act 1986 which enabled this to be done jurisdictionally in divorce cases where there would not otherwise have been jurisdiction here over the children.

In the light of his analysis of the legislative history and the repealing of s.41 and s.42 of the Matrimonial Causes Act 1973, Mr. Scott submits that it is ‘baffling’ that the words ‘in or in connection with matrimonial proceedings’ remain within s.2(1)(b)(i) of the Act, creating a jurisdictional basis which, if satisfied, enables this court to exercise jurisdiction in respect of children who are not habitually resident here and in respect of whom there would not otherwise be jurisdiction. He submits it may be an oversight that the words remain in force or that, if they were intended to remain in force, then they should be narrowly construed given the ‘international gold standard’ test for jurisdiction nowadays, i.e. habitual residence.

Since the words in question (‘in or in connection with’) remain in the section, I must clearly apply them and Mr. Scott is not suggesting otherwise. That said, his submissions are persuasive as to the fact that, if the mere existence of divorce proceedings here can clothe the court with jurisdiction to make child welfare orders in respect of children habitually resident elsewhere, then it would drive a coach and horses, or at least a coach, through the now generally accepted approach to the issue of jurisdiction. Clearly, if Parliament had wanted to say that, whenever there are pending matrimonial proceedings here, this court should without more have jurisdiction in respect of issues regarding the parties’ children, then it could have done so. But it did not; and yet the criterion for jurisdiction remains ‘in or in connection with’ matrimonial proceedings.

It is self-evident on the face of the petition that the application which the mother now wishes to make is not ‘in’ her matrimonial proceedings, because no application is nor could have been made there. But what does ‘in connection with’ actually mean? Mr. Hale submits it merely means that if there are pending divorce proceedings, then any application regarding the children is automatically connected with them; but I cannot accept that. I consider, as did Judith Parker J obiter in AP v TD (above), that there must be some nexus more than just the mere existence of the two sets of proceedings and the fact that the parties to them are the same. It is not entirely easy to see what nexus there can or could be between proceedings seeking quite different reliefs; but it may be that the question is simply one of fact and degree. As a proposition which I put to Mr. Scott and he accepted (and from which Mr. Hale did not dissent), one can envisage a petition which raises the same issues as a Children Act application made at about the same time (for example ‘unreasonable behaviour’ allegations against the respondent involving his behaviour towards the children). Such issues would be ‘connected’ both as to content and in point of time. But that is not the case here. The mother’s application regarding the children arises out of events in June 2016 and raises issues wholly unrelated to the issues in the divorce proceeding issued nine months previously in September 2015. As Mr. Scott submits, her application relating to the children could have been made if the parties had not been married or, indeed, if they were not getting divorced; it is freestanding.

Accordingly, in my judgment the mother’s current application regarding the childcare arrangements is neither made in nor has any or any sufficient connection with her pending matrimonial proceedings such as to give this court jurisdiction under s.2(1)(b)(i) of the Act.

As regards the parens patriae and inherent jurisdiction, I note in Mr. Hale’s final submission that he stressed that the mother is not seeking a care order for the children, merely an order for custody and an interim relocation order. That is not, however, how the mother’s case was put originally. At para.8(iv) of Mr Hale’s Skeleton Argument the court is asked to make interim orders pursuant to the inherent jurisdiction ‘… that the children remain in the care and custody of the mother… and reside in the interim with her (and with the father if he so wishes) in Serbia’. It seems to me that the written presentation was the accurate one. The underlying issue is (a) about with which parent the children should reside and (b) if with the mother, then whether she should be permitted to relocate to Serbia. A Relocation Order depends on a residence decision being taken. That is the reality of it and, unfortunately for the mother, the vehicle sought to be used (namely the inherent jurisdiction based on the children’s nationality) is ruled out by a combination of s.1(d) above and s.2(3) above. This is because none of the conditions in s.2(3) for a permissible use of the inherent jurisdiction is met. Even if the use of the inherent jurisdiction were not ruled out by statute, I am not persuaded that the circumstances of these children are such that they can be said to be in need of the exercise of this court’s protective jurisdiction in the sense envisaged by the Supreme Court in the authorities mentioned above.

The above suffices to deal with the application. However, if I were wrong in my conclusion on Mr. Hale’s primary argument (such that this court should be found to have jurisdiction to make s.8 orders based on the existence of the mother’s pending divorce proceedings) then it would be necessary to consider s.2(4): would it be more appropriate for decisions relating to the children to be determined outside this jurisdiction? This is a forum conveniens exercise and the same considerations (set out at Rayden & Jackson, para.31.337-338) need to be taken into account, including that the burden is on the father to show why this court should not exercise jurisdiction. I fully recognise the extremely difficult situation in which the mother finds herself so shortly before she wishes to relocate in two days’ time and the dilemma which she faces regarding her employment. However, the father is justified in saying that much of this difficulty appears to be either of her own making or else contributed to by her. It is clear from the statement of Ms D that there is generally a long run-in when new postings are determined, the normal time span being from an application for a new post in October of one year to a posting in the August of the next, that is some nine months. The evidence does not say exactly when the application process began here or how it went, although I note from Mr. Hale’s chronology that the mother was offered the new post in June 2016. Be that as it may, the Bosnian court has been seised of the father’s petition (which includes child matters) for a year since 2015, yet, in Bosnia the mother has chosen to plead and rely on an assertion of diplomatic immunity. On that basis in December 2015 she declined to participate in a court mediation meeting in Bosnia relating to the children. Her lawyer, Mr. K, wrote to the Bosnian Social Services on 5^th December 2015 stating that she had not waived immunity and did not intend to.

Further, in his undated written opinion before me, Mr. K asserts that the mother has immunity from any civil process in Bosnia unless she were to agree to waive it. He continues, ‘…we have stressed in our court submissions that the mother does not want to participate in any legal procedure in Bosnia’. He continues that ‘… in case the mother were to give her consent to participate in the procedure… regarding financial issues and issues regarding the children, the procedure shall proceed’. He makes it clear that in Bosnia financial and children issues are resolved in the same litigation procedure but that he had ‘… not permitted the judge to continue with any procedure’. He goes on to say that to deal with the procedure (which, from the context, means the totality of the divorce, children and finances and presumably with issues about the validity of the mother’s extant claim to diplomatic immunity) would require about a year. There is, however, no evidence as to how long a discrete application for relocation or residence in respect of the children would take (particularly without the complication of contested issues about diplomatic immunity) and I am unwilling, without expert evidence specifically on the point, to find that such a discrete application relating to the welfare needs of children could not be made and determined in Bosnia.

In the light of this assertion by the mother of diplomatic immunity in Bosnia, I asked Mr. Scott if the father was claiming any form of immunity for himself in Bosnia and he told me no. He made the sound point that, having himself invoked the Bosnian jurisdiction, the father would hardly be claiming diplomatic immunity. He further referred me to a letter prepared by the father’s Bosnian lawyer with the father’s typed name at the bottom dated 15^th March 2015 where the father maintains that diplomatic immunity under the relevant EU regulations can only be claimed by officials ‘… in respect of acts performed by them in their official capacity’. The Bosnian lawyer was therefore asserting on the father’s behalf that the mother does not have any relevant diplomatic immunity in respect of proceedings in relation to the children, in which case the father would not have diplomatic immunity either since his immunity is only by virtue of being the mother’s spouse. It follows, as it seems to me, that the Bosnian court could perfectly well have been asked to deal with this relocation issue, and should have been, even if (and this is not a finding, because there is no sufficient evidence on the point) it might have taken a little time. This family have not lived in England since 2009 and have lived throughout the entire material time in Bosnia. It is true that since the 1970’s the father has owned his property in West London (above) but it has been let out continuously since then, with just occasional use of a room by the parties and a period of their sharing the property with the tenants in 2002 for about a year when they did live in England.

Bearing these considerations in mind and taking account of all the considerations relevant to the forum conveniens exercise, I am satisfied that if I had jurisdiction under s.2(1)(b)(i), I should decline to exercise it under s.2(4)(b). The words of Thorpe LJ in Bush v Bush [2008] 2 FLR 1437, which I mentioned to the parties (although overtaken by the legislative changes referred to above), still have a resonance when he said at para.48:

For the above reasons I decline to find that this court has jurisdiction over welfare issues relating to the parties’ children. If it had jurisdiction I do not consider that it should exercise it. The issues could have been raised before the Bosnian court. Jurisdiction found to exist here would not be just for this urgent situation. One does not dip in and out of jurisdiction. It would be ongoing and would permit a full welfare hearing going ahead here. This would be unsatisfactory for all the reasons advanced by Mr. Scott: for example the difficulty of obtaining evidence about disputed issues; the likely delay in having to use CFAB to ascertain the children’s wishes and feelings; the fact that no one is living in this jurisdiction; the possible difficulties of enforcement and so on.

As I have said, I appreciate that the mother will now have a difficult decision as to whether to go to Belgrade or to stay in Sarajevo. The two cities are some three hundred miles apart and there are flights. Clearly the parents need to talk (they both have lawyers in both countries) to try to sort out some form of solution. I very much hope they can do so. It may be that the mother’s posting to Belgrade can be postponed until the Bosnian court can make a decision, as being the court of the children’s habitual residence. That will need to be looked into with the mother’s employers who may or may not be sympathetic; but the mother’s difficulties and the urgency cannot clothe this court with jurisdiction if it does not otherwise have any. I hope the mother will take some comfort from the fact that even if I had assumed jurisdiction over the children, it would not have averted the immediate problem in two days’ time. This is because, on any view and even if the English court assumed jurisdiction, no welfare decision to permit her and the children to leave Bosnia would be capable of being made for at least a number of weeks and probably not for a number of months. Therefore, in any event, interim arrangements would have to have been agreed by the parties in the exercise of their parental responsibility, or the equivalent in Bosnia, and some interim arrangements put in place however less than ideal.

These costs applications are difficult in cases where there are children whose interests are effected by the quality of the relations between their parents. I am well aware, expressing the situation very broadly, that there are very rarely situations where, in disputes over children, costs orders are made. However, I take Mr. Scott’s point that this application has not been directly about the welfare of the children or their future (being partly inquisitorial) but has involved a question of law relating to jurisdiction and in circumstances where the mother had been made aware that the application was going to be vigorously contested. I therefore consider that there should be a reflection in the father’s favour of the fact that he has been successful. On the other hand, I have to bear in mind that the mother is the breadwinner in respect of the children and not to create circumstances in which she is financially embarrassed by the order that I am going to make.

I have heard from the parties that the father’s costs are put at £36,000 and the mother’s at £25,000. I propose to assess the father’s costs at £25,000 and to direct that the mother do make a contribution of £15,000 towards those costs, not to be enforced until the financial proceedings are resolved in one country or the other. The father shall have liberty to apply to this court in advance of that time, if so advised, to request enforcement if the matter drags on in whichever country ends up taking jurisdiction over the parties’ finances.