Re F (A Child) [2014] EWCA Civ 789 concerned an appeal by a Father whose daughter was the subject of ongoing care proceedings. The Father is an American citizen and, prior to coming to the UK, the family had lived in Zimbabwe. The Father then left Zimbabwe with F and travelled to the US, where he remained with her from September 2010 to April 2012.
He then travelled the world extensively with F, returning to the US for a few weeks during that time. The mother, who had since moved to South Africa with F’s older siblings, lost contact with F.
In November 2012, American Child Protective Services wrote to the Father to inform him of an investigation into F’s circumstances. The Father left for England the next day.
On arriving in England, the Father and F lived in a tent and on 21 December 2012 the Local Authority applied for and was granted an Emergency Protection Order. F was subsequently made the subject of an Interim Care Order on 28 December and remained in foster care since that time.
The matter came before Coleridge J on 14 March 2013, when the issue of F’s habitual residence and the Court’s jurisdiction was raised by the Judge. The Father was not present at the hearing and was not legally represented. The Judge agreed with the parties present at the hearing that F was habitually residence in England at the commencement of care proceedings. A preamble was included in the Order confirming this, but no judgment was given on the issue.
The Father subsequently re-engaged with the proceedings and contended that F was, in fact, habitually resident in the US at the time care proceedings began in England. His appeal was considered by the Court of Appeal on 12 June 2014.
At paragraph 10 of the Judgment, Sir James Munby sets out the following propositions established by Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] EWHC 6 (Fam), [2014] FLR regarding the Court’s jurisdiction:
- The jurisdictional reach of the Courts of England and Wales in relation to care proceedings is not spelt out in any statutory provision
- The rule which has been developed by the Judges of the Family Division is that the Court’s jurisdiction is normally established in care cases by the child either being habitually resident or actually present in England and Wales at the relevant time. (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). However, this is modified by Brussels II Revised.
- It has been established by decisions of the Supreme Court that Brussels II Revised 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 (A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1 and Re L (A Child: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597). Therefore, the remarks made in Re E apply, in principle to all care cases with a foreign dimension.
Sir Munby continues at paragraph 11 to set out the following consequences of these propositions:
i) The starting point in any care proceedings case with a foreign dimension should be an inquiry into where the child is habitually resident. The basic principle in Art 8(1) Brussels II Revised is that jurisdiction in dependent upon habitual residence. As it has already been established that Brussels II Revised applies to care proceedings, it follows that the Courts of England and Wales do not have jurisdiction to make a Care Order simply because a child is present in England and Wales.
ii) In determining habitual residence, the Court should apply the principles in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1. The key principle in this case was 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 considering this, it is necessary to assess the integration of anybody the child is dependent upon in the social and family environment of the relevant country.
iii) Jurisdiction under Art 8(1) depends upon where the child is habitually resident “at the time the court is seised”.
iv) It is imperative that the issue of habitual residence, and thus the Court’s jurisdiction, is addressed at the outset of any care proceedings with a foreign dimension. This should be when the proceedings are issued and at the Case Management Hearing (Nottingham City Council v LM and others [2014] EWCA Civ 153, paras 47, 58).
v) In any case with a foreign element, the Court should set out explicitly in both its judgment and order the basis upon which it has either accepted or rejected jurisdiction, in accordance with the relevant provisions of Brussels II Revised (Re E, paras 35, 36).
vi) Judges must raise the issue of jurisdiction even if it has been overlooked by the parties (Re E, para 36).
At paragraph 12, Sir Munby sets out the appropriate procedure for dealing with the issue of habitual residence:
i) A declaration as to jurisdiction should never be granted on a ‘without notice’ application (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 is time for proper investigation and determination, the following suggested recital should be used: “Upon it provisionally appearing that the child is habitually resident…”.
ii) The Court cannot finally determine habitual residence until all relevant parties have had an opportunity to adduce evidence and make submissions. 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 (Wallersteiner v Moir [1974] 1 WLR 991).
Sir Munby allowed the appeal on the basis that Coleridge J had not addressed the question of habitual residence as set out in A v A, did not adequately explain why he had concluded that F was habitually resident in England and Wales, and he decided the issue when the father was not present and had no notice that the question of jurisdiction was going to be raised, knowing that the father was challenging jurisdiction.
The matter was remitted to the High Court for determination of whether F was habitually resident in England and Wales when care proceedings began and came before Jackson J on 30 July 2014 – F (Habitual Residence) [2014] EWFC 26.
In setting out some general points regarding the Court’s approach to conducting an inquiry into a child’s habitual residence, Jackson J set out that “the court must be satisfied by evidence … approach matters on the basis that the evaluation of the evidence is a matter for the court with the assistance of the parties’ submissions. No party bears a burden of proof. Moreover, the evaluation is a neutral one.”
Jackson J concluded that it was clear that F was habitually resident in Zimbabwe until September 2010 and that the “realistic possibilities” in December 2012 were that she was:
(i) habitually resident in the United States;
(ii) habitually resident in England and Wales; and
(iii) that she had no habitual residence.
The Judge considered the child’s social connections in the US, in particular that she had not attended pre-school, had only the smallest contacts with others outside the home and had no friends. Considering the “extremely specific and anomalous situation” the child was in, the Judge found that F’s time in the US did not amount to a genuine integration sufficient to satisfy the requirements of habitual residence set out in A v A. In any event, she was not habitually resident there from April 2012, from which time the father and F spent large periods of time travelling around the world.
The Judge found that F was not habitually resident in England in the 37 days before the commencement of proceedings, as during that time she had lived in a tent and did not know anyone but her father. There was no indication of any degree of integration in a social and family environment in England and Wales at that time.
On the basis that F was not habitually resident anyway at the relevant date, the Judge was satisfied that the English Court had jurisdiction pursuant to Art 13 Brussels II Revised at the commencement of proceedings on 21 December 2012.
Jacqui Cox
