IN THE MATTER OF A (CHILDREN)
The Supreme Court on 9 September 2013 handed down judgment in what is undoubtedly a landmark decision in relation to issues of jurisdiction. It is a wardship case about child abduction. However, the guidance given on the meaning of habitual residence is of wider significance. Practitioners involved in cases where habitual residence is an issue (whether in the context of divorce, jurisdiction relating to children or in some other family law context) should consider the potential implications of the decision. Those who are involved in children cases concerning issues of jurisdiction should also consider whether it is open to them to argue in favour of the nationality based jurisdiction that has now been identified as an alternative in some cases to jurisdiction based on habitual residence or physical presence.
- The case concerned a child who was the youngest of four siblings, born to a couple who were first cousins and had had an arranged marriage. The family were habitually resident in England and the three older siblings were born in England. The father and all of the children had dual British and Pakistani nationality. The mother, a Pakistani national, had indefinite leave to remain in this jurisdiction.
- In 2008 the mother left the family home with the children and went to a refuge, alleging abuse perpetrated by the father. In October 2009 she took the children to Pakistan to visit her family. Whilst there, she was coerced, physically and emotionally, to reconcile with the father on the basis that they would return to England. She became pregnant with the fourth child of the family in February 2010 and he was born in October 2010. That child also had dual British and Pakistani nationality. The mother wished to return to England, but was prevented from doing so by the father, who held the passports of all of the children as well as hers. In May 2011 the mother eventually escaped to England but had to leave all four children behind in Pakistan with the father, where they remain to date.
- The mother made a wardship application to the English court on 20 June 2011, when Peter Jackson J made all four children wards of court and ordered that they be brought to England and Wales by the father. Subsequently, an asset-freezing order was made against property in England of which the father was a joint owner. The purpose of this was to enable a sequestration order to be made in aid of enforcement and/or to provide a potential source of funding to enable the mother to litigate in Pakistan.
- The father challenged the jurisdiction of the English court. The proceedings came before Parker J, who found that all four children were habitually resident in England. She relied on the judgment of Charles J in B v H (Habitual Residence: Wardship)  1 FLR 388, a case with almost identical facts.
- The father appealed to the Court of Appeal, where it was unanimously held that it was ‘quite hopeless’ for him to argue that the three oldest children did not remain habitually resident in England. However, the majority (Rimer and Patten LJJ) held that it would be ‘divorced from reality’ to find that the youngest child, who had been born in Pakistan and had never set foot in this jurisdiction, was habitually resident here. They held that physical presence in a country at some point was a pre-requisite for habitual residence in that country. Thorpe LJ dissented, relying substantially on the reasoning of Charles J in B v H.
- The mother brought in leading counsel and appealed to the Supreme Court. In addition to the issue about habitual residence she was given permission to argue that jurisdiction could also be based upon the youngest child’s nationality, a point that had not been argued below. The father did not cross-appeal.
The judgment of the Supreme Court
General principles relating to habitual residence
- The most significant point for practitioners to note is the conclusion (albeit obiter dicta) that there is a single test for habitual residence in relation to child cases, which should apply across the board.
- The correct test is the European one, set out in the cases from the Court of Justice of the European Union, namely Proceedings brought by A (Case C-523/07)  Fam 42, and Mercredi v Chaffe (Case C-497/10 PPU)  Fam 22. The previous domestic test based upon ex parte Shah should no longer be used.
- The analysis of the translation of Mercredi v Chaffe undertaken by Sir Peter Singer in DL v EL (as referred to by the Court of Appeal at  EWCA Civ 865) was approved, with the consequence that references in the CJEU judgments to “permanence” being an ingredient of habitual residence should be read in the light of that analysis.
- The test set out in the European case law seeks to identify “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned.
- Habitual residence is a question of fact and there can be no rule that a child automatically takes the habitual residence of its parents. However, the social and family environment of a young child is shared with its carers; therefore the integration of those persons also requires assessment.
- The propositions set out by Lord Brandon in Re J (A Minor) (Abduction: Custody Rights)  2 AC 568, that while it is possible for a person to lose his habitual residence in a single day it was necessary for him to spend an appreciable period of time in a new jurisdiction before acquiring a new habitual residence are best seen as a helpful generalisations of fact rather than propositions of law.
- The Court questioned, without resolving, the longstanding “rule” that it is not open to a parent unilaterally to change the habitual residence of a child without the consent of all holders of parental responsibility.
Is physical presence at some point a necessary pre-requisite of habitual residence?
- The Court did not finally resolve this central issue.
- Baroness Hale (with whom all of the other Justices except Lord Hughes agreed) expressed the view that the enquiry into habitual residence was factual and should not be glossed with legal concepts that would produce a different result from the factual enquiry. Her Ladyship was of the preliminary view that it could not be said that a child could be integrated into the environment of a country in which he had never set foot and that physical presence (actual residence) is therefore a necessary precursor to habitual residence, and it is possible that a child may have no habitual residence at a given time. However, her Ladyship acknowledged that such a conclusion would create real problems in certain situations and that the Court of Justice of the European Union had never had to consider the application of the concept of habitual residence in such circumstances.
- The majority also acknowledged the judicial, expert and academic opinion expressing a contrary view to their preliminary view. In that regard, Baroness Hale made particular reference to the judgment of Lord Hughes in the present case, to the submissions of Reunite International Child Abduction Centre and the submissions of the Centre for Family Law and Practice, and to academic commentary by Rhona Schultz.
- Lord Hughes, while agreeing with much that had been said by Baronesss Hale on behalf of the majority, expressed the view (on a fully reasoned basis) that the youngest child was in fact habitually resident in England and Wales at the time when the court was seised. In the opinion of Lord Hughes, a prerequisite of physical presence amounted to an unwelcome rule of law that was not to be found in the judgments of the CJEU.
- In the event, the Justices were unanimous in concluding that answer to the question about habitual residence was not acte clair for the purposes of European Union law and would have to be referred to the court in Luxembourg for a preliminary ruling if the resolution of that issue was essential to the determination of the case under consideration. However, the Justices were also unanimous in concluding that there was in fact a basis of jurisdiction that would be engaged in the present case if the youngest child was not habitually resident in England (namely the British nationality of the child – see below) and that a reference to the CJEU would only be necessary in the present case if it was not appropriate to exercise that other basis of jurisdiction. That other basis of jurisdiction had not been considered in the present case at first instance, so the Justices decided to refer the matter back to Parker J for an urgent determination of whether the alternative jurisdiction should in fact be exercised in the event that the habitual residence was not available.
- If Parker J concludes that the nationality jurisdiction should, on the facts, be exercised there will be no need for a reference to the CJEU, because it will be clear that the English court has (and will exercise) jurisdiction on one basis or another. However, the Justices gave liberty to the mother to return to the Supreme Court to obtain a reference to the CJEU if it should happen that Parker J concludes it would not be appropriate on the facts to exercise the jurisdiction based on nationality.
The jurisdictional basis for the order requiring the father to bring the youngest child to England
- The order requiring the bringing of the child to England was an order ‘relating to the exercise of parental responsibility’, within the meaning of the Brussels II Revised Regulation.
- Within the Brussels II Revised Regulation, the jurisdiction of the English court can be exercised on the bases as provided by Articles 8 to 14, and the primary basis is that the child or children were habitually resident in this jurisdiction at the time when the court was seised.
- The Brussels II Revised Regulation applies not only to intra-EU cases but also to cases where there is a competing jurisdiction in a non-member state.
- On the unresolved assumption that the child was not habitually resident in any EU member state, Article 14 enables the courts of England to exercise jurisdiction in accordance with national law.
Jurisdiction based upon nationality
- If a child is not habitually resident in England and Wales or any other Member State, Article 14 of the Brussels II Revised Regulation permits the use of other bases of jurisdiction within national law.
- There remains in existence under the national law of England and Wales a ‘nationality’ based parens patriae jurisdiction that applies to British nationals within inherent jurisdiction/wardship proceedings, regardless of habitual residence or physical whereabouts. This jurisdiction can be exercised in exceptional cases, where Article 14 is engaged, unless that jurisdiction is excluded by the Family Law Act 1986.
- An order simply for the bringing of a child to England, made under the inherent jurisdiction, does not come within Part 1 of the Family Law Act 1986, and therefore the jurisdiction to make such an order is not excluded by that Act in the way that the jurisdiction to make a “Part 1 Order” would be excluded (a “Part 1 Order” requires habitual residence or physical presence).
- In the present case, the possibility of a ‘nationality’ based jurisdiction had not been raised before Parker J. The court therefore remitted the case to Parker J, on the basis explained above, to consider: (i) whether the case justifies the exercise of the nationality jurisdiction; and (ii) the father’s application to stay the English proceedings on the grounds of forum non conveniens. In paragraph 65 of the judgment, the Supreme Court offered Parker J some guidance in respect of the first of those issues. As the Justices also pointed out, the existence of the forum non conveniens jurisdiction is itself at present a moot point and had been raised by the father principally on the basis that the English court has jurisdiction in respect of only three of the four children.
James Turner QC, of 1 King’s Bench Walk (leading Alistair Perkins and Hassan Khan of 4 Paper Buildings,) acted in the Supreme Court (but not below) on behalf of the successful Appellant, instructed by Dawson Cornwell