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Cheshire, North & Fawcett: Private International Law, 15th Edition by Grušić, Uglješa; Heinze, Christian; Merrett, Louise; Mills, Alex; Otero García-Castrillón, Carmen; Tang, Zheng Sophia; Trimmings, Katarina; Walker, Lara (28th September 2017)

Part V Family Law, 25 Children

Paul Torremans

From: Cheshire, North & Fawcett: Private International Law (15th Edition)

Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara Walker
Edited By: Paul Torremans, James J. Fawcett

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 13 December 2018

Subject(s):
Choice of law clauses — Jurisdictional agreements and the common law — Jurisdiction clauses — Children — Marriage

(p. 1087) 25  Children1

1.  Introduction

We are concerned in this chapter with the private international law rules regulating orders concerning children. The most important of these, so far as English law is concerned, are orders determining with whom a child shall live or with whom he may have contact.2

Until the late 1980s, many of the private international law rules in this field were provided by an unclear and inconsistent mixture of statutory provision and common law decisions.3 Indeed, the English jurisdictional rules to make orders concerning the welfare of children were a mixture of very broad and very narrow rules, statutes and common law, detail and vagueness, clarity and confusion, and the rules were, above all, bewilderingly complex.4 By contrast, the rules for the recognition or enforcement of orders made outside England, whether elsewhere in the British Isles or overseas, were simple. Whilst such orders would be given “grave consideration”,5 they had no direct effect in England and their relevance lay only in assisting an English court in deciding whether to exercise its own discretion to make an order and, if so, to what effect.

It came increasingly to be realised that, in an age of great mobility, a situation in which there are no rules for the recognition of other countries’ parental responsibility and similar orders, at least on a reciprocal basis, was capable of engendering great anguish for parents and for children who might be shuttled from country to country. The legal position was in danger of (p. 1088) verging on anarchy; indeed, the Law Commission described the position as a “state of legal disorder”.6 It was the source of potential and, sometimes, actual conflict between the courts in England and Scotland, with each claiming jurisdiction, making conflicting orders and not recognising orders made in the other country.7 On the broader international scene, child abduction by, or on behalf of, one parent often unsuccessful in custody proceedings became so serious an international issue that action at last was taken.

This area of law has been characterised, since 1980, by a proliferation of legislative intervention on a national, regional and global scale.8 Nationally, the Child Abduction Act 19849 introduced criminal offences governing the taking of a child under sixteen out of the United Kingdom without consent. The statute covers abduction both by a parent and by others. Secondly, more effective powers have been given to the courts to order the disclosure of the whereabouts of a child, to order its recovery, to order the surrender of the child’s passport and to prohibit the removal of the child from the United Kingdom.10 The administrative procedures to prevent children being removed by stopping them at airports or ports have also been improved.11 On the civil side, Part I of the Family Law Act 198612 was introduced to amend the law relating to the jurisdiction of courts in the United Kingdom to make orders with regard to the custody of children; to make provision as to the recognition and enforcement of such orders throughout the United Kingdom; and to make further provision as to the imposition, effect and enforcement of restrictions on the removal of children from the United Kingdom. The Law Commission and the Scottish Law Commission, on whose recommendations13 Part I of the 1986 Act is based, concluded that, if there was to be a scheme for intra-United Kingdom recognition of such orders, the acceptability of such a scheme would be advanced by uniform jurisdictional rules throughout the United Kingdom for the making of the orders—a step which would also provide the opportunity of curing the varied defects in the then English rules. The statutory jurisdictional rules, however, are limited to the making of such orders as are defined by section 1 of the Act (ie Part I orders).

At a regional level, with effect from 1 March 2001, Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses14 (known colloquially as “Brussels II”),15 came into operation. Brussels II, in turn, was repealed, with effect from 1 March 2005, by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial (p. 1089) matters and matters of parental responsibility (“Brussels II bis”).16 This Europeanisation of rules relating to parental responsibility matters resulted in significant changes being made to the Family Law Act 1986, to ensure compliance with the Brussels regime.17

On a global platform, two organisations, the Hague Conference on Private International Law and the Council of Europe, have been responsible for the introduction of various instruments concerning children. Work at The Hague has resulted in, among other conventions,18 the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the “1980 Hague (Abduction) Convention”),19 and the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the “1996 Hague (Protection) Convention”).20 The Council of Europe, meanwhile, has produced the 1980 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children,21 and the 2003 Convention on Contact concerning Children.22

Unfortunately, the scope of application of each instrument, national and international, and the manner of their interlocking is not always as clear as might be hoped or expected.23 We must now turn to consider the instruments in detail, examining, in turn, the rules governing the jurisdiction of the English courts as regards parental responsibility matters, the choice of law rules applied, and, finally, the varied provisions for the recognition and enforcement of parental responsibility and related orders made elsewhere.

2.  Jurisdiction in Matters of Parental Responsibility

(a)  Background

The Children Act 1989 introduced major changes in the law relating to children and, in particular, as to the orders which the English courts may make concerning them. Out went the old terminology of custody and custodianship orders; indeed the wardship jurisdiction is now described as the inherent jurisdiction. Instead the court may make orders under section (p. 1090) 8 of the Children Act 1989 which are child arrangements,24 prohibited steps, or specific issue orders—generally described as “section 8 orders”. The powers of the court to make such orders25 may be exercised in a range of “family proceedings”26 which include both proceedings under the statutory jurisdiction27 and under the inherent jurisdiction of the High Court in relation to children.28 The court also has power to make orders for the appointment of a guardian of a child29 which, again, are regarded as orders made in family proceedings.30

Part I of the Family Law Act 198631 establishes the jurisdictional rules of the English courts to make “Part I orders” in relation to children under the age of 18.32 The principles on which the jurisdictional rules under Part I of the 1986 Act are founded are that they should be: clear, systematic and uniform throughout the United Kingdom; designed to reduce the likelihood of courts in more than one part of the United Kingdom having concurrent jurisdiction; and normally result in the case being heard in the country with which the child has the closest long-term connection.33 These objectives are achieved in the following ways. First, Part I of the 1986 Act contains essentially identical jurisdictional rules for England and Wales, Scotland, and Northern Ireland.34 Secondly, these rules in places interlock, with the result that a court in one country usually will not have jurisdiction if jurisdiction lies with a court elsewhere. Thirdly, the rules are exclusive. Part I orders falling within the 1986 Act may be made only if the jurisdictional provisions of that Act are satisfied.35

The rules contained in Part I of the 1986 Act were significantly changed, with effect from 1 March 2001, to take account of European harmonisation in the form of the Brussels II Regulation.36 Brussels II, in turn, was repealed, with effect from 1 March 2005, by the Brussels II bis Regulation.37 Although the rules of jurisdiction in matrimonial matters contained in (p. 1091) Brussels II bis were taken substantially from Brussels II, which, in turn, were taken38 from the Brussels II Convention of 28 May 1998 (never implemented) on the same subject,39 more significant changes were wrought by Brussels II bis in relation to matters of parental responsibility.40 Another important milestone in this area of private international law was the entry into force in the UK of the 1996 Hague Protection Convention on the 1 November 2012.41

The recent European and global developments in this field have had the unwelcome consequence of the operation of one regime for intra-United Kingdom cases; another for intra-European Union cases; still another for 1996 Hague Convention cases; and of residual common law rules for such cases as fall outside the scope of application of the various instruments. Such a multiplicity of regimes is unnecessarily complicated and so, for the sake of clarity and simplicity, determined efforts should be made to streamline the rules.

In examining the jurisdictional rules for making parental responsibility orders, it is necessary to look separately at the harmonised rules of jurisdiction which apply throughout the European Union Member States (except Denmark) by virtue of Brussels II bis, the rules of jurisdiction embodied in the 1996 Hague Convention, and the residual national rules of jurisdiction contained, for the United Kingdom, in the Family Law Act 1986.

(b)  Bases of jurisdiction42

(i)  Introduction

Section 2 of the Family Law Act 1986 deals with the jurisdiction of courts in England and Wales to make a “Part I order”, ie, an order to which Part I of the 1986 Act applies,43 namely: (a) an order made under section 8 of the Children Act 1989, other than an order varying or discharging such an order;44 (b) a special guardianship order made under the Children Act 1989;45 (c) an order made under section 26 of the Adoption and Children Act 2002, other than an order varying or discharging such an order;46 (d) an order made under section 51A of the Adoption and Children Act 2002, other than an order varying or revoking such an order;47 or (e) an order in the exercise of the inherent jurisdiction of the High Court with respect to children.48

(p. 1092) (ii)  Jurisdiction to make “section 8 orders”

Section 2(1) of the 1986 Act provides that a court in England and Wales shall not make a “section 8 order”49 with respect to a child unless (a) it has jurisdiction under Brussels II bis or the 1996 Hague Convention; or (b) neither Brussels II bis nor the 1996 Hague Convention applies but (i) the question of making the order arises in, or in connection with, matrimonial proceedings or civil partnership proceedings and the condition in section 2A50 of the 1986 Act is satisfied, or (ii) the condition in section 351 of the Act is satisfied. In other words, pre-eminent jurisdiction lies with the courts of the country which has jurisdiction in terms of Brussels II bis or the 1996 Hague Convention. The way the Regulation and the Convention interact with each other is rather complex.52 Article 61 of the Regulation specifically deals with the relationship between the two instruments.53 It provides that the Regulation shall apply (a) where the child concerned has his habitual residence on the territory of a Member State; and (b) as concerns the recognition and enforcement of a judgment given in a court of one Member State in the territory of another Member State, even if the child is habitually resident in a third state which is a Contracting State to the 1996 Convention. By virtue of Article 61, however, the 1996 Hague Convention shall have effect in relation to matters not governed by the Regulation; principally, and most significantly, applicable law.54 If a case were to arise concerning a matter covered by the Regulation (on a point of jurisdiction, or recognition and enforcement), and the child in question was habitually resident in a European Union Member State, Brussels II bis would take priority. If a case were to arise concerning the recognition and enforcement of a judgment issued by a court in another EU Member State, Brussels II bis would apply, even if the child in question lives in a third state which is a Contracting Party to the 1996 Hague Convention.55

(a)  Jurisdiction under the 1986 Act, s 2(1)(a)

Section 2(1)(a) of the 1986 Act provides that a court in England and Wales shall not make a “section 8 order”56 with respect to a child unless it has jurisdiction under Brussels II bis or the 1996 Hague Convention. The sections that follow will examine respectively the relevant provisions of these two instruments.

Brussels II bis57

(i)  Scope of Brussels II bis

In order to ensure equality for all children, the ambit of Brussels II bis is more extensive than was that of Brussels II, which applied only to matters of parental responsibility for children of both spouses on issues that were closely linked to proceedings for divorce, legal separation or marriage annulment.58 Brussels II bis covers all decisions on parental responsibility, including measures for the protection of children, independently of any link with matrimonial proceedings.59 Parental responsibility is defined in the Regulation as meaning, “all rights (p. 1093) and duties relating to the person or the property of a child which are given to a natural or legal person by judgment, by operation of law or by an agreement having legal effect”.60 In particular, Brussels II bis shall apply,61 whatever the nature of the court or tribunal, in civil matters62 relating to the attribution, exercise, delegation, restriction or termination of parental responsibility.63 Specifically included are: (a) rights of custody64 and rights of access;65 (b) guardianship, curatorship and similar institutions; (c) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (d) the placement of the child in a foster family or in institutional care; (e) and measures for the protection of the child relating to the administration, conservation or disposal of the child’s property.66 A decision ordering a child to be taken into care and placed in a foster family is covered by the term “civil matters” even if the decision was made in the context of public law proceedings relating to child protection.67 Notably, the placement of the child in institutional care covers placement in a secure care institution.68 As regards the property of a child, it is important to point out that the Regulation applies only to protective measures.69 The need to obtain approval from the court dealing with guardianship matters is a direct consequence of the status and capacity of the minor children and constitutes a protective measure for the child relating to the administration, conservation or disposal of the child’s property in the exercise of parental responsibility within the meaning of Article 1(1)(b) and 1(2)(e) of the Regulation.70 Brussels II bis does not apply to71 (a) the establishment or contesting of a parent-child relationship;72 (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption;73 (c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations;74 (f) trusts or succession;75 or (g) measures taken as a result of criminal offences committed by children.76 Not specifically mentioned in Article 1, but excluded from the scope of the Regulation by virtue of Recital (10), are other questions linked to the status of persons, matters relating to social security, public measures of a general nature in matters of education or health, and decisions on the right of asylum and on immigration.

(p. 1094) Unlike most other instruments concerning children, Brussels II bis does not define “child”, or set a maximum age regarding the children who are affected by its provisions.77 This question is left to be determined by national law.

(ii)  Rules of jurisdiction in Brussels II bis

The rules of jurisdiction in matters of parental responsibility are set out in Chapter II, section 2 of the Regulation. Unlike the grounds of jurisdiction set out in Article 3 in relation to divorce, legal separation and marriage annulment, which are set out as alternatives, and not in any order of precedence,78 the rules of jurisdiction in relation to parental responsibility are set out in quasi-hierarchical form. The general rule is set out in Article 8, and the exceptions to that rule are to be found in Articles 9, 10, 12 and 13.

General jurisdiction—Article 879

Article 8(1) provides that, subject to Articles 9, 10 and 12,80 examined below, 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 grounds of jurisdiction established in the Regulation are said to have been:

shaped in light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child’s habitual residence, except for certain cases of a change in the child’s residence or pursuant to an agreement between the holders of parental responsibility.81

The fundamental principle of the Regulation is that the court of the Member State in which the child is habitually resident is best placed to determine matters of parental responsibility.

“Habitual residence”82

The connecting factor of habitual residence is nowhere defined in Brussels II bis.83 The meaning of habitual residence for the purposes of Article 8 is to be determined not by recourse to any particular national law, but by reference to the “autonomous” EU law meaning of the concept,84 having regard to the context and the objective pursued by the Regulation.85 Recital 12 to Brussels II bis states that the grounds of jurisdiction established in the Regulation were shaped in the light of the best interests of the child, in particular, on the criterion of proximity. Accordingly, habitual residence in Article 8 must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment.86 In this respect, the age of the child is of particular importance.87 As a general rule, the environment of a very young child (p. 1095) is essentially a family environment determined by reference to the person(s) on whom the child is dependent, ie the child’s primary carer(s).88 The determination of the child’s social and family environment requires consideration of a range of factors beyond the physical presence of the child in a Member State; in particular, the duration, regularity, conditions and reasons for the stay on the territory of that Member State and the family’s move to that State, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that State.89 The respective importance of these factors, however, varies according to the age of the child. It follows that, where a very young child is involved, the factors which are to be taken into consideration include, first, the duration, regularity, conditions and reasons for the stay in the territory of that Member State and for the child’s primary carer’s move to that State and, second, the child’s primary carer’s geographic and family origins and the family and social connections which the primary carer and child have with that Member State.90 Where the intention of the parent(s) to settle permanently with the child in another Member State is evidenced by certain tangible steps such as the purchase or lease of a residence in that Member State, it may constitute an indicator of the transfer of the child’s habitual residence.91 It is for the national court to establish the habitual residence of the child, taking into account all the circumstances specific to each individual case.92

The CJEU jurisprudence has to be applied in conjunction with domestic authority on the topic. In the past few years, the concept of habitual residence has developed significantly through a sequence of decisions of the Supreme Court.93 The first of these authorities was the case of In the Matter of A (Children),94 in which Lady Hale summarized the proper approach to habitual residence as follows:95

  1. i)  . . . habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.

  2. ii)  It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.

  3. iii)  The test adopted by the European Court is “the place which reflects some degree of integration by the child in a social and family environment” in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.

  4. iv)  It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.(p. 1096)

  5. v)  In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.

  6. vi)  The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.

  7. vii)  The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.

  8. viii)  As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.

In addition to the above guidance, the following key principles can be extracted from the other recent authorities cited above:

  1. (a)  The test for habitual residence of children is the same for all purposes (ie in the context of Brussels II bis, the Family Law Act 1986 or the 1980 Hague Abduction Convention).96

  2. (b)  Parental intent in relation to the reasons for a child’s leaving one country and going to stay in another97 does play a role in establishing or changing the habitual residence of a child. This will have to be taken into account, along with all the other relevant factors, in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence.98

  3. (c)  The “rule” advocated by Lord Scarman in Shah that habitual residence is to be determined by objective factors is to be consigned to legal history.99 The integration of the child should be judged by objective as well as subjective factors.100

  4. (d)  The state of mind of an adolescent child may be relevant in determining whether he has achieved a sufficient degree of integration.101

  5. (e)  The old rule that habitual residence cannot be changed without the consent of all holders of parental responsibility is to be discarded.102

  6. (f)  The absence of a joint parental intention to live permanently in a country is not a bar to acquiring habitual residence in a country.103 Neither is an intention to live in a country for a limited period inconsistent with becoming habitually resident there.104 It is the stability of the residence what matters, not whether the residence is of a permanent character.105

  7. (g)  It is not clear whether a child can be habitually resident in a country which he has never visited; this question might need to be referred to the CJEU.106

  8. (h)  A child will not lose his habitual residence immediately upon removal from a jurisdiction, even where there was a settled intention that the child would no longer live in that (p. 1097) jurisdiction. The child can only lose his habitual residence when he has achieved the requisite degree of disengagement from that jurisdiction.107 In this respect, the following considerations are to apply: (a) the deeper the child’s integration in the old state, the slower the expected degree of integration in the new state; (b) the greater the adult pre-planning of the move, the faster the child’s integration in the new state; and (c) were all the key members of the child’s life in the old state have moved with him, the faster the child’s integration will be.108

  9. (i)  It is possible that, exceptionally, a child may have no habitual residence for a period of time.109

It has been thought that a child can have only one habitual residence at any one time,110 though may have more than one during a year.111 In the context of divorce proceedings, however, the submission that it is not possible to be habitually resident in two places simultaneously was firmly rejected by the Court of Appeal in Ikimi v Ikimi.112 The Court took the view that the bodily presence required to form a basis for habitual residence had to be more than merely token in duration, probably amounting to residence for “an appreciable part of the relevant year”.113 If an adult is capable of being habitually resident in two places simultaneously, it is difficult to see why the same should not be true also of a child. Doubt has been cast, however, on whether, for the purpose of the Brussels II bis Regulation, an adult can be habitually resident in more than one country at the same time.114 The wording of the Practice Guide,115 coupled with the approach in Marinos v Marinos,116 would appear to indicate that, at least for the purpose of Brussels II bis, a child may have only one habitual residence at any given time. It is apparent from the Practice Guide that if a competent court is seised, in principle it retains jurisdiction under Article 8, even if the child subsequently should acquire a new habitual residence in another Member State; this is the principle of perpetuatio fori.117

Continuing jurisdiction of the child’s former habitual residence—Article 9118

Where a child moves lawfully from one Member State to another and acquires a new habitual residence there,119 the courts of the Member State of the child’s former habitual residence shall, by way of exception to Article 8, retain jurisdiction during a three-month period following the move for the purpose of modifying a judgment on access rights issued in that Member State before the child moved, where the holder of access rights pursuant to the (p. 1098) judgment continues to have his habitual residence in the Member State of the child’s former habitual residence.120 This does not apply, however, if the holder of access rights has accepted the jurisdiction of the courts of the Member State of the child’s new habitual residence by participating in proceedings before those courts without contesting their jurisdiction.121 It may be that the holder of the access rights wishes to seise the courts of the new Member State for the purpose of having those rights reviewed.

Article 9, which is limited to jurisdiction in respect of access rights:

provides a guarantee that the person who can no longer exercise access rights as before does not have to seise the courts of the new Member State, but can apply for an appropriate adjustment of access rights before the court that granted them during a period of three months following the move. The courts of the new Member State do not have jurisdiction in matters of access rights during this period.122

It is important to recognise that Article 9 applies only in cases where a child has been moved lawfully from one Member State to another; the lawfulness of the removal is a matter to be determined by the law (including private international law) of the Member State of origin. Cases of wrongful removal or retention are dealt with according to Article 10.

Jurisdiction in cases of child abduction—Article 10123

Special rules apply in cases of child abduction, and will be considered in that context, below.124

Prorogation of jurisdiction—Article 12

Article 12(1)125 provides that the courts of a Member State exercising jurisdiction by virtue of Article 3126 of Brussels II bis on an application for divorce, legal separation or marriage annulment shall have jurisdiction in any matter relating to parental responsibility connected with that application where two conditions are satisfied: (a) at least one of the spouses has parental responsibility in relation to the child; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised,127 and is in the superior128 interests of the child.129 Jurisdiction under Article 12(1) (p. 1099) shall cease as soon as (a) the judgment allowing or refusing the application for divorce, legal separation or marriage annulment has become final;130 (b) a final judgment is issued in parental responsibility proceedings which were still pending on the date when the divorce, etc proceedings became final; or (c) the divorce, etc proceedings referred to in (a) and the parental responsibility proceedings referred to in (b) have come to an end for another reason.131

The courts of a Member State shall also have jurisdiction132 in relation to parental responsibility in proceedings other than matrimonial proceedings where: (a) the child has a substantial connection with that Member State,133 in particular by virtue of the fact that one of the holders of parental responsibility is habitually resident in that Member State or that the child is a national of that Member State; and (b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised and is in the best134 interests of the child.135 Article 12(3) has to be interpreted as establishing jurisdiction over proceedings in matters of parental responsibility even where no other related proceedings are pending before the court chosen.136 For the purposes of this provision, it cannot be considered that the jurisdiction of the court seised by one party of proceedings in matters of parental responsibility has been “accepted expressly or otherwise in an unequivocal manner by all the parties to the proceedings” where the defendant in those first proceedings subsequently brings a second set of proceedings before the same court and, on taking the first step required of him in the first proceedings, pleads the lack of jurisdiction of that court.137 Jurisdiction in matters of parental responsibility which has been prorogued under Article 12(3) ceases following a final judgment in the parental responsibility proceedings.138

Where the child is habitually resident in a non-Member State which is not a contracting party to the 1996 Hague Convention,139 jurisdiction in a Member State under Article 12 shall be deemed to be in the child’s interest, in particular if it is found impossible to hold proceedings in the third State in question.140 In Re I (A Child) (Contact Application: Jurisdiction)141 the Supreme Court held that Article 12 was not limited to situations where the child was habitually resident within the European Union.142 Hence, in referring to a “third state”, Article 12(4) denoted a non-Member State.143 In the present case, the non-Member State in question was Pakistan. The father had been permitted to take the child to live in Pakistan with his mother and sister on condition that the child would be returned if requested by the court. The order also provided for interim contact with the mother who, like the father, was (p. 1100) resident in England. The mother subsequently brought proceedings in England to vary and enforce the existing contact arrangements. The court held that the criteria in Article 12(3) had been met as, by virtue of the child’s British nationality and the parents’ habitual residence in England, the child had a substantial connection with the jurisdiction, and the father had expressly accepted jurisdiction. It followed that English courts had jurisdiction to hear the case on the basis of Article 12(3) and (4).

Jurisdiction based on child’s presence—Article 13144

Where a child’s habitual residence cannot be established, and jurisdiction cannot be determined on the basis of Article 12, the courts of the Member State where the child is present shall have jurisdiction.145 This provision also applies to refugee children or children internationally displaced because of disturbances occurring in their country.146

Transfer to a court better placed to hear the case—Article 15147

(iii)  Allocation of jurisdiction within the United Kingdom

Article 66 of Brussels II bis applies to Member States in which two or more systems of law apply. The precise meaning of Article 66 is not clear.148 It mentions only references to (a) the “habitual residence” of a person in a Member State; (b) the “nationality” or “domicile” of a person in a Member State; (c) the “authority” of a Member State”; and (d) “the rules of the requested Member State”. The references to a Member State are to be interpreted as references to the relevant territorial unit within that state. Article 66 does not mention the “courts of a Member State”, referred to in Articles 12 and 15; “presence in a Member State”, which is the connecting factor relied upon in Article 13; or the “courts of different Member States” referred to in Article 19.149 The question arises whether the jurisdiction provisions of Brussels II bis operate so as to allocate jurisdiction among the territorial units of the United Kingdom. Chapter II of Part I of the Family Law Act 1986, dealing with the jurisdiction of courts in England and Wales, gives priority to the rules of jurisdiction contained in Brussels II bis (and the 1996 Hague Convention), but does not expressly state whether those rules are intended to allocate jurisdiction as between the different territorial units of the United Kingdom. In contrast, Chapter III of Part I of the Act, dealing with the jurisdiction of courts in Scotland, in section 17A,150 provides that the provisions of Chapter III are subject to sections 2 and 3 of Chapter II of Brussels II bis, ie Articles 8 to 20, (and the 1996 Hague Convention). By inference, it seems that the jurisdiction provisions in Articles 8, 9 and 10, all of which rely upon personal law connecting factors mentioned in Article 66, should operate to allocate jurisdiction within the United Kingdom. However, the extent of application of Article 12, as well as of Articles 13, 15 and 19, is more difficult, since those provisions refer to the “courts of a Member State”, “substantial connection with a Member State”, “presence in a Member State” or the “courts of different Member States”, expressions to which no reference is made in Article 66. As regards Article 12(3), it was held in S v D151 that a proper interpretation of Article 66 requires that the child in question has a “substantial connection” with the relevant territorial unit of the United Kingdom, and not generally with the United Kingdom as a (p. 1101) Member State.152 For reasons of clarity and simplicity, it is submitted that it is preferable to construe Articles 8, 9, 10 and 12 of the Regulation as applying to the allocation of jurisdiction intra-United Kingdom in parental responsibility disputes,153 but strictly, and bearing in mind issues of European Union competence, this expansive interpretation of Articles 12 and 66 may be open to challenge.154 At any rate, however: “To assume the operation of Regulation 2201 in intra-UK cases is the less complex interpretative option.”155

First instance courts in the UK have reached differing conclusions as to the applicability of Brussels II bis to jurisdictional disputes involving the different territorial units of the UK. For example, in the Scottish case of S v D156 it was held that Brussels II bis applied when determining jurisdictional disputes between Scotland and England,157 however, in Re ESJ158 Morgan J took the opposite view as to a jurisdictional dispute between Northern Ireland and England. The English Court of Appeal, in Re W-B (Family Jurisdiction: Appropriate Jurisdiction within the UK),159 concluded that Brussels II bis did not apply to the determination of jurisdiction between the different units of the UK, on the basis that they were all part of one Member State.160

The 1996 Hague Convention

In 1996, the Hague Conference concluded a Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.161 The Convention was designed to replace the 1961 Hague Convention concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors, to which the United Kingdom was not a party, mainly because of the role given to the authorities of the state of the child’s nationality. The 1996 Convention was signed on 1 April 2003 by the then fourteen European Union Member States, including the United Kingdom.162 It entered into force on 1 January 2002 and as (p. 1102) of March 2017 has forty-six Contracting States. The UK’s ratification came into force in November 2012. The Convention is directly effective as a matter of EU law163 and therefore did not require formal transposition into domestic law. Instead, the necessary changes to relevant primary legislation were brought about through secondary legislation.164

(i)  Scope of the 1996 Hague Convention

The 1996 Convention is the broadest in scope of the Hague Conference’s children conventions.165 As its name indicates, not only does it contain rules on jurisdiction,166 applicable law,167 recognition and enforcement of measures on parental responsibility and protection of children,168 it also establishes a framework for co-operation among Contracting States.169 The scope of application of the Convention is very similar to that of Brussels II bis, although the latter, as has been seen, does not deal with choice of law. Parental responsibility is defined in the Convention as including “parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child”.170 Article 3 of the Convention171 contains a non-exhaustive list of the types of matters that are covered by the Convention: (a) the attribution, exercise, termination and delegation of parental responsibility; (b) rights of custody172 and access;173 (c) guardianship, curatorship and analogous institutions; (d) the designation and functions of any person or body having charge of the child’s person or property, representing or assisting the child; (e) the placing a child in foster or institutional care174 or the provision of care by kafala or an analogous institution; (f) the supervision by a public authority of the care of a child by any person having charge of the child; and (g) the administration, conservation or disposal of the child’s property. The English courts have expanded the interpretation of the scope of the Convention by holding that undertakings given in the course of return proceedings under the 1980 Hague Convention fall within Article 3 of the 1996 Convention.175 Similarly, an order for the return of a child to the country of his or her habitual residence is a “measure of protection” falling within the scope of the (p. 1103) Convention.176 Article 4, in contrast to Article 3, sets out in a comprehensive manner matters which are expressly excluded from the scope of the Convention. These are: (a) the establishment or contesting of a parent-child relationship; (b) decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption; (c) the name and forenames of the child; (d) emancipation; (e) maintenance obligations; (f) trusts or succession; (g) social security; (h) public measures of a general nature in matters of education or health; (i) measures taken as a result of penal offences committed by children; and (j) decisions on the right of asylum and on immigration. The Convention applies only to measures which are taken in a Contracting State after the entry into force of the Convention in that State.177

(ii)  Rules of jurisdiction in the 1996 Hague Convention

Chapter II (Articles 5 to 14) of the Convention contains rules of jurisdiction. The jurisdictional provisions are similar to those in Brussels II bis—the primary ground of jurisdiction is the country of the habitual residence of the child, whilst a departure from the general rule is justified if one of the exceptions specified in the instrument applies. Accordingly, Article 5 sets of the general rule that jurisdiction is vested in the authorities of the Contracting State in which the child is habitually resident. By way of exception, Article 10 permits the authorities of a Contracting State exercising jurisdiction in respect of the divorce, legal separation or annulment of marriage of a child’s parents, also to take measures for the protection of the child.178 A special rule for cases of wrong removal or retention of the child is laid down in Article 7,179 and there exists also an emergency jurisdiction based upon presence of the child in the jurisdiction of a Contracting State.180 A mechanism for the transfer of jurisdiction, akin to that contained in Article 15 of Brussels II bis,181 is set out in Articles 8 and 9, and operates by way of exception and in the best interests of the child. Like Brussels II bis, the Convention adopts a principle of priority of process (lis pendens) to resolve problems of conflicting jurisdiction.182

General jurisdiction—Article 5

Article 5 provides that jurisdiction in respect of the person and property of the child rests principally with the authorities of the Contracting State in which the child is habitually resident.183 “Habitual residence” is not defined in the Convention, however, the concept should be interpreted autonomously and in the light of the objectives of the Convention.184 It has also been suggested185 that, for the purposes of the (p. 1104) 1996 Convention, the concept be interpreted in the same way as construed by the CJEU for the purposes of Brussels II bis.186 It may be thought that, on this point, there is a discrepancy between the approach endorsed by the Supreme Court and the intention of the drafters of the 1996 Convention.187 Indeed, the Practical Handbook cautions against an automatic transposition of the concept of habitual residence, in particular from the child abduction context, as “there may be different considerations to be taken into account when determining the habitual residence of a child for the purposes of this Convention”.188 Admittedly, in the process of interpreting habitual residence, account must be taken, among other factors, of the purpose of the instrument in question. This requirement, nevertheless, does not seem to contradict the pragmatic approach proposed by the Supreme Court, which endorses the application in the context of the 1996 Convention of the habitual residence test set out by the CJEU for the purposes of Brussels II bis. Indeed, in its jurisprudence, the CJEU acknowledged that determination of habitual residence for the purposes of Article 8(1) of Brussels II bis “must be made in the light of the context of the provisions and the objective of the Regulation”.189 By analogy, determination of habitual residence for the purposes of the 1996 Convention must be made in the light of the context of the provisions and the objective of the Convention. This means that, in establishing habitual residence for the purposes of the 1996 Convention, the context and the objective of the Convention have to be taken into account in conjunction with the factors set out in the jurisprudence of the CJEU,190 and in consideration of the principles propounded by the Supreme Court.191 The trend towards a uniform understanding of habitual residence appears to be a highly sensible one. It serves the goals of increased predictability and legal certainty in cross-border cases involving children, with the ultimate objective of achieving consistency in the interpretation of the concept of habitual residence of a child in cross-border scenarios.

Importantly, unlike under Brussels II bis,192 the principle of perpetuatio fori does not apply under the 1996 Convention. This means that where, in the course of the proceedings, the child’s habitual residence changes from one Contracting State to another, jurisdiction will move to the courts of the Contracting States of the child’s new habitual residence.193

Jurisdiction in cases of child abduction—Article 7194

Special rules apply in cases of child abduction, and these rules correspond to Article 10 of Brussels II bis, which is considered in the context of child abduction, below.195 In summary, Article 7 provides that jurisdiction in respect of a child will be retained by the Contracting State in which the child was (p. 1105) habitually resident immediately before the removal or retention until such time that the child has acquired habitual residence in another Contracting State and one of the requirements set out in Article 7 has been met.196

Prorogation of jurisdiction—Article 10197

The 1996 Hague Convention adopts a narrower approach to prorogation than Brussels II bis.198 Under Article 10, jurisdiction can be prorogued only if there are divorce, legal separation or marriage annulment proceedings of the parents of the child pending in a Contracting State, and the following requirements are met: (a) the child is habitually resident in another Contracting State; (b) the domestic law of the Contracting State seised with the divorce, etc proceedings so permits; (c) the jurisdiction of that Contracting State in relation to the child has been accepted by parents, as well as by any other person who has parental responsibility in relation to the child; (d) at the time of the commencement of the proceedings, at least one of the parents is habitually resident in that Contracting State, and at least one of them has parental responsibility in relation to the child; and (e) it is in the best interests of the child that jurisdiction be exercised on this basis. Unlike under Brussels II bis, the jurisdiction conferred by prorogation ceases when the divorce, etc. proceedings come to an end, either because the decision allowing or refusing the application for divorce, etc. has become final, or the divorce, etc. proceedings ended for another reason.199

Jurisdiction based on child’s presence—Article 6200

Similar to Brussels II bis, the 1996 Hague Convention provides for jurisdiction in cases of refugee children and children internationally displaced as a result of disturbances occurring in their country.201 In such circumstances, by virtue of Article 6(1), jurisdiction is vested with the authorities of the Contracting State on the territory of which the child is present. The same rule applies to children whose habitual residence cannot be established.202

Transfer to a court better placed to hear the case—Articles 8 and 9203

(b)  Jurisdiction under the 1986 Act, Section 2(1)(b)

By virtue of Article 14 of Brussels II bis,204 where no court of a Member State has jurisdiction pursuant to Articles 8 to 13 (either because of the factual circumstances of the case, ie the matter in dispute falls outside the subject matter scope of the Regulation;205 or by reason of a lack of relevant geographical connecting factor),206 jurisdiction shall be determined, in each (p. 1106) Member State, by the laws of that state. The residual rules of jurisdiction are to be found, for England and Wales, in section 2(1)(b) of the 1986 Act.207

Section 2(1)(b) provides that a court in England and Wales shall not make a “section 8 order”208 with respect to a child unless neither Brussels II bis nor the 1996 Hague Convention applies,209 but (i) the question of making the order arises in, or in connection with, matrimonial proceedings or civil partnership proceedings and the condition in section 2A210 of the 1986 Act is satisfied,211 (ii) or the condition in section 3212 of the 1986 Act is satisfied.

(i)  Jurisdiction in or in connection with matrimonial proceedings or civil partnership proceedings

A court may make a “section 8 order” if the question of making the order arises in, or in connection with,213 matrimonial proceedings or civil partnership proceedings214 in respect of the marriage or civil partnership of the parents of the child concerned, and (a) the proceedings, being ones for divorce or nullity of marriage,215 or dissolution or annulment of civil partnership, are continuing;216 or (b) the proceedings, being ones for judicial separation or legal separation, are continuing, and no proceedings for divorce or nullity proceedings, or dissolution or annulment proceedings, are continuing in Scotland or Northern Ireland.217 The jurisdictional basis for so doing is that the court has jurisdiction over the matrimonial proceedings or civil partnership proceedings.218

The rules are dovetailed with those applicable in the other parts of the United Kingdom in two respects. First, if the English proceedings are merely for judicial separation or legal separation, the English court will lose its power to make a section 8 order therein if, after the granting of the decree of judicial separation and at the date of the application,219 divorce or nullity, or dissolution or annulment proceedings are continuing in Scotland or Northern Ireland.220 It seems right that the court dealing with the continued existence of the marriage should assume the position of primacy. Secondly, an English court in which the appropriate matrimonial proceedings or civil partnership proceedings are continuing may conclude that it is more appropriate for an application for a Part I order to be determined outside England.221 In that (p. 1107) event it may direct that no section 8 order may be made by an English court in those matrimonial or civil partnership proceedings.222 The need for this provision is caused by the fact that matrimonial/civil partnership proceedings once begun, and not dismissed, may continue indefinitely223 even though, for instance, a divorce has been granted. This could have the result that the English divorce court retains its prime jurisdiction to make a section 8 order long after all the parties have ceased to have a close, or any, connection with England. Therefore, a power to decline jurisdiction where appropriate is desirable.224

(ii)  Habitual residence or presence of the child

Alternatively, a court may make a “section 8 order” if, on the date of the application for an order,225 the child concerned is (a) habitually resident in England and Wales,226 or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom,227 and, in either case, so long as matrimonial proceedings or civil partnership proceedings are not continuing in respect of the marriage or civil partnership of the child’s parents in Scotland or Northern Ireland.228 If matrimonial proceedings or civil partnership proceedings are continuing elsewhere in the United Kingdom,229 then the English court must not exercise jurisdiction to make a section 8 order, despite the habitual residence or presence of the child in England. English jurisdiction must yield to the primacy of the courts of the country of the matrimonial/civil partnership proceedings.230

Habitual residence231

No period of habitual residence is specified.232 This is hardly surprising, given that Part I orders may be made in relation to very young children. There is, however, a danger that one parent, by taking the child to another jurisdiction, often wrongfully, could change his habitual residence and thus deprive the English court of its jurisdictional power to make a Part I order.233 To combat this, section 41 of the 1986 Act234 provides that, if a child under sixteen who is habitually resident in a part of the United Kingdom is removed from or leaves that part235 and becomes habitually resident outside that part,236 either in contravention of an English court order237 or without the consent of anyone having the right to determine where he resides,238 then he is still treated as continuing to be habitually resident (p. 1108) in England for a year from the date he left,239 or until he becomes sixteen or there is agreement to his living elsewhere.240 In Re S (A Child) (Abduction: Residence Order)241 the Court of Appeal held that section 41 of the 1986 Act is a deeming provision to resolve conflicts between the constituent parts of the United Kingdom, and not between the United Kingdom and any jurisdiction that is not a constituent part.

Presence

This basis of jurisdiction operates, irrespective of the child’s nationality,242 if the child is present in England at the date of the application for the Part I order. The retention of presence as a residual basis of jurisdiction is desirable in order to ensure that a range of appropriate cases may be entertained by the English courts. For example, if a child habitually resident abroad is brought to England against the wishes of the person entitled to exercise parental responsibilities in relation to the child243 in the country of habitual residence, that person would be deprived of any effective remedy244 unless the English court took jurisdiction on the basis of the presence of the child in England.245

(iii)  Jurisdiction to make special guardianship orders, and orders under Adoption and Children Act 2002, section 26

Section 2(2A) of the 1986 Act provides that a court in England and Wales shall not have jurisdiction to make a special guardianship order under the Children Act 1989 unless the condition in section 3 of the 1986 Act is satisfied, ie the child concerned is (a) habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, and, in either case, so long as matrimonial proceedings or civil partnership proceedings are not continuing in respect of the marriage or civil partnership of the child’s parents in Scotland or Northern Ireland. The same condition applies, by virtue of section 2(2B) of the 1986 Act, to jurisdiction in respect of orders for contact under section 26 of the Adoption and Children Act 2002.

(iv)  Jurisdiction to make orders under Adoption and Children Act 2002, section 51(A)

Section 2(2C) of the 1986 Act provides that a court in England and Wales shall not have jurisdiction to make an order under section 51A of the Adoption and Children Act 2002 unless: (a) it has jurisdiction under Brussels II bis246 or the 1996 Hague Convention,247 or (b) neither Brussels II bis nor the 1996 Hague Convention applies but the condition in section 3 is satisfied.248

(v)  Jurisdiction to make orders in the exercise of the inherent jurisdiction of the High Court249

Section 2(3) of the 1986 Act provides that a court in England and Wales shall not have jurisdiction to make an order under section 1(1)(d) of the Family Law Act 1986 (ie, an order in the exercise of the inherent jurisdiction of the High Court so far as it gives care of a child to any person or provides for contact with, or the education of, a child)250 unless: (a) it has (p. 1109) jurisdiction under Brussels II bis251 or the 1996 Hague Convention,252 or (b) neither Brussels II bis nor the 1996 Hague Convention applies but (i) the condition in section 3 of the Act is satisfied,253 or (ii) the child concerned is present in England on the relevant date,254 and the court considers that the immediate exercise of its powers is necessary for his protection.255

Whilst there is much to be said for a carefully constructed, interlocking set of jurisdictional rules, there is a danger that a hierarchy of jurisdictions may provide too cumbersome a set of rules to deal with those not infrequent, cases, where courts are called upon to act very quickly in matters concerning the welfare of children. To address this difficulty, section 2(3)(b)(ii) of the 1986 Act confers an emergency basis of jurisdiction on a court to make an order in exercise of the inherent jurisdiction of the High Court with regard to children. As the Law Commission noted: “Where a child is in immediate danger, his protection must take precedence over procedural considerations.”256 The effect of section 2(3)(b)(ii) is to allow the inherent jurisdiction of the High Court to be exercised to make such “emergency orders” even though, for example, the child is habitually resident elsewhere in the United Kingdom, or matrimonial proceedings between its parents are continuing in Scotland or Northern Ireland. The exercise of the inherent jurisdiction to make such orders is described as that of the High Court and would seem to be limited to that jurisdiction.257 The English “emergency order” can be superseded at any time by an order of a court in the country with primacy of jurisdiction.

In relation to wardship proceedings,258 it is necessary to distinguish between the jurisdictional rules for making orders under the inherent jurisdiction of the High Court giving the care of a child to any person, or providing for contact with, or the education of, a child, which are governed by the Family Law Act 1986,259 and the jurisdictional rules governing the exercise of the inherent jurisdiction making a child a ward of court. The difference is important because the High Court260 may make orders under the inherent jurisdiction in wardship proceedings relating to matters other than the care of the child, such as orders as to his property;261 and, indeed, the jurisdictional rules of the 1986 Act concerning orders as to the care of the child will apply only if the court had had jurisdiction to entertain the original wardship application.262 Although a child becomes a ward of court on the making of the application, (p. 1110) the wardship lapses unless a wardship order is made within the prescribed period.263 After the making of a wardship order the High Court can subsequently order that the child ceases to be a ward of court.264 The making of a care order, or the child attaining the age of eighteen automatically brings wardship to an end.265

The inherent jurisdiction of the High Court to make a child a ward of court is founded on the prerogative power of the Crown acting in its capacity as parens patriae to do what is necessary for the welfare of children. It has long been held that this royal prerogative delegated to the courts should benefit those who owe allegiance to the Crown. It has been well established, therefore, that the High Court may exercise this jurisdiction in respect of any British subject266 aged under eighteen, even though he possesses no property in England and even if he is out of the country at the time of the proceedings.267 This includes situations where it is necessary to order the return of a British child to the United Kingdom268 but the 1980 Hague Abduction Convention cannot be utilized, either because the jurisdiction to which the child has been removed, or within which the child is retained, is not a party to the Convention,269 or because the child has been removed or retained lawfully.270 The child’s interests are likely to require the powers to be invoked in particular where the respondent is in breach of an English court order.271 Jurisdiction has also been extended to an alien child who, at the time of the proceedings, is either (i) physically present though not domiciled in England,272 or (ii) ordinarily resident, though not in fact present, in England.273 The continued existence of inherent jurisdiction was confirmed recently by the Supreme Court, in In the Matter of A (Children).274 The key issue was whether English courts had jurisdiction to order the return of a British child from Pakistan in circumstances where the child had never lived or even been to the United Kingdom. The Court found that a return order was not a “Part 1 order” within the meaning of the Family Law Act 1986. It fell neither within section 1(1)(a) nor section 1(1)(d) of the 1986 Act, and was therefore not covered by the jurisdictional restrictions in section 2 of that Act, which prohibited the making of an order in wardship proceedings for the care of, or contact with a child.275 The order was one that related to parental responsibility within the scope of (p. 1111) Brussels II bis,276 which extended to cases where there was a rival jurisdiction in a non-Member State.277 Pursuant to Article 14 of Brussels II bis, where no court of a Member State has jurisdiction under Articles 8 to 13, jurisdiction should be determined, in each Member State, by the laws of that state. In that respect, the inherent jurisdiction of the High Court could be exercised if the child was a British national.278 Lady Hale, however, made it clear that there was a difference between the availability of the inherent jurisdiction and its exercise.279 The case was therefore remitted to the High Court for consideration whether it was appropriate to exercise the jurisdiction in the particular circumstances of the case.280

In Al-H v F,281 Lord Justice Thorpe opined that English courts should be extremely circumspect in assuming jurisdiction in relation to children physically present in some other jurisdiction founded only on the basis of nationality, explaining that:

In order to achieve essential collaboration internationally it has been necessary to relax reliance upon concepts understood only in common law circles. Thus our historic emphasis on the somewhat artificial concept of domicile has had to cede to an acknowledgement that the simpler fact based concept of habitual residence must be the currency of international exchange. The parens patriae concept must seem even more esoteric to other jurisdictions than the concept of domicile. If we are to look for reciprocal understanding and co-operation . . . we must refrain from exorbitant jurisdictional claims founded on nationality.282

The requirement of “extreme circumspection” in deciding whether to exercise the jurisdiction was quoted with approval by Lady Hale in In the Matter of A (Children).283 By way of an example, her Ladyship mentioned the following reasons which “may militate against” the exercise of the inherent jurisdiction: 1) inconsistency with the modern trend towards habitual residence as the principal jurisdictional ground; 2) potential for conflicting decisions in competing jurisdictions; 3) disruption of the jurisdictional scheme of the Family Law Act 1986 as the child could be ordered to return to England and then courts would be able to make a variety of orders on the basis of the child’s presence; and 4) interference with the rules of public international law concerning the determination of the effective nationality in cases where a person holds dual nationality.284 All must, however, depend on the circumstances of the particular case.285 More recently, in In the Matter of B (A Child),286 the Supreme Court reiterated that the use of the jurisdiction had to be approached with “great caution or circumspection”, however, held that its exercise was not restricted to “dire and exceptional” cases287 or cases which are “at the extreme end (p. 1112) of the spectrum”.288 The real issue was whether the British child required protection.289

In the past, orders made by the High Court under the inherent jurisdiction in wardship proceedings were quite often for the appointment of a guardian to a child.290 The Children Act 1989291 abolished this power and introduced, both in its place and in place of the previous statutory rules292 relating to the making of guardianship orders, a statutory regime for the appointment of a guardian under that Act.293 Guardianship falls now within the scope of both Brussels II bis294 and the 1996 Hague Convention.295

(c)  Variation and duration of Part I orders

One characteristic of orders relating to the welfare of children is that parents may well return to the courts to claim that their circumstances, or those of the child, have changed and to seek the variation of the order. Such applications inevitably pose jurisdictional problems, such as whether the court which made the original order should retain jurisdiction to vary it, even though in the meantime its jurisdictional link with the child has been broken.296 The general approach of Part I of the 1986 Act is that the power to vary297 continues, despite the loss of the jurisdictional link.298 If, however, a Part I order (or a variation of such an order) made by a court in Scotland or Northern Ireland comes into force with respect to a child at a time when an English Part I order has effect, the original English order shall cease to have effect so far as it makes provision for any matter for which the same or different provision is made by the Scottish or Irish order.299 Where the original English order ceases to have effect, an English court shall not have jurisdiction to vary that order.300 Further, an English court shall not have jurisdiction to vary a Part I order if, on the date of application for variation of the order, matrimonial proceedings or civil partnership proceedings are continuing in Scotland or Northern Ireland in respect of the marriage or civil partnership of the parents of the child concerned, unless the original English order was made (a) in connection with divorce or nullity proceedings, or dissolution or annulment proceedings, in respect of the marriage or civil partnership of the parents of the child concerned, and those proceedings are continuing; or (b) in connection with proceedings for a judicial separation or legal separation in respect of the marriage or civil partnership of the parents of the child concerned, and those proceedings are continuing and the decree has not yet been granted.301 The English court will not lose its (p. 1113) power, in proceedings under the inherent jurisdiction of the High Court, in an emergency to vary a Part I order relating to a child then present in England.302

(d)  Refusal of application and stay of proceedings

The two main principles underlying the jurisdictional rules—a clear hierarchy of jurisdictional rules, coupled with a desire that an application for an order relating to the welfare of a child is to be heard by the court with the most appropriate links with the issue—are bound at times to come into conflict.

(i)  Refusal of application

The power of the English court to refuse an application or to stay proceedings is set out in section 5 of the Family Law Act 1986. Section 5(1) provides that a court in England and Wales which has jurisdiction to make a Part I order may refuse an application for the order in any case where the matter in question has already been determined in proceedings outside England and Wales. This provision is concerned with the case where the issue in question had already been determined in proceedings elsewhere. This situation is separate from that of recognition of any other order. No matter where the other order has been made and irrespective of whether or not it may be recognised and enforced in England, the English court may decline jurisdiction, on any basis, to make a Part I order.303 The English court is free to take the view that it does not wish to interfere with a decision as to the child’s welfare which has already been made.304

(ii)  Transfer to a court better placed to hear the case—Brussels II bis, Article 15 and the 1996 Hague Convention, Articles 8 and 9305

Where, at any stage of the proceedings on an application to a court in England and Wales for a Part I order, or for variation of such an order, it appears to the court that it should exercise its powers under Article 15 of Brussels II bis or Articles 8 and 9 of the 1996 Hague Convention, the court may proceed accordingly.

Brussels II bis—Article 15306

Uniquely in a European private international law Regulation, Brussels II bis incorporates what is, in effect, a forum conveniens rule.307 “It is a provision negotiated for the comfort of those jurisdictions who have reservations about the introduction of a strict lis alibi pendens rule into family litigation.”308 Article 15(1) provides, by way of exception,309 and only if it is in the best interests of the child, that the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, (p. 1114) with which the child has a particular connection, would be better placed to hear the case, or a specific part of it:310 (a) stay the case, or the part in question, and invite the parties to introduce a request before the court of that other Member State, in accordance with Article 15(4); or (b) request a court of another Member State to assume jurisdiction, in accordance with Article 15(5). The court of the other Member State shall be regarded as being better placed to hear the case where the transfer will provide genuine and specific added value to the examination of the case, taking account of, among other factors, the rules of procedure applicable in that State.311

The operation of Article 15 may be triggered in one of three ways: by application from a party;312 of the court’s own motion;313 or upon application from a court of another Member State with which the child has a particular connection,314 in accordance with Article 15(3). In the case of a transfer made of the court’s own motion, or by application of a court of another Member State, the transfer must be accepted by at least one of the parties.315 In order for a transfer to take place, the child must have a “particular connection” with the “receiving State”. By Article 15(3), a child shall be considered to have such a connection if the receiving state: (a) has become the habitual residence of the child after the court of the state of origin was seised; (b) is the former habitual residence of the child; (c) is the place of the child’s nationality;316 (d) is the habitual residence of a holder of parental responsibility;317 or (e) is the place where the child’s property is located and the case concerns measures for the protection of the child relating to the administration, conservation or disposal of this property.

If the court of the state of origin stays the case, or part thereof, and invites the parties to introduce a request before the court of another Member State, Article 15(4) provides that the first court must set a time limit318 by which the courts of the other Member State shall be seised. If the courts of another Member State have not been seised by that time, the first court shall continue to exercise jurisdiction in accordance with Articles 8 to 14. The courts of the “receiving State” may, where due to the specific circumstances of the case, this is in the best interests of the child, accept jurisdiction within six weeks of their seizure. In this event, the court first seised shall decline jurisdiction. Otherwise, the court first seised shall continue to exercise jurisdiction in accordance with Articles 8 to 14.

(p. 1115) English courts have highlighted the practical advantages of Article 15 by holding that in every case with a European dimension, the judge must consider whether to exercise powers under this provision to request the court of another Member State to assume jurisdiction where the child has a particular connection with the other Member State as defined in Article 15(3); the other court would be better placed to hear the case; and this is in the child’s best interests.319

Although an Article 15 request may be made at any stage of the proceedings, from the child welfare perspective it is highly desirable that transfer of jurisdiction be considered and determined at the earliest opportunity during the initial stages of the proceedings.320

In order for the transfer mechanism to operate effectively, the courts shall co-operate either directly,321 or through the Central Authorities designated pursuant to Article 53 of the Regulation.322 In the event of a transfer under Article 15, the court in the “receiving State” is not allowed to make a further transfer of the case to a third court.323

The principles for the interpretation of Article 15 were first set out by English courts in AB v JLB (Brussels IIR: Art 15)324 where Munby J suggested that Article 15 required consideration of three separate questions: (1) whether the child has a particular connection with the other Member State; (2) whether the other court is better placed to hear the case; and (3) whether the transfer is in the child’s best interests, the best interests’ evaluation being limited to matters of forum. These principles were expressly endorsed by the Court of Appeal in Re M (Brussels II Revised: Art 15).325 In this decision, the Court also analysed the relationship between Article 15 and Article 12 of the Brussels II bis, holding that the scope of any best interests’ enquiry when deciding whether to make a transfer request under Article 15 should be the same as when determining jurisdiction under Article 12. Importantly, such inquiry should not involve any in-depth investigation of the child’s situation and upbringing but rather should be an “attenuated”326 one with focus on the considerations relevant to the choice of the forum, which informed the considerations that came into play when deciding upon the most appropriate forum.

In Re N (Children) (Adoption: Jurisdiction) (AIRE Centre and others intervening),327 the traditional approach to Article 15 applications as outlined above was rejected by the Supreme (p. 1116) Court. In particular, Lady Hale held that the best interests’ assessment should not be “attenuated” but rather it should involve an inquiry into important welfare factors. In particular, as a part of the best interests’ assessment, the court should take account of the long as well as short-term consequences for the child of transferring the proceedings, and the impact of the transfer on the choices that would be available to the court reaching the eventual substantive outcome in the case. Importantly, it is to be noted that the proposed approach does not advocate a full welfare enquiry in transfer proceedings.328 It strikes a sensible balance between a plain forum-type assessment and a full welfare enquiry in transfer proceedings, guarding wisely against a full welfare inquiry at the jurisdiction stage of the proceedings, whilst providing safeguards against “inappropriate” transfers, for example in situations where the court of the other Member State would not be able to consider one of the possible outcomes for the child.

The CJEU has clarified that in determining that a transfer is in the best interests of the child, the court having jurisdiction must be satisfied, especially, that the transfer is not likely to be detrimental to the situation of the child.329 The effect of a transfer on the right of freedom of movement of persons concerned other than the child is irrelevant, unless disregarding such considerations may have adverse repercussions on the situation of the child.330

The transfer of jurisdiction under Article 15 is confined to specific “live” proceedings before a court of a Member State, not to its jurisdiction in respect of parental responsibility for the child generally.331

As evidenced by recent Article 15 jurisprudence,332 the provision is often triggered in public law proceedings. In such circumstances, Article 15 exercise does not allow an evaluation of the child protection services of the other Member State, which are presumed to be equally competent.333

The 1996 Hague ConventionArticles 8 and 9

A mechanism for the transfer of jurisdiction, akin to that contained in Article 15 of Brussels II bis,334 is set out in Articles 8 and 9, and operates by way of exception and in the best interests of the child.335 The Explanatory Report to the Convention explains that “[t]hese Articles introduce into the Convention a reversible mechanism for forum non conveniens and forum conveniens, where it appears that the child’s best interest is that his or her protection be ensured by authorities other than those of the State of the habitual residence”.336 The transfer of jurisdiction under the Convention can be initiated either by an authority of a Contracting State having general jurisdiction under the Convention, if this authority considers that an authority of a Contracting State which does not have jurisdiction would be better (p. 1117) placed in the particular case to assess the best interests of the child;337 or by an authority of a Contracting State which does not have jurisdiction but believes that it is better placed in the particular case to assess the best interests of the child.338 In either scenario, the following conditions have to be met before the transfer can take place: 1) Connection between the child and the Contracting State to which jurisdiction is to be transferred;339 2) The authority of the other Contracting State would be better placed in the particular case to assess the best interests of the child;340 and 3) Both authorities agree to the transfer.341 The transfer of jurisdiction can be for an entire case or for a specific part of a case,342 and does not institute a permanent transfer.343

Given the close similarities between the transfer provisions of the Brussels II bis and the 1996 Convention, it may be expected that English courts will approach the interpretation of the two sets of provisions in a comparable way.

(iii)  Concurrent proceedings in another European Union Member State, except Denmark—Brussels II bis, Article 19344

Article 15 of Brussels II bis concerns “consecutive” rather than “concurrent” proceedings. The rule in respect of concurrent, or parallel, proceedings in two or more European Union Member States is contained in Article 19345 (lis pendens and dependent actions), which provides that:

  1. 2.  Where proceedings relating to parental responsibility relating to the same child346 and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established . . ..

  2. 3.  Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

Articles 8 to 14 of Brussels II bis, by nature, may confer jurisdiction on the courts of more than one Member State in respect of the same child and the same cause of action, and so there is a need for a provision dealing with the problem of concurrent proceedings and conflicting judgments in the courts of different Member States.347 Article 19, like Article 29 of the Brussels I Recast, but unlike Article 15 of Brussels II bis, is a purely mechanical rule. The court of the Member State first seised of the matter takes priority, and any court of another (p. 1118) Member State must of its own motion decline jurisdiction, once the jurisdiction of the court first seised is established in that state. The rule as to the time at which a court is seised is set out in Article 16 (Seising of a Court), examined earlier in relation to concurrent matrimonial proceedings.348 Although the court second seised must decline jurisdiction, there is scope, nonetheless, in a suitable case,349 for application to be made by that court to the court first seised for a transfer in terms of Article 15.350

By Article 17 where a court of a Member State is seised of a case over which it has no jurisdiction and over which a court of another Member State has jurisdiction by virtue of Brussels II bis, then it shall declare of its own motion that it has no jurisdiction.351 Although Article 17 does not impose a consequential obligation on the original court to transfer the case to another court, the original court should, as long as the protection of the best interests of the child so requires, inform directly or through its Central Authority, the court of the Member State having jurisdiction.352

Importantly, Article 19(2) is not applicable where a court of a Member State first seised is seised only for the purpose of making provisional measures within the meaning of Article 20 of Brussels II bis.353 In other words, provisional measures made under Article 20, since they are not capable of recognition in another Member State under the Regulation, cannot give rise to lis pendens within the meaning of Article 19(2). However, proceedings pending before a court whose jurisdiction is based on Articles 8 to 14, and which is first seised of an action relating to parental responsibility over a child, irrespective of the characterisation of the proceedings according to the national law of that Member State and irrespective of whether the measure is sought on a provisional basis, or whether it is sought for a definite or indefinite period, prevent a court in another Member State from ruling on the same cause of action until the court first seised has established that it has jurisdiction.354 Nevertheless, the best interests of the child principle requires that there is a limit as to how long the court second seised should be expected to wait for the information from which it can determine whether it can assume jurisdiction.355 Although this approach enables the court second seised to end the stalemate in the proceedings, there is a risk that, eventually, conflicting judgments emerge from the proceedings.

Article 19 is limited to concurrent proceedings in different Member States. It does not apply to actions proceeding concurrently in England and in a non-Member State country. Where the non-Member State is a Contracting State to the 1996 Hague Protection (p. 1119) Convention, Article 13 of the Convention will come into play.356 In cases involving third States (ie those that are neither EU-Member States nor Contracting States to the 1996 Convention), an English court will continue to employ traditional rules based upon the doctrine of forum conveniens, and given statutory expression in section 5 of the Family Law Act 1986.357

Brussels II bis, Article 20 (provisional, including protective, measures)358

Article 20 of Brussels II bis provides that:

  1. 1.  In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.

  2. 2.  The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.359

This rule, which is not subject to the jurisdictional rules of Brussels II bis, and does not require that provisional measures be taken (but rather gives a discretion to certain courts), has been examined already in the context of matrimonial proceedings.360 The Article provides the courts of all European Union Member States with an emergency jurisdiction. The Practice Guide offers the following example of the utility of Article 20:

A family is travelling by car from Member State A to Member State B on their summer holiday. Once arrived in Member State B, they are victims of a traffic accident, where they are all injured. This child is only slightly injured, but both parents arrive at the hospital in a state of coma. The authorities of Member State B urgently need to take certain provisional measures to protect the child who has no relatives in Member State B. The fact that the courts of Member State A have jurisdiction under the Regulation as to the substance does not prevent the courts or competent authorities of Member State B from deciding, on a provisional basis, to take measures to protect the child. These measures cease to apply once the courts of Member State A have taken a decision.361

Article 20 should not be used illegitimately to seise jurisdiction validly vested in the first court.362 The CJEU has explained that Article 20 applies to “children who have their habitual residence in one Member State but stay temporarily or intermittently in another Member State and are in a situation likely seriously to endanger their welfare, including their health or their development, thereby justifying the immediate adoption of protective measures”.363 In Proceedings Brought by A,364 the Court clarified the requirements that must (p. 1120) be met before the power under Article 20 can be exercised by national courts: 1) the measure must be urgent;365 2) it must be taken in respect of persons or assets in the Member State concerned;366 and 3) it must be provisional. Article 20 allows courts to take a variety of measures, including an interim order placing a child in an institutional care;367 and an interim care order.368 However, Article 20 does not extend to situations where a court purporting to act under Article 20 grants custody to one parent where a court of another Member State, which has jurisdiction under the Regulation as to the substance of the dispute, has already provisionally granted custody of the child to the other parent, and that judgment has been declared enforceable in the territory of the former Member State.369 Provisional measures made under Article 20 are not capable of recognition in another Member State within the meaning of Article 21 of Brussels II bis370 and, as such, cannot give rise to lis pendens within the meaning of Article19(2).371 The measures cease to apply when the court of the Member State having jurisdiction as to the substance of the matter has taken the measures it considers appropriate.372 There is no obligation for the national court that has taken the provisional measure to transfer the case to the court of another Member State which has jurisdiction but, as far as required by the child’s best interests, it should inform that court.373

The emergency jurisdiction can be compared to the making of orders by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court.374 It has already been noted that the inherent jurisdiction of the High Court can operate in cases where the court has jurisdiction under Brussels II bis.375 In relation to the operation of protective emergency jurisdiction by a court in England, the demarcation between these two bases of jurisdiction is not entirely clear. Arguably, Article 20 of Brussels II bis confers wider powers than does section 1(1)(d) of the 1986 Act to protect not only the person, but also the assets, of a child.

(p. 1121) (iv)  Concurrent proceedings in a Contracting State to the 1996 Hague Protection Convention—Article 13376

Like Brussels II bis, the Convention adopts a principle of priority of process (lis pendens) to resolve problems of conflicting jurisdiction.377 Pursuant to Article 13(1), the authorities of a Contracting State which have jurisdiction under Articles 5–10378 must refrain from exercising jurisdiction if, at the time of the commencement of the proceedings, corresponding measures379 have been requested from the authorities of another Contracting State with jurisdiction under Articles 5–10, and these measures are still under consideration. The Explanatory Report to the Convention envisages that the most common concurrent jurisdiction will be the one of the divorce court.380 By Article 13(2), however, the lis pendens provision of Article 13(1) does not apply if the authorities of the Contracting State initially seised have declined jurisdiction, giving thus priority to the authorities of the Contracting State second seised, if it is regarded as a more appropriate forum.381 The Practical Handbook suggests that where the authority first seised is contemplating renouncing jurisdiction under Article 13(2), communication should take place between the two Contracting States in order to ensure that no gap in the protection of the child ensues. Such a gap could result from the refusal of the authority second seised to exercise jurisdiction on the basis of Article 13(1), and a parallel renunciation of jurisdiction under Article 13(2) by the authority first seised.382

The renunciation of jurisdiction by the authority first seised may resemble the transfer of jurisdiction pursuant to Articles 8 and 9. The Explanatory Report, however, clarifies that the key difference between the two procedures is that the former results in jurisdiction being eventually assumed by an authority with general jurisdiction under Articles 5–10.383 In contrast, Articles 8 and 9 envisage the transfer of jurisdiction to authorities which do not themselves have jurisdiction. Unlike the transfer of jurisdiction under Articles 8 ad 9, the renunciation of jurisdiction under Art 13(2) may result from a unilateral decision of the authority first seised.384 The Explanatory Report states that the possibility envisaged in Article 13(2) “gives to the solution of the conflict a greater flexibility than that which is authorised by the technique of lis pendens”.385

The 1996 Hague Protection Convention, Articles 11 and 12 (provisional, including protective, measures)386

Article 11 represents a derogation from the general rules of jurisdiction under the Convention; and therefore needs to be interpreted “rather strictly”.387 The provision provides for an additional jurisdictional ground388 which allows the authorities of a Contracting State in whose (p. 1122) territory the child or property belonging to the child389 is present to take, in cases of urgency, any necessary measures of protection.390 At first sight, Article 11 resembles Article 6 of the Convention,391 however, the two provisions differ in at least two significant respects. First, unlike Article 6, Article 11 covers not only refugee/displaced children, or children without a habitual residence; and second, Article 11 jurisdiction is limited to situations of urgency, as opposed to general jurisdiction in respect of refugee/displaced children, or children without a habitual residence under Article 6.392 “Urgency” in this context is a functional concept393 and therefore is not defined in the Convention. However, the Explanatory Report suggests that an urgent situation within the meaning of Article 11 arises where “if remedial action were only sought through the normal channels of Articles 5 to 10, might bring about irreparable harm for the child”.394 The Practical Handbook provides further guidance, recommending the authorities that contemplate exercising jurisdiction under Article 11 “to consider whether the child is likely to suffer irreparable harm or to have his / her protection or interests compromised if a measure is not taken to protect the child in the period that is likely to elapse before the authorities with general jurisdiction under Articles 5 to 10 can take the necessary measures of protection”.395 There are three elements to Article 11—presence, necessity and urgency. Accordingly, the court is required to ask itself three questions: 1) Is the child here? 2) Are measures of protection necessary? and 3) Are they urgent?396 The provision is to be applied according to its terms, meaning that the order in which the three questions are asked may differ.397

Article 11 can be invoked for example398 in order to facilitate medical treatment to save the life of the child who is away from his or her habitual residence;399 to make a speedy sale of perishable goods that belong to the child;400 to facilitate interim contact between the child and the left-behind parent pending return proceedings under the 1980 Hague Abduction Convention;401 and to facilitate, through a “safe harbour order”, a safe return of the child following the making of a return order under the 1980 Convention, securing thus a valuable “soft landing”402 for the child upon the return to the country of his or her habitual residence.403 In Re J (A Child) (1996 Hague Convention: Morocco)404 the Supreme Court held that Article 11 extended to the making of a return order in the situation of a wrongful removal or retention to which the 1980 Convention does not apply.405(p. 1123) This interpretation finds support in the fact that the Convention provides for wrongful removal and retention in its Article 7.406 Moreover, the approach adopted by the Supreme Court accords with the general ground of jurisdiction within the Convention as it reinforces the principle that the child’s future should be determined by the authorities of the child’s state of habitual residence. Indeed, “[f]ar from derogating from the jurisdiction of the home state in these circumstances, the use of article 11 would be supporting it”.407 Although an abduction case which is governed solely by the 1996 Convention will not necessarily be one of “urgency”, it is hard to foresee a situation in which the court should not regard it to be so.408

The measures of protection taken under Article 11 are entitled to recognition and enforcement in accordance with Chapter IV of the Convention,409 and lapse as soon as necessary measures have been taken by the authorities of the Contracting State with general jurisdiction.410 There is no obligation for the authority that has taken the measures under Article 11 to transfer the case to the authorities of a Contracting State with general jurisdiction, however, it is recommended that the authority which has taken the measures communicates and cooperates with any other State it deems necessary in order to safeguard the sustained protection of the child.411

Although Article 11 strikingly resembles Article 20 of Brussels II bis, it has been held that the CJEU case-law on the interpretation of Article 20 can provide only a limited assistance in the interpretation of Article 11.412

By Article 12, authorities of a Contracting State in whose territory the child or property belonging to the child is present can, in non-urgent situations, assume jurisdiction to take measures of a provisional character for the protection of the person or property of the child. Unlike measures taken under Article 11, “Article 12 measures” have a territorial effect limited to the Contracting State in question,413 and must be compatible with measures taken previously by authorities with general jurisdiction under Articles 5 to 10. The power to act under Article 12 is unavailable in cases of child abduction. In particular, authorities of the Contracting State to which the child has been wrongfully removed, or in which the child has been wrongfully retained, cannot take provisional measures under Article 12 if the Contracting State from which the child was wrongfully removed or retained still has (p. 1124) jurisdiction.414 Like Article 11 measures, the measures under Article 12 lapse as soon as the authorities with general jurisdiction under Articles 5 to 10 have taken a decision required by the situation.415

(v)  Concurrent proceedings in a related United Kingdom jurisdiction

The question whether the jurisdiction provisions of Brussels II bis should be interpreted as operating so as to allocate jurisdiction among the territorial units of the United Kingdom has been considered previously in this chapter.416 A similar interpretative difficulty arises in connection with the manner of treatment of concurrent proceedings in different territorial units of the United Kingdom. Article 19(2) (lis pendens) of Brussels II bis refers to the “courts of different Member States”, an expression to which no reference is made in Article 66. If, as has been submitted is appropriate, the rules of allocation of jurisdiction contained in Brussels II bis are taken to apply so as to allocate jurisdiction to disputes within the United Kingdom, then it would be illogical to provide that concurrent proceedings in a related United Kingdom jurisdiction should be resolved by any means other than by the lis pendens rule set out in Article 19. If, however, an expansive interpretation of this sort is to be taken in respect of Article 19, then the same should be true also of Article 15, providing for the availability in such cases of the transfer mechanism,417 by way of exception and in the best interests of the child.

(vi)  Concurrent proceedings outside England and Wales, other than in another European Union Member State (except Denmark) or a Contracting State to the 1996 Hague Protection Convention

Where, at any stage of the proceedings on an application to a court in England and Wales for a Part I order, or for variation of such an order, it appears to the court that proceedings with respect to the same matter are continuing outside England and Wales; or that it would be more appropriate for those matters to be determined outside England and Wales, the court may stay the proceedings.418 This flexibility is particularly relevant where there are two sets of proceedings continuing simultaneously, but no Part I order has been made in either. This could happen, for example, where proceedings are started in England for a Part I order, in relation to a child who is habitually resident in England, followed by divorce proceedings in a third State (ie a jurisdiction which is neither an EU-Member State nor a Contracting State to the 1996 Hague Convention) where the father is habitually resident. In such a case, the English court has a power to stay its proceedings if it thinks it appropriate to do so. It seems clear that “appropriateness” is not directly concerned with the welfare of the child, but rather with the suitability of the court to entertain the proceedings.419 This was certainly the view of the Law Commission who gave,420 as an example of appropriate circumstances for a waiver of jurisdiction, the case where a divorce had been granted in England five years earlier, with no application for an order relating to a child, but where, at the time of the later application (p. 1125) for such an order, the parents and the child were habitually resident in another country. This view has been accepted,421 despite earlier decisions to the contrary.422

3.  Choice of Law

There seems little doubt that, when an English court takes jurisdiction to make orders with respect to children, it will apply English law as the law of the forum.423 The application of English law is reinforced by the requirement imposed on the court to regard the welfare of the child as the paramount consideration.424 There are no provisions in Brussels II bis concerning applicable law. Nevertheless, unlike the Regulation, the 1996 Hague Protection Convention governs also applicable law.425 The relevant provisions are set out in Chapter III (Articles 15 to 22). In exercising jurisdiction under Chapter II of the Convention, the authorities of Contracting States shall apply their own law.426 Since jurisdiction is conferred, as a general rule, on the authorities of the Contracting State in which the child is habitually resident, the law of the forum, in most cases, will be the most appropriate law to apply. By secondary legislation, this rule is applicable also to cases where the court assumes jurisdiction under Brussels II bis.427

Exceptionally, the forum may apply or take into consideration the law of another state with which the situation has a substantial connection.428 It is said that this provision is based “not on the principle of proximity (the closest connection), but on the best interests of the child”.429 If the child should become habitually resident in another Contracting State, the law of that state, from the time of the change, will govern the conditions of application of the measures taken in the state of former habitual residence.430

The attribution or extinction of parental responsibility by operation of law,431 without the intervention of a judicial or administrative authority, is governed, by virtue of Article 16 by the law of the state in which the child is habitually resident.432 Similarly, the attribution or extinction of parental responsibility by agreement or unilateral act (eg a will by which a parent nominates a guardian for the child) is governed by the law of the child’s (p. 1126) habitual residence at the time when the agreement or act takes effect.433 Likewise, the exercise of parental responsibility is governed by the law of the state of the child’s habitual residence.434

The Convention confers a certain degree of third party protection: the validity of a face-to-face435 transaction entered into between a third party and another person who would be entitled to act as the child’s legal representative under the law of the state where the transaction was concluded cannot be contested, and the third party cannot be held liable, on the sole ground that the other person was not entitled to act as the child’s legal representative under the law designated by the Convention, unless the third party knew or ought to have known that the parental responsibility was governed by the latter law.436

4.  Recognition and Enforcement

(a)  Introduction

The historic attitude of English courts to the recognition of orders relating to children, such as custody, guardianship and wardship orders, made in other countries was simple. Though they might be given careful consideration by an English court in deciding whether and, if so, what order to make, they were never recognised as such. The reasons for this attitude were primarily437 because the English courts are instructed to regard the welfare of the child as the paramount consideration,438 and this could conflict with recognition of a foreign order; and because such orders relating to children are never final, being always subject to review by the courts which made them.439 This attitude contrasted strikingly with that, for example, in Canada, Australia and the USA, where there has for some time been legislation regulating the recognition of such foreign orders. Significant change in the English attitude was apparent with the introduction of legislation governing the recognition and enforcement of orders falling under Part I of the Family Law Act 1986 and made elsewhere in the United Kingdom, and with two international conventions, given the force of law in England by means of the Child Abduction and Custody Act 1985, which provide for the recognition of custody orders granted in, or custody rights under the law of, a number of foreign countries. Most important of all, however, has been the European objective of attaining the free movement of judgments in matrimonial matters and in matters of parental responsibility within the Union, leading ultimately to the implementation of Brussels II bis. Similarly, the 1996 Hague Convention sets forth the principle of recognition by each Contracting State of the measures taken in another Contracting State. As a result, the historic denial of recognition now is greatly reduced, affecting only orders granted in those countries not covered by Brussels II bis, the 1996 Hague Convention, the Family Law Act 1986, or the Child Abduction and Custody Act 1985. These varied rules must be considered in turn.

(p. 1127) (b)  Orders granted in another European Union Member State, except Denmark440

(i)  Principle of recognition

As has been stated already in this book, the principle of mutual recognition of judgments has been fixed as the cornerstone of the European judicial area.441 Alongside the objective of the free movement of judgments within the Member States in civil and commercial matters, the European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. “To this end, the Community is to adopt, among others, measures in the field of judicial co-operation in civil matters that are necessary for the proper functioning of the internal market.”442

It is stated in Brussels II bis that: “The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum necessary.”443 Accordingly, Article 21 of the Regulation444 states that:

  1. 1.  A judgment445 given in a Member State446 shall be recognised in the other Member States without any special procedure being required.447

  2. 2.  In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.448(p. 1128)

  3. 3.  Without prejudice to Section 4449 of this Chapter, any interested party450 may, in accordance with the procedures provided for in Section 2451 of this Chapter, apply for a decision that the judgment be or not be recognised . . .

  4. 4.  When the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

(ii)  Grounds of non-recognition

Article 23452 provides that a judgment relating to parental responsibility shall not be recognised: (a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;453 (b) if it was given, except in cases of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;454 (c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence455 unless it is determined that such person has accepted the judgment unequivocally;456 (d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard; (e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;457 (f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State458 or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought;459 or (g) if the procedure laid down in Article 56460 has not been complied with.

Recital 21 to the Regulation requires that the grounds for non-recognition be kept to a minimum. This means that Article 23 has to be interpreted strictly.461 Arguably, the public (p. 1129) policy exception embodied in Article 23 (a) is potentially the widest, however, the English courts have consistently held that the provision is to be approached restrictively. Indeed, in the words of Munby LJ, the exception is a very narrow one and “sets the bar very high”.462 Accordingly, the test in Article 23 (a) will not be met by virtue of the mental or emotional state of the parent who opposes recognition;463 or by the passage of time, without substantially more, since the making of the order.464 Although there is an overlap between public policy and breach of a fundamental principle under Article 23 (b), public policy, being an “exceptional remedy”, requires “something more”.465 The public policy of the Member State where recognition is sought cannot be raised as an obstacle to the recognition or enforcement of a judgment given in another Member State solely on the ground that the Member State of origin failed to comply with the rules on jurisdiction contained in Brussels II bis.466

(iii)  Prohibition of review of jurisdiction of the court of origin

Article 24 of Brussels II bis narrates the important principle that: “The jurisdiction of the court of the Member State of origin may not be reviewed.467 The test of public policy referred to in [Article 23(a)] may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.” It cannot be argued that the court of origin misapplied the jurisdictional rules in Brussels II bis, or its national rules of residual jurisdiction. In particular, this prohibition cannot be evaded by using the public policy defence.

(iv)  Non-review as to substance

Article 26 lays down the classic rule that under no circumstances may a judgment be reviewed as to its substance.468 It cannot be alleged that the court of origin made a mistake of fact or of law. Procedural irregularities in the court of origin, however, can be examined in order to establish a defence under Article 23. The nature of parental responsibility matters, however, is such that it may be in the best interests of the child for custody and access arrangements to be reviewed by a court having jurisdiction in terms of Articles 8 to 14.

(v)  Application for a declaration of enforceability

Article 28(1) provides that a judgment on the exercise of parental responsibility in respect of a child given in a Member State which is enforceable in that Member State and has been served shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there (“exequatur procedure”).469 Article 28(2) sets out a special rule in respect of the United Kingdom, providing that such a judgment shall be enforced in England and Wales, Scotland or Northern Ireland, only when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.470

(p. 1130) (vi)  Enforceability of certain judgments concerning rights of access

Chapter III, Section 4 of Brussels II bis (Articles 40 to 45) concerns rights of access471 and the return of a child entailed by a judgment given pursuant to Article 11(8).472 Article 41 provides that the rights of access granted473 in an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with Article 41(2),474 thereby demonstrating that the necessary procedural safeguards have been complied with in that state.475 The judgment shall be certified in the Member State of origin only if all parties concerned (including the child, if appropriate, having regard to his age and maturity) were given an opportunity to be heard; and where the judgment was given in default, the person defaulting was served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence,476 unless it is determined that such person has accepted the judgment unequivocally. The Practice Guide makes plain that the consequence of this special rule for rights of access is two-fold: “(a) it is no longer necessary to apply for an ‘exequatur’ and (b) it is no longer possible to oppose the recognition of the judgment.”477

(vii)  Enforcement procedure

Enforcement procedure is governed, not by the Regulation, but by the law of the Member State of enforcement.478 However, “it is of the essence that national authorities apply rules which secure efficient and speedy enforcement of decisions issued under the Regulation so as not to undermine its objectives”.479 As regards practical arrangements for the exercise of rights of access, the courts of the Member State of enforcement may make the necessary arrangements if they have not already been made in the judgment delivered by the courts of the Member State having jurisdiction as to the substance of the matter and provided that the essential elements of the judgment are respected.480

(viii)  Role of Central Authorities

In parental responsibility cases, it is especially important that the designated Central Authorities of Member States cooperate both in general matters and in specific cases,481 to achieve the purpose of the Regulation. Each Central Authority is required to take all appropriate steps in accordance with the law of its Member State to collect and exchange information concerning the child, to provide information and assistance to holders of parental (p. 1131) responsibility who are seeking the recognition and enforcement of decisions, to facilitate agreement between holders of parental responsibility through mediation or other means, and to facilitate communications between courts.482

(c)  Orders granted in another Contracting State to the 1996 Hague Protection Convention483

Article 23(1) of the Convention sets out a rule of recognition whereby measures taken by the authorities of a Contracting State must be recognised by operation of law in all other Contracting States.484 Article 23(2) provides six grounds on which recognition may be refused. These grounds are comparable to those set out in Article 23 of Brussels II bis, namely: (a) jurisdiction was not based on one of the grounds provided for in Articles 5 to 14 of the Convention; (b) the child was not given the opportunity to be heard in violation of fundamental principles of procedure of the requested State (except in a case of urgency);485 (c) a person claiming that the measure infringes his or her parental responsibility has not been given the opportunity to be heard (except in a case of urgency); (d) the recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child; (e) the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State; (f) the procedure set out in Article 33 which concerns cross-border placements of children has not been complied with.

Article 24 provides for “advance recognition”486 or “preventive action for recognition or non-recognition”.487 It states that “any interested person may request from the competent authorities of a Contracting State that they decide on the recognition or non-recognition of a measure taken in another Contracting State. The procedure is governed by the law of the requested State”. Article 24 may be utilized, for example, by a father whose child is relocating from State X to State Y with the mother, and who wishes to secure ongoing contact with the child following the move. The father is prepared to consent to the move, however, in order to safeguard his position, seeks a ruling from State Y as to whether a contact order that has been made in State X will be recognised in State Y once the child has relocated.488 There is no provision for advance recognition in Brussels II bis.

Article 25 states that the authority of the requested State is prohibited from reviewing any “findings of fact” on which the authority of the State where the measure was taken based its jurisdiction. This, however, does not prevent the authority of the requested State from refusing to recognise the measure pursuant to Article 23(2)(a), ie where it was taken “by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”.489 The combined effect of the two provisions is that, unlike Brussels II bis,490 the Convention does not prohibit review of the jurisdiction of the court of origin.491

(p. 1132) By Article 26(1), measures taken in one Contracting State and enforceable there must, upon request by an interested party, be declared enforceable or registered for enforcement in another Contracting State.492 This procedure, which is governed by the law of the State of enforcement,493 must be “simple and rapid”.494 The declaration of enforceability or registration can only be refused on one of the grounds on which recognition can be denied.495 Once the measure has been declared enforceable or registered for enforcement, it has to be enforced as if it had been taken by the authorities of the State of enforcement.496 Enforcement takes place “in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child”.497 There is no equivalent to the accelerated procedure set out in Articles 40 to 45 of Brussels II bis.498

(d)  Orders granted in Scotland499 and Northern Ireland

In 1985 the Law Commissions recommended not only that there should be uniform jurisdictional rules throughout the United Kingdom for the making of “custody orders”, but also as a corollary that such orders should be recognised and enforceable elsewhere in the United Kingdom. In this way, protracted, expensive and disruptive proceedings might be avoided. The Commissions said: “In broad terms, our proposals are that the custody orders of the courts of each country [in the United Kingdom] should be recognised in the other countries but should only be enforceable if centrally registered in the courts of the receiving country and should only be enforced through the process of the receiving country.”500 These proposals were carried into effect in that form by Part I of the Family Law Act 1986.501

The extent of application of the jurisdiction provisions contained in Brussels II bis and of the lis pendens provision in Article 19 as regards intra-United Kingdom proceedings has been considered previously in this chapter.502 The opaque wording of Article 66 of Brussels II bis generates a similar interpretative difficulty in relation to the recognition and enforcement of “Part I Orders” as between the territorial units of the United Kingdom. Article 66 of Brussels II bis does not refer to “judgments given in a Member State”, which is the concern of the Article 21 recognition provisions of the Regulation. It does, however, provide, in Article 66(d), that, “any reference to the rules of the requested Member State shall refer to the rules of the territorial unit in which jurisdiction, recognition or enforcement is invoked”. Except for the special Scottish rule of recognition contained in section 26 of the 1986 Act,503 the recognition and enforcement provisions in Chapter V of the Family Law Act 1986 (sections 25 to 32) appear, from the fact of the Act, to be unaffected by Brussels II bis, and untouched by secondary legislation passed subsequent to Brussels II bis.504 The assumption, therefore, is (p. 1133) that the intra-United Kingdom scheme of recognition and enforcement contained in sections 27 to 29 of the 1986 Act still applies, notwithstanding Chapter III (recognition and enforcement) of Brussels II bis.505 Whether this outcome was intended by Article 66 is not clear. It seems inconsistent and anomalous to apply, in intra-United Kingdom cases, the jurisdiction provisions of the Regulation (or at least some of them), but not to apply the recognition and enforcement provisions in Brussels II bis;506 “picking and choosing” selective parts of the Regulation to operate intra-United Kingdom seems, in principle, surprising and undesirable.

The recognition and enforcement provisions of the 1986 Act apply to exactly the same range and type of orders, ie Part I orders, as do the jurisdictional provisions.507 However, whilst the English jurisdictional provisions govern all Part I orders made in relation to children under the age of eighteen, the recognition and enforcement provisions are limited to orders applying to children under the age of sixteen, and they cease to have effect when the child reaches this age. There are various reasons for this difference:508 Scottish orders can only be made up to the age of sixteen; the international conventions are limited to children under sixteen;509 English orders in relation to sixteen and seventeen-year-olds are rare and their enforcement would be difficult against the wishes of the child.

Part I orders made elsewhere in the United Kingdom and still in force in relation to a child under sixteen must be recognised in England.510 This will be of practical importance to third parties, such as social workers and school teachers, to know that rights conferred by, say, a Scottish order are to be recognised in England.511 A Scottish or Northern Ireland order cannot, however, be enforced in England until it has been registered in England,512 and proceedings have been taken in England for its enforcement.513 Registration is effected by applying to the court which made the order which, provided the order is still in force, passes a certified copy of the order and other relevant documents to the High Court514 for registration.515 If the order ceases to have effect, other than by revocation,516 as where it is superseded by a later order, its registration will be cancelled by the English court.517

Once registered in England, the Scottish and Northern Ireland order can be enforced in exactly the same way as if it was an English Part I order,518 provided it remains in force where (p. 1134) made.519 However, enforcement proceedings may be stayed on the application of any interested party on the ground that he has taken or intends to take other proceedings, whether in the United Kingdom or elsewhere, as a result of which the order may cease to have effect or have a different effect.520 So although the merits of the order cannot be attacked in the country of registration,521 a parent might convince the English court that he was going to attack them before the Scottish court which made the order, or there argue that that court lacked jurisdiction, or, indeed, that he proposes to apply to another court for a new order.522 In all such cases, the English court has a discretion to stay the enforcement proceedings and, indeed, to lift any stay.523 If the English court is satisfied that the original order, now registered in England, has ceased to have effect, it will dismiss the enforcement proceedings.524

Whilst it is to be hoped that the system for the recognition and enforcement throughout the United Kingdom of orders made in one part thereof will eradicate the conflicts which arose in the past, particularly between English and Scottish courts,525 attention has to be drawn to the fact that the recognition and enforcement procedures apply only to orders falling under Part I of the 1986 Act.

(e)  Child Abduction and Custody Act 1985526

Special rules have been developed to govern cases where a child has been unlawfully removed from the state of his habitual residence and taken to another state. The Child Abduction and Custody Act 1985527 gives effect to two international conventions relating to the recognition of foreign custody rights and orders, both of which are scheduled to the Act and provide very similar mechanisms for their operation.528 The first is the Hague Convention on the Civil Aspects of International Child Abduction (1980), in respect of which there are ninety-seven Contracting States,529 and which is implemented by Part I of the 1985 Act. The second is the Council of Europe Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children (1980). There are currently thirty-seven parties530 to the European Convention, which is implemented by Part II of the 1985 Act. These two Conventions now must be examined in the light of Brussels II bis, which contains special provisions pertaining to international child abduction, and which, by virtue of Article 60 (p. 1135) of the Regulation, takes precedence over the Hague Convention531 and the Council of Europe Convention as regards relations between European Union Member States.

(i)  Part I of the 1985 Act: the Hague Convention532

(a)  Aim of the Convention

The prime concern of the Hague Convention is the restoration of children who have been wrongfully removed or wrongfully retained, whether or not this is in breach of a custody order in one of the Contracting States. Not only does the Convention provide for the recognition and enforcement of custody orders, but it also protects rights of custody even where there has been no order.533 The Convention does not provide for the enforcement of access rights in the same way as it seeks to uphold custody rights, but an application to make arrangements for organising or securing the effective exercise of rights of access nevertheless may be presented to the Central Authorities534 of Contracting States.535

(b)  Wrongful removal and wrongful retention

Essential elements of the Convention are that it applies to a child under the age of sixteen who was habitually resident in a Contracting State at the time when he was wrongfully removed or retained.536 The House of Lords537 has made clear that both removal and retention are single events, so that if a child is wrongfully removed before the Convention came into force, but not returned after that date, such latter conduct does not constitute “retention” within the (p. 1136) meaning of the Convention538 and section 2 of the Act. This means that, for those purposes, removal and retention539 are mutually exclusive concepts: “Removal occurs when a child, which has previously been in the state of its habitual residence, is taken across the frontier of that state;540 whereas retention occurs where a child, which has previously been for a limited period outside the state of its habitual residence,541 is not returned to that state on the expiry of such limited period.”542 Furthermore, the wrongful removal or retention under the Convention must be “international” in nature,543 ie the child must have been taken from, or retained outside, the country of his habitual residence in which the custody or access rights existed.544 In other words, what is involved is wrongful removal from, or retention out of, that country, rather than just from or out of the care of the parent having custody rights.

(i)  Habitual residence

The habitual residence of the child is the crucial connecting factor545 and it is not defined in the Convention. The concept of habitual residence has been examined in detail in Chapter 9 and earlier in this Chapter in the context of Brussels II bis.546

(ii)  Rights of custody

“The world would be a simpler place if the Convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not.”547 Removal or retention is wrongful if it is, at that time,548 in breach of custody rights under the law of the child’s habitual residence which were being exercised.549 Therefore, when determining whether removal or retention is wrongful within the meaning of Article 3 of the Convention, the first task for the court to which the application is made550 is to establish what rights, if any, the left-behind parent (p. 1137) had under the law of the state in which the child was habitually resident immediately prior to his removal,551 and whether those rights amount to “rights of custody” for the purpose of Articles 3 and 5(b) of the Convention.

This is a matter of international law and depends on the application of the autonomous meaning of the phrase “rights of custody”.552 Where . . . an application is made in the courts of England and Wales, the autonomous meaning is determined in accordance with English law as the law of the court whose jurisdiction has been invoked under the Convention.553

That said, the Convention cannot be construed differently in different jurisdictions: it must have the same meaning and effect under the laws of all Contracting States.554 Whilst it is for the law of the country of the habitual residence to determine the nature and extent of the rights,555 it is for English law to determine whether they amount to “rights of custody” within the Convention;556 a broad, purposive interpretation has been encouraged.557

Custody rights include those which can be attributed to one parent, or to both jointly,558 and which can arise “by operation of law or by reason of a judicial559 or administrative decision,560 or by reason of an agreement having legal effect under the law” of the child’s habitual (p. 1138) residence.561 Rights of custody are not defined exclusively but include rights relating to the care of the person of the child and to determine his place of residence.562 A person with “parental responsibility” has rights of custody563 and may even have such rights when exercising parental functions short of full parental responsibility.564 They also include, in England, custody rights attributed to a court when a child is made a ward of court,565 where the court is exercising its powers to determine the child’s place of residence,566 where a guardianship application is pending,567 or where a parent awarded an interim custody order is prohibited from removing the child from the jurisdiction;568 but the rights of the court do not appear to continue once a final custody order has been made.569

It has been held570 that a right of veto (but not a potential right of veto),571 giving one parent the right to insist that the other parent does not remove the child from the home country without either his consent or a court order, amounts to “rights of custody”. It is possible for someone who is not related by blood to the child to fall within a quasi-parental role in relation to the child, and so to acquire inchoate rights of custody, namely, those which are capable of being effected by an application to the court which has a reasonable prospect of success.572 In J.McB. v L.E.,573 the Irish Supreme Court sought a preliminary ruling from the CJEU as to whether, in the light of Article 24 of the Charter of Fundamental Rights of the European Union, the lack of recognition of the concept of inchoate custody rights in Irish law was compatible with the correct interpretation of Article 2(11) of Brussels II bis.574 The CJEU held that the fact that, under Irish law, an unmarried father did not automatically (p. 1139) acquire custody rights within the meaning of Article 2 of Brussels II bis did not affect his right to private and family life, as long as he had the right to apply to the national court for an order awarding him custody rights. This interpretation applied also in cases where the father did not apply for custody rights prior to the removal of the child by the mother who, at the time of the removal, was alone the legitimate custody rights holder. Hence, to accept the possibility that an unmarried father has rights of custody under Art 2(11) of Brussels II bis, although no such rights are conferred on him under national law, would be incompatible with the requirements of legal certainty and with the need to protect the rights of the mother. The implications of this ruling for those Member States that accept the concept of inchoate rights in their national law, including the UK, are ambivalent. Nevertheless, the Supreme Court, in Re K (Abduction: Inchoate Rights),575 held that the CJEU decision did not represent an “insuperable obstacle” to the continuous acceptance of the concept of inchoate custody rights in UK law.576 Following on from this statement, Baroness Hale who gave the majority judgment proceeded to set out the requirements which must be satisfied before a person can be held to have had inchoate rights of custody: (a) they are undertaking the responsibilities, and thus enjoying the corresponding rights and powers, entailed in the primary care of the child; (b) they are not sharing these responsibilities with the person having a legally recognised right to determine where the child shall live and how he shall be brought up; (c) that person must have either abandoned the child or delegated his primary care to them; (d) there is some form of legal or official recognition of their position in the country of habitual residence; (e) there is every reason to believe that were they to seek the protection of the courts of that country, the status quo would be preserved for the time being so that the long-term future of the child could be determined in those courts in accordance with his best interests and not by the pre-emptive strike of abduction.577 On the facts it was held that a maternal grandmother who had been delegated primary care of a child subsequently removed from her care by his mother had “rights of custody” for the purposes of the Convention and the Regulation.578

If one parent had no rights of custody under the law of the child’s habitual residence at the time of the removal or retention by the other parent, then such conduct is not wrongful and falls outside the Convention even if such rights are acquired later.579

(c)  Restoration of status quo: return of the child to his habitual residence

The Convention requires administrative structures and procedures to be established, in particular the use of a designated Central Authority for each Contracting State,580 to enable a child to be returned to the country from which it has been wrongfully removed or outside which it has (p. 1140) been wrongfully retained. If we assume that a child has been wrongfully removed from Australia to England, the procedures to ensure its return to Australia are as follows.581 The parent or other person claiming the child applies to the Central Authority in Australia, or in any other Contracting State, for assistance in securing the return of the child. The application, which has to contain essential particulars of the child, the grounds of the claim and available information as to the child’s whereabouts,582 is sent without delay by the Central Authority which receives it to the Central Authority in the country where the child is thought to be.583 In the case of a child thought to be in England, the application is sent to the Lord Chancellor,584 who must then cause all appropriate measures to be taken to discover the whereabouts of the child, to prevent further harm to him and to try to secure the voluntary return of the child.585 He must also initiate, or facilitate, the institution of judicial or administrative proceedings to secure the return of the child586 without considering the merits of any custody issue;587 and any judicial proceedings in England are in the High Court.588 If less than one year has elapsed between the date of the wrongful removal and the English proceedings, the child must589 be ordered to be returned forthwith; if more than a year has elapsed, the return of the child must be ordered “unless it is demonstrated that the child is now590 settled in its new environment”.591

Settlement of the child in his new environment

Settlement in this context means more than mere adjustment to surroundings. It involves both the physical element of being established in a community and an environment, and an emotional and psychological592 constituent of security and stability.593 The concept of “new environment” has been held to encompass place, home, school, people, friends, activities and opportunities, but not, per se, the child’s relationship with the abductor.594 The absence of (p. 1141) any meaningful links between the child and the requesting State will be regarded as highly significant as it shows that the child’s life in his new environment is subject to no competition.595 In Cannon v Cannon596 Thorpe LJ identified three different categories of case in which the issue of settlement may arise. First, there are cases which demonstrate a delayed reaction, short of acquiescence, on the part of the bereft parent: “In that category of case the court must weigh whether or not the child is settled and whether nevertheless to order return having regard to all the circumstances, including the extent of the plaintiff’s delay and his explanation for the delay.”597 The second category is where concealment or other subterfuge on the part of the abductor has contributed to the period of delay: “In those cases I would not support a tolling rule that the period gained by concealment should be disregarded and therefore subtracted from the total period of delay in order to ascertain whether or not the twelve-month mark has been exceeded.”598 However, an abducting parent who has engaged in such clandestine and deceitful behaviour will find it harder to prove settlement, and the burden of demonstrating the necessary elements of emotional and psychological settlement will be much increased.599 It is possible, nevertheless, that the turpitude of the abductor’s conduct will be outweighed by the quality of the new environment: “the longer the [abductor] persists in her deceit the more likely she is to hold her advantage”.600 Thirdly, there is the category of “manipulative delay”, where, by deliberate conduct, the abductor is successful in delaying the issue of proceedings beyond the twelve-month limit. It is not the case that judges should disregard the “settlement” defence altogether in such cases, but they will look critically at any alleged settlement built upon intentional concealment and deceit, especially if the defendant is a fugitive from criminal justice.601 Neither uncertain immigration status of the child in the requested State602 nor the deprivation of the child’s previously close relationship with the bereft parent603 will necessarily prevent the finding of settlement. It is not unusual that considerations pertaining to the settlement of the child in his new environment are merged with considerations related to defences to return under Article 13 of the Convention.604 Indeed, as the House of Lords has held, “settlement” cases are the most “child-centric” of (p. 1142) all child abduction cases and very likely to be combined with the child’s objections.605 Even if settlement is established on the facts, the court retains a residual discretion to order the return of the child.606 At one time, it was considered that the discretion was specifically conferred by Article 18 of the Convention.607 However, in Re M (Children) (Abduction),608 the House of Lords held that Article 18 did not confer any new power to order the return of the child; instead it only contemplated powers conferred by the ordinary domestic law.609 On the court’s view, the discretion to return is implicit in the wording of Article 12 itself.610 This reading of Article 12 is consistent with Articles 13611 and 20,612 both of which expressly confers a discretion on the court.613 Indeed, the wording of Article 12 “shall also order the return of the child, unless . . .” appears to be just as capable of importing a discretionary power of return into the provision as is the wording “is not bound” in Article 13 and “may also refuse” or “may be refused” in Articles 13 and 20 respectively. Accordingly, the principles for the exercise of discretion as set out by the House of Lords in Re M, and outlined below apply equally in the context of all three provisions.614

Where the terms of the Convention give rise to discretion, the discretion is at large.615 Significantly, the Convention objectives should not always be given more weight than the other considerations: “[s]ometimes they should and sometimes they should not.”616 Rather, the court exercising discretion is permitted to take account of “the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare”.617 Departing from earlier authorities,618 Baroness Hale of Richmond suggested that exercise of discretion should now be approached in a more lenient way than it was before. In particular, her Ladyship held:619

[ . . . ] it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves (p. 1143) exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.

The removal by Re M of the “gloss” which had been put on the straightforward terms of the Convention620 by the previous authorities is to be commended, partly on the grounds of simplicity that it implies and partly in acknowledgement of the “child-centric”621 trend that it sets in relation to the exercise of discretion in return proceedings. This trend is best summed up in the concluding observation of Baroness Hale of Richmond who, on the facts of the present case, aptly remarked: “children should not be made to suffer for the sake of general deterrence of the evil of child abduction worldwide”.622

Furthermore, if notice of a wrongful removal has been received in England, whether expressly or by inference,623 the merits of the custody issue cannot be determined in England until a decision has been taken on the return of the child or unless an application for its return is not made within a reasonable time.624

(d)  Defences

Although the purpose of the Hague Convention and Part I of the 1985 Act is to ensure the summary return of a child without consideration of the merits of the custody issue,625 there are three grounds in Article 13 of the Convention on which return may be refused. Such refusal is discretionary and, whilst the court must have regard to the welfare of the child, it must do so in the context of “the overall purpose and philosophy of the Convention”.626 The exceptions to the obligation to return are by their very nature limited in their scope. As such, they do not need “any extra interpretation or gloss”.627

(i)  Child’s objections

The first ground of refusal is if the child objects at the date of the court hearing628 to being returned to the country of his habitual residence, rather than objecting simply to living with a particular parent,629 “and has attained an age and degree of maturity at which it (p. 1144) is appropriate to take account of its views”.630 The defence of child’s objections has to be seen in the context of wider developments that reflect the “growing understanding of the importance of listening to the children involved in children’s cases”.631 These developments include, in particular, Article 12 of the United Nations Convention on the Rights of the Child (UNCRC),632 and Article 11(2) of Brussels II bis, which imposes on the courts the duty to hear the child in return proceedings under the 1980 Hague Convention, regardless of whether the child’s objections defence has been raised.633 Even though strictly the obligation that arises from Article 11(2) only applies in intra-European Union return proceedings, in Re D (A Child) (Abduction: Rights of Custody),634 Baroness Hale of Richmond suggested that the principle was of “universal application” and, as such, was applicable in every Hague Convention case.635 Her Ladyship considered that the principle that emerged from Article 11(2) of Brussels II bis erected “a presumption that the child will be heard unless this appears inappropriate”,636 and this aligned with her view that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto”.637

In England, the approach to the child’s objections defence is broken down into two stages: the “gateway stage” and the discretion stage.638 At the gateway stage, the court has to assess two elements: first, whether or not the objections to return are made out;639 and second, whether the age and maturity of the child are such that it is appropriate for the court to take account of the objections (for unless this is so, the defence cannot be established).640 Only if the gateway elements are established, the court can proceed to considering whether or not it should exercise its discretion in favour of retention or return.641 The gateway components are both questions of fact within the province of the trial judge.642 It will usually be necessary for the trial judge to find out why the child objects to being returned. Normally, the judge will (p. 1145) obtain the views of the child through the CAFCASS643 officer or other professional.644 In some cases, especially where the child asked to meet the judge,645 it may be appropriate for the judge to hear the child.646 A face to face meeting is an opportunity for the judge to hear what the child might wish to say, and to explain to the child the nature of the process and in particular why, despite the child’s views, the court’s order might direct a different outcome.647 Very occasionally, the court might order that the child should be separately represented, but only in exceptional circumstances,648 subject to the child being capable of giving instructions,649 and under the condition that separate representation adds enough to the court’s understanding of the relevant issues to justify “the intrusion, the expense and the delay that might result”.650 Separate representation will be necessary only in a few cases, however, it is imperative that the child be separately represented whenever “it appears likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward.”.651 It is vital that the question of joinder of the child as a party and separate representation be considered at the earliest stage of the return proceedings.652

Before the child’s views can give rise to the Article 13(2) exception, they must amount to objections as opposed to mere “preferences”.653 In relation to the age and degree of maturity (p. 1146) of the child, it should be asked whether the child is more mature or less mature or as mature as his chronological age.654 There is no minimum age below which the child’s views are to be discounted,655 nor has maturity been defined for this purpose. Although it is rare for the courts to take account of the views of a child of seven or younger,656 in Re W (Abduction: Child’s Objections),657 the Court of Appeal accepted that objections of a child as young as six were capable of justifying a refusal to return under Article 13(2). It is accepted that a child “may be mature enough for it to be appropriate for her view to be taken into account even though she may not have gained that level of maturity that she is fully emancipated from parental dependence and can claim autonomy of decision-making”.658

Over the years, the approach at the gateway stage was discussed in numerous authorities, with the resulting law being “far from simple”.659 In particular, a highly technical approach emerged from the decision of Ward LJ in Re T (Children) (Abduction: Child’s Objections to Return).660 In that case, after reviewing some of the early authorities,661 his Lordship drew a number of principles from them, and listed some of the factors which the court should consider at this stage. These included: (a) the child’s own perspective of what is in his interests in the short, medium and long term; (b) the extent to which the reasons underpinning the objection are rooted in reality; (c) the extent to which the child’s views have been shaped or coloured by undue influence and pressure, directly or indirectly exercised by the abductor;662 and (d) the extent to which the objections will be mollified upon return and, where relevant, removal from any pernicious influence from the abductor. Despite its complexity, the “Re T” approach became accepted as the proper approach at the gateway stage.663 Recently, however, the “Re T” reasoning was doubted by Black LJ in Re M (Children) (Abduction: Child’s Objections: Joinder of Children as Parties to Appeal).664 Her Ladyship expressed preference for “the more basic” approach, embodied in the decision of Wilson LJ, in Re W (Abduction: Child’s Objections),665 advocating hence a much simpler (p. 1147) exercise at the gateway stage whereby the detail of the case is left to be considered at the discretion stage.666 Namely, she stated:667

[ . . . ] the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.

Black LJ was careful to point out that she did not intend to develop a new test; quite the contrary, she sought to dissuade “an over-prescriptive or over-intellectualised approach” to the child’s objections defence.668 Nevertheless, she was willing to provide a few examples of situations when the gateway stage assessment will result in the Article 13(2) defence not being established. These include situations where the child is “merely parroting” the views of the abducting parent; lacks the requisite degree of maturity; objects not to the “right thing”; or expresses a preference rather than an objection.669

The approach at the gateway stage suggested by Black LJ is to be preferred over the view of Ward LJ in Re T. The solution proposed by her Ladyship is simple and straightforward, and avoids the technicalities inherent in the “Re T” approach. Not less importantly, by simplifying the gateway stage and moving the assessment of the relevant details to the discretion stage, accord is achieved with the second stage of the process, ie the exercise of discretion.670

The exercise of discretion is to be guided by the principles set out by the House of Lords in Re M (Children) (Abduction).671 These principles were mentioned earlier672 and can be summarized as follows: (1) the discretion is at large; (2) there is no requirement of exceptionality; and (3) the court is entitled to take into account the various aspects of Convention policy, the circumstances which gave the court discretion in the first place, and wider considerations of the child’s rights and welfare.673 Additionally, specific to the exercise of discretion in relation to the child’s objections defence, the court may have to consider “the nature (p. 1148) and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare,674 as well as the general Convention considerations”.675 Importantly, regardless of the age of the child,676 his objections are not determinative of the outcome of the case; rather the objections are merely one of the factors to be considered at the discretion stage.677 In other words, the child’s “right” under Article 13 of the Convention is a right to be heard, not a right to self-determination.678 Accordingly, “hearing the child is not to be confused with giving effect to his views”.679

(ii)  Consent or acquiescence

The second ground on which return may be refused requires opponents680 of the child’s return to establish that the person, institution or other body in the other country having care of the child was not actually exercising custody rights at the time of removal, or consented to or subsequently acquiesced in the removal or retention. So far as consent is concerned, it does not fall to be considered in order to establish the wrongfulness of a removal or a breach of custody rights pursuant to Article 3, but rather it is to be taken into account for the purpose of invoking the court’s discretion pursuant to Article 13.681 It follows that the burden of proof rests on the abducting parent who has to establish, on a simple balance of probability, that there was, prior to the child’s removal, a “positive and unequivocal giving of consent”.682 The most recent authoritative summary of the English courts’ approach to consent can be found in the Court of Appeal decision in Re P-J (Children) (Abduction: Consent).683 Consent to the removal of the child must be clear and unequivocal,684 and can only be given by the custody holder whose rights are at risk of being breached.685 Although the inquiry is inevitably fact specific, (p. 1149) the ultimate question is whether the bereft parent had clearly and unequivocally consented to the removal.686 Whilst consent does not have to be in writing,687 and can be inferred from conduct,688 there must be firm and unequivocal evidence of it.689 Furthermore, purported consent obtained by deception or non-disclosure will be disregarded.690 Similarly, statements made in anger and distress which were not intended by the bereft parent as permission to the removal of the child, will not be considered as amounting to consent.691 Consent within the meaning of Article 13 is not governed by the law of contract; instead it must be viewed “in the context of the realities of the disintegration of family life”.692 Accordingly, it can be withdrawn any time before actual removal,693 however, in order for the withdrawal to be effective, it must be objectively plain to the party who would otherwise seek to rely upon it.694 Nevertheless, once consent has been acted upon it cannot be retracted by the parent who gave it.695 Reliance can be placed on advance or conditional consent whereby the removal is to occur at some future unspecified time or upon the happening of some future event.696 Such consent, however, must still be effective at the time of the removal.697 Where future consent is conditioned by the happening of some future event, this event must be reasonably ascertainable.698 Fulfilment of the condition must not depend on the subjective determination of one party.699

The difference between consent and acquiescence is in the timing.700 The former must be given before or at the time of removal or retention,701 whilst the latter can be passive and (p. 1150) can be inferred simply from lapse of time after the removal or retention without objection to it,702 as in the case of a fourteen-month,703 but not a four-month,704 delay. Acquiescence may be implied from other circumstances,705 as well, of course, as being expressly conveyed,706 but, like consent, it must be unequivocal.707 It had been thought that, in determining whether a parent had acquiesced, a court was only to consider his actual intentions in a case of passive acquiescence.708 This approach was rejected by the House of Lords in Re H (Abduction: Acquiescence)709 where Lord Browne-Wilkinson made clear that “acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world’s perception of his intentions”.710 This question is one of fact,711 not law, and subject to one exception applies to all types of acquiescence. The exception is: “Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires the wronged parent be held to have acquiesced.”712

One factor that may be relevant in determining whether in fact there has been acquiescence is the extent to which the wronged parent has received correct legal advice, or is broadly aware of, his position.713 The court will also be cautious of statements which might appear to amount to acquiescence if they were made when “the parties are in a state of confusion and emotional turmoil”,714 or in the heat of argument.715 It has been said that “acquiescence is not a continuing state of affairs”,716 which would tend to indicate that acquiescence for however short a period before it is retracted will fall within this second ground. More recently, however, the courts have taken a broader view and discounted a very short period of acquiescence, certainly where it had not been relied on by the other parent.717 The court will be reluctant to infer acquiescence from (p. 1151) attempted reconciliation or efforts to secure a voluntary return of the child.718 Furthermore, it has been held that “acquiescence shown to have been obtained by fraud, misunderstanding or nondisclosure is unlikely to be effective”.719

Notwithstanding a finding of consent or acquiescence, the court has discretion to order the child’s immediate return,720 in order that outstanding custody issues might be resolved in the court of the state where the child is habitually resident. Exercise of discretion in this respect is equivalent, in effect, to the court sanctioning a change of mind by the consenting or acquiescing party after the other parent (the “abductor”) has acted in reliance upon that consent or acquiescence.721 When exercising discretion courts are to be guided by the principles set out by the House of Lords in Re M (Children) (Abduction).722

(iii)  Grave risk of harm

The third ground on which return may be refused is “that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position”.723 The provision is of restricted application and, accordingly, there is no need for it to be “narrowly construed”.724 In other words, the terms of Article 13(b) are unambiguous and, by themselves, demonstrate the restricted availability of the defence.725 As such, they need no further elaboration or “gloss”.726 The words “physical or psychological harm” are not qualified; however, they “gain colour” from the third limb of the defence.727 As Ward LJ, in Re S (A Child) (Abduction: Custody Rights),728 explained:

To the extent that three risks are named, there are three discrete defences. They are, however, linked by the use of the word “otherwise” . . . The use of the word “otherwise” points inescapably to the conclusion that the physical or psychological harm contemplated by the first clause of Article 13(b) is harm to a degree that also amounts to an intolerable situation.729

(p. 1152) An intolerable situation has to be “something extreme and compelling”.730 Put another way, “a very high degree of intolerability must be established”.731 In practical terms, the term “intolerable” in Article 13(b) refers to “a situation which this particular child in these particular circumstances should not be expected to tolerate”.732 Although “every child has to put up with a certain amount of rough and tumble, discomfort and distress”, there are certain situations which it is unreasonable to expect a child to tolerate.733 It has been held that such situations include not only physical or psychological abuse or neglect of the child himself, but also exposure to the harmful effects of witnessing by the child of physical or psychological abuse of his own parent.734 It is irrelevant whether the risk is the result of objective reality or of the abducting parent’s subjective perception of reality.735 As Lord Wilson, in Re S (A Child) (Abduction: Rights of Custody), observed:736

The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother’s anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court’s assessment of the mother’s mental state if the child is returned.

Whilst it may be clear that a child will suffer psychological harm if its return is ordered, the court has to determine whether that is outweighed by the harm that would ensue if no order was made. It is clear that the harm must be substantial737 and the risk of it must be “grave”.738 Although “grave” denotes the risk rather than the harm, there is a connection between the two.739 This means that “a relatively low risk of death or really serious injury might properly be qualified as ‘grave’ while a higher level of risk might be required for other less serious forms of harm”.740 In assessing the degree of risk, the court may look at the practical (p. 1153) consequences involved in the return of the child, such as financial provision, accommodation, or language.741

The burden of proof rests with the person opposing the child’s return, and the standard of proof is the simple balance of probabilities.742 Given the summary nature of return proceedings under the Convention, it will seldom be appropriate to hear oral evidence related to the allegations made under Article 13(b).743

The role of the “home country” cannot be thwarted by a parent refusing to return with the child and then arguing that the child will suffer grave psychological harm from being separated from that parent.744 To accept such an argument would “drive a coach and four through the Convention, at least in respect of applications by young children”.745 However, the notion that a parent cannot be allowed to create a situation and then rely on it to his/her benefit “is not a principle articulated in the Convention or the [1985] Act and should not be applied to the effective exclusion of the very defence itself, which is in terms directed to the question of risk of harm to the child and not the wrongful conduct of the abducting parent”.746 The courts have regularly emphasised that they are concerned here not with the “paramount consideration” of the child’s welfare, but rather with whether the child should be returned speedily to the jurisdiction most appropriate for the determination of that issue.747 “No requested country can be expected to return children to a situation where they will be at serious risk, but this must not be turned into a substitute for the welfare test, usurping the function of the courts of the home country.”748

Even if the threshold of grave risk is crossed, there still remains a discretion in the court whether to return the child. Traditionally, English courts have taken a good deal of convincing that return should be refused on this ground to which they have given a strict and (p. 1154) narrow interpretation:749 “for the child’s Article 13 defence to prevail over the policy of the Convention, there must be something in the facts of the case which takes it out of the ordinary into the exceptional”.750 So, in the past, English courts ordered the return of a child to Australia even though the mother would have serious accommodation problems there,751 or would face the prospect of arrest and imprisonment;752 they ordered return of a child to Israel, in spite of political instability and random, indiscriminate terrorist attacks;753 and a Scottish court concluded that a child is unlikely to be placed in an intolerable position by being returned to Canada even though a grandparent who was likely to look after the child spoke no English.754 In only a few cases the high threshold required for the Article 13(b) defence to be established was reached and discretion was exercised in favour of a non-return order. It was held that the kind of risk which would justify a refusal of the return order was return to a war zone, or to a child abuser, or to some other risk of that nature and gravity.755 So, for example, a Scottish court refused to return a child to Canada in the face of evidence of the Canadian father’s depression and alcoholism;756 and an English court refused to return a child to the USA, given the violence shown by the father both to the child and to his mother.757

The approach to the exercise of discretion has, however, changed following the judgment of the House of Lords in Re M (Children) (Abduction).758 As mentioned earlier,759 in rejecting the principle of exceptionality, the decision has signaled a shift towards a more “child-centered” approach to the exercise of discretion in return proceedings.760 As Baroness Hale of Richmond remarked: “It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations.”761 The correct approach is now to consider the different aspects of the Convention policy in conjunction with the circumstances which gave the court discretion in the first place, and wider considerations of the child’s rights and welfare.762

(p. 1155) Usually, it is reasonable to expect the “home country” to be able to provide adequate protection.763 In intra-EU Hague Convention cases, Article 11(4) of Brussels II bis expressly provides that a court cannot refuse to return a child on the basis of the “grave risk of harm” defence “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”.764 The role of the protective measures is to ensure a “soft landing” for the child’s return.765 The measures of protection can take the form of undertakings offered by the left-behind parent766 or court orders available from the courts of the requesting State.767 In either case, it has to be shown that such arrangements will be effective to protect the child.768 The effectiveness of undertakings in particular is likely to be compromised by their non-enforceability in the requesting State.769 Indeed, as has been rightly pointed out, there is no coherent mechanism for recognizing and enforcing protective measures.770

Reliance is often placed on Article 13(b) where the wrongful removal or retention was prompted by alleged ill-treatment of the abducting parent by the bereft parent.771 Cases (p. 1156) involving domestic violence are likely to trigger a particular need for protection not only in relation to the child but also the abducting parent, as it is now acknowledged that violence between parents may constitute a grave risk of harm to the child.772 The summary nature of return proceedings, however, prevents the court of the requested State from fully investigating factual disputes between the parties,773 and, in effect, establishing with requisite precision the risks that the child will face upon his return should the allegations of domestic abuse be true. In order to alleviate this tension, the following approach has been endorsed by the House of Lords:774

Where allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child can be protected against the risk. The appropriate protective measures and their efficacy will obviously vary from case to case and from country to country.

In other words, where there are disputed allegations which cannot be investigated or objectively verified, the inquiry is to be focused on the sufficiency of any protective measures. The logical implication is that the more obvious the need for protection, the more effective the measures will have to be.775

In many cases, protective measures will be sufficient to avoid the risk; however, it will not always be the case.776 In such circumstances, it would be “inconceivable that a court which reached the conclusion that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate”.777

Sibling solidarity778 A difficult issue may arise where there appears to be a good case for declining to order the return of one child but not his sibling, as where the former child is older and objects to the return, or indeed vice versa. Courts have concluded that the separation of siblings can amount to intolerability and / or grave risk of psychological harm for the purposes of Article 13(b).779 In such circumstances, either both780 or neither781 of the children have been returned. A Canadian court, on the other hand, has ordered the return of a three-year-old child, but not her fourteen-year-old sister, who objected to her return.782(p. 1157) Importantly, a return order which interferes with the sibling’s enjoyment of family life may amount to a violation of that sibling’s rights under Article 8 of the European Convention on Human Rights783 (ECHR), unless it is in accordance with the law, in pursuit of a legitimate aim and proportionate.784

(e)  Impact of Brussels II bis785

Recital 17 of Brussels II bis narrates that, in cases of wrongful removal or retention786 of a child, the return of the child should be obtained without delay. To this end, it is said that the 1980 Hague Convention should continue to apply, as complemented by the provisions of the Regulation,787 in particular Article 11. The 1980 Hague Convention has been ratified by all EU Member States, but the provisions of Brussels II bis will prevail in relation to “intra-EU” abductions, ie any case where a child is “abducted” from one European Union Member State (except Denmark) (the “Member State of origin”) and taken to another European Union Member State (the “requested Member State”).

(i)  Jurisdiction in cases of child abduction

The 1980 Hague Convention does not lay down rules of jurisdiction, and so to this extent the special rule of jurisdiction contained in Article 10 of Brussels II bis complements the Convention. Where a child is abducted from the Member State of origin to the requested Member State, Article 10 ensures that the courts in the first state retain jurisdiction to determine questions of custody.788 In a case of wrongful removal or retention of a child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;789 or (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child790 and the child is settled in his new environment and at least one of four conditions is met, namely: (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained; (ii) a request for return lodged by the holder of rights (p. 1158) of custody has been withdrawn and no new request has been lodged within the time limit set in (i); (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7) because the parties have not made relevant submissions within three months of notification;791 or (iv) a judgment792 on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention. It has been held that, in principle, jurisdiction can be retained by virtue of Article 10 even where the child concerned is presently living in a country which is a non-Member State.793 The CJEU has clarified that Article 10(b)(iv) is to be construed strictly, and that the judgment referred to in the provision must be a final judgment.794 Accordingly, a provisional measure does not constitute a judgment for the purposes of Article 10(b)(iv).795

(ii)  Return of the child

Where the court of a Member State receives a request for return of a child pursuant to the 1980 Hague Convention, it must apply the rules in the Convention as complemented by Brussels II bis, in particular Article 11(2) to (8).796

(iii)  Expeditious procedure797

Article 11(3) stipulates that a court to which an application for return of a child is made shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law. In particular, save where exceptional circumstances render it impossible, the court shall issue its judgment no later than six weeks after the application is lodged.798 “Article 11(3) does not specify that such decisions . . . shall be enforceable within the same period. However, this is the only interpretation which would effectively guarantee the objective of ensuring the prompt return of the child within the strict time-limit.”799 To this effect, the Court of Appeal has held that the requirement to deal with return proceedings within six weeks extended to appeal hearings.800 Article 11(3) is designed to eliminate detailed examination of welfare considerations.801

(p. 1159) (iv)  Child’s views802

It is expressly stated that, “the hearing of the child plays an important role in the application of this Regulation”.803 This is true generally,804 and in particular in relation to cases of wrongful removal or retention. Article 11(2) establishes that, when applying the provisions of Articles 12 and 13 of the 1980 Hague Convention, the competent authorities in a Member State shall ensure that the child is given the opportunity to be heard during the proceedings,805 unless this appears inappropriate having regard to his age or degree of maturity. The principle of a mandatory hearing of the child of an appropriate age and a sufficient degree of maturity established by Article 11(2) represents an expansion on the Hague Convention obligation to hear the child in those abduction cases where the defence of child’s objections has been raised by the abducting parent.806 The child’s views may be ascertained for the purposes of the Regulation according to normal procedures.807 The grant of party status is to be made only in exceptional cases. Although it is vital that the child’s voice be heard, “the method by which the voice of the child is heard admits of a wide degree of appreciation in the individual member state”,808 and can be achieved without the child being joined as a party to the proceedings.809

(v)  Applicant’s views

Article 11(5) forbids a Member State court from refusing to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

(vi)  Enquiry as to adequate arrangements to secure child’s protection810

Article 11(4) prevents a Member State court from refusing to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return. The fact that protective measures811 are available in the state of the child’s habitual residence should nullify an Article 13(b) defence.812 The Article 13(b) exception to the return of the child is to be kept to a “strict minimum”.813 The court is obliged to return the child where, despite it having been established that return could expose the child to physical or psychological harm or otherwise place him in an intolerable situation, the authorities in the Member State of origin have made adequate arrangements, ie “concrete measures”,814 to secure the protection of the child upon his return. (p. 1160) Article 11(4) clearly envisages that “adequate measures actually be in force.”815 The involvement of relevant Central Authorities is likely to be necessary in order to assist the judge in the receiving Member State to assess the factual circumstances in the Member State of origin.

(vii)  Non-return orders816

If a Member State court has issued a non-return order pursuant to Article 13(b) of the 1980 Hague Convention, the court must immediately,817 either directly or through its Central Authority, transmit a copy of that order and relevant documents to the court with jurisdiction or Central Authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. Unless the court in that state (the Member State of origin) has already been seised by one of the parties, it must notify the parties of the receipt of information and invite them to make submissions to the court within three months of the date of notification, so that it can examine the question of custody of the child.818 If no submission is received by the court within the time limit specified, it shall close the case. If the court of the Member State of origin receives submissions, it is competent to deal with the substance of the case in its entirety, eg custody and access rights.

The significance of Brussels II bis in this regard concerns Article 11(8), which provides that, notwithstanding a non-return order pursuant to Article 13 of the 1980 Hague Convention,819 any subsequent judgment which requires the return of the child issued by a court having jurisdiction in terms of Brussels II bis shall be enforceable in accordance with Articles 40 to 45 of the Regulation.820 Recital (17) explains the rationale:

The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.

In other words, the Member State of origin has the final say in the matter.

Recital (17) envisages the situation where a subsequent decision by the court of the Member State of habitual residence requires return; it does not deal with the situation where a decision already has been made by that court sanctioning ex post facto the removal of a child.821 In Re T and J (Children) (Abduction: Recognition of Foreign Judgment),822 Sir Mark Potter stated:(p. 1161)

If . . . proceedings under the Hague Convention are commenced at a time when the issue sought to be resolved, namely where and with which parent the child should be residing, is already before the Court of the Member State where the child is habitually resident, and if, prior to the Hague Convention hearing, that issue is resolved in favour of the abducting parent, then the whole thrust and purpose of Brussels II b (as well as in spirit, if not the letter of the Hague Convention itself) operates in favour of an order for non-return.823

It has been held824 that in exercising the jurisdiction under Article 11(7) of Brussels II bis, the court is not carrying out an appeal process in respect of a foreign decision but rather is exercising the welfare jurisdiction it has always held under Article10. Accordingly, a welfare approach has to be applied.825 In D v N v D (By her Guardian ad Litem)826 Theis J summarized the approach to undertaking the examination of the question of the custody of the child pursuant to Article 11(7) as follows: 1) The interrelationship of Articles 10 and Articles 11(7) and (8) permit the Member State of origin to undertake an examination of the question of the custody of the child once a non-return order pursuant to Article 13 has been made by the requested State; 2) Proceedings under Article 11(7) should be carried out as speedily as possible;827 3) The judge should be in a position that he or she would have been in if the abducting parent had not abducted the child.828 Hence, the whole range of orders that would normally be available to a judge should be available also in proceedings under Article 11(7);829 4) The child’s welfare shall be the court’s paramount consideration;830 5) It may not be necessary or appropriate to classify the jurisdictional basis for the proceedings as deriving from the inherent jurisdiction. The foundation for any examination of the question of the custody of the child is simply through the gateway of Article 11(7); 6) In proceedings under Article 11(7) the court is able to order the summary return of a child to England to facilitate the decision making process leading to a final judgment;831 7) In deciding whether to order a summary return or to carry out a full welfare enquiry, the court exercises a welfare jurisdiction.832 “It is not altogether clear whether the decision to order a return of the child on a summary basis is more appropriately considered as akin to that which might be ordered under the inherent jurisdiction or whether it is effectively a specific issue order under the Children Act 1989 order: if it is more appropriately considered as akin to the inherent jurisdiction then — at least as to the question of summary return — it may not be necessary for the court mechanistically and slavishly to direct itself to the welfare checklist; that having been said, once the child has returned and the court is considering what order to make the court should direct itself to the welfare checklist;” and 8) The summary return order is directly enforceable in accordance with the relevant provisions of Brussels II bis.833

(p. 1162) (viii)  Enforceability of certain judgments requiring return of the child

If return of the child is entailed by a judgment given pursuant to Article 11(8) (ie a judgment by the Member State of origin), that shall be recognised and enforceable in another Member State834 without the need for a declaration of enforceability (exequatur) and without any possibility of opposing its recognition,835 if the judgment has been certified in the Member State of origin in accordance with Article 42(2),836 demonstrating that necessary safeguards have been complied with in that state.837 The judgment shall be certified in the Member State of origin only if: (a) the child, if appropriate having regard to his age and degree of maturity, was given an opportunity to be heard;838 (b) the parties were given an opportunity to be heard; and (c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention. It is improbable that the abductor and child will return to the Member State of origin in order to give evidence, and so it is likely that evidence will be taken by means of video-conferencing or tele-conferencing.

The ECJ has clarified that the Articles 11(8) and 42 procedure will be triggered if a non-return order is made in the State where the child is present even though, on appeal, a return order is made by a court in that State.839 Once a non‑return decision had been taken and brought to the attention of the court of origin, it is irrelevant, for the purposes of issuing the certificate pursuant to Article 42, that that decision had been “suspended, overturned, set aside or, in any event, had not become res judicata or had been replaced by a decision ordering return, in so far as the return of the child had not actually taken place”.840 Furthermore, once an order implying the return of the child has been issued and certified by the State of origin under Article 42, it is not possible to seek non-recognition of that order in the requested State.841 Otherwise, the objective of the immediate return of the child would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child is wrongfully retained have been exhausted. The enforcement of a certified judgment cannot be refused in the Member State of enforcement on the ground that the court of the Member State of origin which handed down that judgment may have infringed Article 42.842 Similarly, it cannot be refused where, as a result of a subsequent change of circumstances, the enforcement might be detrimental to the best interests of the child.843 Such issues fall exclusively within the jurisdiction of the courts of the Member State of origin, and as such must be pleaded in the State of origin.

The “overriding mechanism” embodied in Articles 11(6)-(8) and 42 has attracted justifiable criticism.844 The scheme has proven difficult “because the custody proceedings do not take place in the Member State where the child is present and because the abducting parent is (p. 1163) often not cooperative. In particular, it is often difficult to hear the child”.845 In response to these concerns, major changes have been proposed by the European Commission in the ongoing review of Brussels II bis, including provisions for hearing the child,846 the requirement for full welfare inquiry before return orders are made,847 and the ability for the court in the State where the child is present to refuse enforcement of the return order made by the court of habitual residence, on the basis of public policy if the enforcement of the order is manifestly incompatible with the best interests of the child.848

(f)  Implications of the Human Rights Act 1998

(i)  Article 20 of the 1980 Hague Convention

Article 20 of the 1980 Hague Convention provides that: “The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.”849 Article 20 was not included in the provisions incorporated into the law of the United Kingdom by virtue of the Child Abduction and Custody Act 1985, for the reason that it would have been difficult to state with certainty at that time what were the fundamental principles of the law relating to the protection of human rights and fundamental freedoms.850 In the light of the Human Rights Act 1998, however, the position now is clearer. In Re D (A Child) (Abduction: Rights of Custody),851 the House of Lords pointed out that it was now unlawful for the court to act incompatibly with the human rights and fundamental freedoms guaranteed by the ECHR. Article 20 has thus been given domestic effect by a different route. The provision was, however, intended by the drafters of the Convention to be applied only exceptionally,852 and the requirement of a strict interpretation of Article 20 has generally been closely followed by the Contracting States.853

(ii)  European Court of Human Rights (ECtHR) jurisprudence

Since 2000, there has been a growing trend in abduction cases for bereft parents to lodge complaints under the European Convention on Human Rights. Claims typically are based upon alleged violation of the right to a fair trial (Article 6), and/or the right to respect for private and family life (Article 8).854 Whilst the object of Article 8 is to protect the individual against arbitrary interference by public authorities, there may also be positive obligations855 inherent in an effective “respect” for family life, which “may involve the adoption (p. 1164) of measures designed to secure respect for family life even in the sphere of relations between individuals”.856 Such measures include enforcement mechanisms aimed at protecting individuals’ rights, including the right of a parent to have measures taken with a view to his being reunited with the child, and an obligation upon the national authorities to take such measures. However, there is no absolute obligation upon national authorities to ensure contact between a child and his non-custodial parent following divorce.857 Moreover, any obligation to apply coercion must be limited since the interests, as well as the rights and freedoms, of all concerned must be taken into account, especially those of the child.858 The key question is whether those authorities have taken all necessary steps to facilitate contact as can reasonably be demanded in the special circumstances of each case.859 Time is of particular significance as there is always a risk that any procedural delay will result in the de facto determination of the issue before the court.860 The European Court of Human Rights has consistently ruled that once the authorities of a Contracting State to the 1980 Hague Convention have determined that a child has been wrongfully removed or retained, there is a duty incumbent upon them to take adequate and effective measures to secure the return of the child to his/her habitual residence, with due expedition. Reasonableness in terms of length of proceedings will be assessed by reference to the circumstances of the particular case, including its complexity, the conduct of the applicant and the relevant authorities, and what is at stake for the applicant.861 Failure to make due effort is likely to amount to violation of Articles 6 and/or 8. It was held in Sylvester v Austria862 that a change in the relevant facts exceptionally might justify the non-enforcement of a foreign order, but the court must be satisfied that the change was not brought about by the state’s failure to take all measures that reasonably could be expected to facilitate execution of the order.

The following failures on the part of the requested State in particular have been held as having amounted to the violation of the applicant’s rights under Article 8 or Article 6:863 a delay of nine months in enforcing a return order;864 a failure by domestic authorities to take sanctions against the abducting parent to enforce return of the child;865 a refusal to issue an international search and arrest warrant;866 a failure by domestic authorities to make adequate and effective efforts for the child’s return;867 an absence of satisfactory explanation for delay in obtaining expert opinion, or for dormant period during the 3 year proceedings;868 periods of inactivity by the domestic (p. 1165) authorities;869 an 18 months’ delay between lodging of request for return of child under the 1980 Hague Convention and the final decision;870 a failure of the domestic authorities to take timely and adequate measure for the applicant father to be reunited with his child;871 refusal of the domestic courts to grant a return order;872 the length of the return proceedings (17 months);873 an inadequate decision-making process under the domestic law;874 a lack of procedural protection for the applicant before the Constitutional Court in proceedings which led to the quashing of a return order previously issued by the ordinary courts;875 and a failure of the domestic authorities to act swiftly in return proceedings, combined with a failure of the available procedural framework to facilitate the expeditious and efficient conduct of the return proceedings.876

More recently, a number of complaints have been lodged by disconcerted abducting parents arguing that a return order or the enforcement of this order would violate both the abducting parent’s and the child’s Article 8 rights as it would amount to a disproportionate interference with their rights to respect for private and family life.877 It was the second of these complaints, Neulinger and Shuruk v Switzerland,878 that attracted significant attention among the commentators.879 This was not as much due to the decision itself but rather because of the comments made by the ECtHR which appeared to be suggesting that domestic courts should apply the child’s best interests analysis in return proceedings under the 1980 Convention—this approach being contrary to the underlying philosophy of the Convention.880 In particular, the ECtHR, sitting as a Grand Chamber, expressed the view that domestic courts were expected to engage in

[a]n in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and make a balanced and reasonable assessment of the respective interests of each person, with constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin . . . .881

The Court appeared to say that Hague Convention orders cannot be granted automatically and that the best interests of the child must be considered.882 A return order where the above procedure was not followed would conflict with Article 3(1) of the UNCRC or violate Article 8 of (p. 1166) the ECHR of the child or the abducting parent.883 Not surprisingly, the decision was greeted with concern as it is unclear how such an “in-depth examination” can truly be consistent with the summary return procedure envisaged by the 1980 Convention. Indeed, in Neulinger the ECtHR gave “the appearance of turning the swift, summary decision- making which is envisaged by the Hague Convention into the full-blown examination of the child’s future in the requested state which it was the very object of the Hague Convention to avoid”.884 The UK Supreme Court rejected the Neulinger test.885 In Re E (Children) (Abduction: Custody Appeal),886 the Court held that Neulinger had not intended to introduce any revision to well-established Convention principles, and refused to accept that abduction cases should now be approached differently at the domestic level. In particular, Baroness Hale and Lord Wilson opined:887

. . . in every Hague Convention case where the question is raised, the national court does not order return automatically and mechanically but examines the particular circumstances of this particular child in order to ascertain whether a return would be in accordance with the Convention; but that is not the same as a full blown examination of the child’s future.

Furthermore, as the Hague Convention was designed with the best interests of the child as a primary consideration, if applied properly, it is unlikely that the Article 8 rights of the child or either of the parents will be violated.888 Even though it is possible to envisage highly unusual cases where a return order could violate Article 8,889 it is “a far cry from the suggestion that article 8 ‘trumps’ the Hague Convention: in virtually all cases, as the Strasbourg court has shown, they march hand in hand”.890 The Supreme Court on two occasions called upon the ECtHR to reconsider its dicta in Neulinger.891 An opportunity arose for the Grand Chamber to revisit the requirement set out in Neulinger in the rehearing of the chamber judgment in X v Latvia.892 In its decision, the Grand Chamber replaced the requirement of an “in-depth” examination with the concept of an “effective” examination of any allegations made in connection with a refusal to return.893 The Grand Chamber also helpfully clarified when an examination will be considered “effective”. Namely, national courts have to consider any “arguable claims”894 against a return based on the exceptions to return contained in Articles 12, 13 and 20; and must give a “sufficiently reasoned opinion” regarding those claims to evidence that an effective examination of the issues has been carried out.895 Furthermore, the consideration must not be “automatic or stereotyped”896 and the exceptions to return (p. 1167) “must be interpreted strictly”.897 This new ECtHR approach is much more consistent with the summary return mechanism envisioned by the 1980 Convention, and, arguably, does not alter the way in which the English courts had approached the issue previously.

(ii)  Part II of the 1985 Act: the Council of Europe Convention898

This Convention governs the recognition and enforcement of decisions relating to custody, whether made by a judicial or administrative authority, in force in relation to children under sixteen.899 The Council of Europe Convention has not been widely used in the United Kingdom, and so there is very little authority on its construction and ambit.900 The Convention shall therefore not be recounted in detail in this chapter, and reference is made instead to the 14th edition of this book.901

(iii)  Permission to remove children from the jurisdiction902

Difficult tensions emerge in cases where one parent wishes to relocate with his/her child, against the wishes of another person having parental responsibilities.903 The proposed relocation might be internal to the United Kingdom, to another European Union Member State, or to a non-Member State country;904 and it might be temporary or permanent, exposing the child to varying degrees of upheaval and loss of the familiar.905 Relocation cases often bear common characteristics: “(a) the applicant is invariably the mother and the primary carer; (b) generally the motivation for the move arises out of her remarriage906 or her urge to return home;907 and (c) the father’s opposition is commonly founded on a resultant reduction in (p. 1168) contact and influence”.908 Section 13 of the Children Act 1989 provides that where a child arrangements order which sets out with whom the child concerned is to live is in force, no person may remove909 the child from the United Kingdom without either the written consent of every person who has parental responsibility for the child, or the leave of the court. Additionally, under section 8 of the 1989 Act, the English court can make a prohibited steps order, or impose conditions on a child arrangements order under section 11(7).

There is a clear link between relocation cases and abduction cases.910 In Payne v Payne, a case concerning a mother’s desire to return to her country of origin following the failure of her marriage, Thorpe LJ opined that, “if individual jurisdictions adopt a chauvinistic approach to applications to relocate then there is a risk that the parent affected will resort to flight”.911 Conversely, an order for return of the child to his habitual residence, following wrongful removal or retention, will not infrequently lead to an application to relocate being issued in that jurisdiction. Thorpe LJ stated that the judge in the second application must be free to carry out a fully independent function unfettered by the conclusion of the judge in the earlier return proceedings, and without any fear of breaching the principle of comity, for the functions of the two judges are quite different and will require an assessment of the circumstances as they are, rather than as they were.912

Equally, there is a clear conflict between the desire and ambitions of the relocating parent (recognised in the right of mobility in Article 2 of Protocol 4 to the ECHR),913 and the right of the other parent to respect for his/her private and family life (Article 8 of the ECHR).914 As Thorpe LJ remarked in Payne v Payne,915 however: “Once a family unit disintegrates the separating members’ separate rights can only be to a fragmented family life . . . the absent parent has the right to participation to the extent and in what manner the complex circumstances of the individual case dictate.”

The Court of Appeal, in Payne, carried out a review of relocation jurisprudence over a thirty-year period,916 and concluded that relocation cases have been consistently decided on the basis of two propositions: (a) although each member of the “fractured family” has rights to assert, the welfare of the child is the paramount consideration;917 and (b) refusing the (p. 1169) primary carer’s reasonable proposals for the relocation of her family life is likely to impact detrimentally on the welfare of dependent children,918 especially in cases where the applicant has forged a new family unit by marriage or other relationship. The court must evaluate factors such as the child’s emotional and psychological dependency upon the primary carer; the relationship between the child and the non-respondent parent; the relationship between the child and extended family, including siblings, grandparents and step-parents; the reasonableness of the proposals and motivation of the parent who wishes to relocate; and, perhaps most importantly of all, the likely effect of the refusal of the application upon the psychological and emotional stability of the parent who wishes to relocate. In assessing the reasonableness of the relocation proposal, Thorpe LJ has suggested the following discipline:919 (a) Is the applicant’s proposal genuine, ie not motivated by a selfish desire to reduce or terminate contact between the other parent and the child, and realistic, ie founded upon well conceived and well researched proposals?920 (b) Is the respondent parent’s opposition motivated by genuine concern for the future of the child’s welfare or is it driven by an ulterior motive? (c) What would be the impact upon the applicant parent of a refusal of a genuine and realistic proposal? (d) What does an overriding review of the child’s welfare as the paramount consideration indicate is best for the child? Whilst there is no presumption in favour of the applicant parent,921 the reasonable proposals of such a person having a residence order in respect of the child typically will be granted unless the court concludes that this is incompatible with the child’s welfare.922

The Payne principles were articulated with cases of permanent relocation in mind; the more temporary the proposed removal, the less regard should be had to the principles.923 Moreover, in Re B (Children),924 a case in which both parents had strong connections with other jurisdictions, the mother with Holland, and the father with Dubai, the judge was required to determine, removal from England being inevitable, which of two jurisdictions would better advance the children’s welfare,925 and so Payne, being factually distinct (the respondent in that case having resisted the application for removal of the children to New Zealand in order that they might stay within the jurisdiction of England and Wales) was distinguished.

(p. 1170) Over the recent years, there has been considerable criticism of Payne in both academic926 and judicial circles. In Re D (A Child),927 Wall LJ observed that the English approach to relocation paid too much attention to the wishes and feelings of the relocating parent and gave little consideration to the damage caused to the child by the loss of the relationship with the left-behind parent.928 Similarly, in Re AR (A Child: Relocation),929 Mostyn J opined:

. . . there is a strong view that the heavy emphasis on the emotional reaction of the thwarted primary carer represents an illegitimate gloss on the purity of the paramountcy principle. Moreover, some argue that it promotes selfishness and detracts from the importance of co-parenting. Some argue that on the birth of children parents are indentured to sacrifice throughout their minority, but that the one word that is missing from Payne is, in fact, sacrifice.930

Furthermore, in the view of Mostyn J, the Payne approach supplied a tendency which was “the almost invariable success of the application, save in those cases where it is demonstrably irrational, absurd or malevolent”.931

The significance of Payne was considered by the Court of Appeal in K v K (Relocation: Shared Care Arrangement)932 which, unlike Payne, concerned a shared care arrangement. This decision represented the first shift from the complete reliance on Payne. In particular, the Court rejected the view that Payne set out any presumption in deciding relocation cases,933 and held that the only principle to be extracted from Payne was the paramountcy of the child’s welfare.934 All the rest was guidance as to factors to be weighed in search of the welfare paramountcy.935 Thorpe LJ further highlighted that the Payne guidance was based on the premise that the applicant was the primary carer.936 Where each carer was providing a more or less equal proportion and one sought to relocate externally, the judge should exercise his discretion by applying the statutory checklist in section 1(3) of the Children Act 1989 rather than applying the approach suggested in Payne.937 The proposition to differentiate between relocation cases on the basis of the nature of the care arrangement in place was, however, not accepted by the majority. In the words of Black LJ, relocation cases should not be “bogged down with arguments as to whether the time spent with each of the parents or other aspects of the care arrangements” are such as to amount to a “primary care” or a “shared care” case.938 This approach was strongly endorsed by Munby LJ in Re F (A Child) (Permission to Relocate)939 where he noted: “The last thing that this very difficult area of family law requires is a satellite jurisprudence generating an ever-more detailed classification of supposedly different types of (p. 1171) relocation cases. Any move in that direction is, in my judgment, to be firmly resisted.”940 His Lordship held that, in every relocation case, the focus must be on the child’s best interests as the child’s welfare is paramount., though regard must also be had, where relevant and helpful, to the guidance given in Payne.941 In reinforcing the point that there should be no distinction between cases where there is a “primary” and a “shared” care arrangement, Munby LJ held that the Payne guidance was not to be confined to cases where the applicant was the primary carer; instead, it can be utilized in other types of relocation cases, if the judge considers it helpful and appropriate to do so.942 Finally, his Lordship reiterated that there were no presumptions in cases governed by s 1 of the Children Act 1989:943 “From beginning to end the child’s welfare is paramount, and the evaluation of where the child’s best interests truly lie is to be determined having regard to the ‘welfare checklist’ in s 1(3).”944

The principles set out in post-Payne case-law were helpfully summarized and presented as the presently governing principles for relocation applications by Mostyn J in Re TC and JC (Children: Relocation).945 Most recently, in Re F (A Child) (International Relocation Cases),946 the Court of Appeal held that Payne had to be read in the context of K v K (Relocation: Shared Care Arrangement)947 and Re F (A Child) (Permission to Relocate),948 and not instead of or in priority over them.949 The Court concluded that a “holistic evaluative analysis” was required, with the details of the analysis depending on the facts of the individual case.950

The Hague Conference on Private International Law has been involved in a debate about whether international relocation ought to be regulated at the international level;951 however, decided not to undertake the task as it was considered as a domestic rather than an international law problem.952 At present, there are two soft law instruments that seek to promote a more informal international approach to relocation: the Washington Declaration953 and the Council of Europe Recommendation on preventing and resolving disputes on child relocation.954

(p. 1172) (f)  Common law rules955

(i)  Recognition of foreign orders

Despite the recent legislative developments, the common law rules as to the recognition of foreign orders continue to be important. This is because the Child Abduction and Custody Act 1985 and its Conventions apply to a relatively restricted (though continually growing) number of countries. Thus the common law rules apply in the case of all orders (whether custody, guardianship or wardship orders) made in other “non-Convention” countries outside the United Kingdom; to any orders made in countries covered by the 1980 Hague Convention or by the European Convention but which do not fall within their definitions of “rights of custody”956 or “decisions relating to custody”;957 to orders made in a 1996 Hague Convention Contracting State which are outside the scope of the Convention;958 to orders made in a European Union Member State which are outside the scope of Brussels II bis;959 and to any orders made elsewhere in the United Kingdom which are not “Part I orders” within the meaning of the 1986 Act. The common law position is simple. No automatic recognition or enforcement is given to a foreign custody order.960 Arguments of comity or reciprocity, however potent they may be, are held to be outweighed by the principle that the welfare of the child is the paramount consideration of the English court in all proceedings concerned with the upbringing of the child or the administration of his property.961 Even though a custody order has been made by a foreign court, the English judge can still make such order as he thinks is in the best interest of the child;962 for “national status is merely one of the factors which the judge in exercising his discretion will take into consideration”.963

The Court of Appeal made it clear in Re F (A Minor) (Abduction: Custody Rights)964 that there are two contexts in which the court must consider the welfare of the child:

The first is the context of which court shall decide what the child’s best interests require. The second context, which only arises if it has first been decided that the welfare of the child requires that the English rather than a foreign court shall decide what are the requirements of the child, is what orders as to custody, care and control and so on should be made.965

Although, in deciding whether to order the immediate return of a child abducted from his habitual residence in a non-Convention country, the welfare of the child is the court’s paramount consideration, the Court of Appeal in Osman v Elasha966 made clear that the welfare principle is not an absolute standard: “What constitutes the welfare of the child must be subject to the cultural background and expectations of the jurisdiction striving to achieve it.”967 In particular, it is not for an English court to criticise the standards of, or paramount (p. 1173) principles applied by, the family justice system in such a country, except in exceptional circumstances, such as persecution or ethnic, sex968 or other discrimination.969 With regard to three boys abducted by their mother from the Sudan to England, the welfare principle in Osman had to be looked at in the context of Sudanese custom and culture, which applied Islamic law and which was familiar and acceptable to a practising Muslim family. The point was made by Baroness Hale of Richmond in Re J (A Child (Custody Rights: Jurisdiction)970 that: “In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child.” It is necessary that this realisation informs judicial policy with regard to the return of children abducted from “non-Convention” countries. If, however, as was the case in Re J, there is a genuine issue between the parents as to whether it is in the best interests of the child to live in England or in a non-Convention country, it must be relevant whether that issue is capable of being tried freely and fully in the courts of that country:

If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living [in England] or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause . . .; it may be a decisive factor.971

A leading common law authority is McKee v McKee:972

A husband and wife, American citizens, separated and agreed in writing that neither of them, without the permission of the other, would remove their son out of the USA. A year later the husband obtained a decree of divorce from a Californian court and an order awarding him the custody of the child and confirming the written agreement. About four years later, the same court, on the applications of both parties, awarded custody to the wife, whereupon the husband took his son to Ontario without the leave or knowledge of his wife. The wife thereupon took habeas corpus proceedings in Ontario. The trial judge, after a careful review of the circumstances, awarded custody of the child to the husband, but his decision was reversed by the Supreme Court of Canada.

The Privy Council restored the Ontario decision. The two charges levelled against the husband, that he had broken the agreement with his wife and had flouted the order of the Californian court, had been adequately considered by the trial judge, who, in the opinion of the court, was justified in concluding that in the light of the other circumstances the interests of the child would best be served by leaving him in the custody of his father. The order of the Californian court was a factor of great importance, but it was not decisive:

It is the law . . . that the welfare and happiness of the infant is the paramount consideration in questions of custody . . . To this paramount consideration all others yield. The order of a foreign court of competent jurisdiction is no exception. Such an order has not the force of a foreign judgment: comity demands not its enforcement, but its grave consideration. This distinction . . . rests on the peculiar character of the jurisdiction and on the fact that an order providing for the custody of an infant cannot in its nature be final.973

(p. 1174) Giving a foreign order “grave consideration” certainly does not prevent the English court from making a contrary order if the judge thinks it is in the best interests of the child to do so;974 but it must not be forgotten that the judge who made the first order will have had the advantage of seeing the parties and hearing cross-examination of witnesses.975 The court will be influenced by a variety of factors in deciding whether to make an order in terms similar to, or different from, those of the foreign order. If the foreign order was made some years ago, and the family circumstances have changed, the English order may well be in different terms and a further significant time factor is that the children will be older and their views more important.976

Attitudes towards the basic common law rule have changed over time,977 with the acceptance of statutory provisions within the United Kingdom and elsewhere of Conventions providing for the speedy return of children. For a time, there was a view that the principles of the Hague Convention should be applied, by analogy, where there has been wrongful removal of a child from a country not, at the relevant time, a party to that Convention.978 This approach, however, has been declared wrong by the House of Lords in what now is the leading case on “non-Convention” child abduction, Re J (A Child) (Custody Rights: Jurisdiction).979 An issue of principle arose in Re J regarding the proper approach to be taken in applications for the summary return of children to “non-Convention” countries. Baroness Hale of Richmond directed that there is no warrant, either in statute or authority, for the principles of the Hague Convention to be extended or applied by analogy to countries which are not parties to it.980 Rather, where a non-Convention country is involved, a trial judge must focus on the individual child in the particular circumstances of the case:

Hence, in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration . . . the child’s welfare is paramount and the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case.981

(p. 1175) There are decisions under the common law rules, just as there are under the 1980 Hague and Council of Europe Conventions, involving cases where children have been brought within the jurisdiction of the English courts by one parent against the wishes of the other, often in flagrant contempt of the order of a foreign court;982 though in other cases the “kidnapping” has been done before there has been a foreign order,983 sometimes to frustrate foreign proceedings.984 These cases raise the issue of whether the English court should, despite any foreign custody order, examine the merits of the case concerning the child or make a summary order and send the child back to the jurisdiction from which he has come. Re F (A Minor) (Abduction: Custody Rights)985 establishes that the first task for the court in assessing the welfare of the child is to decide whether the return of the child to the country from which it has been wrongfully taken should be ordered. It was argued on behalf of the bereft father in Re J (A Child) (Custody Rights: Jurisdiction)986 that there should be a “strong presumption” that it is “highly likely” to be in the best interests of a child, subject to unauthorised removal or retention, to be returned to his country of habitual residence so that any issues which remain can be decided in the courts there.987 Such an approach, however, is open to the objection that, “it would come so close to applying the Hague Convention principles by analogy that it would be indistinguishable from it in practice”.988 Instead, Baroness Hale of Richmond stated that: “The most one can say . . . is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. But the weight to be given to that proposition will vary enormously from case to case.”989 Important variables are the degrees of connection of the child with each country (including his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education), and the length of time he has spent in each country. The extent to which it is relevant that the legal system of the other country differs from that of England will depend on the facts of the particular case.990 “Our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance.”991 The evaluation and balancing of these factors is a matter for the trial judge: “only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere”.992 Only in the relatively rare case of immediate return not being ordered, will the English court decide what order, in the best interests of the child, to make under section 8 of the Children Act 1989.993

(p. 1176) (ii)  Effect of a foreign order in England

Foreign custody and guardianship orders may not be devoid of effect in England even though, as we have seen, there are no rules at common law regulating their recognition and enforcement. Whilst there is no clear judicial authority in the case of custody orders, the Law Commission has suggested that “in practice a third person, such as an English headmaster, would be held to have acted properly if he acted on the assumption that a custody order made [elsewhere] was effective in England and Wales”.994

There is some old authority in relation to foreign guardianship orders which supports the idea that effect will be given to such an order in England as it affects third parties, even though the English courts will remain free to make their own order.995 A major question which arises is whether the foreign guardian is entitled to exercise, in England, those rights over the person and property of his ward that are recognised by English internal law. It is clear in the first place that, with or without an English order, his powers are limited to those recognised by English internal law.996 This rule is in sharp contrast to the practice adopted in civil law countries, where it is admitted in general that a tutor appointed under the personal law of the child enjoys the same rights over his ward’s movable property in other countries as he possesses in the country of his appointment. The problem, then, is whether a foreign guardian is justified if he acts in England within the limits of English internal law. The answer would appear to be that he occupies in effect the same position as a person appointed in England as the child’s guardian. What he does within the limits of English internal law will be recognised as validly done provided that his authority has not been challenged;997 but if his position or his authority is challenged, then, as in the case of an English guardian, it lies within the discretion of the court to decide whether he should be replaced by another person or whether his acts or proposed acts should be approved. Perhaps the major difference in this respect between a foreign and an English guardian is that the court would be more ready to displace the former than the latter.998

So, a foreign guardian whose authority was unchallenged in England would act properly if he took the child abroad, as he would be doing no more than an English guardian could do in exercising parental responsibility for the child.999 Conversely, the English courts have recognised a foreign guardian and ordered that his ward, the young Prince Rainier of Monaco, at school in England, be delivered up to him.1000

With regard to property rights, English practice has also shown a tendency to recognise the right of a foreign guardian to claim movable property in England.1001 Again, however, if his right is challenged it is at the discretion of the court whether, having regard to the interests of the child, the property shall be delivered to the guardian or to some other person.1002 The (p. 1177) question generally arises where money is due to a foreign child under an English settlement, will or intestacy. Where the money has not been paid into court, it has been said that the trustees are legally discharged if they make payment to the foreign guardian and take his receipt.1003 Where the money is in court, then the court is entitled, but not compelled, to order payment to the guardian, and whether it does so or not depends on whether it is satisfied that the property will be properly administered for the child’s benefit.1004

5.  Other Developments

Council of Europe Convention on Contact concerning Children

On 15 May 2003, the Council of Europe Convention on Contact concerning Children1005 opened for signature. The Convention entered into force on 1 September 2005, and to date there have been nine ratifications.1006 As it was with the 1996 Hague Convention, European Union Member States are no longer free to conclude the 2003 Convention on their own, since its provisions affect Union rules as contained in Brussels II bis, meaning that competence is shared between the Union and the Member States.1007

The Convention aims at reinforcing the fundamental right of children and their parents and other persons having family ties with the child to maintain contact on a regular basis, and seeks to “improve the machinery for international co-operation especially as regards transfrontier access to children in order to establish safeguards for the return of children after a period of access”.1008 The risk of unnecessary duplication and overlap with the provisions of Brussels II bis, the 1980 Hague Convention, the 1980 Council of Europe Convention and the 1996 Hague Convention, is obvious, but nevertheless the view has been advanced that the 2003 Convention will “contribute to the realisation of the aims underlying existing and future Community rules in the field of recognition and enforcement of judgments in the area of parental responsibility”.1009 The preamble to the 2003 Convention states that, “an additional instrument is necessary to provide solutions relating in particular to transfrontier contact concerning children”.1010 Given the proliferation of instruments in this field of law, it is scarcely possible to justify this statement.

“Contact” is defined in the Convention as including direct and indirect contact with a child.1011 In particular, it includes “(i) the child staying for a limited period of time with or (p. 1178) meeting a person1012 . . . with whom he or she is not usually living; (ii) any form of communication between the child and such person; (iii) the provision of information to such a person about the child or to the child about such a person”.1013 “Contact”, arguably, is broader than “rights of access” referred to in Brussels II bis,1014 and use of the expression is intended to demonstrate that children are the holders of certain rights.1015

Article 20(1) of the Convention provides that it shall not prejudice the application of the 1980 Hague Convention, the 1980 Council of Europe Convention1016 or the 1996 Hague Convention.1017 Moreover, by virtue of Article 20(3), if the European Union and its Member States should accede to/ratify the 2003 Convention, in their mutual relations those Member States would give preference to the application of Brussels II bis, meaning that the 2003 Convention would apply only in so far as there is no Union rule to govern the particular issue arising.

The 2003 Convention is merely a “good practice guide”. It does not lay down rules of jurisdiction, or a mechanism for the recognition and enforcement of contact orders. Rather, it is a “medium for promoting co-operation and consistency of practice”.1018 Since the procedure for recognition and enforcement of orders has been laid down already in other instruments operating in the field, the advantages to be gained from ratification of yet another instrument are not obvious. Ratification of the Convention is more likely to confuse than to enhance regulation of contact concerning children.1019 It is to be hoped, therefore, that political pressure alone will not compel the United Kingdom to become a state party to this Convention.

Footnotes:

1  See North (1990) I Hague Recueil 9, 127 et seq; and Lowe and Nicholls, International Movement of Children: Law, Practice and Procedure (2016).

2  So called “child arrangements order”; Children Act 1989, s 8, as amended by the Children and Families Act 2014, Sch 2(1), para 3, and Pt 2, s 12(3).

3  See Law Com No 138 (1985), Part II.

4  Ibid, paras 2.5, 2.32, 2.48, 2.52.

5  McKee v McKee [1951] AC 352 at 365.

6  Law Com No 138 (1985), para 1.9.

7  Eg Johnstone v Beattie (1843) 10 Cl & Fin 42; Babington v Babington 1955 SC 115; Hoy v Hoy 1968 SC 179; though courts later tried to avoid such conflicts: Re H [1966] 1 WLR 381; Re L [1974] 1 WLR 250; Campbell v Campbell 1977 SLT 125; Thomson, Petitioner 1980 SLT (Notes) 29; Girven, Petitioner 1985 SLT 92.

8  See de Boer [2002] XLIX NILR 307.

9  Amended by the Family Law Act 1986, s 65, the Children Act 1989, Sch 12, paras 37–40, Sch 15, the Adoption and Children Act 2002, Sch 3, para 42, and the Children and Families Act 2014, Sch 2, Pt 2, para 47.

10  Family Law Act 1986, ss 33–37 (in respect of s 33, Re G (Children) (Residence: Same Sex Partner) [2006] EWCA Civ 372, [2006] 2 FLR 614); Children Act 1989, s 13; Practice Direction (Disclosure of Addresses: 1989) [1989] 1 WLR 219.

11  Practice Direction (Minor: Preventing Removal Abroad) [1986] 1 WLR 475.

12  References to the 1986 Act are to the Act as later amended, most significantly by the Children Act 1989, Schs 13, 15 and by SI 1991/1723.

13  Law Com No 138 (1985).

14  OJ 2000 L 160/19.

15  Based upon the Brussels II Convention of 28 May 1998 (never implemented) on the same subject, in respect of which, see Borras, “Explanatory Report on the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters” (OJ 1998 C 221/27).

16  OJ 2003 L 338/1. See also Practice Guide for the Application of the Brussels IIa Regulation (2014) (“Practice Guide”).

17  See The European Communities (Matrimonial Jurisdiction and Judgments) Regulations, SI 2001/310; and The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations, SI 2005/265.

18  Eg 1961 Hague Convention concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors (to which the United Kingdom is not a party) and 1993 Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (to which the United Kingdom is a party: infra, p 1206).

19  Given force of law in the United Kingdom by the Child Abduction and Custody Act 1985, Sch 1; infra, p 1134.

20  In the United Kingdom, the Convention entered into force on 1 November 2012; infra, p 1102. See also Lagarde, Explanatory Report on the 1996 Hague Child Protection Convention (1996) (“Lagarde, Explanatory Report”); and Practical Handbook on the Operation of the 1996 Hague Child Protection Convention (2014) (“Practical Handbook”).

21  Otherwise known as the “Luxembourg Convention”, and given force of law in the United Kingdom by the Child Abduction and Custody Act 1985, Sch 2.

22  The United Kingdom is not yet a party to this Convention; infra, p 1176.

23  The area has been described by Thorpe LJ as a “treaty jungle”: Re G (Children) (Foreign Contact Order: Enforcement) [2003] All ER (D) 144 at [32].

24  The “child arrangement orders” have replaced the “residence” and “contact” orders. See the Children Act 1989, s 8(1), as amended by the Children and Families Act 2014, Pt 2, s 12.

25  Under the Children Act 1989, ss 9–11.

26  1989 Act, s 8(3), (4). The term “family proceedings” refers to both private and public law proceedings. Lowe and Douglas, Bromley’s Family Law, p 480.

27  The Children Act 1989, s 8(3)(b), (4); namely Parts I, II, IV; Matrimonial Causes Act 1973; Schs 5 and 6 to the Civil Partnership Act 2004; Adoption and Children Act 2002; Domestic Proceedings and Magistrates’ Courts Act 1978; Matrimonial and Family Proceedings Act 1984, Part III; Family Law Act 1996; and ss 11 and 12 of the Crime and Disorder Act 1998.

28  The Children Act 1989, s 8(3)(a).

29  Ibid, ss 5, 6.

30  Because made under Part I of the 1989 Act.

31  As amended in particular by the Children Act 1989, and by the European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations, SI 2005/265, regs 8–18.

32  Family Law Act 1986, s 7(a); though under the Children Act 1989, s 9(7) such orders (other than one varying or discharging an existing order) will only be made in relation to children of 16 or over in exceptional cases.

33  Law Com No 138 (1985), para 3.10.

34  Chapters II, III and IV respectively of Part I. There is also power under s 43 of the 1986 Act to extend Part I by Order in Council to the rest of the British Isles and to any colony and, as has been seen, this has been done in the case of the Isle of Man: SI 1991/1723.

35  Ss 2, 2A and 3.

36  Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160/19). See The European Communities (Matrimonial Jurisdiction and Judgments) Regulations, SI 2001/310. For detail on the origins of Brussels II, see McEleavy (2002) 51 ICLQ 883 at 888, and Crawford and Carruthers, paras 14-09–14-10. On the impact of Brussels II on the 1986 Act, see Lowe [2002] Fam Law 39.

37  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (OJ 2003 L 338/1). See The European Communities (Jurisdiction and Judgments in Matrimonial and Parental Responsibility Matters) Regulations, SI 2005/265. See also Practice Guide (the Practice Guide is not legally binding and does not prejudge any opinion given by the CJEU or decision issued by national courts concerning interpretation of the Regulation); Boele-Woelki and Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (2007); McEleavy (2002) 51 ICLQ 883, and (2004) 53 ICLQ 503; Magnus and Mankowski (eds), European Commentaries on Private International Law: Brussels II bis Regulation (2012); Kruger and Samyn (2016) 12 J Priv Int L 132; Commission Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (COM (2016) 411 final 30 June 2016) (“Commission Proposal for the Recast of Brussels II bis, COM (2016) 411 final 30 June 2016”); and Beaumont, Trimmings, Danov and Yüksel (eds), Cross-Border Litigation in Europe (2017, forthcoming). With regard to transitional provisions, see Art 64, M v H (Custody: Residence Order), 27 July 2005 (unreported) (Fam Div), and W v W (Foreign Custody Order: Enforcement) [2005] EWHC 1811.

38  See Brussels II, Recital (6).

39  See Borras, “Explanatory Report on the Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters” (OJ 1998 C 221/27).

40  See Practice Guide, para 3.1.

41  For a detailed analysis of the 1996 Hague Convention, see infra.

42  For details of the rules of jurisdiction applying prior to 1 March 2001, see the 13th edn of this book (1999) p 858 et seq.

43  As regards courts in England and Wales. See s 1(1)(b) as regards orders made by a court in Scotland, and s 1(1)(c) and (e) as regards orders made in Northern Ireland.

44  1986 Act, s 1(1)(a).

45  Ibid, s 1(1)(aa).

46  Ibid, s 1(1)(ab).

47  Ibid, s 1(1)(ac).

48  Ibid, s 1(1)(d).

49  An order made by a court in England under the Children Act 1989, s 8, other than an order varying or discharging such an order: 1986 Act, s 1(1)(a).

50  Infra, p 1106.

51  Infra, p 1107.

52  See Re J (A Child) (1996 Hague Convention: Morocco) [2015] EWCA Civ 329, per Black LJ, at [37]–[40] (overturned on appeal on other points: Re J (A Child) (1996 Hague Convention: Morocco) [2015] UKSC 70). See also Gration et al, paras 1.28–1.36.

53  See Practice Guide, para 8. See also the 1996 Hague Convention, Art 52 which deals with the relationship between the 1996 Convention and other instruments; and Practical Handbook, para 12.7.

54  See infra, pp 1125–6.

55  See Practice Guide, para 8.3.3.

56  See supra, n 49.

57  See also Commission Proposal for the Recast of Brussels II bis, COM (2016) 411 final 30 June 2016.

58  Brussels II, Recital (11).

59  Brussels II bis, Recital (5).

60  Ibid, Art 2(7). Cf 1996 Hague Convention, Art 1(2), infra, pp 1102–3.

61  Cf 1996 Hague Convention, Art 3, infra, pp 1102–3.

62  To be interpreted autonomously: Re C (Case C-435/06) [2007] ECR I-10141.

63  Brussels II bis, Art 1(1)(b).

64  Defined in Art 2(9) as rights and duties relating to the care of the person of a child, and in particular the right to determine the child’s place of residence. See Case C-400/10 PPU, J McB v LE [2010] ECR I-08965—rights of custody of an unmarried father, see infra, p 1138.

65  Defined in Art 2(10) as including in particular the right to take a child to a place other than his habitual residence for a limited period of time.

66  Art 1(2)(e).

67  See Case C-435/06, C [2007] ECR I-10141, at [34] and [50]; Case C-523/07, Proceedings Brought by A [2009] ECR I-02805, at [24] and [27]–[29]; Case C-92/12, Health Service Executive v SC and AC, [2012] 2 FLR 1040, at [60] and [61]; and Case C-428/15, Child and Family Agency v J. D., [2016] All ER (D) 24 (Nov), at [33].

68  Case C-92/12, Health Service Executive v SC and AC, [2012] 2 FLR 1040.

69  Brussels II bis, Recital (9). Eg, the Regulation applies in all cases where a child’s parents are in dispute as regards the administration of his property. Measures relating to the child’s property which do not concern the protection of the child continue to be governed by the Brussels I (Recast) Regulation, supra, Chapter 11.

70  Case C-92/12, Health Service Executive v SC and AC, [2012] 2 FLR 1040.

71  Cf 1996 Hague Convention, Art 4, infra, p 1103.

72  The establishment of parenthood is a different matter from the attribution of parental responsibility: Recital (10). See L v C (Applications by a Non-Biological Mother) [2014] EWFC 1280.

73  See infra, Chapter 27.

74  See supra, Chapter 24.

75  See infra, Chapters 38 and 36 respectively.

76  Brussels II bis, Art 1(3).

77  Cf 1996 Hague Convention, Art 2. See, infra n 168. But see Commission Proposal for the Recast of Brussels II bis, COM (2016) 411 final 30 June 2016, p 21.

78  Supra, pp 955–6.

79  Cf 1996 Hague Convention, Art 5, infra, pp 1103–4.

80  Art 9 (continuing jurisdiction of the child’s former habitual residence); Art 10 (jurisdiction in cases of child abduction); and Art 12 (prorogation of jurisdiction).

81  Brussels II bis, Recital (12).

82  See, for detailed examination, supra, p 175 et seq. Also Bogdan, “The EC Treaty and the Use of Nationality and Habitual Residence as Connecting Factors in International Family Law”, Pertegas, “Nationality and Habitual Residence: Other Connecting Factors in European Private International Law” in Meeusen, Pertegas, Straetmans and Swennen (eds), International Family Law for the European Union (2007); and Lowe and Douglas, Bromley’s Family Law, pp 1040–5.

83  See, for background, Borras, Explanatory Report, para 32.

84  Practice Guide, para 3.2.3.1.

85  Case C-523/07, Proceedings Brought by A [2009] ECR I-02805, at [35]; Case C-497/10 PPU, Mercredi v Chaffe [2010] ECR I-14309, at [45]; and Case C-376/14 PPU C v M [2014] All ER (D) 160 (Oct), at [50].

86  Case C-523/07, Proceedings Brought by A, at [44]; Case C-497/10 PPU, Mercredi v Chaffe, at [47]; and Case C-376/14 PPU C v M, at [51].

87  Case C-497/10 PPU, Mercredi v Chaffe, at [52].

88  Ibid, at [55].

89  Case C-523/07, Proceedings Brought by A, at [44]; and Case C-376/14 PPU C v M, at [52].

90  Case C-497/10 PPU, Mercredi v Chaffe, at [56].

91  Case C-523/07, Proceedings Brought by A, at [40]; Case C-497/10 PPU, Mercredi v Chaffe, at [50]; and Case C-376/14 PPU C v M, at [52].

92  Case C-523/07, Proceedings Brought by A, at [37] and [42]; Case C-497/10 PPU, Mercredi v Chaffe, at [47]; and Case C-376/14 PPU C v M, at [51].

93  In the Matter of A (Children) [2013] UKSC 60; Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75; In the Matter of LC (Children) [2014] UKSC 1; AR v RN [2015] UKSC 35; and In the Matter of B (A Child) [2016] UKSC 4. See also Re H (Children) (Jurisdiction: Habitual Residence) [2014] EWCA Civ 1101. See eg Schuz (2014) 26 CFLQ 342; Williams [2014] IFL 84; Blackburn [2014] IFL 8; Walsh [2016] Fam Law 143; and Williams et al [2016] IFL 239.

94  [2013] UKSC 60.

95  Ibid, at [54]. (Lords Wilson, Reed and Toulson agreed with Lady Hale. Lord Hughes, who dissented in part, nevertheless, agreed with this passage, at [81]).

96  Re KL (Abduction: Habitual Residence: Inherent Jurisdiction) [2013] UKSC 75, at [19].

97  As opposed to a parental intent in relation to habitual residence as a legal concept. Ibid, at [23].

98  Ibid.

99  In the Matter of LC (Children) [2014] UKSC 1, at [37].

100  Ibid, at [60].

101  Ibid, at [37] and [61].

102  Re H (Children) (Jurisdiction: Habitual Residence) [2014] EWCA Civ 1101, at [34].

103  AR v RN [2015] UKSC 35, at [21].

104  Ibid.

105  Ibid, at [16] and [21].

106  In the Matter of A (Children) [2013] UKSC 60, at [58].

107  In the Matter of B (A Child) [2016] UKSC 4, at [45].

108  Ibid, at [46].

109  Ibid, at [45].

110  Re V (Abduction: Habitual Residence) [1995] 2 FLR 992; In the Marriage of R and S S Hanbury-Brown (1996) 20 Fam LR 334; Cameron v Cameron 1996 SLT 306. Rarely will a child be without an habitual residence, though see the unusual circumstances of W v H (Child Abduction: Surrogacy) (No 1) [2002] 1 FLR 1008.

111  Re A (Abduction: Habitual Residence) [1998] 1 FLR 497.

112  [2001] EWCA Civ 873, [2001] 2 FLR 1288, considered supra, p 958. But contra Marinos v Marinos [2007] EWHC 2047 (Fam), per Munby J, at [43].

113  Ikimi v Ikimi, above, per Thorpe LJ, at [35]. His Lordship favoured a liberal rather than restrictive approach to the determination of habitual residence, whilst noting that one consequence of liberality might be forum shopping.

114  Marinos v Marinos [2007] EWHC 2047 (Fam), per Munby J, at [43]; supra, p 959.

115  Practice Guide, para 3.2.3.3.

116  [2007] EWHC 2047 (Fam).

117  Practice Guide, para 3.2.3.3. Cf 1996 Hague Convention, infra, p 1104. See also Commission Proposal for the Recast of Brussels II bis, COM (2016) 411 final 30 June 2016, pp 22 and 36—proposal for the abandonment of the principle of perpetuatio fori in the context of Brussels II bis.

118  There is no equivalent provision in the 1996 Convention.

119  Art 9 presupposes that the child in question has attained a new habitual residence within only three months of arriving in the new Member State. See criticism by McEleavy (2004) 53 ICLQ 503 at 508.

120  See also Arts 40 and 41, infra, pp 1129–30.

121  Art 9(2).

122  Practice Guide, para 3.2.4.1. However, “Article 9 does not prevent a holder of parental responsibility who has moved with the child to the ‘new’ Member State, from seising the courts of that Member State on any other question of parental responsibility during the three-month period following the move.” Ibid, para 3.2.4.2.7.

123  Cf 1996 Hague Convention, Art 7, infra, pp 1104–5.

124  Infra, pp 1157–8.

125  Cf 1996 Hague Convention, Art 10, infra, p 1105. See Commission Proposal for the Recast of Brussels II bis, COM (2016) 411 final 30 June 2016, p 22.

126  Supra, pp 955–6. See C v FC (Brussels II: Freestanding Application for Parental Responsibility) [2001] 1 FLR 317.

127  Cf Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10—the Court was divided as to whether acceptance of jurisdiction had to take place at the commencement of the proceedings, or could take place at any time thereafter providing that the court was already seised. This issue, however, did not need to be resolved as all parties accepted that there had been unequivocal acceptance both before and after the proceedings began.

128  The Practice Guide explains that: “No distinction was intended by the drafters between the term ‘superior interests of the child’ [Art 12(1)(b)] . . . and the term ‘best interests of the child’ [Art 12(3)(b)] . . . Versions of the Regulation in other languages employ an identical wording in both paragraphs.” (para 3.2.6.2). See also Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, per Lady Hale, at [36] and Lord Collins, at [50].

129  Eg Re ML and AL (Children) (Contact Order: Brussels II Regulation) (No 1) [2006] EWHC 2385 (Fam), [2007] 1 FCR 475; Bush v Bush [2008] EWCA Civ 865; R-S (Contact: Jurisdiction) [2008] 2 FLR 1741; and AP v TD (Relocation: Retention of Jurisdiction) [2010] EWHC 2040 (Fam). Cf VC v GC (Jurisdiction: Brussels II Revised Art 12) [2012] EWHC 1246 (Fam).

130  See, in relation to Brussels II, Art 3(3), Re A (A Child) (Foreign Contact Order: Jurisdiction) [2003] EWHC 2911, [2004] 1 FLR 641.

131  Eg the application for divorce, etc has been withdrawn.

132  Art 12(3).

133  See, in relation to operation of Art 66, infra, pp 1100–1.

134  See supra, n 128, regarding the difference in wording between Art 12(1)(b) and (3)(b).

135  Eg Re W (Jurisdiction: Mirror Order) [2011] EWCA Civ 703; Re C [2012] EWHC 907 (Fam); Re ED (Jurisdiction: Undertaking to Return) [2014] EWHC 2731 (Fam); and Re Z (A Child) [2014] EWHC 2147 (Fam). Cf B v B (Relinquishment of Jurisdiction: Brussels II Revised Art 12) [2012] EWHC 1924 (Fam); and Re LR (A Child) [2014] EWCA Civ 1624.

136  Case C-656/13, L v M, at [52].

137  Ibid, at [59].

138  Case C-436/13, E v B, at [50]. See Pedreno et al [2015] IFL 35. See also Re S (Jurisdiction: Prorogation) [2013] EWHC 647 (Fam), at [45].

139  Ie a “third State”.

140  Art 12(4).

141  [2009] UKSC 10. See also Re Z (A Child) [2014] EWHC 2147 (Fam).

142  Re I (A Child) (Contact Application: Jurisdiction) [2009] UKSC 10, per Lady Hale, at [20].

143  Ibid, at [18].

144  Cf 1996 Hague Convention, Art 6, infra, p 1105.

145  Eg Bridgend CBC v GM [2012] EWHC 3118 (Fam); and Re F (Habitual Residence: Peripatetic Existence) [2014] EWFC 26. Cf Coventry City Council v A [2014] EWHC 2033 (Fam).

146  Art 13(2).

147  Discussed infra, pp 1113–16.

148  Eg S v D 2007 SLT (Sh Ct) 37; and Re ESJ [2008] NI Fam 6, at [9]; and Re PC (A Child) (Brussels II Revised: Jurisdiction within United Kingdom) [2013] EWHC 2336 (Fam), at [16].

149  Infra, pp 1117–19.

150  Added by SSI 2005/42, reg 4(3) and amended by SSI 2010/213, Sch 1, para 4.

151  2007 SLT (Sh Ct) 37, criticised by Maher 2007 SLT (News) 117.

152  Since, in the instant case, the child no longer had a substantial connection with Scotland, the “robust conditions” of Art 12(3) were not satisfied.

153  See, eg, Lowe [2004] IFLJ 205; Morris, p 293; and Crawford and Carruthers, para 14–36. This is in line with the Scottish position, in terms of the Family Law Act 1986, s 17A, added by SSI 2005/42, in respect of Chapter III of the 1986 Act (Jurisdiction of Courts in Scotland).

154  Maher 2007 SLT (News) 117.

155  Crawford and Carruthers, para 14–36.

156  2007 SLT (Sh Ct) 37.

157  See also T v T (Jurisdiction) [2012] EWHC 2877 (Fam)—Brussels II bis, Arts 8, 12(3) and 15, considered as applicable prima facie.

158  [2008] NI Fam 6.

159  [2012] EWCA Civ 592.

160  Ibid, per McFarlane LJ, at [10]. Re W-B was followed in Re PC (A Child) (Brussels II Revised: Jurisdiction within United Kingdom) [2013] EWHC 2336 (Fam)—transfer of jurisdiction from England to Scotland; and Re C (Children) [2015] EWHC 2082 (Fam)—recognition and enforcement of a Scottish judgment in England.

161  See generally Lagarde, Explanatory Report (1996); and Practical Handbook. Also Detrich [1996] Hague Yearbook of Int L 77; Lagarde (1997) 86 Rev Crit Dr Int Priv 217; Clive [1998] Jur Rev 169; Nygh (1998) 45 Neth Int L R 1; Clive [2002] Fam Law 131; Lowe and Nicholls, The 1996 Hague Convention on the Protection of Children (2012); Pirrung [2012] IFL 70; and Gration et al, International Issues in Family Law: The 1996 Hague Convention on the Protection of Children and Brussels IIa (2015).