Habitual residence and the Court's jurisdiction to take protective measures in respect of children in the UK

General  |    |  by Creighton Partners

The first, Re SS (Habitual residence: Transfer of jurisdiction) [2014] EWHC 3338 (Fam), concerned a young person, SS, who was 15 years old and Romanian by birth. She had lived most of her life in Spain with her mother and siblings before appearing to have been the victim of child trafficking and brought to the UK in early 2013.

Care proceedings were initiated by the Local Authority on 29 April 2014 and SS was made the subject of Interim Care and Secure Accommodation Orders.

In light of the background and the circumstances of SS coming to the UK, a question was raised about whether the English Court had jurisdiction to conduct the proceedings.

The matter came before Cobb J for determination of:
i) where SS was habitually resident at the time the court was seized; and
ii) if the Court concluded that SS was habitually resident in England, whether the Court should nonetheless exercise its powers to request the court of either Spain or Romania to assume jurisdiction on the basis of SS's connections with both countries.

The Judge found that SS had, by the time of the Judgment, acquired the relevant degree of integration into life in England to find that she was habitually resident here, citing the facts that since April 2014 she had a settled, structured life in the care of the Local Authority; she appeared to have formed a trusting and loving relationship with her foster carer with whom she had been living since July 2014 and to whom she referred as "Mum"; she had embarked on an education in this country and had a few friends here; she perceived England as her home and had made it clear that she "emphatically" wished to remain here.

However, for the purpose of Brussells II Revised, habitual residence has to be tested at the time the Court was seized of the matter- ie 29 April 2014. The Judge considered that, although SS had not integrated into life in England in the "conventional or traditional sense that a 15 year old may be expected to" and did not "readily fall to be considered as 'integration ... in a social and family environment'", it did not mean that she had not acquired a habitual residence in this jurisdiction: "The fact that SS's life was in many respects unconventional, occasionally lawless and generally unstructured did not mean that she had not in her own way - and to a significant degree - integrated into that society in which she lived in England. That someone lives on the fringes of society ... does not mean, in my judgment, that they are not members of that society. Nor does it therefore mean that they cannot acquire habitual residence in the country in which they have settled and made their home."

The Judge went on to say that he was satisfied that even if SS was not habitually resident in England on the relevant date, she was not habitually resident in either Spain or Romania. While SS has connections with Spain and Romania, the English Courts were better placed to hear the case and it was in the best interests of SS that the English courts should determine her future. It was also noted that the Romanian authorities did not actively seek a transfer of the proceedings.

The second, LBL -v- E [2014] EWHC 3597 (Fam), concerned 4 children, although the question of jurisdiction arose solely in relation to the youngest 2, Tr and Ty.

The children's father came to live in the UK from Nigeria and became a British citizen in 2013. Tr and Ty's mother was a Nigerian citizen whose habitual residence was in Nigeria. The parents were married but maintained two separate residences in London and Nigeria, spending periods of time together with the children in either country.

Tr was born in England but returned with her mother to Nigeria 2 months later and remained there for the greater part of her life. Ty was born in England immediately following the commencement of care proceedings and had remained in this country since.

Care proceedings were commenced on 4 March 2014 following disclosures by the children of physical chastisement and observed injuries to them. The three oldest children were removed by the police on 3 March and placed in foster care. Ty was born on 4 March and Emergency Protection Orders were made in respect of all four children on 5 March. On 7 March, Ty and her mother were discharged from hospital to a mother and baby foster placement, where Tr later joined them.

Following an application by the mother for the Court to consider the issue of jurisdiction, the matter came before the High Court. The key issues relating to jurisdiction were:
(i) whether Tr and Ty were habitually resident in the UK, Nigeria or had no habitual residence;
(ii) whether the Court had jurisdiction to continue to conduct a fact finding hearing in respect of Tr and Ty and make interim or other orders concerning them;
(iii) whether, if the Court lacked substantive jurisdiction, the court could still conduct a fact finding hearing;
(iv) whether there was any alternative jurisdiction based on nationality, the inherent jurisdiction or some other factor.

In essence, did the Court have substantive jurisdiction or temporary and protective jurisdiction in respect of Tr and Ty?

The Nigerian High Commission were represented by Counsel at the hearing and put forward the position that the Federal Republic sought the return of Tr and Ty to Nigeria and asserted legal jurisdiction in Nigeria over the children on the basis of their habitual residence and nationality.

The Judge accepted the position put forward on behalf of the children by Ms Bazley QC leading Daisy Hughes, instructed by Creighton & Partners, finding that the children's background was not clear. Few details were provided by D about Tr's life and integration into a social and family life in Nigeria. The Judge had "no sense of her home, her daily life and who cares for her when her mother is working and at college."

The Judge reiterated that it is not for a Local Authority to establish jurisdiction; it is a matter for the Court. It is a requirement of all parties to consider the question of jurisdiction at the outset of proceedings. Courts must set out in their Judgments the basis on which it has accepted or rejected jurisdiction and on what basis.

The Judge found that Tr's habitual residence could not be determined as she had connections with both jurisdictions and has been integrated into family and social life in both England and Nigeria.

The Judge also found that Ty's habitual residence could not be determined. Ty had never been to Nigeria but had been in the care of her mother, who is habitually resident in Nigeria. The Judge could not find that she was habitually resident in Nigeria on that basis alone, but equally could not find that she was habitually resident in the UK merely on the basis of her presence here.

On this basis, the Judge found that there was no jurisdiction under Article 12 of Brussels II Revised, as not all parties accepted that the English Court had jurisdiction and the habitual residence of the children could not be established. However, on the basis that the children were both present in this jurisdiction and had been since the Courts were seized of the case, the Judge found that the Court did have jurisdiction to conduct care proceedings under Article 13 (that the children were present in this jurisdiction and their habitual residence could not be established).

The Judge did not therefore go on to consider whether there was a residual jurisdiction pursuant to Article 14 based on English law.

 

Jacqui Cox

Legal Executive

February 2015

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