Re S (A Child) (Jurisdiction) and subsequent costs

Re S (A Child) (Jurisdiction) [2022] EWHC 1720 (Fam) and Re S (A Child) (Costs) [2022] EWHC 2604 (Fam)

This case concerned jurisdictional issues that arose following the wrongful removal of one child, S (18 months old) from Antigua to England in December 2021. In some senses, it involves a straightforward jurisdictional determination under the Family Law Act 1986 (“FLA 1986”), however the judgment identifies a yet further difficulty with the drafting and implementation of that Act. Also, the respondent (F, who had wrongfully removed the child) attempted to deploy some ‘inventive’ arguments (see para. 9 of the costs judgment) which whilst ultimately unsuccessful (in fact, McFarlane P held them to be “without foundation or merit” and, later, “wholly devoid of merit” - see paras. 5 and 7 of the costs judgment) are nonetheless interesting.

Background

The mother, father and child lived together in Antigua. They commenced their relationship in 2014, and were married in October 2019. S, the child that was the subject of the proceedings, was born in November 2020. They had lived their whole life in Antigua until December 2021, when the father wrongfully removed them to England.

Upon discovery of the father’s removal of S, the mother commenced proceedings before the High Court. On 16 December 2021 (the day after S’s removal), a location order was made and a further hearing was listed on 23 December. At some point between those dates it appears that the mother obtained a Collection Order, and the substantive judgment records that on 22 December the Collection Order was executed resulting in S’s return to the mother’s care.

On 23 December, the matter came before Russell J. She granted an order permitting the mother to return to Antigua with S, on the basis that the mother undertook to return S to England if ordered to do so. The proceedings were then adjourned to 21 January 2022, it being intended that at that hearing, the court would consider the question of its jurisdiction and whether an order should be made requiring S’s return to England.

The father applied for permission to appeal the order made by Russell J. That application delayed the hearing on 21 January 2022 to a later date. In due course, his application for permission to appeal was refused.

On 19 January 2022, the father issued an application for an order that S live with him and, in the alternative, for an order that S spend time with him. On 10 May, the mother cross applied for an order discharging all previous orders and undertakings and to bring the proceedings to a close.

The relevant law / the arguments before the court

The parties accepted that, on the basis of their very short stay in England, S was not at any stage habitually resident here. The question, therefore, was whether there was any other possible ground of jurisdiction upon which the father could rely (para. 6). It was further accepted (inevitably) that Council Regulation (EC) No. 2201/2003 (“BIIa”) did not apply.

The President went on to recognise that, as BIIa no longer applies, “Jurisdiction is now primarily founded upon the 1996 Hague Convention and the Family Law Act 1986” (para. 7). He went on to hold (accepted between the parties) that, as Antigua is not a Contracting State to the 1996 Hague Convention, that instrument did not apply (paras. 8 and 10) and that it was therefore necessary to consider, instead, the provisions of the FLA 1986.

It is worth pausing at this stage to examine the underlying principle that founds that concession, and the President’s adoption of it. In Warrington Borough Council v W (Care Proceedings: Jurisdiction) [2021] EWFC 68, MacDonald J held as follows:

“34. Finally with respect to the jurisdictional framework, and within the foregoing context, the United Kingdom is party to the 1996 Hague Convention and it came into force in this jurisdiction on 1 November 2012. Gabon is not a party to the 1996 Hague Convention. However, in circumstances where this court is the court currently seised of the issue of jurisdiction, and this jurisdiction is a signatory to the 1996 Hague Convention, I am satisfied that the question of whether this court has jurisdiction in respect of K falls to be determined by reference, inter alia, to the jurisdictional provisions that apply under Arts 5 and 6 of the 1996 Hague Convention, notwithstanding that Gabon is not a Contracting State to that Convention (see Re A (Jurisdiction: Return of Child) [2014] AC 1)”

The approach set out above has been followed in other cases, including H v R & Anor [2022] EWHC 1073 (Fam), a decision of Mr Justice Peel of May 2022 (see, particularly, paras. 34 - 45).

Accordingly:

• The court considers whether there is jurisdiction under the 1996 Hague Convention (this reflects the approach that was taken under BIIa, in which the Supreme Court held in A (Children), Re (Rev 1) [2013] UKSC 60 that the Regulation was the “first port of call” when considering issues of jurisdiction;

• If the child concerned is habitually resident on the territory of a Contracting State, the jurisdictional scheme of the Convention applies;

• If the child concerned is “internationally displaced” or their habitual residence “…cannot be established”, the “…authorities of the Contracting State on the territory of which these children are present” have jurisdiction, per Art 6 of the Convention;

• If the child is habitually resident in a State that is not a Contracting State, national law applies (per Peel J in H v R & Anor at para 45);

• In this context, that means the FLA 1986.

That situation resulted in McFarlane P examining the terms of S3 FLA 1986, as follows:

“'3 Habitual residence or presence of child

(1) The condition referred to in section 2(1)(b)(ii) of this Act is that on the relevant date the child concerned—(a) is 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, the jurisdiction of the court is not excluded by subsection (2) below.

(2) For the purposes of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, matrimonial proceedings or civil partnership proceedings are continuing in a court in Scotland or Northern Ireland in respect of the marriage or civil partnership of the parents of the child concerned.

(3) Subsection (2) above shall not apply if the court in which the other proceedings there referred to are continuing has made—(a) an order under section 13(6) or 19A(4) of this Act (not being an order made by virtue of section 13(6)(a)(i)), or(b) an order under section 14(2) or 22(2) of this Act which is recorded as made for the purpose of enabling Part I proceedings with respect to the child concerned to be taken in England and Wales, and that order is in force.'

11. By FLA 1986, s 7(c):

'"the relevant date" means, in relation to the making or variation of an order—(i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order.'

12. An order under the inherent jurisdiction of the High Court with respect to children is a 'Part 1 order' by FLA 1986, s 1(1)(d):

'(i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but

(ii) excluding an order varying or revoking such an order'

FLA 1986, s 2(3) provides that

'A court in England and Wales shall not make a section 1(1)(d) order unless—

(a) it has jurisdiction under the Hague Convention, or

(b) the Hague Convention does not apply but—

(i) the condition in section 3 of this Act is satisfied, or

(ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection.'

The President then identifies an oddity in the drafting of the Act which, at least insofar as I have been able to see, has not previously been identified, which is as follows:

“13. Oddly, whilst FLA 1986, s 2(3)(b)(i) refers to a 'condition in section 3', there is no reference within FLA 1986, s 3 (which is set out in full above at paragraph 10) to an order under s 1(1)(d). It may be that this hanging reference to s 3 was inadvertently left following amendments made to the 1986 Act by CA 1989. Mr Boucher-Giles, who concedes that whilst there is, therefore, no relevant 'condition in section 3' and that s 2(3)(b)(ii) does not apply, observes that within any inherent jurisdiction proceedings the High Court nevertheless has jurisdiction to make orders under CA 1989, s 8 and the provisions relevant to making a s 8 order would therefore apply in those circumstances.”

The father’s argument can be summarised as follows:

• At the hearing on 23 December 2021, at which time the child remained in England, the father made an oral application for direct contact. That application was refused, the court holding that there should only be such contact as could be arranged and professionally supervised prior to the mother’s return to Antigua with S, which in the event occurred the following day;

• Accordingly, ‘an application’ within the meaning given to that term within S7(c)(i) FLA 1986 was made, meaning that the ‘relevant date’ upon which the court had to determine jurisdiction was 23 December 2021;

• S was present in England and Wales on that date;

• The court could therefore conclude the proceedings, as it had jurisdiction as of the relevant date.

The mother’s response was that:

• The court was not seised of an application to which S1(1)(a) FLA 1986 applied on 23 December 2021;

• The only reference to such an application in the father’s Position Statement was an expressed wish, in the concluding paragraph of the Position Statement that was filed on his behalf, to “…re-establish contact with [S] as soon as possible”;

• Accordingly, no application was made whilst S was present.

Conclusion

Firstly, the President was not satisfied that anything that was said about contact in December 2021 amounted to an oral application for a contact order. The transcript showed that no oral application for contact was in fact made (para. 22)

Secondly, the President considered that an oral application of that nature probably fell outside the scope of S7(c)(i) FLA 1986, for the following reasons (at para. 24):

• FLA 1986, Part I is concerned with jurisdiction. The establishment of circumstances existing on 'the relevant date' is an important matter with significant consequences the outcome of which is likely to determine whether the court in England and Wales does, or does not, have jurisdiction;

• An oral application, without more (for example a direction from the court relieving the party of the need to file a formal application), has an altogether imprecise and unclear character in circumstances where the statutory provision requires the opposite in terms of clarity with regard to a specific single date and the child's physical presence in the jurisdiction;

• Under the Family Procedure Rules 2010 ['FPR'], r 5.3, 'proceedings are started when a court officer issues an application at the request of the applicant' [r 5.3(1)] and 'an application is issued on the date entered in the application form by the court officer' [r 5.3(2)]. The commentary to these provisions in the Family Court Practice states: 'To commence any originating process an application form must be filed and must then be issued by a court officer'. No reference is made to an oral statement made in court being treated as an application.

Thirdly, the President considered that an oral request for an order doe snot have a procedural life of its own which causes it to remain live, undetermined, following the conclusion of the hearing (para. 26).

As such - the proceedings were concluded.

Costs - the subsequent judgment

The mother applied for costs associated with one hearing that was heard by Newton J in January 2022, in the sum of £6,055. The President determined the application on paper.

The mother’s argument was summarised as follows:

“3. For the mother, Mr Bennett submits that the father's litigation conduct, particularly during the period in question, has been unreasonable. The likelihood of the English court concluding that it lacked jurisdiction was clear and the case that any such jurisdiction that might exist should not be exercised was, he submits, overwhelming. In the circumstances it was wholly unreasonable to contest jurisdiction or to prolong the English proceedings. Mr Bennett further submits, quoting my judgment, that the father's arguments were 'the very opposite of clear and substantial' and, if the court had got to the point of considering S' welfare, 'wholly devoid of any merit'. Prior to the hearing the mother had submitted her costs schedule to the father and offered to settle without payment of costs, yet he proceeded. Mr Bennett therefore argues that a costs order is both proportionate and justified.”

The father couched his opposition to the making of the order on the basis of his expressed concern that he could not obtain a fair trial in Antigua, that he wished to obtain an order “for the purposes of mirroring orders and enforcement” and that orders in this jurisdiction reflected his best chance of seeing S in the future (para. 4). The President noted that those were not the reasons given for his opposition to the mother’s application at trial. The father also appears to have argued that “…he was not actively pursuing welfare proceedings in [England]” (para 6), a claim which is difficult to understand bearing in mind the relief that he sought, and which the President dismissed as an attempt to “recast history” (para. 6).

Granting the mother’s application, the President held as follows:

“9. The mother' application for costs is fully justified in this case. From the hearing before Newton J and end of his intended appeal, the father's refusal to accept that the English proceedings should be closed down had no foundation in law. The arguments raised by counsel on his behalf, as recorded in the substantive judgment, whilst inventive, lacked any foundation and were plainly untenable. This is a case that comes squarely within the court's jurisdiction to make a costs order because of the unreasonable litigation conduct of a party. The father's position, as he now accepts, was adopted for reasons that were unconnected with the arguments that he raised in claiming that this court should retain jurisdiction to make orders regarding his daughter's welfare. In those circumstances the mother was required to mount a contested application and meet the father's legal submissions at a full hearing. In the circumstances, she is entitled to an order for costs in her favour.”