Family Law Hub

Y v H & Anor [2017] EWHC 3698 (Fam)

The judge had to decide whether, as the father and the children's guardian maintained, the courts of England and Wales have jurisdiction over the child in respect of matters of parental responsibility or whether, as his mother argued, jurisdiction now rests with the courts of Northern Ireland. The judge ruled in favour of the father.


    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment no person other than the advocates or the solicitors instructing them and other persons named in this version of the judgment may be identified by name or location and that in particular the anonymity of the child and members of his family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Case No: FD15P00276

    Neutral Citation Number: [2017] EWHC 3698 (Fam)



    Courtroom No. 45

    The Royal Courts of Justice



    WC2A 2LL

    Friday, 22nd December 2017






    B E T W E E N:

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    Y (Applicant)


    H (1)

    C (2) (Respondents)

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    Transcript from a recording by Ubiqus

    291-299 Borough High Street, London SE1 1JG

    Tel: 020 7269 0370

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    ADELE CAMERON-DOUGLAS (instructed by Accessslaw) appeared on behalf of the Applicant

    HUGH MERRY appeared by direct access on behalf of the First Respondent

    ANTHONY HAND (instructed by Abels Solicitors) appeared on behalf of the Second Respondent

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    This Transcript is Crown Copyright. It may not be reproduced in whole or in part, other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.


    1. These proceedings concern a boy, C, born 13 August 2008 and, therefore, now aged nine. C is a boy with a number of problems including a diagnosis that he is on the autistic spectrum. He has been the subject of long-running and bitterly contested proceedings between his parents. In this judgment, I consider whether, as his father and his children's guardian maintain, the courts of England and Wales have jurisdiction over him in respect of matters of parental responsibility or whether, as his mother argues, jurisdiction now rests with the courts of Northern Ireland.

    2. It is unnecessary to set out the full details of the long history of this case. The salient features are as follows.

    3. The parties were in what I understand to be a relatively brief relationship in 2007/2008 as a result of which the mother became pregnant. That relationship broke down before the baby was born. As set out above, C was born on 13 August 2008. Initially, the father's name was not on the birth certificate. In spring 2010, the parties resumed their relationship briefly and the father's name was added to the birth certificate. The relationship broke down finally later that year whereupon the father filed an application for a child arrangements order and prohibited steps order.

    4. That was the beginning of what has amounted to almost continuous litigation since that date. There were various allegations and cross-allegations made by the parties including an allegation that the father had assaulted the mother. Various contact orders were made and the mother was repeatedly in breach of those orders. Eventually, the father applied for her committal because of those breaches and in June 2014, the mother was sentenced to a period of imprisonment for contempt of court for breaching the orders, suspended on terms that she comply with the ongoing contact order.

    5. That committal order was subsequently discharged when the mother, who had apparently failed to attend court on a number of previous occasions, finally came to a hearing and promised to engage with the hearings and make C available for contact. Some limited indirect contact then took place but no direct contact, and the father then filed an application for a child arrangements order seeking an order that C should live with him, together with a prohibited steps order preventing the mother from removing C from the jurisdiction. That latter order was made without notice to the mother and directions were given for a hearing on notice which took place on 13 February 2015.

    6. On that occasion, HH Judge Black made various directions for a final hearing and ordered the mother to make C available for contact. On 14 February 2015, the mother duly brought C to a contact centre but also brought a bundle of his clothes and said that the child should now live with his father. Thus, at the time of the hearing listed as a final hearing on 18 March 2015, C was indeed living with his father. At that point, however, the mother asked the judge, HH Judge Sullivan QC, to make an order returning C to her care.

    7. After a contested hearing, the judge made an order that C should live with the father and have contact with the mother including alternate weekend staying contact. The judge made a further order, a prohibited steps order, that the mother should not remove C from the jurisdiction without the father's prior written agreement. She also made an order under s.91(14) of the Children Act 1989 restraining the mother from bringing any further application to court for an order under s.8 of the Children Act without the court's leave for two years.

    8. In her judgment, the judge made a number of criticisms of both parents but her greater criticism was directed at the mother. In her concluding section, the judge said at paragraph 29:

    'I find that the mother's behaviour over the years to have not been in C's best interests. She has not remained in contact with the father and, although she has promised in the past to cooperate, she still is not prepared to encourage contact. She told C that his father was trying to send his mother to prison and that is highly undesirable and unfair when it was her contact which caused the father's application. Her ability to abandon C to his father, if she really believed what she said C felt about his father, was clearly not in his interests… It is clearly not in C's best interests that the mother should abandon him if he is placed with his father. I have no confidence, therefore, that the mother will put C's needs above her own in future. On the other hand, I consider the father will do his best. He needs to mature and consider the impact of his behaviour on others… I am satisfied that he will put C's needs first and he will promote contact with all of C's family. I consider him to be the more appropriate parent for this little boy. I therefore direct that C should have his home with his father and spend time with his mother, as has been agreed in principle'.

    9. After that hearing, therefore, C continued living with the father. The first contact with his mother took place on the weekend of 25 March 2015. The mother collected C as agreed but did not return him at the end of the weekend. The father contacted the police who visited the mother's property. She told the police that the father was not in fact C's father and, as I understand it, asserted to them that she had obtained DNA evidence to prove that he was not the father. She contacted the local authority social services and, on her account, was told by them not to return C to the father's care. I am unclear as to what advice, if any, social services did in fact give to the mother at that point. On 30 March 2015, the mother sent an email to the court saying that the father was not C's father and attaching what purported to be a DNA result showing that to be the case.

    10. After a period of two weeks or so, the father returned to court. On 1 May 2015, he filed an application in Form C100 asking for a prohibited steps order and a specific issue order. In the application, the father recited what he said had happened since the order of 18 March and added:

    'C has still not been returned to my care and I have not had any contact with him. I am worried about his emotional wellbeing and would ask for an order that he be returned to my care immediately'.

    The application came before Judge Sullivan that day, 1 May, without notice to the mother. The judge appointed a guardian to represent the child, adjourned the application to 5 May and made an ex parte prohibited steps order prohibiting the mother from removing C from the jurisdiction.

    11. When the matter returned to court on 5 May, the mother attended and filed a statement. On that occasion, she was represented by a solicitor, as was the child through his guardian. The father appeared in person. In her statement, the mother said, inter alia, at paragraphs 4 to 5:

    '4. As I was subject to a barring order at the final hearing on 18 March 2015, I have not been able to return the matter to court in order to present my DNA evidence proving that the father is not C's biological father. This is clearly highly pertinent to the matter as C should not be sent to live with a person who is not his parent when I, his mother, am well able to care for him.

    5. It is correct that the court did not order DNA tests, as [the father] alleges, but they have been done and unequivocally demonstrate that [he] is not C's father. A lack of court order to obtain them should not be allowed to detract from this proof of fact'.

    Later, in the statement, she said at paragraphs 13 - 14:

    '13. I am not a flight risk as I own my own home in Southampton and do not have the funds to leave the country even if I wished to do so, which I do not. In addition, I have an unconditional offer at university… I am very much looking forward to this course of study and have every intention of taking up the place.

    14. Whilst I have already outlined this, for the avoidance of doubt, I do not and have never planned on leaving the jurisdiction of this court…'.

    Later at paragraphs 19 - 25, she stated:

    '19. [The father] is not C's father in any sense of the word. He is proven not to be his biological father. [He] should not have parental rights over my child and I ask that any such rights be revoked by this court.

    20. I ask that the court accept the DNA test undertaken by Cellmark, attached, into the evidence and discharge all previous orders.

    21. I ask that [the father's] name be ordered to be removed from my child's birth certificate.

    22. I ask that the court order return of C's passport to me and lift any restriction on my travelling with my son should I wish to do so, including prohibited steps orders.

    23. I ask that the court revoke any order giving contact to [the father].

    24. I ask that the court revoke any residence order giving residence to [the father].

    25. It is in C's best interests that he continues to reside with me, his mother, and that he is able to move on from these proceedings by being reassured that no more proceedings can be brought to try to remove him from my care'.

    12. What happened at the hearing on 5 May 2016 is recited in the order. I propose to read out the relevant parts of that order in full:

    'The applicant father is [name].

    The first respondent mother is [name].

    The second respondent child is [name] by their children's guardian, [name].

    The child is living with the respondent mother.

    Today's hearing is on short notice.

    Upon hearing the applicant father in person and upon hearing the respondent mother in person, and the solicitor for the child and his children's guardian.

    The name of the child set out in the heading to this order and the names of the persons set out above are not to be disclosed in public without the permission of the court.

    The proceedings continue to be allocated to be heard by a Circuit Judge and are reserved to HH Judge Sullivan QC.

    The applicant has applied for a child arrangements order.

    The applicant has applied for enforcement of the child arrangements order.

    Today's hearing is listed as a directions hearing.

    Today's hearing has been effective as a directions hearing.

    The key dates and events in the timetable for the child are 18 March 2015 when a child arrangements order was made for him to live with his father.

    The issues about which the parties are agreed are

    (a) that there should be DNA testing to establish paternity of the child in terms of whether [the father] is his father

    (b) that C should not be removed from his mother's care pending the outcome of DNA testing.

    The issues which remain to be resolved are

    (a) the outcome of DNA testing,

    (b) that he child should continue to live with his mother or be returned to live with his father pursuant to the order of 18 March 2015

    (c) contact C is to have with each of the applicant and the respondent.

    The steps planned to resolve the issues are: DNA testing to be undertaken as soon as possible.

    The court orders:

    1. The court considering it both necessary and proportionate so to order for there to be a proportionate and proper determination of the (preliminary) issues and pursuant to section 20(1) of the Family Law Act 1969, the solicitor for the child may instruct Cellmark to conduct a scientific test to ascertain whether [the father] is or is not the father of C and the following directions shall apply: [There then follows specific directions for the taking of samples etc.]

    2. This application shall be listed for a directions hearing before HH Judge Sullivan QC on 15 June 2015 at 10.30am with a time estimate of one hour at the Family Court, Southampton etc.'

    The order concluded with the standard terms as to compliance.

    13. What is clear to my mind from a careful analysis of the order, which was made by a very experienced family judge, is as follows. First, there were two applications before the court - an application for a child arrangements order and an application for enforcement of the earlier child arrangements order. Secondly, the issues between the parties which needed to be resolved in the proceedings were (i) the outcome of the DNA testing, (ii) whether C should continue to live with his mother or be returned to live with his father, and (iii) the level of contact with each of his parents. In other words, arising out of or following on from the father's application of 1 May 2015, there was a live issue concerning child arrangements as to where and with whom C should live and what contact he should have with the other parent, which would be reconsidered once the results of the DNA-testing were known.

    14. The order did not repeat the earlier prohibited steps order prohibiting the mother from removing C from the jurisdiction made on 1 May. That order remained in force.

    15. However, on or around 12 May, in contravention of that order, and notwithstanding the assurances she gave in her statement of 5 May, as quoted above, the mother removed C from the jurisdiction and took him to the Republic of Ireland.

    16. It seems that the mother's flight was not known about for some time. The matter next returned to court on 15 June. On that occasion, Judge Sullivan made an order in which she recorded that the mother was in breach of the order of 5 May by failing to make C available for DNA testing. The order included a recital that the judge had determined that the mother was aware of the hearing and ordered the mother to return C to the father 'at 2pm on Wednesday 17 May 2015'. That provision in the order contained an obvious misprint, namely reference to the month of May as opposed to the month of June, but at the hearing before me, Ms Cameron-Douglas, on behalf of the mother, has argued that that error made the order one which the mother was incapable of complying with, assuming she ever had notice of it. The judge further directed both parties to attend court on 18 June.

    17. At the next hearing on 18 June, the mother did not attend. By that stage, it had been discovered that she had left the address in Southampton where she lived. The court recorded that it had grave concerns about her actions and emotional wellbeing. The court made several orders designed to locate the mother and child.

    18. There then followed a series of other court hearings and orders through which, on a number of occasions, both the Family Court and the High Court endeavoured to ascertain the mother's whereabouts with a view to enforcing the earlier orders. It is unnecessary to recite all of those orders in any detail. They include orders of this court under the inherent jurisdiction relating to the mother's passport and orders for the disclosure of information from various bodies and agencies concerned in the mother's whereabouts. A significant amount of effort was expended by courts trying to ascertain where the mother was. Ultimately, on 1 September 2015, HH Judge Levey made a recovery order under Section 34. All these orders were to no avail. The whereabouts of the mother and C remained unknown.

    19. Eventually, on 29 February 2016, Judge Levey, on the application of the children's guardian, made an order that:

    '(1) C is no longer a party to the proceedings and the appointment of a children's guardian to represent him is discharged;

    (2) the application for enforcement is adjourned generally with permission for other parties to apply to restore.'

    20. Meanwhile, the mother had been living in the Republic of Ireland. Her case before me is that she was living quite openly and not clandestinely. C went to school and was registered with doctors. During her stay in Ireland, the mother formed a relationship with another man who is, she asserts, in well-paid employment, to whom she became engaged and by whom she became pregnant.

    21. In May 2017, according to the mother, she went to Northern Ireland to live with her fiancé and C. Again, it is her case that C was not kept hidden but lived an open life. He went to school and had regular contact with medical staff. C was assessed by various medical professionals because of his various problems. Those professionals included an occupational therapist, a psychiatrist and ENT specialist.

    22. It seems to have been through a medical appointment that C's whereabouts eventually became known. On 2 October 2017, C was removed from his mother's care in Northern Ireland by uniformed police officers, brought back to this country and placed in the de facto care of the father. The mother immediately applied to the High Court in Northern Ireland. On 4 October, Master Wells, sitting in the Family Division of the High Court in Northern Ireland, made an order on the mother's application in which he recorded that the court was satisfied that the correct jurisdiction for determining the issue in this case was England, in particular the Family Court in Portsmouth. He adjourned the case until further order. He refused the mother's application for wardship and adjourned the matter generally to afford the mother to make an application to the Portsmouth Family Court for the proceedings to be transferred to Northern Ireland, such application to be made by 29 November; otherwise the application to the Northern Ireland court would be struck out.

    23. On 9 October, the mother filed an application in the Family Division of the High Court in this jurisdiction seeking the following orders: (1) a stay of the recovery order of 1 September 2015, (2) an order for the immediate return of the child, C, into the mother's care, and (3) the transfer of the proceedings to the High Court in Northern Ireland. The matter came before Judge Levey on that day. He adjourned it to be listed before me on 12 October. On that occasion, 12 October, having heard submissions, I made an order in the following terms: (1) that the mother's application for the immediate return today for C to her care is refused, (2) that the child should live with the father until further order, and (3) the mother is prohibited from taking any step to remove C from the care of his father or from the jurisdiction of England and Wales. A penal notice was attached to the order. On 19 October, the matter came back before me for further directions. In the earlier hearing I had joined C as a party to the proceedings and requested Cafcass to appoint a guardian - if possible, the guardian who represented him previously. At the hearing on 19 October, I gave directions for a further interim welfare hearing and for a subsequent hearing as to jurisdiction.

    24. On 27 October, the matter came back before me for the interim welfare hearing. The mother had left Northern Ireland to travel to attend the hearing, notwithstanding the fact that she was heavily pregnant, but en route was arrested in Liverpool and taken to a police station in Portsmouth on suspicion of child abduction and of attempting to pervert the course of justice, this latter allegation arising out of her alleged fabrication of C's DNA test results in 2015. The mother was interviewed and subsequently released on bail, on conditions which included a condition precluding her having contact with C. She was directed to attend the police station in the week of 18 December for a charging decision. At the time of writing this judgment, I am unaware of the outcome of that charging decision. Because of the arrest, the mother was unable to attend the hearing before me in Bournemouth on 27 October. The focus of her application had been her proposal that C be allowed to return to Northern Ireland to live with her, or alternatively at least to attend the mother's wedding due to take place a few days later. That application was refused. C has, therefore, remained living with his father and I understand that to date no contact has taken place with his mother.

    25. On 2 November, the mother was married to her fiancé in Belfast. On 24 November, she gave birth to another child, a daughter.

    26. The issue concerning jurisdiction was listed before me for two days starting 30 November 2017 in Swindon where I was sitting in circuit. Unfortunately, that was seriously undermined by the absence of the court file. In the absence of the file, a number of the relevant court orders were not before the court and it was clear that those orders would form a key part of understanding the issues to be determined. The file was eventually produced the following day, by which time I had moved to Bristol, but there was then insufficient time to complete the legal argument and I therefore adjourned the matter for a further hearing in the week of 11 December. At the conclusion of that adjourned hearing, I reserved judgment but stated that I would give my decision at the start of the following week (i.e. the start of this week) with judgment to follow as soon as possible.

    27. On Wednesday, 20 December, I informed the parties through my clerk that the decision had been made as described below and that I would set out my reasons for that decision in a judgment to follow today. This judgment is accordingly delivered setting out the reasons for my decision as to jurisdiction.

    The Law

    28. As this case involves a jurisdiction issue within the United Kingdom, Council Regulation 2201/2003, Brussels IIA, does not apply. The relevant law is set out in that much-criticised statute, the Family Law Act 1986, the so-called residual domestic jurisdiction. The relevant provisions are as follows. S. 1(1) provides, so far as relevant:

    'Subject to the following provisions of this section, in this Part "Part I order" means

    (a) a Section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order…

    (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children

    (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…'

    S. 2(1) provides:

    'A court in England and Wales shall not make a Section 1(1)(a) order with respect to a child unless

    (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the 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 2A of this Act is satisfied, or

    (ii) the condition in Section 3 of this Act is satisfied'.

    S. 2(3) provides:

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

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

    (b) neither the Council Regulation nor the Hague Convention applies but

    (i) the condition in s. 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'.

    S. 3(1) provides:

    '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 or a specific dependent territory, and, in either case, the jurisdiction of the court is not excluded by subsection (2) below'.

    S. 3(2) is of no relevance to this case. S. 5(2) provides:

    'Where, at any stage of the proceedings on an application made to a court in England and Wales for a Part I order, or for the variation of a Part I order it appears to the court

    (a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales,

    (b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales,

    (c) that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case), or

    (d) that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction), the court may stay the proceedings on the application or (as the case may be) exercise its powers under Article 15 of the Council Regulation or Article 8 of the Hague Convention'.

    S. 7 provides inter alia under subsection (c) that:

    '"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…'

    Finally, s. 41 of the Act provides as follows:

    '(1) Where a child who

    (a) has not attained the age of sixteen, and

    (b) is habitually resident in a part of the United Kingdom or in a specified dependent territory, becomes habitually resident outside that part of the United Kingdom or that territory in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for the period of one year beginning with the date on which those circumstances arise.

    (2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom or the territory in which he was habitually resident before his change of residence

    (a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom or that territory, the right to determine where he is to reside, or

    (b) in contravention of an order made by a court in any part of the United Kingdom or in a specified dependent territory.

    (3) A child shall cease to be treated by virtue of subsection (1) above as habitually resident in a part of the United Kingdom or a specified dependent territory if, during the period there mentioned

    (a) he attains the age of sixteen, or

    (b) he becomes habitually resident outside that part of the United Kingdom or that territory with the agreement of the person or persons mentioned in subsection (2)(a) above and not in contravention of an order made by a court in any part of the United Kingdom or in any specified dependent territory'.

    29. In her comprehensive and articulate argument, Ms Cameron-Douglas, on behalf of the mother, submitted as follows:

    (1) There were no ongoing proceedings in England and Wales on 12 May 2015, except the proceedings to enforce the order of 18 March 2015.

    (2) The right interpretation of the order of 29 February 2016 is that the enforcement proceedings enforcing the order of 18 March 2015 came to an end. Even if they did not and remain alive, they fall outside the definition of a Part 1 order under the terms of the 1986 Act.

    (3) Accordingly, the only 'live' proceedings before this court are those started by the mother on 9 October 2017. Ms Cameron-Douglas contends that this is the 'relevant date' for the purposes of determining jurisdiction.

    (4) In determining where a child is habitually resident, the court must apply the test set out in a number of judgments of the Supreme Court, namely the place which reflects some degree of integration by a child in a social or family environment, see, in particular, A v A and Another (Children: Habitual Residence) (Reunite International Child Abduction Centre and Others Intervening) [2013] UKSC 60, [2014] AC 1 per Baroness Hale of Richmond at paragraph 54.

    (5) Applying that test to this case, C is now habitually resident in Northern Ireland. On the mother's evidence, she and C had settled initially in the Republic of Ireland and subsequently settled in Northern Ireland, where C's stepfather has a leading position in the financial services industry. Prior to his removal in October 2017, C attended school in Northern Ireland and lived in a home with the mother, stepfather and their new baby and had contact with a wide extended family. He was also, prior to his removal from Northern Ireland, receiving extensive medical care.

    (6) It is now firmly established that there is no longer any rule that one parent cannot change the habitual residence of a child unilaterally, see, for example, Re R (Children) [2015] UKSC 35, [2016] AC 76 per Lord Reed. Consequently, the fact that the mother removed C from England without the father's consent in 2015 does not operate as a bar to C subsequently acquiring habitual residence in the Republic of Ireland and, thereafter, in Northern Ireland.

    (7) Although s.41 of the 1986 Act would have prevented C acquiring habitual residence in the Republic of Ireland or Northern Ireland for a year after his unlawful removal, that year has now passed.

    (8) The recovery order by which C was removed from Northern Ireland in October 2017 was made unlawfully because compliance with the order which it purported to enforce - the order of 15 June 2015 - was impossible because of the error in the date described above. As a result, the circumstances in which C was removed from Northern Ireland fall within s.41(2) of the 1986 Act and he must therefore continue to be treated as habitually resident in Northern Ireland by virtue of s.41(1).

    (9) Although this court has ruled that it had jurisdiction on 12 October to make orders under the inherent jurisdiction pursuant to s. 2(3)(b)(ii) of the Family Law Act 1986 by virtue of the child's presence, such jurisdiction no longer subsists because the immediate exercise of the court's powers is no longer necessary for C's protection. Jurisdiction therefore lies with the court of his habitual residence i.e. Northern Ireland.

    (10) Alternatively, in the event that this court concludes that it has jurisdiction, it should, nonetheless, exercise its discretion to stay the proceedings and allow the proceedings in Northern Ireland to go forward since that jurisdiction is the more appropriate forum, given that (a) C has always lived with his mother save for a few short periods in 2015 and since 2 October 2017; (b) he is habitually resident in Northern Ireland, (c) prior to his removal he was receiving specialist medical care there; (d) all his support network, both personal and professional, are based in that jurisdiction; (e) he is, it is submitted, a child who, by reason of his special needs, has a particular need for stability and security.

    30. This argument is, if I may say so respectfully, impressively constructed but it is built on weak foundations, namely, the assertion there are no 'live' or ongoing proceedings in England from May 2015 except enforcement proceedings. As the extensive quotation from Judge Sullivan's order of 5 May 2015 above demonstrates, there were at that stage ongoing proceedings under s. 8 of the Children Act. Ms Cameron-Douglas says that the substance of the application made by the father was for the enforcement of the orders of 18 March 2015. The orders sought in the application, however, were a prohibited steps order and a specific issue order, which are of course orders under s.8 of the Children Act and therefore orders which come within the terms of s.1(1)(a) of the Family Law Act 1986. The order of 5 May says on its face that the father "has applied for a child arrangements order", and this is supported by the summary of the issues set out on the face of the order. Judge Sullivan there identified the issues which remained to be resolved as being (a) the outcome of the DNA testing, (b) whether the child should continue to live with his mother or return to live with his father pursuant to the earlier order, and (c) as to contact that C should have with each of his parents. It is plain from the statement filed by the mother that those matters were indeed in issue. Ms Cameron-Douglas suggested that the request by the mother in her statement for orders placing C in her care and stopping all contact between C and the father cannot be regarded as an application by the mother because she was barred from making any application under s. 8 by the s. 91(14) order made on 18 March. On any view, however, the mother raised those matters in response to the father's application dated 1 May, and they were unquestionably in issue. Judge Sullivan plainly took the view - rightly, in my judgment - that there was now a substantive child arrangements order application in issue to be determined both as to where C should live and as to what contact he should have with the non-resident parent.

    31. Accordingly, I conclude that there were proceedings started in May 2015 for a s.1(1)(a) order at a point when C was undeniably habitually resident in this jurisdiction. Those proceedings have never been brought to an end. They were effectively sabotaged by the mother's abduction of C in breach of the prohibited steps order and her own assurances in the statement she filed on 5 May, quoted above. Thereafter, the focus of the court's attention switched to attempts to enforce orders, but nothing happened in those enforcement proceedings to terminate the ongoing proceedings started in May 2015, and very much alive at the time of the mother's abduction of C to Ireland.

    32. In those circumstances, it is, strictly speaking, unnecessary for this court to come to any conclusion as to whether or not C had become habitually resident in Ireland and/or, subsequently, Northern Ireland, prior to his removal on 2 October 2017. In any event, I would be very reluctant to come to any concluded view as to whether C had acquired the necessary degree of integration in a social and family environment in Ireland and Northern Ireland on the basis of untested assertions made by the mother in her statements, given her history of deceitful and, at times, unpredictable behaviour. As the Supreme Court has made clear, the fact that C was removed unilaterally without the father's consent would not per se have prevented him acquiring habitual residence in Ireland and/or in Northern Ireland, but it is a factor to be taken into account in the overall analysis as to whether or not he has acquired habitual residence there. The mother's assertion that they were living quite openly in Northern Ireland is, again, not something I would be prepared to take at face value without hearing oral evidence, particularly in the light of C's alleged comment to the guardian that Ireland was a good place to hide.

    33. A further difficulty arises on Ms Cameron-Douglas' analysis concerning the identity of the relevant date. She opened her argument on the basis that the only 'live' application before the court was that made by her instructing solicitors on 9 October 2017 but, on close analysis, it transpired that that application had in fact been concluded by the refusal of this court to order the return of C to Northern Ireland. If, contrary to my conclusion above, Ms Cameron-Douglas is correct in saying there is no live application from 2015, it would follow that there is no 'live' application before the court at all. In those circumstances, the relevant date would be the date at which the court is considering whether or not to make the order. If it were the case that there is no live application, this court would then have to consider whether it had jurisdiction as at the date of the hearing. By the time of the adjourned hearing last week, C had been with the father for over nine weeks and on the evidence before me, in particular, the evidence of the guardian, had settled in his father's care. In those circumstances, my prima facie view is that he has acquired some degree of integration in a social and family environment when living with his father.

    34. Ms Cameron-Douglas then raised the objection that s. 41 would preclude C having acquired habitual residence here because of the deficiency in the recovery order referred to above. It seems to me that there are some difficulties in interpreting s. 41, which has not been fully considered in argument and, so far as I am aware, has not been considered in detail in any previous reported case. In addition, as stated above, I would not be prepared to hold that C acquired habitual residence in Ireland or Northern Ireland without a much more thorough analysis of the mother's evidence.

    35. For the reasons already stated, however, I do not consider these various points to have any decisive bearing on the issue because, in my judgment, there are plainly ongoing proceedings extant since 2015, started at a point when C was habitually resident in England. Accordingly, this court has jurisdiction to make child arrangements orders under s.8.

    36. There remains the final argument advanced by Ms Cameron-Douglas, namely that this court should exercise its discretionary power to stay proceedings under s. 5. It is well established by reported authority (Re V (Forum Conveniens) [2005] 1 FLR 718) that the principles to be applied are those set out in Spiliada Martimite Corporation v Cansulex Limited, The Spiliada [1987] AC 460, in particular the speech of Lord Goff of Chieveley at pages 476-478. As is well known, the test is that a stay will only be granted on the grounds of forum non conveniens where the court is satisfied that there is some other available forum having competent jurisdiction that is the appropriate forum, i.e. where the case may be tried more suitably in the interests of all the parties and the ends of justice.

    37. As stated above, Ms Cameron-Douglas relies on the fact that C has always lived with his mother, that he has special needs that were being catered for comprehensively in Ireland and then Northern Ireland, and that his family and professional support network is in Ireland. There will be a number of witnesses to be called from Northern Ireland which is, as Ms Cameron-Douglas submitted, a matter of relevance when considering which forum is more convenient. In oral submissions, Ms Cameron-Douglas added that it is going to be difficult for the mother to engage with proceedings here, given her personal circumstances. Ms Cameron-Douglas also submits that there are concerns about the performance of the guardian. The mother alleges the guardian is biased and has made a number of important factual errors in her report. As I understand Ms Cameron-Douglas' submission, she contended this is a factor to be taken into account when considering the question of forum because it will undermine the reliability of the independent evidence on which the court is likely to rely.

    38. In response, Mr Merry for the father submitted that, in so far as the mother's assertions concerning C's special needs are relevant to the question of forum, the reliability of those assertions is open to question. He also submits that the mother, now married to a man in well-paid employment in financial services, has the means to litigate in England and Wales, whereas the father has no means to litigate in Northern Ireland. At an earlier hearing before me, the mother was represented by leading counsel, whereas Mr Merry has, as I understand it, appeared pro bono, for at least some of the hearings. In reply, Ms Cameron-Douglas challenged the assertions made by Mr Merry as to her client's means.

    39. On behalf of the guardian, Mr Hand reminds me that the English court has had responsibility for ongoing proceedings in respect of C since 2010. C is now back settled in this jurisdiction and Mr Hand submits on his behalf that this is the appropriate forum.

    40. I conclude that Ms Cameron-Douglas has failed to demonstrate that Northern Ireland is the more suitable forum. On the contrary, it seems to me that this jurisdiction is manifestly more suitable. C is here with his father. There have been ongoing proceedings here for several years. There is a body of evidence here as to the history and as to C's up-to-date circumstances and those of his father. It will, of course, be necessary to obtain evidence of the circumstances in Northern Ireland but that is not going to present substantial difficulties. The guardian can, if necessary, travel to Northern Ireland and any professional witnesses from Northern Ireland called by any of the parties can give evidence to this court, preferably by video link. The mother and her husband are, of course, important witnesses but I can see no reason why they could not travel here to give evidence. Arrangements can be made for the mother's new baby to travel as well or be cared for in Northern Ireland.

    41. In short, I find that Ms Cameron-Douglas, despite her impressively-presented arguments, has not demonstrated that Northern Ireland is a more suitable forum and I therefore decline to exercise my discretionary power to stay the proceedings.

    42. I will in due course make necessary case-management directions. I anticipate that counsel will shortly submit a draft order either before or after Christmas. For the time being, the interim order remains in place.

Judgment, published: 19/03/2018


See also

  • The judge had to decide whether, as the father and the children's guardian maintained, the courts of England and Wales have jurisdiction over the child in respect of matters of parental responsibility Case note, 11/04/2018, members only

Published: 19/03/2018


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