CASE

No full text available

Case Name

Re H (Children) (Jurisdiction: Habitual Residence) [2014] EWCA Civ 1101

INCADAT reference

HC/E/BD 1287

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

Court of Appeal (Civil Division)

Level

Appellate Court

Judge(s)
Richards, Black, Vos L.JJ.

States involved

Requesting State

UNITED KINGDOM - ENGLAND AND WALES

Requested State

BANGLADESH

Decision

Date

29 July 2014

Status

Subject to appeal

Grounds

Habitual Residence - Art. 3 | Procedural Matters | Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)

Order

-

HC article(s) Considered

-

HC article(s) Relied Upon

-

Other provisions
Article 10 Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
Authorities | Cases referred to
Re P (GE) [1965] Ch 569; Re J (A Minor)(Abduction: Custody Rights) [1990] 2 AC 562; A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60, [2014] A.C. 1; In re L (A Child: Custody: Habitual Residence) [2013] UKSC 75, [2014] 1 All ER 999; In re LC (Children) [2014] UKSC 1, [2014] 1 All ER 1181; In re I (A Child)(Contact Application: Jurisdiction) [2009] UKSC 10; Owusu v Jackson Case C-281/02) [2005] QB 801, [2005] ECR I-1383; JKN v JCN (Divorce: Forum) [2010] EWHC 843 (Fam), [2011] 1 FLR 826 ; AB v CB (Divorce and Maintenance: Discretion to Stay [2012] EWHC 3841 (Fam), [2013] 2 FLR 29; Mittal v Mittal [2013] EWCA Civ 1255, [2014] 2 WLR 1033; Re C (Children)(Residence Order: Application Being Dismissed at Fact-Finding Stage) [2012] EWCA Civ 1489, [2013] 1 FLR 1089.

INCADAT comment

Aims & Scope of the Convention

Habitual Residence
Habitual Residence

Inter-Relationship with International / Regional Instruments and National Law

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)
Brussels II a Regulation

SUMMARY

Summary available in EN | ES

Facts

The proceedings concerned two children born to married parents of Bangladeshi origin. In May 2008, the parents and their children travelled to Bangladesh when the first child was 14 months old and the second six weeks old. The father returned alone in August 2008.

The father made three extensive visits to Bangladesh between 2009 and 2012, spending two years there in all. He last saw the children in November 2012. The reason for the mother's continued presence in Bangladesh was the subject of dispute as between the parents.

The father issued proceedings in Bangladesh and in July 2011 succeeded in obtaining an order for custody and restitution of conjugal rights. On 4 February 2013, the father issued proceedings in the High Court in London for the return of the children to the United Kingdom, having been advised that an English order for return would "carry a highly persuasive value" in Bangladesh.

On 24 September 2013, the application was dismissed: H v B [2013] EWHC 2950 (Fam). The father appealed.

Ruling

Appeal dismissed and proceedings dismissed; the English courts retained jurisdiction under Article 10 of the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003), but it was not in the interests of the children to continue the proceedings further and no order would be made.

Grounds

Habitual Residence - Art. 3


The Court noted that for a long time, the approach of English law had been that where both parents had parental responsibility, one of them could not unilaterally change the child's habitual residence. It then considered whether in the light of recent Supreme Court judgments, which it held represented a new departure for habitual residence, there was still such a "rule".

The Court considered that the judgment in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60 [2013] 3 WLR 761 [INCADAT Reference: HC/E/UKe 1233] showed a general disinclination on the part of the Supreme Court to encumber the factual concept of habitual residence with supplementary rules and in particular to perpetuate the no-change rule, provided an approach could be found which prevented a parent from undermining the 1980 Hague Child Abduction Convention and the jurisdiction provisions of the Brussels IIa Regulation.

The Court accepted moreover that a parent's ability to change their child's habitual residence unilaterally would be limited by the inclusion of the purposes and intentions of the parents as one of the relevant factors in the factual determination of where a child was habitually resident. Furthermore, the fact that a child's residence was precarious (as it may well be where one parent had acted unilaterally) may prevent it from acquiring the necessary quality of stability for habitual residence.

However, the Court held that the fact that one parent neither wanted nor sanctioned the move would not inevitably prevent the child from becoming habitually resident somewhere. Whether the no-change "rule" was truly a binding rule or was just a well-established method of approaching cases, it was to be consigned to history in favour of a factual enquiry tailored to the circumstances of the individual case.

Procedural Matters


The Court held that in view of the mother's failure to participate, it was in the children's best interests that they be represented separately.

Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003)


The Court noted that the parties were in agreement that, in principle, Art. 10 of the Brussels IIa Regulation applied even where the child concerned was presently in a country which was not an EU Member State. Argument took place as regards the ending of the retained jurisdiction, since there was no mechanism for jurisdiction to be lost where the child had acquired a habitual residence in a non EU Member State. It was argued for the Children's Guardian that the reference to jurisdiction being retained "until the child has acquired a habitual residence in another Member State", be read purposively as "until the child has acquired a habitual residence in another State".

This argument was rejected by the Court which held that it was not clear that policy considerations clearly dictated that Art. 10 should be interpreted so as to bring an end to the retained jurisdiction even when it was in a non-Member State that the children were now living and not a Member State.

The Court declined to express a view as to whether it retained the power to decline to exercise the Art. 10 jurisdiction on forum conveniens grounds, preferring to deal with the case through exercising jurisdiction, but decided not to make an order. The Court held that even if a means could be found to investigate the children's circumstances further in Bangladesh, there would inevitably remain a tangled web of assertions. It was not clear that it would be possible for the English court to obtain a sufficiently dependable picture for it even to contemplate ordering a return of the children in the care of the father.

It was one thing to order the return of children who had recently been taken wrongfully from the country in which they were living to another country; in such a situation the court may sometimes proceed upon fairly limited information. It was quite another to order a return after they had been living abroad for a period of nearly six years, particularly when that represented virtually their whole lives. In those circumstances, the potential for harm to the children from a misguided order was such that the court would want to be on particularly secure ground before acting.

Author of the summary: Peter McEleavy

INCADAT comment

See also the decision A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 60 [2013] 3 WLR 761 [INCADAT Reference: HC/E/UKe 1233].

Habitual Residence

The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.

Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.

General Trends:

United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.

Child Centred Focus

The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:

Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]

Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].

See also:

Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].

Combined Child's Connection / Parental Intention Focus

The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.

The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].

See also:

Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];

Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].

In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.

Parental Intention Focus

The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.

This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:

Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;

Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;

Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.

The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:

Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];

Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].

It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.

Other Jurisdictions

There are variations of approach in other jurisdictions:

Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).

8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].

Canada
In the Province of Quebec, a child centred focus is adopted:

In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.

Germany
A child centred, factual approach is also evident in German case law:

2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].

This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:

Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998  [INCADAT Reference: HC/E/DE 233].

The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.

Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:

Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];

Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].

However, reference has been made to a more child centred approach in other cases. See:

decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;

FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].

New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See

S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].

Switzerland
A child centred, factual approach is evident in Swiss case law:

5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].

United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.

Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:

R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;

R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.

Brussels II a Regulation

The application of the 1980 Hague Convention within the Member States of the European Union (Denmark excepted) has been amended following the entry into force of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, see:

Affaire C-195/08 PPU Rinau v. Rinau, [2008] ECR I 5271 [2008] 2 FLR 1495 [Référence INCADAT : HC/E/ 987];

Affaire C 403/09 PPU Detiček v. Sgueglia, [Référence INCADAT : HC/E/ 1327].

The Hague Convention remains the primary tool to combat child abductions within the European Union but its operation has been fine tuned.

An autonomous EU definition of ‘rights of custody' has been adopted: Article 2(9) of the Brussels II a Regulation, which is essentially the same as that found in Article 5 a) of the Hague Child Abduction Convention. There is equally an EU formula for determining the wrongfulness of a removal or retention: Article 2(11) of the Regulation. The latter embodies the key elements of Article 3 of the Convention, but adds an explanation as to the joint exercise of custody rights, an explanation which accords with international case law.

See: Case C-400/10 PPU J Mc.B. v. L.E, [INCADAT cite: HC/E/ 1104].

Of greater significance is Article 11 of the Brussels II a Regulation.

Article 11(2) of the Brussels II a Regulation requires that when applying Articles 12 and 13 of the 1980 Hague Convention that the child is given the opportunity to be heard during the proceedings, unless this appears inappropriate having regard to his age or degree of maturity.

This obligation has led to a realignment in judicial practice in England, see:

Re D. (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 A.C. 619 [INCADAT cite: HC/E/UKe 880] where Baroness Hale noted that the reform would lead to children being heard more frequently in Hague cases than had hitherto happened.

Re M. (A Child) (Abduction: Child's Objections to Return) [2007] EWCA Civ 260, [2007] 2 FLR 72,  [INCADAT cite: HC/E/UKe 901]

The Court of Appeal endorsed the suggestion by Baroness Hale that the requirement under the Brussels II a Regulation to ascertain the views of children of sufficient age of maturity was not restricted to intra-European Community cases of child abduction, but was a principle of universal application.

Article 11(3) of the Brussels II a Regulation requires Convention proceedings to be dealt with within 6 weeks.

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996, [INCADAT cite: HC/E/UKe 931]

Thorpe LJ held that this extended to appeal hearings and as such recommended that applications for permission to appeal should be made directly to the trial judge and that the normal 21 day period for lodging a notice of appeal should be restricted.

Article 11(4) of the Brussels II a Regulation provides that the return of a child cannot be refused under Article 13(1) b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his return.

Cases in which reliance has been placed on Article 11(4) of the Brussels II a Regulation to make a return order include:

France
CA Bordeaux, 19 janvier 2007, No 06/002739 [INCADAT cite: HC/E/FR 947];

CA Paris 15 février 2007 [INCADAT cite: HC/E/FR 979].

The relevant protection was found not to exist, leading to a non-return order being made, in:

CA Aix-en-Provence, 30 novembre 2006, N° RG 06/03661 [INCADAT cite: HC/E/FR 717].

The most notable element of Article 11 is the new mechanism which is now applied where a non-return order is made on the basis of Article 13.  This allows the authorities in the State of the child's habitual residence to rule on whether the child should be sent back notwithstanding the non-return order.  If a subsequent return order is made under Article 11(7) of the Regulation, and is certified by the issuing judge, then it will be automatically enforceable in the State of refuge and all other EU-Member States.

Article 11(7) Brussels II a Regulation - Return Order Granted:

Re A. (Custody Decision after Maltese Non-return Order: Brussels II Revised) [2006] EWHC 3397 (Fam.), [2007] 1 FLR 1923 [INCADAT cite: HC/E/UKe 883]

Article 11(7) Brussels II a Regulation - Return Order Refused:

Re A. H.A. v. M.B. (Brussels II Revised: Article 11(7) Application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289, [INCADAT cite: HC/E/UKe 930].

The CJEU has ruled that a subsequent return order does not have to be a final order for custody:

Case C-211/10 PPU Povse v. Alpago, [INCADAT cite: HC/E/ 1328].

In this case it was further held that the enforcement of a return order cannot be refused as a result of a change of circumstances.  Such a change must be raised before the competent court in the Member State of origin.

Furthermore abducting parents may not seek to subvert the deterrent effect of Council Regulation 2201/2003 in seeking to obtain provisional measures to prevent the enforcement of a custody order aimed at securing the return of an abducted child:

Case C 403/09 PPU Detiček v. Sgueglia, [INCADAT cite: HC/E/ 1327].

For academic commentary on the new EU regime see:

P. McEleavy ‘The New Child Abduction Regime in the European Community: Symbiotic Relationship or Forced Partnership?' [2005] Journal of Private International Law 5 - 34.