Consequences of cheap flights and freedom of movement

Consequences of cheap
 flights and freedom of
        movement

The Brussels II revised regulation (B11R ) is a co-
ordinating regulation for children’s cases applicable in
all EU countries except Denmark. It has been in force
since 1st March 2005. In England and Wales it has the
force of statute law and defines important aspects of the
domestic jurisdiction. In contrast to previous European
regulations, it applies to matters of parental
responsibility, and therefore is engaged in both private
and public law children’s cases.

Basic Principles

defining and determining which state’s
domestic jurisdiction applies in an
individual case – normally (but not always)
based on the subject child’s habitual
residence (Art 8, but also Arts 9, 10, 12, 13,
14)

Habitual Residence

‘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’

Baroness Hale In the Matter of A (Children) [2014] 1 FLR 111 at para
   54(v).

Jurisdiction

• if the child is habitually resident and physically present
        normally yes
• if the child is not habitually resident but is physically
  present
        normally no
• if the child WAS habitually resident when proceedings were
  commenced but is not physically present
        with exceptions normally yes
• if the child is neither habitually resident nor present
        consider Article 12 B11R

Article 12 B11R– Prorogation of Jurisdiction

3. The courts of a Member State shall also have jurisdiction in relation to parental
responsibility in proceedings other than those referred to in paragraph 1 where:
(a) the child has a substantial connection with that Member State, 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 best interests of the child.
4. Where the child has his or her habitual residence in the territory of a third State
which is not a contracting party to the Hague Convention of 19 October 1996 on
jurisdiction, applicable law, recognition, enforcement and cooperation in respect of
parental responsibility and measures for the protection of children, jurisdiction under
this Article 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.

- surprising if regulations were intended to regulate relationships
     between EU member states and non member states- no
                              jurisdiction
- Thorpe LJ Re I ( Contact : Jurisdiction ) [2009] EWCA Civ 965

  Can Art 12 apply at all where the child is lawfully resident outside
the European Union? In my view, it clearly can. There is nothing in
 either Art 12(1) or Art 12(3) to limit jurisdiction to children who are
                        resident within the EU.

    - Baroness Hale in Re I (A Child) (Contact Application:
Jurisdiction)(Centre for Family Law and Practice intervening)
         [2009] UKSC 10 [2010] 1 FLR 361 at para [17]

Duty to Consider Jurisdiction

- In every care case with a foreign dimension jurisdiction must be considered at
the earliest opportunity, that is, when the proceedings are issued and at the Case
Management Hearing: see Nottingham City Council v LM and others [2014] EWCA
Civ 152, paras 47, 58.
- Good practice requires that in every care case with a foreign dimension the court
sets out explicitly, both in its judgment and in its order, the basis upon which, in
accordance with the relevant provisions of BIIR, it has either accepted or rejected
jurisdiction. This is necessary to demonstrate that the court has actually addressed
the issue and to identify, so there is no room for argument, the precise basis upon
which the court has proceeded: see Re E, paras 35, 36.
- Judges must be astute to raise the issue of jurisdiction even if it has been
overlooked by the parties: Re E, para 36.

 - Sir James Munby in Re F [2014] EWCA Civ 789

If there is Jurisdiction does it automatically follow
          that the case should be heard here ?

 Article 15 B11R- Transfer to a court better placed to hear the case
whether the child has, within the meaning of Article 15(3), ‘a particular connection’
with the relevant other member State.
whether the court of that other Member state ‘would be better placed to hear the
case
if a transfer to the other court ‘is in the best interests of the child.’

An undertaking to return the child amounts to an
express and unequivocal acceptance that the court to
which the undertaking is given retains jurisdiction

      Re ED [2014] EWHC 2731 (Fam) at paragraphs 33 and 34
                 Re ED [2014] EWHC 3851 (Fam)

Parental Responsibility, Rights of Custody, and
 right of veto

X v Latvia ( Application no.27853/09)
Rights of Custody - Art. 3
Judge Pinto de Albuquerque in his opinion stated that the facts of the case did not
amount to a child abduction, since the father had no parental rights prior to the
removal of the child from Australia. He only applied for, and gained, "custodial
rights" after the removal of the child. Therefore at the time of the removal the
mother was de jure the sole person with parental responsibility, including custodial
rights, over the child. The judge held that the Australian decision of 6 November
2008 could not be construed in such a way as to circumvent the time requirement
of Article 3(a) of the Hague Convention and to substantiate ex post facto an
otherwise unfounded return claim.

Parental Responsibility, Rights of Custody, and
 right of veto

X v Latvia ( Application no.27853/09)
Rights of Custody - Art. 3
Judge Pinto de Albuquerque in his opinion stated that the facts of the case did not
amount to a child abduction, since the father had no parental rights prior to the
removal of the child from Australia. He only applied for, and gained, "custodial
rights" after the removal of the child. Therefore at the time of the removal the
mother was de jure the sole person with parental responsibility, including custodial
rights, over the child. The judge held that the Australian decision of 6 November
2008 could not be construed in such a way as to circumvent the time requirement
of Article 3(a) of the Hague Convention and to substantiate ex post facto an
otherwise unfounded return claim.

Re D ( A Child) [ 2006] UKHL 51

                         Article 15 Hague Convention 1980
  The judicial or administrative authorities of a Contracting State may, prior to the
making of an order for the return of the child, request that the applicant obtain from
the authorities of the State of the habitual residence of the child a decision or other
  determination that the removal or retention was wrongful within the meaning of
    Article 3 of the Convention, where such a decision or determination may be
obtained in that State. The Central Authorities of the Contracting States shall so far
    as practicable assist applicants to obtain such a decision or determination.

Re K ( Abduction: Inchoate Rights ) [2014] UKSC 29,
   [2014] 2 FLR 632
(a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and
                      powers, entailed in the primary care of the child.

(b) They must not be sharing those responsibilities with the person or persons having a legally
 recognised right to determine where the child shall live and how he /she shall be brought up.
     They would not then have the rights normally associated with looking after the child.

(c) That person or persons must have either abandoned the child or delegated his primary care
                                          to them.

  (d) There must be some form of legal or official recognition of their position in the country of
                                     habitual residence.

(e) There must be 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 /her best interests, and
                            not by the pre-emptive strike of abduction.

RE J (CHILD RETURNED ABROAD: CONVENTION
 RIGHTS) [2005] UKHL 40 [2005] 2 FLR 802

The rules and concepts of the Hague Convention are not to be
        applied by analogy in a non-Convention case

The choice ?

the judge may find it convenient to start from the proposition that it is likely to be better for child
to return to home country but weight of that proposition will vary from case to case

- consider the degree of connection that the child has to each country

-time spent in each country

-differences between legal systems are not irrelevant eg the absence of a relocation jurisdiction
may be decisive , or if a mother were to be in a less favourable position than a father by
operation of the law of the home country

-effect on primary carer is relevant though not decisive

Holidays

President’s Guidance on Allocation and Gatekeeping for Care, Supervision and other
Proceedings under Part IV of the Children Act 1989 (Public Law)
Issued in accordance with rule 21 of the Family Court (Composition and Distribution of
Business) Rules 2014
H) High Court Reserved Jurisdictions
International Issues
(19) Cases in which an application is made for (a) permanent placement or (b) temporary
removal from the jurisdiction to a non-Hague convention country;

Re K ( Removal from Jurisdiction: Practice) [1999]
                    2 FLR 1084

(a) the magnitude of the risk of breach of the order if permission is given;
(b) the magnitude of the consequence of breach if it occurs; and
(c) the level of security that may be achieved by building in to the
arrangements all of the available safeguards.
- Thorpe LJ

Re A ( Prohibited Steps Order) [2014] 1FLR 643

The importance of the court having access to clear and
reliable expert evidence before being in a position to
determine the application.

Re H ( A Child ) [2015] EWFC 39
leave to visit Iran refused
Leave to visit Turkey granted
C v K ( Children: Application for Temporary
Removal to Algeria) [2014] EWHC 4125 Fam
- leave to visit Algeria refused
Re JS ( A Child) [2014] EWHC B20 Fam
-leave to visit Dubai refused
 X-N ( A Child) [2014 ] EWCA Civ 1775
leave to visit China refused

AB v TB [ 2014] EWHC 4663 Fam
- leave to visit Jordan granted

Re R ( Children:Temporary Leave to Remove
from the Jurisdiction) [2014] 2 FLR 1402
-leave to visit India refused

Give Consideration To-

A declaration that that habitual residence is in England and Wales
Undertaking to return with the date of return specified
Undertaking not to apply to obtain a passport in foreign jurisdiction
Mirror orders /registration of orders in the foreign jurisdiction
Lodging a bond
Solemn oath on a holy book

EXPERT EVIDENCE

INTERNATIONAL FAMILY LAW

  An overview of EU, Hague and Non-Hague
conventions and case law plus practical tips for
              urgent hearings

                                        Clare Ciborowska
                                        Crown Office Row
                                           2nd JUNE 2015

PART A: THE CONVENTIONS: ESTABLISHING WHICH
CONVENTION APPLIES – HAVE YOU GOT JURISDICTION?
 EU COUNTRIES

 • Brussels IIR was devised by the EU to harmonise family law as much as
   possible across Europe.
 • It is to be applied where there are any issues of either child abduction or
   child custody concerning the EU countries which are signatories.
 • Brussels IIR applies - (with some exceptions)
 • Jurisdiction is usually based on the child’s ‘habitual residence’
 • Contains procedures for sharing of information between contracting EU
   states and procedures to transfer cases to a different member state in
   appropriate cases
 • Provides for Significant cooperation in Child Abduction/Wrongful removal
   cases between contracting states
 • Applies most of the provisions of the 1980 Hague Convention

THE HAGUE CONVENTIONS

There are three ‘recent’ Hague Conventions

• 1980 Hague Convention on the Civil Aspect of International Child Abduction
  ‘the Hague convention’ or the ‘Hague abduction convention’
• The 1993 Hague Convention on Intercountry adoption
• The .1996 Hague Convention on Jurisdiction, Applicable Law, recognition,
  Enforcement and Co-operation in Respect of Parental Responsibility and
  Measures for the Protection of Child ‘the 1996 Hague convention’ or the
  ‘child protection convention’

      All three recent Hague Conventions were designed to promote cross border
                cooperation and in many respects complement each other

1980 HAGUE CONVENTION

  •   Hague convention on the International Aspects of Child Abduction
      generally known as ‘the Hague convention’ of the ‘child abduction
      convention’.
  •   Ratified by approximately 84 countries.
  •   If a child is abducted to or wrongfully retained in its country it will not enter
      into
         . a full investigation of custody, contact or other parenting arrangements
      in respect of a child. This will be left to the country of habitual residence.
  •   Its regulations seek to ensure the swift return of the child to their country of
      habitual residence in order that the court in their country of residence can
      make the appropriate orders regarding the child

1996 HAGUE CONVENTION – applicable to signatories outside BIIR

  • Although this is the 1996 convention it took 15 years (November 2012 in the UK)
    before it came into effect and only came into effect after BIIR. Apparently
    ratification was held up because of the Anglo-Spanish dispute over Gibraltar.
  • It covers several areas outside child abduction but is intended to have the same
    effect for signatories that the BIIR legislation has for the relevant EU countries.
    Some . surprising signatories include Albaina, Algeria and Ukraine (none of which
    have signed the 1980 convention).
  • It is wider in scope than the 1980 and 1993 Hague Conventions. In contrast to the
    1980 Hague Convention (which applies to child under 16) the 1996 Convention
    applies to children under the age of 18. As a consequence it can be used to
    extend the operation of the 1980 Hague Convention to pursue the return of
    children over 16.

  It covers the following:

Article 3
The measures referred to in Article 1 may deal in particular with –

a) the attribution, exercise, termination or restriction of parental responsibility, as
   well as its delegation;
b) rights of custody, including rights relating to the care of the person of the child
   and, in particular, the right to determine the child's place of residence, as well as
       . of access including the right to take a child for a limited period of time to a
   rights
   place other than the child's habitual residence;
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 placement of the child in a foster family or in institutional care, 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;
g) the administration, conservation or disposal of the child's property.

Article 4
The Convention does not apply to -
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;
j) decisions on the right of asylum and on immigration.

IT ALSO COVERS:
    • Orders made in the child's state of habitual residence to be registered and
      made enforceable in other Convention countries.
    • A framework for the co-ordination of legal systems, and for international judicial
      and administrative co-operation.
    • its predecessor, the 1961 convention, was only ratified by 11 European
      countries and jurisdiction to protect children was given to the country of
      nationality rather than the country of habitual residence and the convention
      could not be applied where a child had dual nationality.
    • Countries outside the EU that are signatories will apply the procedures of the
      Hague convention [EU countries follow BIIR which is very similar to the HC]
    • Local Authorities can be asked to prepare a report for a parent seeking contact
      with a child living in another HC state.
    • Article 50 provides that “This Convention shall not affect the application of the
      Convention of 25 October 1980 on the Civil Aspects of International Child
      Abduction, as between Parties to both Conventions. Nothing, however,
      precludes provisions of this Convention from being invoked for the purposes of
      obtaining the return of a child who has been wrongfully removed or retained or
      of organising access rights” – Case of Re J [2015] will consider this in more
      detail.

PUBLIC LAW PROCEEDINGS:

 Placement in a 1996 Hague Convention country
 Art 33 96HC is the direct equivalent of BIIa Art 56 and a specific procedure must
 be followed for placement of children abroad.
 Both require prior consultation between authorities but the 1996 Convention
 additionally requires a report to be sent to the requested State (see Regulation
 13).
 There is .also a prerequisite in Art 33(2) 96HC, absent in Art 56 BIIa, for the
 central authority/other competent authority in the State where the child is to be
 placed to consent to the placement, taking into account the child's best interests.

 Transferring Jurisdiction
 A local authority can seek a transfer of jurisdiction for a child who is habitually
 resident in another state if it feels it is better placed to make decisions about that
 child’s welfare.
 This is done via an application to the High Court, who will then make the request
 to the child’s home country if appropriate.
 The authority in the child’s home country may itself ask for jurisdiction to be
 transferred to the English local authority.

Placing a Child Living in England in Foster/Residential Care overseas
The 1996 Convention applies to the following situations:

• A local authority feels that the most appropriate placement for a child is with
  family or other connected persons in another state;
• A child’s foster carer may want to move abroad and the local authority considers
  it in the child’s best interests to stay with that carer; and
• Where a child may need placement in a specialist residential unit in another
          .
  country.
• If a local authority wants to make arrangements for a child in their care (i.e. one
  subject to a care order or Interim Care Order) to live outside England and Wales,
  it must make an application to court for leave to place the child outside their
  jurisdiction in accordance with the Children Act 1989 Schedule 2 paragraph 19.
• Interestingly if the child is accommodated under section 20 the court’s permission
  is not required. Providing all persons who hold PR consent.

What to consider
• LA must consult the relevant authority in the other state, and a placement cannot
  be made unless consent is given by this authority.
  ( This is not the same if BIIR applies. In this situation any Placement to another
  Member State requires their consent only if the law of that state requires public
  authority
         . intervention for the type of placement concerned).
• LA must provide a report on the child and the reasons for the proposed
  placement. Could be the Permanence Report.
• If the child is the subject of court proceedings the court may approach the
  authority in the other state for permission to place the child.

The 1996 Convention does not apply to:

• Adoptive placements (these are governed by the 1993 Hague Convention on Inter
  country Adoption as is beyond the scope of this seminar);
        .
• Placements   which are private family arrangements; or
• Placements of children under special guardianship orders as these are private law
  orders and do not constitute a placement by a local authority.
  • It will apply to placements of a child in care for assessment in a possible adoptive
                                          placement.

        The Department for Education has published The 1996 Hague Convention
  Departmental Advice on their website which is worth a read for practioners and lawyers

CFAB - CHILDREN AND FAMILIES ACROSS BORDERS

According to the CFAB website;

In 2013 there were 68,110 children in state care in England (classified as “looked after
children”). A disproportionately high number (approximately 15,400) are likely to have
immediate or extended family located in a foreign country.

          .
Under national  legislation where children cannot live with their birth parents, the
preferred option is to place the child with extended family, if appropriate.

• CFAB offers expert international and social work advice on placing children
  overseas.
• CFAB can arrange for the tracing of relatives overseas and for the establishment of
  contact between children in care and these relatives.
• CFAB can request for an assessment of the home environment overseas with a
  view to the child being placed or returned there.
• If successful CFAB can make the appropriate arrangements for the child to be
  received, supported and protected

• CFAB stresses that each country organises it’s social welfare services differently.
  Many countries do not have the systems that are present in the UK and warn that
  form F’s to be completed in the developing world or monitoring of plans of
  protection to be the same in Eastern Europe in the way in which we do in the UK is
  not realistic.
       .
• CFAB ensure that the relevant social work professionals in the overseas countries
  will complete the tasks requested in line with their own legislation, practice and
  professional guidance.

• CFAB is the only non-government organisation in the UK set up specifically to deal
  with child protection cases which involve the UK and one or more countries.

• CFAB has an inter-country social work team that provides guidance, counselling
  and practical support on a range of complex international child protection issues.

• CFAB works with professionals from Local Authorities, the Courts, the police,
  individuals, NGOs and central Government.

CASE LAW

      RE H (RESIDENCE ORDER: PLACEMENT OUT OF
      JURISDICTION) [2004] EWHC 3243 (Fam)

      ISLINGTON LB V EV [2010] EWHC 3240 (FAM)

     J (A CHILD) (1996 HAGUE CONVENTION: MOROCCO)
     [2015] EWCA CIV 329

     TOWER HAMLETS LBC V D [2014] EWHC 3901 (FAM

PRACTICAL STEPS

URGENT ACTION FOR LOCAL AUTHORITIES FOR CHILDREN WHO ARE
HABITUALLY RESIDENT IN ANOTHER STATE
• If a local authority identifies a child in need of immediate protection, it must exercise
  its duties to safeguard and promote the welfare of that child under the CA1989.
• In urgent cases the Convention provides the local authority with the jurisdiction to
  take any. necessary steps to protect the child until the authorities in the state where
  the child is habitually resident have taken any necessary action.
• The presence of an international element to the case should not delay the necessary
  protective measures.
  Beyond any urgent steps to be taken to protect a child jurisdiction will be with the
  child’s country of habitual residence in respect of decisions regarding the child’s
  welfare.
• Once steps have been taken to protect the child, the local authority should contact
  the relevant authority in the child’s home country to inform them of the action taken,
  ask for information about the child’s circumstances, and agree what further action is
  needed
• If the child needs continuing protection while the local authority is liaising with
  authority in the other state the LA should consider applying for ICOS even though the
  final welfare decision may be made in the country of habitual residence.

ABDUCTION FROM THE UK TO A NON-HAGUE CONVENTION COUNTRY

 • These cases often involve proceedings in the country where the child as been
   taken, which can take a long time to resolve, be expensive and protracted
 • The only option available to the client will be to seek the assistance of locally
   based lawyers in the country where the child has been taken
 • This can prove particularly difficult in cases where the non-abducting parent has
   no knowledge
         .         of the language, geography and customs of the country where the
   child has been removed to
 • One option is to place pressure on any family members who remain in the UK to
   reveal information
 • The High Court can make an order under the inherent jurisdiction or Children Act
   1989 S.8 requiring the child to be returned to England or to a specified person
   and it may declare a removal or retention to be wrongful.
 • In practice, one of the most important considerations is that if there is any issue
   of habitual residence, for example if a client’s application has been delayed for
   any reason, the left behind parent should apply immediately and before Habitual
   residence can be established abroad

• A local authority can also apply if a parent removes a child from their care to a
  non-Hague convention country
• Contact should be made with the Foreign and Commonwealth Office and the
  other country’s embassy in London.
• The FCO can sometimes assist to locate the child and make welfare checks
  and can provide details of local lawyers
• The .main problems are that often local laws are not as developed as English
  laws and do not contain many provisions concerning international family law.
• For some countries there are additional protocol agreements – the Anglo-
  Pakistan protocol and the Cairo Declaration

ABDUCTION FROM A NON-HAGUE CONVENTION COUNTRY TO
 THE UK (Countries that are neither signatories to the 1980 or 1996
 Conventions). SHOULD CHILDREN BE RETURNED TO NON-
 HAGUE COUNTRIES WHEN THEY HAVE BEEN BROUGHT TO THE
 UK IN BREACH OF CUSTODY RIGHTS?

• There are no central authorities involved
• There .is no automatic public funding for the parent from whom the child has been
  abducted
• There are no reciprocal timescales and procedures to be adopted
• There are no persuasive measures or automatic recognition of orders in the other
  country concerned
• Usually applications are made in Wardship under the High Court’s inherent
  jurisdiction – other countries are more likely to take seriously a High Court Wardship
  order than a Children Act order in a lower court
• Applications for the return of children from a non-Hague convention country should
  be to the High Court under the inherent jurisdiction
• In some instances child welfare may be best served by prompt return. In other cases,
  a more detailed enquiry may be necessary referring to Re J (A Child) [2005] UKHL 40

ABDUCTION – PRACTICAL TIPS

    This is by no means an exhaustive list and is no substitute for specialist
    urgent advice that must be obtained if whoever is advising a person lacks
    the necessary expertise. The precise orders required in each case will vary
    and there may well be orders available that are not covered below.
           .

•    Police assistance is available to prevent unlawful removal
•    All Ports Warning where there is a ‘real and imminent’ threat of abduction. (Where the child
     is under 16 it is not necessary to obtain a court order before seeking police assistance)
•    Applications can be made to the family court for a All Ports Alert
•    child’s name remains on the stop list for 4 weeks after which it will be removed
     automatically unless a further application is made.
•    The procedure is to liaise with the Tipstaff

Other measures
• Passport orders
• publicity could via Child Rescue Alert
• Urgent applications should me made within court hours but if this is not possible an out
   of hours process applies
• Location orders
• Collection orders
• Passport orders
• Orders. against Airlines and/or immigration services
• Orders against Banks to produce statements
• Education authorities can be ordered to provide information about where the child
   attends school
• ISPs can be ordered to show where emails are being sent
• Government departments can be ordered to provide useful information
• Health authorities can be ordered to obtained GP records
• LA’s can be ordered to provide details
• Sequestration orders in respect of any assets
• Telephone companies can be ordered to trace telephone calls
• If a child is being taken to a non-Hague convention country via a Hague convention
   country then the Hague Convention can still be invoked providing very urgent action is
   taken at the airport of the transit country.

**General advice to solicitors – as soon as it is established that
the case concerns a child who has formerly lived abroad in a
convention country and where there is a chance a parent may
wish to return to that country, even where the child has been
habitually
        .  resident in the UK for some time a warning should
sound. If there are any doubts from solicitors, barristers or from
the judge then the case should be listed before a judge in the
Family Division of the High court. It is the duty of practitioners to
alert the court that the Hague Convention ay apply.

**In cases of child abduction clients should be referred to
specialist lawyers for urgent advice.

C v D [2013] EWHC 2989 (Fam), decided by Bodey J, applying the guidance
already given by the court in Re H [2000] 2 FLR 294.

Thank you. We will now
answer any questions from the
  floor and from those of you
        logged in online.