Thursday, May 10, 2012

W-B (A Child): The complexities of jurisdiction

The recent case of W-B (A Child) [2012] EWCA Civ 592 demonstrates some of the complexities of resolving jurisdictional issues within the United Kingdom.

The case involved a mother who, in 2006, removed the child from England to Scotland, without the consent of the father. The father immediately issued proceedings for residence and contact in the Southend County Court, where the following subsequent orders and applications were made:

April 2008 - Residence order in favour of mother (the father accepted that the child became habitually resident in Scotland in or around 2006).

11th March 2009 - Contact order.

15th July 2010 - Father applied to vary the contact order (he also sought a contact enforcement order, but such orders are only available against anyone habitually resident in England and Wales - see Children Act 1989, s.11K(4)).

28th July 2010 - Mother applied to discharge the contact order.

22nd February 2011 - Consent order made providing for variation of the contact order, with a review in September 2011.

June 2011 - Father applied for a residence order and to vary the consent order.

September 2011 - At the hearing of the father's application, the mother raised the issue of jurisdiction. Initially Brussells II was erroneously referred to but that is not of course relevant, as both England and Scotland are part of one member state, namely the United Kingdom. However, the Family Law Act 1986 is relevant. Under that Act, the crucial question is the habitual residence of the child at the 'relevant date'. The court found that the relevant date for determining the court's jurisdiction was the beginning of the whole process, namely the applications made by the father in 2006, at which time the child was not yet habitually resident in Scotland. Accordingly, the English court had jurisdiction throughout. The mother appealed against this decision.

Giving the leading judgment in the Court of Appeal, Lord Justice McFarlane began by referring to the relevant provisions in the 1986 Act. Firstly, under s.1(1)(a) a section 8 order made under the Children Act is "a Part 1 order" to which the relevant provisions apply. Jurisdiction is dealt with under s.2, which states that a court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless it has jurisdiction under the Council regulation, or the Council regulation does not apply but 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 the Act is satisfied, or the condition in section 3 of the Act is satisfied. Here, s.3 was the relevant provision, and that essentially states that on the 'relevant date' the child must be habitually resident in England and Wales.

The 'relevant date' is defined in section 7(c):
"'the relevant date' means in relation to the making or variation of an order –
(i) where the application is made for an order to be made or varied, the date of the application (or first application, if 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"
Lord Justice McFarlane then referred to one other relevant provision, s.41, which deals with the issue of habitual residence where, as here, the child had been removed without consent. In such cases s.41 provides that the child should be treated as still being habitually resident in the original part of the United Kingdom for one year after their removal.

Applying the above, His Lordship found that, pursuant to s.41, the English court had jurisdiction to deal with the original proceedings in 2006. However, those proceedings came to an end when the contact order was made in March 2009. Accordingly, all further proceedings were without jurisdiction as the relevant date for them was the date of the application under s.7(c)(i), by which time the child was habitually resident in Scotland. His Lordship therefore allowed the appeal and set aside any orders made by Southend County Court since March 2009, leaving the March 2009 contact order in force. Any further applications would have to be made before the court in Scotland.

Lord Justice Hughes and Lord Justice Thorpe gave concurring judgments.

4 comments:

  1. Can I ask what is probably a stupid question (but you'll see where I'm going with it)?

    What does it matter which jurisdiction the case is tried in?

    In my own, very similar, case discussions were endless over jurisdiction. It wasted hours of court time - with two rather inexperienced solicitors discussing with a judge seemingly ignorant of all law some increasingly obscure and irrelevant points of law - and months if not years of time between hearings. Eventually proceedings were transferred back from Scotland to the RCJ by which time contact had not taken place for years and was not restored for nearly 8 years when the mother threw a now unruly teenager out of her home.

    Proceedings over jurisdiction are hugely wasteful and damaging to a child's best interests. This case will not help this problem at all. Surely every principle of avoidance of delay, judicial continuity and the welfare of the child would argue for retaining proceedings in the jurisdiction in which they start?

    Parents relocate to Scotland precisely to create these delays and handicap the applicant parent (consider Caroline Norton's husband) and the courts should make it clear that this is not acceptable. How can the judges in this case possibly say that the 2009 contact order brought proceedings to an end when the 2010 proceedings applied to that contact order?

    ReplyDelete
    Replies
    1. Scotland has a separate legal system. Obviously, it should be determined at the outset under which system a case should be decided.

      As for the orders made in this case after March 2009, they are null and void, as the court simply did not have power to make them. Clearly, this is not satisfactory, but the answer, as suggested by their Lordships, is to make the law on jurisdiction clearer.

      Delete
  2. Northern Lights9 May 2013 at 02:39

    John, I wonder if you could answer a question which has recently started to bother me about this case.
    The original contact order of March 2009 remained in force. If it was breached and contempt proceedings were to be issued, in which court would they be issued and which court would have jurisdiction to hear them? Do you know the relevant authority or statue in relation to this question?
    Sorry if I have given you a headache- I have reason to be interested in the answer.

    Thanks,
    NL

    ReplyDelete
    Replies
    1. I think the answer is that the order can be enforced by the English court or, if it is registered in Scotland, by the Scottish court - see this post.

      Delete

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