Ruth Cabeza in J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction), Re [2024] EWHC 1395 (Fam) 


15th Jul 2024 | Cases


Ruth Cabeza was instructed by Carolina Marín Pedreño, Dawson Cornwell on behalf of the Applicant father in J & H (Jurisdiction: 1996 Hague Convention : residual domestic jurisdiction: parental responsibility jurisdiction), Re [2024] EWHC 1395 (Fam); an application for parental responsibility in relation to two children and an order for one of the children be returned from Thailand.

The Applicant father is a British citizen, and the Respondent mother is a Thai citizen. Their eldest daughter, Nora, was born in Thailand in March 2018.  In January 2019 Nora came to England where she remained with living with her father, apart from a brief visit to Thailand for two months later that year for the birth of her sister, Felicity. The mother was not able to join the father and Nora in England because she did not have the correct visa. After the pandemic the father and Nora returned to Thailand in December 2022 for a four week holiday. During the holiday the mother made it plain that if the father did not agree to marry her she would not agree to Nora returning to England.  The father attempted to leave Thailand with Nora, but was stopped at the border as it transpired that although he was registered on her birth certificate in Thailand, he did not have parental responsibity for her as he was not married to the mother.  The authorities returned Noral to the mother’s care and the father returned to England alone and promptly commenced wardship proceedings for a summary return order under the Inherent jurisdiction for both children.  The father also applied for a parental responsibility order for both children.

The proceedings were opposed by the mother who asserted that the court lacked jurisdiction to make any of the orders sought by the father on the basis that the children were habitually resident in Thailand.

At this hearing the court was only dealing with the habitual residence of the children and the jurisdiction to make some or all of the orders sought by the father.  The court was not at this stage determining the welfare issues.

Ms Cabeza submitted on behalf of the father that at the date the court was seized of proceedings Nora remained habitually resident in England where she had lived for most of her life until the mother retained her in Thailand at the end of the four week holiday.  Furthermore, even if Nora’s habitual residence had moved to Thailand following the issue of proceedings, this would not cause the court to lose jurisdiction under Art.5 of the 1996 Hague Child Protection Convention (HCPC) as Thailand is not a Contracting State to that Convention.  On this basis Ms Cabeza argued that if habitual residence had moved the Family Law Act 1986 ss2 and 3 still applied (LB Hackney -v-P and Others (Jurisdiction : 1996 Hague Child Protection Convention) [2023] EWCA Civ 1213) and the English court retained jurisdiction under Part 1 to make orders concerning the exercise of parental responsibility for Nora.

Ms Cabeza also submitted that orders for parental responsibility were not captured by Part 1 of the Family Law Act 1986, and relying on the case of  Re S. (A Minor) (Parental Responsibility: Jurisdiction) [1998] 1 WLR 1701 she asserted that when a child was habitually resident in a non Contracting State, the court retained jurisdiction under domestic law to make parental responsibility orders under s.4 of the Children Act 1989 irrespective the child’s nationality.  On this basis she asserted that the court had jurisdiction to make a parental responsibility order for Felicity notwithstanding that Felicity had been habitually resident in Thailand all her life.  She acknowledged that whether the court exercises its jurisdiction will be a welfare led determination having regard to s.1 of the Children Act 1989 and relevant case law.  Ms Cabeza accepted that the situation would be different had Felicity been habitually resident in a Contracting State, as a parental responsibility order is an order that falls within scope of the HCPC and therefore jurisdiction would lie with the Contracting State of her habitual residence pursuant to Art.5.

Ms Cabeza also argued that there was jurisdiction to make nationality based orders in relation to both children provided that they did not extend beyond ‘bare return orders’.  On the facts of this case she confirmed her client acknowledged that it would be difficult on welfare grounds to make out a case for a bare return order for Felicity.

Ms Chokowry, for the mother argued that Nora was habitually resident in Thailand at the date of issue and that in any event she was currently habitually resident in Thailand and it was therefore not appropriate for this court to retain jurisdiction.  Ms Chokowry also argued that the case of re S was very old law and should not be followed in the light of developments in the last 25 years.  Ms Chokowry submitted that the facts of this case did not reach the threshold for exercise of nationality based jurisdiction.  She sought dismissal of the father’s claims for want of jurisdiction on that basis.

The court determined that at the date of issue Nora remained habitually resident in England.  Accordingly the court was properly seized at the date of issue.  Furthermore in the light of the decision in the Hackney case any change of habitual residence would not alter the jurisdiction to make orders for Nora.  Accordingly the court retains jurisdiction to make the full range of welfare orders under s.4 and 8 of the Children Act 1989 and under the Inherent jurisdiction of the court in relation to children.  In relation to Felicity the court accepted it was bound by the decision of the court of appeal in  Re S. and that there is a power to make an order under s.4 of the Children Act 1989 for Felicity despite the fact that she is, and has always been, habitually resident in Thailand.  Furthermore, even though the father had taken pragmatic view on the likelihood of success of any application for a bare return order for Felicity, the power to make such an order existed.  The court made no substantive orders in relation to any of the children and has listed the matter for a welfare hearing where the court will consider how if at all to exercise its jurisdiction in relation to the children.

This case is important as it is one of the first cases to consider the implications of the Hackney decision where a child is habitually resident in a non-Contracting State – or has become habitually resident in a non-Contracting State following the issue of proceedings in England.  This case provides very useful analysis and guidance on the relevant legal framework that pertains in such cases.


Related areas


Do you have a similar case?

If you would like some help or advice, talk about a similar matter, call our clerks on 020 7353 6961.

Author

Recent

Douglas Allen talks about post separation accrual, the principles and practical considerations

Ring-Fencing of Post Separation Accrual

In financial remedy proceedings, the division of assets often…


Rob George in E & F (Stranding) [2024] EWHC 2901 (Fam)

Professor Rob George, instructed by Dawson Cornwell, acted for the applicant mother in E &…


Natasha Miller in M v F [2024] EWFC 310 (B)

Natasha Miller, instructed by Brethertons, acted for the First Respondent Father in M v F…

Search

Shortlist close
Title Type CV Email

Remove All

Download