This is a guest post by Laura Vickers. Laura is a specialist children law barrister and mediator practising at No5 Barristers’ Chambers. She tweets as @LauraVickersNo5
Sometimes, English courts need to deal with families living overseas. They gain the power to do so – or “jurisdiction” – via a number of different legal routes. This blog post will look at some of the issues arising out of three recent cases involving families based in the Middle East.
The first two cases, XM v XF [2021] EWHC 1279 (Fam) and AA v BB [2021] EWFC 55, highlight different approaches to dealing with co-parenting and conflict resolution, as well as the need for solid expert evidence on the law in non-Hague convention countries when the application is for permission to temporarily remove children to those jurisdictions.
XM v XF
In XM v XF [2021] EWHC 1279 (Fam) the family was and remained based in Dubai. Even though they were not habitually resident in England (which is normally how a Court decides whether it has the power to deal with a case), the English court assumed jurisdiction for the Children Act proceedings as a result of there being ongoing divorce proceedings in England, where the parties had married in 2012. This power is contained in sections 1(1)(a), 2(1)(b)(i) and 2A of the Family Law Act 1986.
There were two children, now aged 3 and 6. The marriage began to break down in late 2019 and by early 2020 the parents were in a state of high conflict, the Judge finding that the Father had responded badly to the end of the relationship and the atmosphere within the family home had become “toxic”. The Mother felt that the Father’s behaviour was controlling, and while the Judge accepted that she perceived it that way, the case was not viewed as being one which featured domestic abuse.
Following the separation, matters continued to be fractious between the parents, and there were problems with the progression of both face-to-face and video call contact between the Father and the children. The children suffered emotional harm as a result. The Judge considered that the litigation had been a very difficult process for both parents.
Nevertheless, the case is striking for the apparently proactive approach the parents took to obtaining outside assistance to resolve their dispute and improve their family situation. At a very early stage of the litigation, the parents jointly appointed an independent social worker who engaged both them and children throughout in a therapeutic approach, as well as providing reports to assist the court process. The Father sought personal counselling to address his emotional response to the marriage breakdown. By the time of the final hearing, Roberts J had a plethora of evidence, including detailed independent evidence about the children. Unfortunately, while the parents were ultimately unable to agree the way forward for the children, requiring the Court’s determination, they showed willingness to seek support, recognising that their own behaviour was detrimental to the children’s wellbeing. This seems to have enabled the litigation to move more quickly than is often seen, with both parents being involved in the children’s care throughout.
The parents hoped, post-proceedings, to engage the services of a “parenting coordinator”, which was encouraged by the Judge. Parenting coordinators are qualified mediators who assist parents with communication and decision-making where child arrangements are already in place, and who can coach and empower parents to achieve a more positive co-parenting relationship.
The case indicates a move away from a purely evidence-based and adversarial approach to a manner of working which proactively assists the parents both during and after the proceedings.
AA v BB
The parents in AA v BB [2021] EWFC 55, however, approached the litigation in a very different way. The Father was a Jordanian national, living in Dubai. The Mother and children had lived in the UK since 2018, and the English court assumed jurisdiction based on their habitual residence. The Mother sought an order that the children should live with her and a prohibited steps order to prevent the Father from removing them from England and Wales; the Father sought an order allowing the children to spend time with him both in the UK and abroad.
This was a high conflict case , with the Father refusing to cooperate with or even acknowledge the concurrent divorce proceedings. The Judge found that the Father had behaved “poorly” within the litigation, driven by his inability to accept that the Mother ought to be able to divorce him. Over the course of four days, Richard Harrison QC sitting as a Deputy High Court Judge heard evidence from both parents and a family friend. He was required to make determinations with respect to the Father’s alleged domestically abusive and controlling behaviour, alleged religious fundamentalism (which he did not find to be proved) and the risk of the Father abducting the children and wrongfully retaining them abroad. The Judge considered a number of incidents which took place throughout the marriage and concluded that the Father’s behaviour fell short of coercive control; however, he accepted that the Mother experienced this as “passive coercion” and that she was genuinely fearful that the Father would abduct the children. The Judge also found that the Mother’s anxieties had adversely impacted on the children’s perceptions of their Father.
Neither the UAE nor Jordan are parties to the Hague Convention on the Civil Aspects of International Child Abduction which is an international treaty that provides a quick legal route to allow the return of children wrongfully taken from one country to another by their parents. Although the UK is a signatory the other relevant countries don’t recognise the convention. Therefore, the Judge had to consider the legal implications of the Father being allowed to take the children to UAE or Jordan. Here, the Mother alleged that the Father would refuse to return the children to the UK if he were allowed to take them to Dubai or Jordan, even for a holiday. The Judge applied the test set out in Re A (Prohibited Steps Order) [2013] EWCA Civ 115 at paras 23 and 25, which we’ve summarised here :
- “The overriding consideration for the court in deciding whether to allow a parent to take a child to a non-Hague Convention country is whether the making of that order would be in the best interests of the child.
- Where (as in most cases) there is some risk of abduction and an obvious detriment to the child if that risk were to materialise, the court has to be positively satisfied that the advantages to the child of her visiting that country outweigh the risks to her welfare which the visit will entail.
- This will therefore routinely involve the court in investigating what safeguards can be put in place to minimise the risk of retention and to secure the chart’s return if that transpires.
- Those safeguards should be capable of having a real and tangible effect in the jurisdiction in which they are to operate and be capable of being easily accessed by the UK based parent.”
- “Applications for temporary removal to a non-Convention country will inevitably involve consideration of three related elements:
- 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.
- It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave.”
Interestingly, the Judge found that the risk of the Father retaining the children in either the UAE or Jordan was “real and not fanciful”, but he did not find that, on the balance of probabilities, the Father was likely to abduct the children. He was required to balance that level of risk against the benefits to the children of visiting the country and the safeguards that could be put in place to mitigate the risk.
In this case, the Mother had renounced her Islamic faith. The Court heard evidence from an expert in UAE family law that, because the Mother would be considered an apostate in both jurisdictions, she could be afforded no legal or informal protections. To attempt to do so would offend the principles of Sharia law. Additionally, the Mother would not be acknowledged as the children’s custodian and neither country would recognise an order of the English Court.
The Judge therefore found that the risk of wrongful retention outweighed any possible benefits to the children and ordered that the Father must not remove them from the jurisdiction of England and Wales, supported by port alerts. An order was made for a phased reintroduction of contact between the children and their Father to take place when he visits England.
AA v BB highlights the need for expert legal evidence in international cases such as this.
Re S
In the third case, Re S (Children) (Inherent jurisdiction: setting aside return order) [2021] EWCA Civ 1223, the Court of Appeal considered an appeal from a decision of Mostyn J to refuse to set aside an order made at first instance by HHJ Hillier.
The parents had three children, all born in the UK to an English Mother and Libyan Father. The family had travelled together to Libya in 2017; HHJ Hillier found that this was a planned move, with the intention of relocating permanently to that country. In 2018 the Mother returned to England alone, although she travelled back and forth between the countries throughout that year until, in November 2018, she issued proceedings in the High Court alleging that the Father had forcibly retained the children in Libya, seeking an order for their return.
Having heard the evidence, HHJ Hillier found that the parents had agreed to move permanently to Libya, that the Father had not wrongfully removed or retained the children, and that the children were habitually resident in Libya. She therefore found that the English Court did not have jurisdiction for the children. At the conclusion of her judgment, she mentioned that the Mother had not asserted that the Court ought to exercise its inherent parens patriae jurisdiction to protect the children, and therefore she need not consider it.
Parens patriae is an old principle of law which gives the High Court jurisdiction over British children even when they are abroad by virtue of their nationality. It can be used to make protective orders for children located in another country. The circumstances in which the jurisdiction is used are very limited – in most cases there will be some other basis of jurisdiction, or a good reason to allow the court where the children are located, or habitually resident, to deal with the issue. Even where there is no international treaty or some other piece of international law which spells out which country has the job of resolving disputes about children in cross border cases, courts generally operate so as to respect the jurisdiction of other countries, and apply a principle of ‘forum conveniens’ which tends to result in cases about children being dealt with in the place where they are present or settled.
Here, the Mother appealed the decision and also sought to argue the additional ground that parens patriae jurisdiction ought to be exercised. The appeal was dismissed and the Mother was not permitted to argue the additional ground. The children continued to live with their Father in Libya.
Some months later, the Mother instructed new solicitors and made a fresh application. She again sought to invoke the parens patriae jurisdiction and also sought an order that HHJ Hillier’s order be set aside, relying on Family Procedure Rule Practice Direction 12F, asserting there had been a fundamental change of circumstances since the original order was made. She relied on a report from an anthropologist as to the current state of war in Libya and the likely harm which may befall the children were they to remain in that country.
The application was heard by Mostyn J, who determined that the set aside application ought to be dealt with first. He refused that application, on the basis that there had not been a fundamental change in circumstances. Although it was not the main reason for refusing the application, he also considered that the Mother’s application was an abuse of process because the parens patriae issue could and therefore should have been raised before (here the judge relied on a principle set out in a case from 1843 called Henderson v Henderson).
The Mother appealed the decision of Mostyn J. Her appeal was allowed by the Court of Appeal. Baker LJ delivered the leading judgment, in which he found that the Judge had misinterpreted the requirements of PD12D and PD12F which each set out the grounds upon which an order under the inherent jurisdiction may be set aside. “Fundamental change of circumstances” is a separate ground to “the welfare of the child requires it”. Mostyn J had fallen into error by conflating these two grounds, whereas they ought to have been considered separately. As a result of his error, he had failed to undertake a welfare analysis. Additionally, it had been wrong of Mostyn J to place too much reliance on the likelihood of any order being enforced in the foreign jurisdiction. Judges should consider first whether such orders are necessary to protect children and only then look at whether and how they will be implemented.
The Court of Appeal said that it was inappropriate to import the concept of Henderson abuse of process into cases about children, as there were already sufficient powers of case management contained in the Family Procedure Rules to deal with abuse of process. The court said that to bring in additional concepts would be likely to lead to satellite litigation.
The Court of Appeal also found that the Judge had failed to give adequate consideration to the exercise of the parens patriae jurisdiction, which they considered was actually the real issue in this case. The case was remitted to a different High Court Judge for a decision on that.
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