Habitual residence and wrongful removal (C v G)

Family analysis: In C v G, a mother successfully sought the return of her two children from Madagascar where they were living with their father after being wrongfully removed from the UK. Marie Crawford, barrister at Becket Chambers, explains why the judgment is helpful in restating the law in this area of family practice.

Original news

C v G [2017] EWHC 762 (Fam), [2017] All ER (D) 68 (May)

The Family Court ordered the return, to the UK, of two young children to the care of their mother in circumstances where they had been removed from the UK by the father, without the mother’s knowledge and agreement. The children had been habitually resident in the UK at the relevant time and that it was in the best interests for the children to return to the UK from Madagascar, where the father had wrongfully taken them.

What issues did this case raise?

It raises very common issues typical of this type of case, ie where there has been a wrongful removal to another jurisdiction of children who are UK citizens. As such, it will be relevant to many cases with similar facts.

Those issues are:

  • Was there a wrongful removal?
  • Are the children or child habitually resident here (England and Wales) at the relevant date (the date of their removal) and therefore whether the court has jurisdiction?
  • Should the court order a return of the children under the inherent jurisdiction?
  • What is the law applicable in cases of abduction to non-Hague convention (EU) countries?

The other interesting issue this case deals with is that at the very first emergency application the mother made to the court on 11 October 2016, Holman J provisionally found that the children were habitually resident here, and that therefore the court had jurisdiction in respect of matters of parental responsibility (invoking Council Regulation (EC) 2201/2003 (Brussels II bis)), and that they had been wrongfully retained (which is not at all unusual in the circumstances).

What is slightly more unusual is that he made them wards of court, an order which is not always made, and increased the court’s power as against competing jurisdictions. There was clearly great concern about the children on the facts of this case, and no doubt because of their young ages (three and one).

To what extent is the judgment helpful in clarifying the law in this area?

The judgment is helpful in that it goes through all the issues to be decided in such cases and the law applicable, in a very user-friendly way.

The judge went through the relevant law, first in relation to whether the children were habitually resident in the English court’s jurisdiction as at the date of their removal, or whether they had acquired habitual residence in Madagascar (the country in question), a non-Hague Convention country. She considered the relevant provisions of Brussels II bis (Articles 8, 10, 12 and 14), but came to the conclusion that Articles 12 and 14 were not applicable to the facts.

The judge concluded that, as a matter of fact, the children were wrongfully removed without the mother’s knowledge or consent, and therefore Brussels II bis, Art 10 applied, so that ‘the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired habitual residence in another Member State’. This gives the court jurisdiction under Brussels II bis, Article 8 to deal with any matters of parental responsibility over such a child. Although the judge did not need to rely on Article 8 for jurisdiction (where child has habitual residence at the time the court is seised) because she found that Article 10 applied,

she did consider that the test in Article 8 was also met and that the children remained habitually resident in the jurisdiction at the time when the court was seised, ie 10 October 2016, having been wrongfully removed on 25 August 2016.

The other question the judge needed to consider was whether the children had acquired habitual residence in Madagascar, and found as a fact that they had not. Therefore, under Article 8 they had habitual residence at the time the court was seised and also under Article 10, because they had not acquired habitual residence in another country.

The judge also clarified that Article 10 does apply to non-EU Member States as decided in Re H [2014] EWCA Civ 1101, [2014] All ER (D) 277 (Jul). So, there can be no argument that the court cannot retain jurisdiction in relation to children abducted to non-EU countries.

The final question the judge had to consider was whether it was in the best interests of the children to be returned to the UK, so that the UK courts could determine any further arrangements in respect of them. She applied the well-known test in Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2005] 3 All ER 291 and concluded, without difficulty, that on the facts of this case, an order to return was in their best interests. She described the father’s conduct as ‘callous in the extreme’. What she also felt was relevant was that he had denied the mother contact with two very young children for more than six months, and that this was not just ‘wholly wrong’ and ‘inexcusable’, but also put a question mark over his parenting capacity in that she could have no confidence in him understanding the needs of the children and that they should be in his sole care.

The judge also considered allegations that there had been domestic violence against the mother, and took the view that those allegations needed to be fully considered by the court before a decision could be made to leave the children in the father’s sole care. This was another factor in deciding that the children needed to be immediately returned to the mother in the UK. The judge also considered that the fact that the children had been in Madagascar for six months, and the argument that they therefore should stay there, could not be relied upon because this was only as a result of a wrongful act.

What are the implications for practitioners? What will they need to be mindful of when advising in this area?

This case has not made new law (it is a first instance decision, in any event). It does, though, helpfully set out all the matters that the court will consider in such cases and goes through the factual and legal criteria that must be met, as set out above.

It is very clear that a wrongful removal will be viewed in a very negative light by the courts, and that will be a key issue, perhaps even the deciding issue, in any case. It is also very evident from this decision that arguments that Brussels II bis, Art 10 does not apply to non-EU (Hague Convention) states will not succeed, which affords important protections for UK children.

Habitual residence is very much a matter of fact and also one of common sense. Who was the primary carer is highly relevant. The age of the children will be very important, but effectively whether to return or not is a welfare decision.

Are there any patterns or trends emerging in the law in this area?

It could be said that the conduct of the parties and whether the removal was wrongful appears to be gaining significance, although I think that has always been very important in these cases. The facts of the case (as found by the court) are extremely important, particularly as to who is the primary carer and what the child’s life was like before the removal.

It seems to me that the welfare of the child is now the most important consideration for the courts. There seems to be less emphasis on jurisdictional points and the more academic legal issues that these cases inevitably contain, which can only be welcomed as a development.