Hello. Good afternoon everybody very pleased to welcome you to today's session. This is the second session through data law where I'm taking you through the concepts of habitual residence and domiciled in family cases since our exit from the Eu. So as you know that in this session I'm spending some time going through with you explaining the context in which this matter is obviously very relevant when it comes to divorce, particularly in Children law matters when issues as to jurisdiction come into play, whether it's in relation to domicile, whether it's in relation to the concept of habitual residence. So last time you remember I spent some time to find those concepts and looking at how we determine either of these areas. And I also spent some time particularly the positions surrounding dealing with divorces and dissolution of civil partnerships and also a nullity and separation and looking to see whether one would be relying upon domicile and habitual residents to court to have jurisdiction. I also spent some time looking at the position as to I hope it's your residents and determining that and the fact that it could be acquired very easily, it could be lost relatively easily as well depending upon the particular circumstances. What I'm going to be doing in today's session is the one to go through jurisdictional issues in more detail with you, particularly when we're looking at Children matters for when local authorities intervene as to that involvement With other countries in that regard and to see how when you're dealing with cases under a convention of 1996. How that is somewhat similar what we did have under the odd brussels to revised in that regard. So, I wanted to start them with this case of e a child habitual residence. This was a 2014 decision handed down by the then president of family division, Sir James Mamby. And one of the things that his lordship did emphasis was we need to be clear about on what basis do we determine habitual residents of a child. And this is where Under the old Article eight of the busses to revised his lordship said that generally it will be determined by looking at the country in which the child is habitually resident and In terms of determining that the issue of jurisdiction, so it would normally be where the child is habitually resident. But if that cannot be established, then under article 13 subsection, when the brussels to revised, you then look at the Member State with a child is present and that's where that member state will then have jurisdiction. So when it comes to jurisdiction for child, in terms of whether the english welsh courts or the courts will have jurisdiction. You're then determining habitual residence. And we looked last time at what determines that in terms of the integration that that child has in that child's family and economic climate. But what if the court doesn't have jurisdiction? So what if you've got a case where so you've got a family who have entered the UK England the world's they are traveling, they are perhaps traveling, they would go on to say, on a visit on a visa, let's say, or a visitor's visa or otherwise or before exit from the EU say say the family were from one of the other EU countries which obviously didn't really require a visa and they have been here just literally for a matter of weeks, let's say. And then the child is injured and the local authority which to seeks an emergency protection order or say a care order indoor circumstance, an interim care order. What then happens if the local authority need to intervene because the child is at risk, but we don't have jurisdiction based upon habitual residents. What do we then do? Well, this is the article 17 to 20 of Brussels to advise would be relevant, which provides that the court is seized of a case of which it has no jurisdiction in the brussels to advised they must declare this in the case of its own motion. And then it should only have jurisdiction. It should only retain jurisdiction to take provisional protective measures or short term holding arrangements and only in an urgent case. So, what that would mean is so you've got a child who has sustained injuries and the local authorities do. They need to go safe. And the protection order in of the Children act section 44 45 or even an urgent interim care order Under Section 31 of the Children. They should only do so if it's needed an insurgent in a circum circumstances and there's a short term holding arrangement so that the country which the child is habitually resident had should be notified immediately so that they can then take protective measures. Their end, which will be more longer term Steps if it needs to be. So that's the article 17 and 20 of muscles to revise would be relevant. And I look at how, what these are replaced by cases lodged as from the turn of this year, very shortly. Now, the other provisions in which we need to think about which we also picked up on is this what if the court does have jurisdiction in the brussels to revise based upon at the position surrounding habitual residence? So, for example, if a child is based, that's a in England Wales, an english and welsh courts do have jurisdiction. But this child also has a connection with another member states, say, through their mother or father's side, maybe got extended family overseas. Maybe these siblings half siblings overseas. The child is spending time between England Wales another another country in that regard, than which country is best placed to do with that child's case. Should it be England World as a legal system where the child is habitually resident or should it be Sadie other country. Say spain again, for example, the child has got family friends there and the child visits there? Child has got siblings, they're half siblings may be extended family members are there. So which country that is best place? And this is where we would ordinarily have relied upon article 15 of Brussels to advised which provided for the fact that even if the court did have jurisdiction to deal with that child's case, we needed to then consider whether one would be required to require a quarter another member state and to accept jurisdiction what a child did then have a particular connection with that member State where the court of the other Member States to place to hear the case. So we look at that and that was based upon what was in the child's best interest. Now, what's important is when you're dealing with these cases, it's not based on which law would be more beneficial or appropriate. You're not looking at that as well that we're wrong. Way of looking at this. You're looking at the connection, you're looking at the short term and long term consequences in terms of what's connecting a child here in England Wales versus what's connecting a child in India the country too. And see which country is best place. Okay, and looking at that. There was then another case which looked at this, this was a supreme court decision of re end Children is 2016 decision and what we end emphasized is you're looking at the connection with the child has with England Wales. For example, if they're living here, their parents are here, they're going to school here. Their friends are here. Most of their family are here, for example, there speaking english and welsh respectively. They used to accustom the heritage of the culture here, but then what's comparing them with what's connection with the other countries. So if it's pain, for example, if they got siblings, half siblings over there are the extended family members there, how often do they visit? Are they speaking spanish as well? They certainly involved in the heritage, the cultural aspects there. What's the intention of the parents in that regard? So you're looking at those factors to see what's connected them as to which country would be best placed whether it would be us here in England Wales, even though we have jurisdiction based on article eight, whether the Charles case would be best handled in spain, for example, where say the parents intend to return, but the parents intend to live permanently and that's where the argument sometimes needs to be had. In so far as that's concerned Now had and has distant changed as a result of us leaving Europe. While there was one case last year in October 20 20 that Mr Justice Mostyn dealt with. This was a case of a local authority and um And others 2020 sessions. And this is a really useful case because his lordship took the opportunity to certainly inform us that even though it was an application by the father Under Article 15 of the cancer regulation where he saw for the Charles case to be transferred to Romania. Given his connection there. His lordship did say that this application my father under article 15 had to be dealt with obviously very, very carefully and his lordship was on the view. This may be of course, looking at this in October 2021 of the last applications of its type given the impending at that time abandonment of the european union. But nonetheless, the issues would remain relevant because article eight of the 1996 Hague Convention Would be relevant here, which I'm going to be taking you through shortly. So that's article nine, after 1990 six Hague Convention on jurisdiction applicable Law Commission enforcement cooperation, respect of parental responsibility and measures for the protection of Children contained in a similar but not identical provisions. So one of the things that the court did say is even though we were going to be leaving europe principles, in terms of which countries best place would actually very much remain intact. But it would be based not so much on brussels to revise anymore for new cases as from the turn of this year, But instead, under the 1990 six regulations. So with the facts of this case, this is where the father had applied for the Article 15 made Article 15 requests for the child's case to be transferred to Romania. This was made some 19 months after the proceedings had actually been issued in this regard. The parents themselves were Romanian nationals and the Children had left Romania at a very young age and had very little involvement with Romania. All Children shared their wish for the Children to in fact remain in England where they felt safe and listen to the parents said that these were Children where they had had memories of their involvement with Romania. Children raised until they were very young. A culturally specific placement in Romania. They will be supported by being transferred there and the parents themselves wanted to turn to Romania. There had been a finding of fact hearing here in England and court had made findings against the parents. They were in fact serving prison sentence. And it was in fact in relation to the disposal that their parents sought for the matter to be transferred and the parents were seeking for the transfer in the circumstances. So this is where the court very much relied upon that case that I mentioned. Bye Mr. President Family division, Sir James Monroe. And also the case of we end and the court dictate the view that here, there was no evidence about the Romanian court or its predecessors on the facts which would suggest that this was a case where the Children's case would be best met and dealt in Romania. The court did say that this was a case where by the Children are extremely vulnerable. They were stable here, there was a need for continuity of care. Part of proceedings have already been dealt with here. The remainder of the proceedings would be better in terms of witnesses, in terms of consistency of judge, in terms of consistency of witnesses for the proceedings to be dealt with here and therefore on that basis, the court took the view that person would be dealt with accordingly here in England while so you can see the thinking behind us. It's also important to note that judges can transfer of course part of the proceedings obviously, so it doesn't have to be all the proceeds that are dealt with in England and Wales. Now, like I say, because of new cases then that have been lodged and as from the turn of this year, we then need to bear in mind that for those cases we are no longer than going to be relying upon brussels to advised, but instead you're going to be relying On the Hague Convention of 1996. So you've got, for example, articles 34 and five of the Hague Convention 99 6. You can see that if you have a chance to look at this, you'll see that this is somewhat similar to the position with bitch of residents in that fits in with article later brussels to advise. So what I mean by that is if say you've got the local authority who are bringing care proceedings now In November 2021, for example, relating to a child, whether the english and Welsh courts would have jurisdiction will be based on articles 345 of the Hague Convention in 1996. And that will be based upon whether the child is habitually resident here as per our discussion previously in terms of what determines habitual residence. But then you've also got articles 11 and 12 of the Hague Convention of 1996, which is similar to the emergency situation that we had under the Article 17- 20 of Brussels to advise. So if you've got a family who have only been here temporarily and the child is not habitually resident here can english course english and welsh courts make emergency orders, whether it's a massive protection order, whether whether it's in a bridge time for serious interim care water. Yes, they can in emergencies on a short term holding position And really only when absolutely necessary, pursuant to articles 11 and 12 of the Hague Convention of 1996. So that ties in with articles 17 to 20 of Brussels to revise that regionally rely upon. And then you got article eight which relates to the issue of transfer. So this allows for transfer of jurisdiction to another contracting state. Will court considers that that other state would be best placed to hear the case. So this kind of ties in with the Article 15 provision, so that if, say you've got The child is connected with say England two hours and there's also that connection with Spain in the example of being using and this is where we'll be looking at the application of article aid in terms of which country and is best placed to be able to deal with that child's cases in England Wales where the child is currently residing perhaps. And there is that connection or is it a country Where the child has other connections? So you can see Article eight ties in with what we previously had with article 15. And under this 1996 Hague Convention as brittle residue can be established once a child has been legally moved, her state was under brussels which the residents could only be established for a child had been in the state for three months. So that's the other point which is worth I think as well in that regard. And also a six weeks timeline that applied to a resolution of child abduction cases finding process to doesn't apply in the Hague convention. Okay, so bears out your mind as well. And also in 1990 six Hague convention doesn't provide for the automatic recognition in other contracting states of audit related parental responsibility. So you may have to make additional applications to have an order recognized that is made in England Wales in another country in that regard. So worthwhile bearing that in mind. Also that then brings me onto this case that I wanted to look at, which then looks at the issue of removal from the jurisdiction. And this looks precisely at the issue of habitual residence and how court will look at individual circumstances to see whether or not an english and Welsh coast and we would then have jurisdiction. So that's the case of hate and Artist 2021 Decision just handed down recently On 22 July of this year and done by Mr Justice McDonald sitting in the family division of the High Court, and a case itself involved a 12 year old child, and this child was living in Pakistan. And the question was whether this child was habitually resident in the jurisdiction of England Wales, and if so, the child was so habitually resident here should english court and make an order and its inherent jurisdiction of the High Court requiring this child and to be returned to the jurisdiction of England Wales from the jurisdiction of Pakistan. So, the first determination we had to determine was whether the child was habitually resident, and if so english and Welsh courts could then make the order if necessary. But if we did not have jurisdiction, then the court was going to be preventing them from being able to make the order that was being sought in the circumstances by the mother. So it's a mother who was applying for the order here, where she sought for her child to be returned to England from Pakistan. And she claimed that the child was in fact habitually resident in England and Wales was, the father took a different view. His argument was that the child had in fact gone to Pakistan almost a year previously for the purpose of completing his secondary education. So you can see the father took a dictator view and the father's argument was that the child was actually originally resident in Pakistan and they found that based english course did not have jurisdiction to make the order sort by the mother for the child to be returned. And if this court did, of course just jurisdiction, even then, the father was saying that it was not in the child's welfare best interest where we turn order to be made. And there were separate proceedings relating to the other siblings also. And the father did argue that he had a discussion with the mother about the child's education and it had been agreed between the two of them. In fact, the child would be going to Pakistan to pursue education there. Mother took a very different view, she said, actually, they didn't have an open discussion. In fact, she had been coerced by the father manipulated by him and allowing a child to go to Pakistan. And it was also a report that was available from Kafka's detailing the child's understanding of the circumstances and his wishes and feelings. And in fact, he was very clear in saying that he wanted to stay in Pakistan indeed, circumstances. So, the court therefore did look at the law and the court did say that one of the lawyers had in fact suggested that the test for habitual residents had in fact changed following the departure of the United Kingdom from the EU. But don't pursue that. And in fact, his lordship said that that's not the case. As I have mentioned, test for with your residents successful dominator hasn't changed as a result of that exit from the EU. What has changed is is the fact that, as you can see from the matter I mentioned early in terms of divorce, we've got still the provisions we had under the old brussels to revised and also this deer fact, now that one can rely upon sold or myself. But in terms of having jurisdiction for Children, you can see we're still relying upon habitual residents were still relying upon domicile. But what's changed is we're not relying upon brussels to advise, we're relying upon the hague convention 1996. So, his lordship did say that was 4% commenced after 11 p. on five December. The question of habitual residents no longer forced determined Within the framework of Article eight Council regulation E do our jurisdiction based upon article Aid. There is nothing to suggest that the tests are but your residents as distinct from legal framework has changed. Following our departure from the EU. That is still very much the case, as you can see. And his lordship did say that in order to determine a habitual residence, we can still very much then rely upon ah the degree of integration which needs to be established in terms of senior child is integrated into the country's social and family environment As purchase. Very useful case of the jurisdiction return of child of 2014. And whether there is that degree of integration by the child in the child's social and family environment is of course, faction question of fact and degree, which will be determined them take into account water circumstances. And therefore, we need to look at the individual facts to see if that is actually the case. And as for the return order, his lordship did say that in relation to the question of the return order, whether it was in the child's best interest to do this or not, then it makes it clear that it is possible to apply the disorder, but only if it's necessary on the facts and whether it was served a chance best interests. So, was the child habitually resident in Pakistan was the childhood ritually resident in England Wales. And here on the facts, the court is satisfied that the child was in fact habitually resident. It's done. They found that basis, the english courts did not have jurisdiction. And that was because if you look at the facts of the case, because remember it's all fact specific in terms of which your residents, this was a child who Pakistani heritage, a large part of his time, a part of his extended family were living in Pakistan. He had spent a lot of time in Pakistan during the child of course of his childhood on the holiday, he'd spent some 11 months in Pakistan attending school, He was there at the moment and there was a question mark as to whether he should actually return on that basis. There was there for that degree of integration into that social and family environment to establish but your residents so they fit on that basis. The court felt that he was habitually rather than in Pakistan english schools lost jurisdiction and it made the order for return and therefore most applications was dismissed. Okay, so you can see in these two sessions, I've spent some time in defining the concepts of habitual residence and domicile. We've seen how they apply in practice and say divorce cases and also in Children case in particular. And we've also seen the impact of this in so far as the exit from the Eu I hope that's been a useful session for you. Thank you very much indeed listening. And thank you once again. And I'll speak to you next time. Thank you very much. Bye for now.
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