RE A (Wardship: Jurisdiction) [1995] 1 FLR 767 4 International Abduction [UK 1995] =========================================================== RE A (WARDSHIP: JURISDICTION) Family Division Hale J 21 December 1994 <* page 767> 001 Jurisdiction - Wardship proceedings - Child sent to Pakistan in 1994 - Reason for child being in Pakistan disputed by parents - Mother issuing application for wardship and return of child to England - Whether child habitually resident in Pakistan 002 The child was born in England but had lived in Pakistan since 1994. An order was made in wardship proceedings that the mother should have interim care and control of the child and the father was ordered to return the child to the jurisdiction. The father and his family were ordered to surrender their passports. The judge was invited to consider the preliminary issue of jurisdiction. It was common ground that both parents' habitual residence remained in England. The father argued that there was an agreement between the parties that the child should change her habitual residence and that the child should not only go to school in Pakistan but also live there. The mother stated that the child went to Pakistan for educational purposes only. The Official Solicitor argued that even if there was an agreement for the child to live abroad, if the parents were both still habitually resident in England and the agreement failed, it could not be a settled agreement that the child's habitual residence was to be abroad. 003 Held - if the parents were together, the habitual residence of the child was that of the parents unless there was a contrary agreement. One parent could not unilaterally change the child's habitual residence without the agreement of the other, unless circumstances arose which, quite independently, pointed to a change in the child's habitual residence (see p 771D-H [021 - 023] below). It was open to the parents to agree to change their child's habitual residence without changing their own, but an agreement to send the child abroad to a boarding-school was not sufficient (see pp 772H-773A [028 - 029] below). The child was habitually resident in England and Wales, and the court therefore had jurisdiction to determine her future. Statutory provisions considered Adoption Act 1976, s 72(1) Family Law Act 1986, ss 1(1)(d), 2(3), 3(1) Children Act 1989, s 105(6) Cases referred to in judgment F (A Minor) (Abduction: Custody Rights), Re [1990] 2 AC 562, [1990] 3 WLR 492, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442, [1990] 2 All ER 961, HL S (Minors) (Abduction: Wrongful Retention), Re [19941 Fam 70, [1994] 1 FLR 82, [1994] 2 WLR 228, [1994] 1 All ER 237 Roger Bickerdike for the mother Gulzar Syed for the father and members of his family Ernest Ryder for the Official Solicitor 004 HALE J: These are wardship proceedings in which a preliminary issue of jurisdiction arises. The child concerned is S who was born in this country on 7 February 1986 and so is now aged 8, coming up to 9. She is the only child of her parents, the plaintiff mother and the respondent father who <* page 768> were married on 13 November 1980 in Pakistan. Since earlier this year, S has been in Pakistan in circumstances which are in dispute between the parties. 005 The mother's case was launched on 30 November 1994 against the father and other members of the extended family. The second and third defendants are the paternal grandparents, the fourth and fifth defendants are the father's brother and his wife and the sixth defendant is another of the father's brothers. 006 I propose to set out the history of the proceedings for the record and because it contains some unusual features. The case came before Kirkwood J ex parte on 30 November 1994 when he ordered the child to remain a ward of court and gave interim care and control to the mother. He ordered the father to return the child to the jurisdiction and, upon return, he restrained the father from removing the child again and he ordered all six defendants to surrender their passports and restrained them from leaving the jurisdiction, all of these orders to continue for 7 days until 7 December 1994 when they were all ordered to attend before this court. However, there was no time available on that date and so I extended those orders until the following day, 8 December 1994. 007 On that date the first to the fifth defendants were represented by counsel, and the sixth defendant appeared in person, and it was clear that there was a contest; first, on the issue of jurisdiction, the father would argue that S had become habitually resident in Pakistan, whereas the mother would argue that she had never agreed to her child going there or that, if she had, this did not amount to a change of habitual residence; and secondly, if the court did have jurisdiction there would be an issue on care and control. 008 As time was not then available to try a contested issue of fact the matter was adjourned to last Friday, 16 December 1994. The orders were continued save for the orders to return the child to the jurisdiction and for the father, grandparents and sister-in-law to surrender their passports, but the father was restrained from taking steps to acquire a replacement for his passport which is, in fact, held by the mother, and the grandparents were excused attendance on 16 December 1994. Of course, at that stage it was contemplated that everything would be considered once more on that date. 009 However, on 15 December 1994 the solicitor for the mother appeared before me in court ex parte. She stated that she had information relating to the child which her client had given her but which her client had insisted should not be given to the defendants. As the child was a ward of court I agreed to hear that information but without any promise that it could then be withheld from the other side. It was that the mother had flown to Pakistan intending to collect the child from her parents where the child had been kept after a visit and to return to this country with her. The hearing the next day might, therefore, have to be adjourned. I then made it plain that this information would have to be disclosed to the defendants the next day, but it appeared to me that there was no action which the court either could or should take to protect the ward's interests and the interests of justice until then. 010 Nevertheless, the matter caused me considerable concern. Wardship proceedings are sui generis and in some respects inquisitorial. The court <* page 769> becomes the guardian of the child and must, therefore, be informed of any important step which is taken in relation to the child. The court is also entitled to act of its own motion to protect the child's interests. It is, therefore, understandable that those representing the mother thought that the court should be informed even though they had no immediate application to make. On the other hand, when this action is added to the mother's action in obtaining ex parte relief against no less than six members of the father's family, after the child had been absent from this country for some months, it could well have contributed to a feeling of unfairness on the father's part. It undoubtedly placed the court in a difficult position, as the court has no intention at all of prejudging the issues between the parties and seeks to maintain a neutral stance before trial while protecting, as best it can, the interests of its ward in the meantime. 011 In the event, no objection has been taken on behalf of the father to my dealing with the case today and, indeed, I have been expressly invited by him to do so. In the event, also, the next morning it became clear that the grapevine had operated effectively in Pakistan and the father's family knew the position although, of course, it was not known whether or when the mother would return. Accordingly, the issues were adjourned to the first available date, the issue of jurisdiction being one which would have to be tried by a High Court judge. The wardship was continued, with some modifications to the other orders designed to cater for swift changes in the position and to make them as little oppressive as possible to the other defendants, one of whom was discharged as a party. 012 The case was listed for mention before me today so that matters could be reconsidered in the light of whether or not the mother had indeed returned to this country. She has returned and I am today invited to resolve the preliminary issue of jurisdiction. 013 By virtue of s 2(3) of the Family Law Act 1986, when read with s 1(1)(d), and s 3(1), in a case where there are no matrimonial proceedings between the parties this court only has jurisdiction to make orders under its inherent jurisdiction dealing with the care, contact or education of a child if the child is habitually resident in England and Wales; or present here and not habitually resident elsewhere in the UK or certain dependent territories; or present here and the court considers the immediate exercise of its powers necessary for the child's protection. 014 Although the child is now present here so that the court undoubtedly has jurisdiction, at least in the short term, the case has today been argued on all sides on the point of habitual residence because there might be other implications if the child has, in fact, become habitually resident in Pakistan. There are disputes of fact between the parties, but counsel for the mother and for the Official Solicitor have both argued the case on the basis that I accept what is said in the affidavits filed on behalf of the defendants. Hence, it was unnecessary for the court to hear oral evidence to determine this preliminary issue. 015 Some of the facts are clear. The child travelled to Pakistan earlier this year in the company of other members of her family including her paternal grandmother, the third defendant, another uncle and his family, and her cousin A, the daughter of the fourth and fifth defendants. The mother says that they left in March 1994 but everyone else says that it was on <* page 770> 29 January 1994. The party stopped in Saudi Arabia for religious reasons on the way and then travelled on to Pakistan. There they were met by the paternal grandfather, the second defendant, and they stayed in the village where both parents' families originate. The grandfather searched for a suitable boarding-school for both S and A and they were eventually enrolled in a school in Rawalpindi in April 1994 but they came home to the village at weekends. 016 The mother's case on the facts is that she was treated like a servant or slave by her husband and his family and was powerless and without money. She was not consulted in advance about the decision to send S to school in Pakistan and, in any event, would have been powerless to prevent it. She was upset at the parting and kept asking for her daughter's return. She eventually left her husband in September 1994 and, thereafter, had difficulty in obtaining the necessary help and advice. Eventually she was referred to a solicitor who launched these proceedings but it took time to obtain legal aid. The matter became urgent because she was told by her sister that the family had sold two properties and were planning all to move to Pakistan and she was, therefore, fearful that if they all went there would be no chance of her daughter returning. 017 The father's case is that, although born here, S has already spent a considerable proportion of her life in Pakistan. The mother agrees that, after spending the first 2 years here, she spent around 4 years with the mother in Pakistan before returning at the beginning of 1992. The father also argues that, although he was born here and has spent all his life here apart from visits to Pakistan, and has a business as a market-trader here, so that he and the mother are both habitually resident here, the case should be seen in the context of the extended family. This is a closely interlinked extended family with strong religious affiliations and strong cultural and other ties with Pakistan. 018 In that context, on the father's case, discussions arose in 1993 about sending S and A to Pakistan. The mother knew all about these in advance. In the father's second affidavit he says that it was at the mother's suggestion and there is some support for this in the affidavit of the third defendant, the paternal grandmother, but the other affidavits tend to suggest that this was agreed between the men and that the mother did not disagree. The father's case is that the mother took both girls for vaccinations and their doctor confirms that there were two visits for vaccinations in January 1994 although not who took them there. There was a farewell party attended by some 30 friends and family members of which the father says that a video was taken. The mother prepared clothing for the child and presents for her own family in Pakistan. They all went to the airport together. Since then there has been contact over the telephone and S is well and happy in Pakistan. That case is supported in those essentials by affidavits from the other defendants. The brother and sister-in-law say that although the mother did not actively agree to S's going to Pakistan she did not dissent or protest. Hence, it is argued for the father that, even if the mother did not promote the journey she acquiesced in it and participated in the arrangements and that, therefore, she agreed to a change in the child's habitual residence. 019 The mother and Official Solicitor, on the other hand, argue that even if the mother did know longer in advance than she says and did participate in <* page 771> the arrangements as suggested, this is not sufficient in the circumstances to change S's habitual residence. 020 This case is extremely unusual in that it is common ground that both parents' habitual residence remains in this country. Indeed, the father is particularly strong on this point. It follows that the case-law on parents who live in different countries is not directly in point. What, then, is meant by habitual residence? In cases of this nature the most frequently cited authority is that of Lord Brandon of Oakbrook in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at p 578, sub nom C v S (A Minor) (Abduction) [1990] 2 FLR 442 at p 454. The quotation is as follows: 'The first point is that the expression "habitually resident", as used in Art 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case.' 021 The third point need not concern us and I will return to the fourth in a moment. 022 A series of propositions has therefore been advanced by Mr Ryder on behalf of the Official Solicitor as follows. First, if the parents are together the habitual residence of the child is that of the parents unless there is a settled agreement between them to the contrary. It seems to me that that proposition must be right. It flows logically from the parents' shared parental responsibility which entitles them to determine where the child lives. Habitual residence cannot, for this purpose, be identical to domicile which is still dependent upon the father (although it is by no means impossible that the law on that point will be changed in the not too distant future). Of course, normally, where both parents have parental responsibility each can act alone without the agreement of the other, but in a matter such as this, although one parent would be able to send the child abroad, I would not agree that one parent could unilaterally change the child's habitual residence without the agreement of the other unless circumstances arose which, quite independently, would point to a change in the child's habitual residence. I draw that proposition, albeit in a case where parents were in different countries, from the decision of Wall J in the case of Re S (Minors) (Abduction: Wrongful Retention) (19941 Fam 70, [1994] 1 FLR 82. This approach has been quite frequently adopted in the context of Hague Convention cases. It stands to reason that that Convention could not operate were one parent to be able, unilaterally, to change the habitual residence of the child because the whole purpose of the Convention is to stop parents doing just that. So, for all those reasons, I accept Mr Ryder's first proposition. 023 His second proposition is that if the parents are separated, the child' s habitual residence is that of the parent who has the right to determine where the child shall live, what we used to call the custodial parent, and <* page 772> that follows from Lord Brandon's fourth proposition in Re J, sub nom C V S: 'The fourth point is that, where a child of J's age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.' 024 I would qualify that proposition with a query as to whether, where one has an older child, because J was a very small child, and the parent who has the right to determine where the child shall live sends the child to a different country from the one in which she lives, that parent can, in effect, change the child's habitual residence so that it is not the same as her own. I raise that simply as a query to indicate that there may be qualifications to the proposition which Mr Ryder has advanced. 025 Thirdly, if the parties are separated but there is no such order and the parents are still both resident in this country, what is the position? It is on this point that three different cases are advanced. It was argued for the father that on the facts there was an agreement between the parties that the child should change her habitual residence and that, that agreement having been made, there would have to be a similar agreement before it could be changed back. In arguing this he points to the history, the extended family and the cultural factors leading to the decision that the child should not only go to school but also live in Pakistan. 026 It was argued for the mother that, on the father's own evidence, this was done primarily for the purposes of education. There are many features which support this and which have been pointed to in the various affidavits. I need not go through these in detail, but the father's first affidavit, for example, states that it was to be for a period of one to 2 years; that it could always be subject to review; that it was intended that the child should come back for at least some holidays; and the father also states quite clearly in his first affidavit that the child would have been returned without the need for these proceedings if only the mother had asked. So it is argued that it was a limited agreement for a particular purpose, very like sending a child to a boarding-school in another country and not, therefore, an agreement to change her habitual residence. 027 The Official Solicitor adopts all of that. But Mr Ryder also argues that, even if there was an agreement for the child to live abroad, if the parents are both still habitually resident here and that agreement fails for any reason it cannot be a settled agreement that the child's habitual residence is to be abroad. It cannot, in reality, be as the father would have it that, having once agreed to send the child abroad, both must agree to her return for her to be habitually resident here, because that would leave the courts of this country, or any other country where the parents were both resident, without the power to determine a dispute between the parents as to where their child should live and it cannot be right to require them to litigate that in a foreign country. 028 It is obvious common sense that where both parents have equal responsibility, as they have here, and both are habitually resident here, a strong burden is placed upon anyone who wishes to show that their child's habitual residence for these purposes is different from theirs. I do not doubt that it is open to them to agree to change their child's habitual <* page 773> residence without changing their own but an agreement to send their child abroad to a boarding-school would undoubtedly not suffice. 029 No authorities directly relevant to this point have been cited to me but one may, in passing, refer to s 72(1)(a) of the Adoption Act 1976. This provides that in determining where a child has his home there is to be disregarded absence in hospital or boarding-school or any other temporary absence. The concept of a home, although not necessarily identical to, must be very like that of habitual residence. Similar provision is made as to the definition of 'ordinary residence' in s 105(6) of the Children Act 1989. 030 I accept the father's point that on the evidence there was something more to this than simply sending the child to a boarding-school. There are many indications throughout the affidavits that education was the principal purpose, but there may be strong reasons why a family such as this would want their girls brought up in the religious and cultural environment in Pakistan rather than to be exposed throughout perhaps their most impressionable years to the somewhat contradictory pressures of education and life in this country. I understand all of that. Nevertheless, the evidence indicates a temporary and conditional agreement as the father's first affidavit makes plain. So that, even accepting all the points urged on behalf of the father, I hold that that was not sufficient to change the child's habitual residence in any event. 031 Although it is not strictly necessary for me to do so, I would further accept the argument of the Official Solicitor that, even if there had been such an agreement as would change the child's habitual residence for the time being, it would have required the continued agreement of both parents to make that situation continue. Despite the normal principle that each parent can act unilaterally it must be possible for either parent in that position, and in the absence of a court order, to revoke their agreement to their child being habitually resident abroad, so as to have the dispute between them resolved in their own home country where they both are. 032 And so, for all these reasons, I hold that S is habitually resident in this country and that, both on that basis and on the basis of her presence here, this court has jurisdiction to determine her future. I would emphasise, however, that I do not, by so holding, in any way indicate that this will resolve the issue between the parents as to what will be in this child's best interests when that comes to be determined. As I have already indicated, I can well see how the wish of some members of her family to have her brought up in Pakistan may have merit although that would have to be set against the disadvantages of her absence from her mother, with whom she has lived all her life up until earlier this year, and indeed the other members of her family, including her father, who are settled here. But those are all matters for another day and what I have already determined is sufficient to decide the preliminary issue before me today. Solicitors: Craig & Co for the mother Irzoin Mitchell for the father and members of his family Official Solicitor DEBORAH DINAN-HAYWARD Barrister