Cross-border Child Custody

Frank Doran Excerpts

Tuesday 22nd March 2011 Westminster Hall

[Mr Frank Doran (Aberdeen North) (Lab)]

I want to use this debate to highlight a case that shows that our legal system has badly failed one of my constituents, Mr Robert Bennett. I raised his case in an Adjournment debate on 4 December 2007, when there were ongoing legal proceedings in England and Scotland involving the custody of my constituent’s child. He has now exhausted all remedies in the courts, but there are legal issues that I want to discuss. I rely heavily on the advice given to my constituent by Mr Alan Inglis, a barrister and advocate, who has considerable experience of family law in the courts of Scotland and England.

The facts of the case are fairly straightforward. Mr Bennett married and had a child. The family lived in Aberdeen, and therefore were habitually resident in Scotland. Without Mr Bennett’s knowledge, his wife left the matrimonial home in September 2000 with the child and moved to London. He did not know her exact whereabouts and at no time did he consent to his daughter’s removal. A few months after Mrs Bennett left the family home, she commenced legal proceedings in Willesden county court, where she obtained an ex parte residence order and an order preventing Mr Bennett from removing the child from her care.

A key part of the law that determines such matters is the Family Law Act 1986. Section 41 is the key part here, and I can summarise its effect as follows: where a child under the age of 16 is moved from, for example, Scotland to England, as in this case, then in certain circumstances a court in England would have jurisdiction to deal with any issue relating to the child after one year has elapsed. One of those circumstances is set out in subsection (2)(a), which states that it is required to be shown that there is

“the agreement of the person or all the persons having, under the law of that part of the United Kingdom, the right to determine where he is to reside”.

In this case, that means both parents. Mrs Bennett had effectively abducted the child from Scotland to England, and Mr Bennett, as a legal guardian of the child, had not given his consent.

Mrs Bennett made her application to the court before the year set out in the legislation had expired, and Mr Bennett also entered appearance in the case within the time limit. Notwithstanding those facts, the judge in the Willesden court made an order in favour of Mrs Bennett. It is clear that none of the lawyers involved at that stage—the solicitors or the judge—properly understood the implications of the 1986 Act, or, for that matter, indicated that they were even aware of its existence.

Mrs Bennett’s solicitors had a duty to the court as well as to their client, and should not have raised the action, because any interpretation of the Act would make it clear that the Willesden court had no jurisdiction. The judge should not have granted the order, and Mr Bennett’s solicitors should not have neglected to raise the point of jurisdiction before the court, despite his explicit instructions. I should add that Mr Bennett took action subsequently against his solicitors for that neglect and received an award of compensation.

That was the first stage before the one-year period had expired. As the case moved through its various stages, it seems clear that none of the judges who later considered it looked very closely at Mr Bennett’s rights under the legislation as a parent and legal guardian of his daughter. The 1986 Act provides that

“Where a child…becomes habitually resident outside that part of the United Kingdom...he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom for a period of one year beginning with the date under which those circumstances arise.”

That section therefore applies only where the child has already become habitually resident in another part of the UK, and it postpones the legal effect of that habitual residence for a period of one year. Correctly construed, it does not operate as a time limit of one year on habitual residence as held later by the Court of Appeal in England.

[Jim Shannon (Strangford) (DUP)]

Is the hon. Gentleman aware of examples similar to the one that he clearly outlines? Is this an isolated case or do many others fall into this category?

[Mr Doran]

There are lots of examples of couples splitting up and moving to different jurisdictions, but, as far as I am aware, this is the only case in which the 1986 Act has not been properly construed—at least, that is my allegation.

In Mr Bennett’s case, for the child to have become habitually resident in England and, therefore, to give the English courts jurisdiction, both parents would have been required to consent, and even then there would have been a delay in operation of one year. There is ample legal authority to show that habitual residence cannot be changed by the unilateral action of a parent who shares parental responsibility with another. That is also the law in Scotland, and it follows that the courts in England have never had jurisdiction in this case because both parents had not given their consent.

Despite those facts, at every stage in the court proceedings in England, from the judge at first instance through to the Court of Appeal, section 41 has been interpreted as giving the English courts jurisdiction as soon as the child’s stay in England had exceeded one year. In its judgment, the Court of Appeal, through Lord Justice Wall, said:

“on the facts of this case Section 41 ceased to have effect in September 2001”.

As additional cover, the court also argued that even though there was no jurisdiction, the original decision was not a nullity. Lord Justice Wall said:

“The normal rule about orders, which on their face are regular, but which are in fact made without jurisdiction, is that they remain in force until they are discharged”.

He quoted the case of Hadksinson v. Hadksinson in 1952, but I am advised that it is questionable whether that case supports the Court of Appeal’s position. The ratio decidendi of that case is that there is an

“unqualified obligation of every person against…whom an order has been made by a court of competent jurisdiction to obey it until it is discharged”.

The difference between that case and Mr Bennett’s case is that the Willesden court was not

“a court of competent jurisdiction”.

I have been directed to “Halsbury’s Laws of England”—as a Scottish lawyer by training, I am not very familiar with it—and page 314, chapter 10 of the fourth edition says:

“Where a court takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing”.

When it was clear to Mr Bennett how the English courts were dealing with his case, he raised the issue in the Scottish courts by raising an action of divorce. I will not go through all the processes, but the case eventually reached the inner house of the Court of Session, having started its processes in the Aberdeen sheriff court. The inner house decision is directly in conflict with that of the Court of Appeal. Among other points, it noted that the order that initiated the proceedings in England was made without jurisdiction—a very clear statement. It agreed that the habitual residence of the child of a marriage cannot be changed without the consent of both parents. It doubted that the effect of section 41 of the 1986 Act was automatically to change habitual residence one year after an abduction. It recorded the failure of the English courts to hold a welfare hearing during the whole period when the matter was before them, despite a recommendation from Children and Family Court Advisory and Support Service that it was necessary, which is quite a serious matter. However, the inner house of the Court of Session also accepted that

“the Court of Appeal considers that the English courts have jurisdiction to make orders respecting the child with which this divorce action is concerned”.

The word “considers” is very important. The inner house does not cede jurisdiction, but recognises that the English court thinks it has jurisdiction. It is clear that the inner house of the Court of Session did not wish to get into a direct conflict with the English courts, and it has been tactful and diplomatic in the way in which it has questioned the decisions of the English courts.

Over the years, I have written to the Ministry of Justice and the Scottish Government about the apparent conflict in the law. I understand that meetings were held between representatives of the Scottish Government and the Ministry of Justice. I have not been formally advised of the conclusions of those meetings, although I received a brief letter from Scotland’s deputy Justice Secretary, who said that the meetings had concluded that section 41 of the 1986 Act did not require changing. It was as blunt as that. That view is probably correct.

As I pointed out earlier, the problem seems to be one of interpretation and application rather than the legislation itself. However, I am deeply concerned about the way in which the courts have acted in this case and the impact that the decision of the Court of Appeal could have in other cases. I find it extraordinary that all the lawyers involved in the initial proceedings in the Willesden court could either be so ignorant of the legal position in such cross-border cases or so easily misinterpret the legal position.

As the case moved on through the system, all the arguments that I have presented today were presented by Mr Bennett, my constituent. Part of the tragedy is that once he had discharged the lawyers who so wrongly advised him and who refused to carry out his instructions, Mr Bennett found it virtually impossible to find another solicitor to represent him, and he was forced to represent himself. He is a very single-minded individual and has become extremely knowledgeable in this area of law.

Reading through the various judgments, it is quite clear that the judges viewed Mr Bennett as an obsessive who was more concerned about legal principles or niceties than his daughter. I get the impression that he was not taken seriously. He desperately wanted contact with his daughter and felt that he was the more suitable parent to look after the child. He also strongly believed that it should be for the Scottish courts to decide the matter. It is probably fair to say that he was not learned in the law and did not treat judges with the respect that they are used to. He also became frustrated at what he believed was their refusal to consider his arguments.

I have had the opportunity to meet Mr Bennett and his child, who is disabled. He visited my office several times with the child on a previous matter. When we spoke about the difficulties that he was having with this case, I was in no doubt that he had a strong relationship with his daughter and was able to care for her. He and his wife—they are not divorced—split care between them, and he made quite a contribution to the care of the child in the household. Unfortunately, he never had the opportunity to have his side of the argument on residency or access considered by the court.

In Scotland, the inner house of the Court of Session made it clear that the court could have been obliged to consider the interests of the welfare of the child by carrying out the usual investigations and having an appropriate hearing regardless of the other issues in the case. The courts in England took no action in this respect. In addition, Mr Bennett was told by a legal adviser that if he tabled a motion on residency or contact, it would prejudice his argument on jurisdiction. He would effectively cede jurisdiction to the English court. That matter needs to be considered seriously by the Minister.

Cases such as Mr Bennett’s are not that unusual. What is unusual is his tenacity in pursuing this point of law. It is wrong that, in all the years while the English courts were considering the matter, no consideration was given to the interest of the welfare of the child—apart, of course, from Mr Bennett’s continuing interest in maintaining contact with his daughter.

I practised in the Scottish courts for a number of years, and family and child care law were my special areas of interest. I have not held a practising certificate since 1988 and do not claim any special expertise, but I do know that the guiding principle in all child care cases is and should always be the paramountcy of the welfare and interests of the child. Those interests cannot be met if a court has a case before it for about four years and does not itself inquire into that child’s situation. I am not significantly well versed in English law to know whether that suggested failure is a failure of the various courts in this case or a failure of the system, but I believe that the Minister should look into the matter urgently.

As I said earlier, Mr Bennett was put in an invidious position, because he was told by legal advisers that if he tabled a motion on contact or care and control, he would prejudice his case on jurisdiction. He should not have faced that dilemma. If they do not already have the power to investigate a child’s situation of their own volition—I suspect that they do—the courts in England should have that power, without prejudice to any other issue before them.

When there is a clear conflict between the decisions of the courts in England and Scotland, public confidence in the system requires there to be a proper inquiry. I do not know what understanding was reached by the Scottish and English civil servants who met to discuss this case, but I do know that nothing has been published. It is not enough to say that everything is okay and that everything is working fine, when clearly it is not. I should like a report published on the discussions that took place and on the details of the conclusions that were reached and why they were reached.

Of course, there is another way to resolve this case: to take the matter to the Supreme Court. That might seem appropriate, given the conflict between the two jurisdictions. Unfortunately, when Mr Bennett and his advisers—he now has legal advice—attempted to take the case from the Court of Appeal to the Supreme Court, his application was refused.

Without fully understanding all the mechanics, the idea that courts in Scotland dealing with the same circumstances and the same legislation could be in complete conflict with the courts in England is difficult for the lay person to understand. It is extremely regrettable that this important issue has not been considered by the Supreme Court. I know how important it is that politicians do not interfere in any way whatever with the judicial process, but I believe that a number of serious matters need to be fully considered, and the best place for that is the final court of appeal of both civil jurisdictions—the Supreme Court.

The issues that I have raised primarily affect my constituent and his daughter, who is denied access to her father. However, breakdown of marriage and movement between jurisdictions is not uncommon in our society. I believe that the courts in England have got the interpretation of the law completely wrong as it is applicable to this case. Now that the case is concluded, I hope that the Minister will agree that a serious injustice has been done and that Mr Bennett is fully entitled to feel that the legal system has let him and his daughter down badly. It is incumbent on our legal system and the Government to do something to correct the situation. As I said, changes do not necessarily need to be made to the Family Law Act 1986—unless section 41 can be amended so that it is more clearly understood, particularly by lawyers.

I ask the Minister to give serious thought to the matters that I have raised today, and to consider how we can move forward, so that the case of B v. B does not stand as a precedent to be applied in similar cases of conflict.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I congratulate the hon. Member for Aberdeen North (Mr Doran) on securing this debate. It has enabled him to raise the concerns of his constituent on the difficulties that can arise when a child is taken from the part of the United Kingdom where he or she is habitually resident. May I say how sensitively he put his constituent’s case? He did so in the personal context a concerned parent. That should not be forgotten.

At the outset, I should make it clear that in all cases involving a child’s upbringing—including where the child should reside and who should have contact with the child, as the hon. Gentleman rightly said—the court’s paramount consideration must always be the welfare of the child. The welfare of the child should be paramount in all cases involving decisions about his or her life. The welfare of the child is paramount in the law in all parts of the United Kingdom. English courts are required to consider the child’s situation and hear any application made by a parent; the courts can also make orders on their own initiative, as required under the Children Act 1989.

The Government appreciate that disputes about arrangements for children—for instance, where the child is to reside, contact and the continuing involvement of both parents in the child’s life—will be extremely upsetting for all concerned, and will frequently be damaging for the child. The Government firmly believe that it is in the best interests of the child for both parents to continue to be involved with his or her upbringing, and for both parents to have regular contact with the child, provided it is safe.

The Government are conducting a review of the family justice system in England and Wales, and one consideration is increasing contact between children and the non-resident parent following divorce or relationship breakdown. The serious problems that can arise for parents in maintaining a relationship with their children when a relationship has broken down will be increased if the child is moved from one part of the UK to another. There is then a cross-border element in the family situation. The hon. Gentleman made clear the distress caused to his constituent by the circumstances surrounding the removal of his child and subsequent events. When a child is taken without consent, it inevitably causes great distress for the parent who is left behind. The parent can also be left facing considerable difficulties in obtaining the return of their child. As the child has been moved from one part of the UK to another, the parent has to deal with the question of which court will have jurisdiction. The Family Law Act 1986 provides rules of jurisdiction in the different territorial parts of the UK. The primary rule is that the courts of the part of the UK where the child is habitually resident will have jurisdiction in any proceedings regarding the child. That much is clear.

Identifying habitual residence is a question of fact for the courts. However, the 1986 Act contains rules to prevent a person who removes a child from his or her habitual residence without consent from benefiting from that wrong. That benefit could occur if the person could take advantage of any change in the child’s habitual residence resulting from the unlawful move to claim that another part of the UK now had jurisdiction. Allowing jurisdiction to change immediately in those circumstances would encourage child abduction, which is clearly contrary to a child’s welfare. Lengthy disputes about which courts should hear a case delay resolution for the child and are also clearly not in the child’s best interests. It is important that clear rules exist to prevent abuse of jurisdiction through child abduction.

As the hon. Gentleman describes, section 41 of the Family Law Act 1986 deals explicitly with the situation in which a child under the age of 16 who is habitually resident in one part of the UK becomes resident in another part without the agreement of all the people who have the right to determine where the child should reside. In those circumstances, the 1986 Act provides that the child shall be treated as still habitually resident in the part of the United Kingdom from which he or she was removed for a period of one year from the date of removal. In practice, that usually means that the courts of the part of the UK in which the parent from whom the child was taken lives will have jurisdiction over any proceedings regarding the child during that year even if the child becomes habitually resident elsewhere. To ensure that children are always protected, a court in the jurisdiction in which a child is present can take urgent, provisional action to protect the child.

In that way, the 1986 Act promotes child protection; it discourages wrongful removal of children by removing any jurisdictional advantage that the person removing the child hopes to gain. The Act also provides an important protection for the parent who did not consent to the child being taken, as the person has a significant period of time in which to challenge the removal of the child and to make an application to the courts of the child’s original habitual residence for the child to be returned. Once jurisdiction is accepted by the correct court, it will consider the merits of the case in the light of the child’s welfare. That may or may not involve a return of the child to the original habitual residence. The court will consider with whom the child will live, and how contact with the non-resident parent should be supported.

[Mr Doran]

I am grateful to the Minister for the way in which he is explaining this situation, but he is talking about when the law is operating as it should. What I am dealing with is a situation in which the law has not operated as it should.

[Mr Djanogly]

The hon. Gentleman makes a fair point, and I was coming on to that. However, I will say now that it is accepted that the original English without-notice decision was made without jurisdiction. However, there were numerous ways in which the order could have been challenged, either on the point of the lack of jurisdiction or on the terms of the order made. It must also be accepted that courts can make orders, and sometimes have to make orders, for the welfare of the child without all parties being informed of the application, if that is felt to be appropriate in the circumstances of an individual case. Such orders would usually be drawn up so as to provide for a review at an early stage—perhaps after seven days—so that all parties can make representations.

If the courts of the part of the UK to which the child has been taken make an order in respect of the child, then the parent who did not consent to the child’s removal can challenge that order in the court which made it on the basis that the court did not have jurisdiction to make it. It is very regrettable if an impression has arisen that to challenge the jurisdiction of the court to make an order is, by implication, to accept the jurisdiction of that court. That is absolutely not the case in English law, and indeed nothing in the 1986 Act seems to suggest it. The law is clear that to challenge the order in the court in England and Wales, which made it in this way, is not to surrender to or accept the jurisdiction of that court. This is a rule which is clear both at national and international level. However, even orders made without jurisdiction must be obeyed until such time as they are successfully overturned, and proper action must be taken to overturn them.

However, balancing the requirements of a child’s welfare requires that the rule in section 41 does not last indefinitely. Habitual residence is a question of fact for the courts to determine, and it is generally accepted, including in international law, that the interests of a child are usually best determined by the courts of the territory in which the child is habitually resident, as that court is best able to judge the child’s needs and situation there—the court is “proximate” to the child.

A year is a long time in the life of a child, especially a young one, and circumstances can change very quickly. If nothing is done in the original jurisdiction to address the removal promptly, and within the year at most, that child’s life will have moved on and courts need to be able to address the child’s situation as it is at the time any application is made. There seems to be little point in making the child’s habitual residence the primary rule of jurisdiction in the Act to ensure a close connection between the court hearing the case and the child’s actual situation, only then to refuse to acknowledge the reality of the child’s situation in determining jurisdiction because a non-consensual removal occurred quite some time in the past—even more so when that removal could have been dealt with promptly by the courts of the child’s original habitual residence had they been seized of the case by the left-behind parent within a year.

The hon. Gentleman has asked for the Government to examine this matter and consider a review of the provisions of the Family Law Act 1986. The Government do not consider that a formal inquiry would be appropriate here as the provisions of the law are quite clear and generally provide reasonable protection for children who are wrongfully removed. The Government do not believe that it is necessary to amend the provisions of the Family Law Act 1986. However, it is important that the provisions of the Act should be operated properly in practice and that the courts should follow its provisions as they determine the question of jurisdiction for proceedings.

The Government have undertaken to consider whether the question of jurisdiction regularly causes difficulties. Following the hon. Gentleman’s previous debate on cross-border contact issues in December 2007, officials wrote to the Law Society in England asking for its assistance in identifying the extent to which jurisdictional issues arose in cross-border cases and the extent to which they prevented people making substantive applications and having their cases resolved and whether any procedural or other changes might be required. Similar inquiries were made by the Northern Ireland Court Service with the Law Society of Northern Ireland, and by the Scottish Government with the Law Society of Scotland. Following receipt of the replies, officials have discussed the question of what further should be done to address the jurisdictional issues. Concern was expressed about the courts’ ability to deal with jurisdictional issues, particularly by Scottish colleagues.

I am not convinced that jurisdictional issues are preventing people from having their cases resolved. However, I fully accept that the sort of unfortunate circumstances underlying this debate today must be avoided if at all possible. We will consider whether anything more needs to be done.

The underlying question in all proceedings relating to children must be the welfare of the child or children concerned. The provisions relating to jurisdiction in the Family Law Act 1986 are intended to support the child’s welfare by deterring wrongful removal of children, but also by ensuring that the court with the closest connection to a child makes the decision about that child. Underlying the Act is the premise that it is normally better for decisions about a child’s upbringing to be made by the courts of the part of the UK where the child is habitually resident. That continues to be the case, even if the child was moved without consent.

The hon. Gentleman mentioned that the Scottish courts have criticised the English High Court. It is not for the Government to comment on the observations of a judge in deciding individual cases.

[Mr Doran]

The hon. Gentleman referred to a survey of the various law societies. May I have the summary or the details of the responses?

[Mr Djanogly]

I will certainly correspond with the hon. Gentleman on those issues. With that comment, I bring my points to a conclusion.