Cross-border Child Custody

Jonathan Djanogly Excerpts

Tuesday 22nd March 2011 Westminster Hall

[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.