Family Law Newsletter #4021.10.20
Issue #40 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
Articles from around the web, Legislation updates and Case Updates from Care Proceedings and Financial Remedy matters. Subscribe to receive Family Law Newsletter notifications or email us to give us any feedback.
Guidance / Updates
Additional consultations to be had on remote and hybrid family court hearings
HMCTS weekly coronavirus (COVID-19) update on court and tribunal procedures
Lawyers exempted from self-isolation in order to attend court
Re J  EWHC 2395 (Fam)
High Court: Mr Darren Howe QC (Sitting as a Deputy High Court Judge)
– A case which considered when it is necessary to deprive a child’s liberty because they are ‘beyond parental control’ in the context of s.31(2) Children Act 1989
J was 16½ years of age at the time of the hearing (25th August 2020). The local authority said he was beyond parental control to the degree necessary to meet the threshold criteria under s.31(2) Children Act 1989. This was not disputed by J’s mother, who has been consistently worried for J’s safety as he often goes missing and does not return for numerous days.
J has had multiple incidents of involvement with the police, often concerning possession of drugs and potential connections with the distribution of them. He had been present during violent crimes including witnessing a friend losing two fingers after being attacked with an axe. He was also the victim of a serious assault himself in March 2020. He was said to be entrenched in gang culture in London and is believed by the local authority to be an exploited child involved in county lines drug distribution.
A number of low-level interventions were put in place to attempt to assist J but no change in behaviour was achieved.
On 18th August 2020, the local authority applied to the court for an interim care order, specifically to provide “a residential placement with deprivation of liberty attached [to]… ensure J is safeguarded and also afford him the stability he requires while work is completed with him to support him.” This application was heard by a Circuit Judge on 21st August 2020, but the children’s guardian felt she could not support the local authority plan until there was an identified placement, although she did not oppose the application for the interim care order.
The placement was proposed along with a list of anticipated necessary restrictions, which included; restrictions on J’s use of phone, internet and correspondences; restrictions on his use of windows and doors; and to have his possessions searched and permission granted to have such belongings removed.
The court considered principles from the case of Surrey County Council v P and others (Equality and Human Rights Commission and others intervening), Cheshire West and Chester Council v P and another (same intervening)  UKSC 19, where the Supreme Court described 3 components of deprivation of liberty, derived from the ‘Storck’ test:
- ‘the objective component of confinement in a particular restricted place for a not negligible length of time’
- ‘the subjective component of lack of valid consent’
- ‘the attribution of responsibility to the state’
The court concluded that the restrictions constituted a significant restriction of liberty, satisfying the objective element of the test.
The Court then referred to the case of Re D (A Child)  UKSC 42, which provided that a parent could not give consent for the deprivation of liberty of 16 and 17-year-olds, the mother’s agreement thus amounting to a lack of valid consent and satisfying the second component of the Storck test.
The third component of the Storck test was also satisfied as it was the state in the guise of the local authority that sought to deprive J of his liberty. Consequentially, all three components of the Storck test were met.
At paragraph 22, Mr Darren Howe QC determined that there was ‘reasonable cause to believe that J [would]… suffer serious harm if the local authority [was]… not granted permission to invoke the inherent jurisdiction of the High Court.’ There were serious risks of significant injury and a very real risk of death to J. The care plan proposed by the local authority was deemed necessary and proportionate to protect J from harm.
An interim care order was granted to the local authority for J until the conclusion of these proceedings. The local authority was granted the authorisation to deprive J of his liberty as may be required both when informing him of the court’s decision, transporting him to the unit and when within the unit itself.
Such authorisation was however only granted for 8 days because the court made clear that J ought to have the opportunity to be heard given his age and the matter was re-listed for the consideration of a longer period of authorisation after J had made representations for himself.
Mr Darren Howe QC concluded the judgment by directing a message to J on the basis that he was likely to read this judgment. He made clear that the steps taken today were necessary to prevent J from putting himself in danger and that he would hear from J when the case came before him again next week.
Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2020/2395.html
B (A Child) (Abduction: Habitual Residence)  EWCA Civ 1187
Court of Appeal (Civil Division): Lord Justice Moylan, Lord Justice Baker and Lord Justice Phillips
– A case which clarifies the meaning of ‘habitual residence’ under the 1980 Hague Child Abduction Convention.
In December 2019, the family moved from Australia, where B (the child), now aged 2, had been living since birth, to live in France. The move took place on 2nd December where B subsequently stayed with the mother’s family, in England and Wales, over the Christmas period. The father returned to France on 27th December to begin his new job and on 3rd January 2020 when the mother told the father that she and B would not be going back to France. She said this was because the relationship between her and the father had come to an end.
The father then began proceedings to obtain an order for B to be returned to France under the 1980 Hague Child Abduction Convention (‘the 1980 Convention’). The appeal was dismissed in the High Court by Judd J because she concluded that B was habitually resident in Australia, not France, at the date of the mother’s retention of B in England and Wales, therefore the 1980 Convention did not apply.
The circumstances of the family’s relocation from Australia to France were that the father was from France and the family was moving back to the area from which the father came from and where some of his family still resided. The father had a new job commencing 27th December, albeit with a 6-month probation period. The mother had not been to work since the birth of B, but her job was still open to her in Australia until January 2021. The family moved into a rented property in France and their family dog joined them a couple of days later. Both the father and B were French nationals, B was registered for day care in France, the family’s medical insurance and care were transferred to France and B was registered with the library in France.
On behalf of the father, it was submitted that that the judge was wrong not to find that there had been a wrongful retention within the scope of the 1980 Convention on the basis of her conclusion that B was habitually resident in Australia. Furthermore, that the judge should have ordered B’s return to France and should have decided that B was habitually resident in France.
On behalf of the mother, it was submitted that there is no power under the 1980 Convention other than to return a child to the state of their habitual residence and ‘return’ is significantly different from ‘relocate’ to a third state. It was also asserted that to return a child to a third state would be to make a welfare decision without any welfare assessment. It was acknowledged that there had been an agreed move to France but that due to the probationary period on the father’s job and the mother’s job still being open in Australia, ‘the door had not been firmly shut on Australia.’
On behalf of the child, it was submitted that numerous factors needed to be considered surrounding the potential impact on a child who has been abducted. However, the key question was whether a return to a third state would be in line with the objectives of the 1980 Convention.
In regard to whether B was habitually resident in France, Lord Justice Moylan referred to Article 3 of the Convention which provided that ‘a removal or retention will be “wrongful” when it is in breach of a parent’s “rights of custody…under the law of the State in which the child was habitually resident immediately before the removal or retention”.’ Article 4 also provides that the 1980 Convention applies “to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights”.’
The principles from the case of In re LC (Children) (Reunite International Child Abduction Centre intervening)  AC 1038 were considered. Specifically, Lady Hale’s judgment referenced at paragraph 83, that the essential question was “whether the child has achieved a sufficient degree of integration into social and family environment in the country in question for his or her residence there to be termed ‘habitual’.” Lord Justice Moylan applied this principle to the present case, stating at paragraph 90 that ‘habitual residence can change from one state to another extremely quickly’ and did so in the present case.
The court concluded that to relocate B to Australia would not be appropriate because the family had no ‘continuing substantive connections with Australia.’ B was habitually resident in France when the mother retained her in England and Wales because the whole family had moved to France with the intention of living there. The fact that the mother did not become integrated is of no consequence to whether B had a degree of integration. It was determined that “habitually resident” would differ case to case in terms of what level of integration was required to reach this standard.
Full judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1187.html