AS v TH (No 2) (Jurisdiction to Make Final Orders) [2016] EWHC 2825 (Fam)

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.Case No FD15P00036[2016] EWHC 2825 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/11/2016
Before
THE HONOURABLE MR JUSTICE MACDONALD
Between
ASClaimantTHApplicantBCApplicantNC and SHApplicant(By their Children’s Guardian)ApplicantAS-and-TH-and-BC-and-NC and SH (By their Children’s Guardian) Applicant First Respondent Second Respondent Third and Fourth Respondents
Mr Sam Momtaz (instructed by Hanne & Co) for ApplicantMr Edward Devereux (instructed by Osbornes) for First RespondentMs Kiran Sangha (of Jacobs Solicitors) for Second RespondentMs Shabana Jaffar (of CAFCASS Legal) for Third and Fourth RespondentsHearing Hearing dates: 4 October 2016
JudgmentMr Justice MacDonald:INTRODUCTION
[1]I remain satisfied that the court has jurisdiction in this case to make final orders. Upon investigation of the issue of jurisdiction in some detail at this hearing, the precise nature of the jurisdiction the court has to make final orders in respect of each of the children is, I am also satisfied, clear.[2]In this matter I am once again concerned with the lives of two children, NC, who is now aged 10, and SH, who is now aged 6. The mother of the children in AS. The father of SH is TH. The father of NC is BC. In March 2016 I delivered a lengthy judgment following a finding of fact hearing (see AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam)) in which I made a series of findings against the mother regarding her conduct towards the children.[3]On 9 September 2016 the matter came before me to consider the question of what final orders should be made in respect of each child’s welfare. However, at that hearing TH questioned the jurisdiction of this court to make final orders in respect of SH’s welfare. By implication, this also placed in issue whether the court had jurisdiction to make final orders in respect of NC’s welfare, although the point was not taken by BC. The mother maintained that the court did have jurisdiction to make final orders in respect of both boys. In light of this issue between the parties (and in circumstances where the fixture had become subsumed within an exceptionally busy ‘urgent applications’ list) I listed the issue of jurisdiction for determination at this hearing, to be followed by a determination of the question of final orders should the court conclude that it had jurisdiction to make such orders.[4]In summary, the position of the parties in respect of the jurisdictional issue raised by TH is as follows: i) Through Mr Momtaz the mother submits that the court has substantive jurisdiction to make final child arrangements orders under the Children Act 1989 s 8 pursuant to s 2(1)(b)(ii) of the Family Law Act 1986 in circumstances where the children were present in England and Wales and not habitually resident in any part of the United Kingdom for the purposes of s 3(1)(b) of the Act at the relevant date prescribed by s 7(c)(ii), which date Mr Momtaz submits was the 26 April 2016. ii) On behalf of TH, Mr Devereux submits that this court has only ever been exercising, and continues to exercise what he styles as the ‘emergency’ jurisdiction pursuant to s 2(3)(b)(ii) of the Family Law Act 1986. Within this context, Mr Devereux submits that the court can only now make such short term orders as are required to protect SH’s (and indeed NC’s) welfare pending any further proceedings in Scotland in circumstances where the children are habitually resident in Scotland on the relevant date prescribed by s 7(c)(ii), which date Mr Devereux submits is the date of this hearing, the immediate exercise of this court’s powers being necessary for their protection only until such time as the Scottish court can become seised of the matter. iii) On behalf of BC Ms Sangha adopts the submissions made by Mr Momtaz on behalf of the mother and submits that the court has jurisdiction to make final child arrangements orders under the Children Act 1989 s 8 pursuant to s 2(1)(b)(ii) of the Family Law Act 1986. iv) Ms Jaffar’s submissions on behalf of the children came to rest on a formulation of the procedural history of the matter that favoured Mr Momtaz’s submission as to the nature and extent of the jurisdiction which the court has in this case, namely the jurisdiction to make final child arrangements orders under the Children Act 1989 s 8 pursuant to s 2(1)(b)(ii) of the Family Law Act 1986.[5]The issue between the parties in respect of what orders should be made, either final or, on Mr Devereux’s case, interim, is now very narrow and boils down to a dispute concerning the quantum of supervised contact between the children and the mother. The mother seeks supervised contact to SH and NC every three weeks. TH submits that supervised contact between the mother and SH should take place four times per year. BC submits that contact between the mother and NC should take place six times per year. The Children’s Guardian submits that the children’s needs will be met by monthly supervised contact with their mother. The narrow nature of the welfare issues between the parties in this regard does not, of course, detract from the need to be certain of the nature and extent of the court’s jurisdiction to make the orders sought.

ESSENTIAL BACKGROUND

[6]The background to this matter is set out in extensive detail in my first judgment (see AS v TH (False Allegations of Abuse) [2016] EWHC 532 (Fam)). This judgment should be read with that first judgment. For the purposes of the issues that fall for determination by the court today I need also relate the following matters of the procedural background.[7]On 31 July 2014 the mother removed NC from Scotland and took him to England. BC expected that NC would be returned to Scotland by the mother in time for the commencement of the school term. On 9 August 2014 the mother collected SH at Heathrow Airport, likewise telling TH that she would return SH to his care in Scotland in time for the commencement of the school term. The mother did not return NC or SH and instead remained in England with both children.[8]On 12 August 2014 TH issued an application in the Sheriff Court in Scotland for a residence order in respect of SH. The court granted an interim residence order in favour of the father and listed the matter on 15 August 2014. On that date the Sheriff Court continued the interim residence order and made a delivery order and orders for disclosure.[9]On 22 August 2014 the Sheriff Court wrote to the PRFD seeking registration of the order of 15 August 2014. On 28 August 2014 the interim residence order was continued until further order and on 1 September 2014 confirmation of registration was provided by the PRFD. On 7 October 2014 the solicitors acting for the mother indicated that she would seek to defend the proceedings in Scotland. On 7 November 2014 the delivery order made by the Sherriff Court was registered at the PRFD.[10]On 28 January 2015 the mother issued an application in the High Court in England on Form C66. The application stated that the orders applied for were “wardship / interim care and control.” In Section 3 of the application form, against the question “What do you want the court to do?”, the mother stated inter alia as follows:
“(1) Make both SH and his half-brother NC (DOB 28.06.2005) children wards of court. (2) Grant interim care and control of SH and NC to me. (3) Injunction under the inherent jurisdiction forbidding TH removing either or both of the children from England and Wales and/or from the care and control of myself and/or from any other school that they may be attending and/or from contact the children in any way and/or from harassing and/or assaulting them in any other way. (4) An order than any of the Scottish orders and the order in Scotland which has been registered at the Central Family Court on the 7th November 2014 not be enforced. …/ (7) Revision of any Scottish Court orders and notification of the Scottish authority.”
[11]The matter came before Newton J on 28 January 2015 without notice to the fathers. By this time the mother and the children had begun in England to make the allegations that I subsequently concluded in my first judgment in April 2016 were wholly false.[12]The transcript of the hearing on 28 January 2015 indicates that, through counsel, the mother invited the court to make SH (but not NC) a ward of court and to make “various orders” under the inherent jurisdiction. The court made an order which, inter alia, contained a recital which stated:
“AND from the Court recording from the available evidence that the relevant child SH (male) DOB 14.08.2009 of the parties is physically present in the jurisdiction of England and Wales with the Applicant and his aforementioned half-brother was born in England and is a UK passport holder” and contained a declaration which stated: “IT IS DECLARED THAT On the information available it would appear that the children SH DOB 14.08.2009 and his half-brother NC DOB 28.06.2005 are habitually resident in the jurisdiction of England and Wales and that the Courts of this jurisdiction are fully seized of parental responsibility.”
[13]Within this context, Newton J ordered that SH be made a ward of court and made orders giving interim care and control of SH to the mother, providing that SH live with the mother and NC and prohibiting the father from having any form of contact with SH. The orders giving interim care and control of SH to the mother and prohibiting the father from having any form of contact with SH were, I am satisfied, s 1(1)(d) orders for the purposes of the Family Law Act 1986 s1. Newton J also made an order that purported to prohibit the father from seeking to enforce any order that had been made in Scotland with respect to SH.[14]The matter was listed again for an on notice hearing on 20 February 2015. By the time of that hearing, and as recorded by the order made on that date by Her Honour Judge Finnerty sitting as a judge of the High Court, TH had been charged with two counts of rape of the mother and was on bail. The order further records that TH “reserves his position on the scope, jurisdiction and proportionality of the order made on 28 January 2015”. Within this context, the order of 20 February 2015 provided that if the question of jurisdiction was to be raised by TH the mother would be notified of this intention by 5 March 2015. To this end, Her Honour Judge Finnerty directed that, if the question of jurisdiction was to be raised, Skeleton Arguments should be exchanged and lodged by 11 March 2015. The matter was listed for further directions on 12 March 2015.[15]On 11 March 2015 TH issued an application on Form C66 for “contact to SH” and “SH to be returned to the jurisdiction of Scotland under the inherent jurisdiction”. When the matter came before Mr Justice Keehan on 12 March 2015, the Position Statement prepared by counsel on behalf of TH did not raise the question of jurisdiction as provided for by the order of Her Honour Judge Finnerty dated 20 February 2015, and indeed was wholly silent as to that issue. Rather, the issues raised on behalf of the father for consideration by the court were(i) the continuation of the injunctive relief obtained without notice to the father,(ii) consideration of the appropriateness of the declaration as to habitual residence without notice to the father,(iii) whether CAFCASS should be invited to compile a wishes and feelings report and given consideration to party status for SH and(iv) what further disclosure should be requested from the police and social services. The order of Keehan J of 12 March 2015 records that the whilst father informed the court that he considered the mother to have wrongfully retained SH in England and that the matter should be determined in the courts of Scotland, and that whilst he continued to rely on the orders made by the Scottish court, he did not seek to enforce those orders at that time.[16]Within this context, and it being clear that there was now a frank dispute between the parties as to the truth or otherwise of the extensive allegations made by the mother and the children, in respect of which TH had been arrested and bailed, the order of 12 March 2015 provided for CAFCASS to prepare a wishes and feelings report and to consider whether SH should be joined as a party, disclosure from the Police and social services and information from the Procurator Fiscal in Scotland. Keehan J discharged the interim declaration in respect of habitual residence and the order purporting to prohibit the father from seeking to enforce any order that had been made in Scotland with respect to SH made on 28 January 2015. As set out above, TH did not seek to further address the issue of the court’s jurisdiction on 12 March 2015, notwithstanding the discharge of the interim declaration as to habitual residence.[17]On 30 April 2015 Roberts J listed the matter for a finding of fact hearing with a time estimate of three days and made a series of directions with a view to securing the evidence required to inform that hearing. The court joined SH as a party to the proceedings. In addition, the court made an order for indirect contact between TH and SH and direct contact between the paternal grandmother and SH’s late paternal uncle. Roberts J made a further order on 22 July 2015 seeking disclosure from Scotland. On 3 August 2015 Holman J vacated the finding of fact hearing and on 9 September 2015 Baker J listed the adjourned fact finding hearing before me on 18 January 2016 with a time estimate of 4 days and made further directions to facilitate the effectiveness of that hearing.[18]On 13 October 2015 I made NC a ward of court. Mr Devereux submits that an order making a child a ward of court is not a Part I order as it falls outside the ambit of s 1(1)(d) of the 1986 Act. I thereafter made a series of case management orders which dealt with difficulties and delays in securing the inter-jurisdictional disclosure required for an effective finding of fact hearing, which hearing commenced before me on 18 January 2016.[19]Following the finding of fact hearing, on 11 March 2016 I made an order providing for NC to have unsupervised staying contact with BC for two weeks over the Easter holiday. I made a further order providing for SH to have unsupervised contact with his paternal grandmother and his late paternal uncle for two weeks over the Easter holidays. At this stage it was not possible to make an order providing for contact between SH and TH due to TH’s bail conditions in Scotland although it subsequently proved possible for SH to have some contact with TH during this period. The order of 11 March 2016 contains the standard warning attached to Child Arrangements Orders.[20]On 7 April 2016 I made an order directing, inter alia, that the Children’s Guardian file and serve her final report and recommendation as to future care and contact by 20 April 2016 and providing for the filing of final evidence, including that relevant to the proposals for care and contact being advanced by each parent. A recital to that order records that the mother agreed to make each child available for staying contact and telephone contact with their respective fathers pending the final hearing of the matter.[21]By a Position Statement filed on his behalf prepared for the hearing on 26 April 2016 and dated 21 April 2016, TH sought care of SH. Within this context he resurrected the issue of jurisdiction. TH asserted that SH was habitually resident in Scotland at the time he was retained by the mother in July 2014, and that if he were to be returned to Scotland following the conclusion of the final fact hearing his habitual residence would (if ever lost) once again be in Scotland. In these circumstances, TH argued that the Scottish court would be best placed to deal with any further welfare issues in respect of SH, including the issue of contact.[22]On 26 April 2016, having regard to the contents of the report of the Children’s Guardian and by consent, I made orders which provided that SH be placed in the care of TH in Scotland (the criminal proceedings against TH having been discontinued). TH was content for the court to make this order notwithstanding the position as to jurisdiction adopted in his Position Statement dated 21 April 2016. On 26 April 2016 I also ordered that NC be placed in the care of BC in Scotland. The order recorded the agreement reached between the mother and the fathers as to ongoing interim supervised contact. I further directed that the Children’s Guardian visit the children in Scotland and to prepare an updating report regarding their progress and her recommendations in respect of final orders in respect of contact by 31 August 2016. I also directed the parties to file and serve statements setting out their proposals for the long term contact arrangements by 2 September 2016 and listed the matter before me for final hearing on 9 September 2016. SH and NC returned to Scotland on 29 April 2016.[23]As I have already noted, and notwithstanding the final order he had invited the court to make, and which the court had made, on 26 April 2016 placing SH in his care in Scotland, when the matter came before me on 9 September 2016 TH continued to question the jurisdiction of this court to make final orders in respect of SH’s welfare. As I have already noted, by implication, this also placed in issue whether the court had jurisdiction to make final orders in respect of NC’s welfare.[24]I am now required to consider whether this court is, as TH contends through Mr Devereux, exercising an emergency jurisdiction permitting interim orders only pending further proceedings in Scotland or, as the mother, BC and the Guardian contend, the court has substantive jurisdiction to make final orders in this matter. I am further required to determine, dependent on the conclusion I reach as to jurisdiction, what final or interim orders regulating maternal contact meet each child’s best interests.

THE LAW

[25]As the President observed recently in Re X (A Child), Re Y (A Child) [2016] EWHC 2271 (Fam), the legal relationship as between England and Scotland is a relationship between separate jurisdictions with rather different systems of law. The question of jurisdiction as between the court in England and the courts in Scotland is, in this case, governed by the legislative thicket that is the Family Law Act 1986.[26]In so far as is relevant to these proceedings, the Family Law Act 1986 s 1 provides as follows in respect of the orders to which Part I of the Act (titled Child Custody) applies: 1 Orders to which Part I applies (1) Subject to the following provisions of this section, in this Part ‘Part I order’ means- (a) a section 8 order made by a court in England and Wales under the Children Act 1989, other than an order varying or discharging such an order; …/ (d) an order made by a court in England and Wales in the exercise of the inherent jurisdiction of the High Court with respect to children- (i) so far as it gives care of a child to any person or provides for contact with, or the education of, a child; but (ii) excluding an order varying or revoking such an order;[27]In Re A (Jurisdiction: Return of Child) [2014] 1 FLR the Supreme Court made clear that in order to constitute a Part 1(1)(d) order, that order has to give care of the child to any person, provide for contact with a child or provide for the education of a child (see Re A (Jurisdiction: Return of Child at [27]). As to the question of whether an order making a child a ward of court (as distinct from making a child a ward of court and making orders providing for the care of and/or contact with the child) falls within the ambit of s 1(1)(d), Baroness Hale further made clear in Re A (Jurisdiction: Return of Child) at [28] and [29] that a wardship order does not fall within s 1(1)(d) (or, indeed, s 1(1)(a)) of the Act.[28]The Family Law Act 1986 s 2 provides as follows in respect of the jurisdiction of the courts in England and Wales to make Part I orders as defined by s 1 of the Family Law Act 1986: 2 Jurisdiction: general (1) A court in England and Wales shall not make a section 1(1)(a) order with respect to a child unless- (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the Hague Convention applies but- (i) the question of making the order arises in or in connection with matrimonial proceedings or civil partnership proceedings and the condition in section 2A of this Act is satisfied, or (ii) the condition in section 3 of this Act is satisfied; …/ (3) A court in England and Wales shall not make a section 1(1)(d) order unless- (a) it has jurisdiction under the Council Regulation or the Hague Convention, or (b) neither the Council Regulation nor the Hague Convention applies but- (i) the condition in section 3 of this Act is satisfied, or (ii) the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection;[29]Accordingly, in a case where, as in this case, neither the Council Regulation nor the Hague Convention applies and the question of making an order does not order arise in or in connection with matrimonial proceedings or civil partnership proceedings, by operation of ss. 1(1)(a) and s 2(1)(a)(ii) the court will have jurisdiction to make an order under s 8 of the Children Act 1989 (other than an order varying or discharging such an order) only if the provisions of s 3 of the Family Law Act 1986 are made out.[30]Further, in a case where, as in this case, neither the Council Regulation nor the Hague Convention applies, by operation of ss 1(1)(d) and 2(3)(b)(i) and (ii) the court will have jurisdiction to make an order in the exercise of the inherent jurisdiction of the High Court giving care of the child to any person, providing for contact with a child or providing for the education of a child only if either the provisions of s 3 of the Family Law Act 1986 are made out or if the child is present in England and Wales on the relevant date (being, pursuant to s 7(c) of the Act, the date on which the application for an order was made or, where there is no application, the date on which the court is considering whether to make or, as the case may be, vary the order) and the court considers that the immediate exercise of its powers is powers is necessary for the child’s protection.[31]I pause to note that whilst s 2(3) of the 1986 Act proscribes the operation of the inherent jurisdiction in relation to orders giving care of the child to any person, providing for contact with a child or providing for the education of a child, it does not proscribe the making of other orders under the court’s inherent jurisdiction, provided the jurisdictional criteria for making such orders are met. Thus, if the court is seeking to make a s 1(1)(d) order under the inherent jurisdiction giving care of the child to any person, providing for contact with a child or providing for the education of a child, it may only do so if the jurisdictional provisions of s 2(3) of the Act are satisfied. However, the fact that the jurisdictional criteria for making a s 1(1)(d) order are not met will not prevent the court from making the same child, for example, a ward of court, provided the jurisdictional criteria for wardship are satisfied.[32]As to the conditions placed on the court’s jurisdiction to make s 1(1)(a) orders pursuant to 2(1)(a)(ii) of the Act and the court’s jurisdiction to make s 1(1)(d) orders pursuant to 2(3)(b)(i) of the Act, by s 3 of the 1986 Act, s 3 provides as follows: 3 Habitual residence or presence of child(1) The condition referred to in s 2(1)(b)(ii) of this Act is that on the relevant date the child concerned- (a) is habitually resident in England and Wales, or (b) is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory, and, in either case, the jurisdiction of the court is not excluded by subsection (2) below.(2) For the purpose of subsection (1) above, the jurisdiction of the court is excluded if, on the relevant date, matrimonial proceedings or civil partnership proceedings are continuing in a court in Scotland, Northern Ireland or a specified dependent territory in respect of the marriage or civil partnership of the parents of the child concerned. …/[33]I pause again to note that there appears to be a lacuna in the 1986 Act in that whilst both s 2(1)(b)(ii) and 2(3)(b)(i) provide that the jurisdiction to make orders under each of those provisions is subject to the condition prescribed by s 3(1) of the Act being met, the terms of s 3(1) refer only to 2(1)(b)(ii) and not, as was clearly intended, also to s 2(3)(b)(i).[34]Habitual residence is a question of fact to be determined by reference to all the circumstances of the case. In Re A (Jurisdiction: Return of Child) at [54] Baroness Hale observed as follows in respect of the test to be applied when determining habitual residence in proceedings engaging the 1986 Act: i) Habitual residence is a question of fact and not a legal concept; ii) It is the purpose of the 1986 Act to adopt a concept which is the same as that adopted in the Hague and European Conventions; iii) The test adopted by the European court is ‘the place which reflects some degree of integration by the child in a social and family environment' in the country concerned. This depends upon numerous factors, including the reasons for the family's stay in the country in question; iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention; v) The test adopted by the European court is preferable to that earlier adopted by the English courts, being focused on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors; vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned; vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.[35]Whether the child has achieved a degree of integration with the social and family environment in a country sufficient to establish habitual residence will depend on both objective factors (including the quality and duration of the residence, the nature and stability of the living conditions, the child’s nationality, the child’s linguistic knowledge and the child’s schooling and education) and subjective factors (including the quality of family and social relationships, the child’s perception of the circumstances and his or her state of mind). In evaluating the question of habitual residence as a matter of fact, it is important to maintain the child at the centre of the exercise (see Re B (Minor)(Habitual Residence) [2016] EWHC 2174 (Fam) at [17]-[18]).[36]In determining the issue of habitual residence the court does not need to undertake a searching and microscopic enquiry but rather should stand back and take a general, panoramic view of the evidence (Re B (Minors)(Abduction)(No 1) [1993] 1 FLR 988). There is no need to identify a specific point in time at which a child ceases to be habitually resident in one jurisdiction and becomes habitually resident in another because the loss of one habitual residence and the acquisition of another is a gradual process (Re A (Removal Outside Jurisdiction: Habitual Residence) [2011] 1 FLR 2025).[37]As was made clear by the Supreme Court in Re A (Jurisdiction: Return of Child) at [54], it is possible for a child not to be habitually residence anywhere at a particular point in time in circumstances where the child has lost his or her habitual residence in one jurisdiction but has not yet gained habitual residence in another. However, in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) [2016] 2 WLR 557 a majority of the Supreme Court concluded it is highly unlikely, albeit conceivable, that a child will not have a habitual residence, the concept operating in the expectation that, when a child gains a new habitual residence he or she loses the old one. Within this context, Lord Wilson observed as follows in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) at [45]:
“Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.”
[38]Lord Wilson further stated as follows in Re B (A Child)(Habitual Residence: Inherent Jurisdiction) at [46] regarding the assessment of the point at which the habitual residence might be lost and gained:
“The identification of a child's habitual residence is overarchingly a question of fact. In making the following three suggestions about the point at which habitual residence might be lost and gained, I offer not sub-rules but expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state;(b) the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”
[39]The Family Law Act 1986 s 7(c)(ii) defines the term ‘relevant date’ in s 3(1) of the Act as follows: 7 Interpretation of Chapter II In this Chapter- …/ (c) the ‘relevant date’ means in relation to the making or variation of an order-(i) where an application is made for an order to be made or varied, the date of the application (or first application, if two or more are determined together), and(ii) where no such application is made, the date on which the court is considering whether to make or, as the case may be, vary the order.[40]There was considerable discussion during the course of the hearing regarding the proper interpretation of the word ‘considering’ in s 7(c)(ii). In this respect I was taken by Mr Devereux to Lowe, Everall and Nicholls, International Movement of Children: Law Practice and Procedure, Family Law, (2004) in the footnotes to 3.9 and 3.23 where Lowe et al suggest that the term ‘considering’ in s 7(c)(ii) refers to the date on which the order is made. This interpretation is plainly drawn from the Law Commission Report Custody of Children – Jurisdiction and Enforcement within the United Kingdom Law Com. No 138 Cmnd 9419 at 4.28 which “recommends” (emphasis provided by the Law Commission) that the jurisdiction to make an order of its own motion should arise on the date the order falls to be made. My attention was also drawn to the decision of Singer J in Re F (Residence[41]As Ms Jaffar points out, whilst the court will not have jurisdiction if the jurisdictional requirements set out in the 1986 Act are not satisfied, where the court does have jurisdiction at the relevant date there is nothing in the 1986 Act to suggest that the court subsequently loses that jurisdiction by virtue of the child thereafter either moving to another part of the United Kingdom or becoming habitually resident in another part of the United Kingdom. Within this context, I note that in Re SO (Wardship: Extension of Jurisdiction) [2016] 1 FLR 1144 at [27] Baker J held that:
“When, as here, the court has jurisdiction at the start of wardship proceedings on the grounds that the child is habitually resident in England and Wales, that jurisdiction continues until the conclusion of the proceedings, notwithstanding that the ward has become habitually resident elsewhere.”
[42]In summary, cutting through the legislative thicket, and insofar as is relevant in these proceedings, the effect of the foregoing provisions of the Family Law Act 1986 is that this court will have jurisdiction in the following circumstances: i) Jurisdiction to make orders under s 8 of the Children Act 1989 (other than an order varying or discharging such an order) where the subject child is habitually resident in England and Wales or is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory at date of the application or, where there is no application, the date the court is considering whether to make or, as the case may be, vary an order (Family Law Act 1986 s 2(1)(b)(ii)). ii) Jurisdiction to make orders under the inherent jurisdiction of the High Court giving care of the child to any person, providing for contact with a child or providing for the education of a child where the subject child is habitually resident in England and Wales or is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory at date of the application or, where there is no application, the date the court is considering whether to make or, as the case may be vary an order (Family Law Act 1986 s 2(3)(b)(i)). iii) Jurisdiction to make orders under the inherent jurisdiction of the High Court giving care of the child to any person, providing for contact with a child or providing for the education of a child where the subject child concerned is present on England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection (Family Law Act 1986 s 2(3)(b)(ii)).[43]During the course of submissions there was some debate as to the nature of the latter jurisdiction provided by s 2(3)(b)(ii) of the 1986 Act. Mr Devereux styles the jurisdiction under s 2(3)(b)(ii) as an “emergency” jurisdiction.[44]Mr Devereux points out that s 12 of the Family Law Act 1986, which provides the corresponding jurisdiction in Scotland, is titled “Emergency jurisdiction”. Further, I was again taken by Mr Devereux to Lowe, Everall and Nicholls, International Movement of Children: Law Practice and Procedure, Family Law, (2004) at 3.23 and 3.24 where the authors describe the jurisdiction under s 2(3)(b)(ii) as “The emergency jurisdiction” and posit that the jurisdiction is only to be used as a temporary expedient. Mr Devereux further referred me to the Law Commission and Scottish Law Commission Report Custody of Children – Jurisdiction and Enforcement within the United Kingdom Law Com. No 138 Cmnd 9419 at 4.19 (also cited by Lowe et al) which likewise describes the jurisdiction as the “Emergency jurisdiction”, to be used where a child is in immediate danger necessitating swift action on an emergency basis. Finally, the court’s attention was drawn to the decision of Connell J in B v B (Scottish Contact[45]Before leaving the Family Law Act 1986, it is also important to note three further provisions in the 1986 Act. The Family Law Act 1986 s 15 provides as follows in respect of the effect on orders made in Scotland of orders made in another court in any part of the United Kingdom: 15 Duration, variation and recall of orders (1) Where, after the making by a court in Scotland of a Part I order (‘the existing order’) with respect to a child- (a) a Part I order, or an order varying a Part I order, competently made by another court in any part of the United Kingdom or in a specified dependent territory with respect to that child; or (b) an order for the custody of that child which is made outside the United Kingdom an any specified dependent territory and recognised in Scotland by virtue of section 26 of this Act, comes into force, the existing order shall cease to have effect so far as it makes provision for any matter for which the same or different provision is made by the order of the other court in the United Kingdom or in the specified dependent territory or, as the case be, the order so recognised.[46]In S v S (Custody: Jurisdiction) [1995] 1 FLR 155 at 157 Bracewell J made clear that, for the purposes of s 15 of the 1986 Act, there is no distinction to be drawn between interim orders and final orders.[47]Within this context, the Family Law Act 1986 s 41 provides as follows in respect of the jurisdiction of the courts of the United Kingdom following the removal of the child to another part of the United Kingdom without consent: 41 Habitual residence after removal without consent, etc.(1) Where a child who— (a) has not attained the age of sixteen, and (b) is habitually resident in a part of the United Kingdom or in a specified dependent territory, becomes habitually resident outside that part of the United Kingdom or that territory in consequence of circumstances of the kind specified in subsection (2) below, he shall be treated for the purposes of this Part as continuing to be habitually resident in that part of the United Kingdom or that territory for the period of one year beginning with the date on which those circumstances arise.(2) The circumstances referred to in subsection (1) above exist where the child is removed from or retained outside, or himself leaves or remains outside, the part of the United Kingdom or the territory in which he was habitually resident before his change of residence— (a) without the agreement of the person or all the persons having, under the law of that part of the United Kingdom or that territory, the right to determine where he is to reside, or (b) in contravention of an order made by a court in any part of the United Kingdom or in a specified dependent territory.(3) A child shall cease to be treated by virtue of subsection (1) above as habitually resident in a part of the United Kingdom or a specified dependent territory if, during the period there mentioned— (a) he attains the age of sixteen, or (b) he becomes habitually resident outside that part of the United Kingdom or that territory with the agreement of the person or persons mentioned in subsection (2)(a) above and not in contravention of an order made by a court in any part of the United Kingdom or in any specified dependent territory.[48]The Family Law Act 1986 s 5 provides as follows with respect to the power of the court to stay the proceedings: 5 Power of court to refuse application or stay proceedings(1) A court in England and Wales which has jurisdiction to make a Part I order may refuse an application for the order in any case where the matter in question has already been determined in proceedings outside England and Wales.(2) Where, at any stage of the proceedings on an application made to a court in England and Wales for a Part I order, or for the variation of a Part I order, other than proceedings governed by the Council Regulation, it appears to the court— (a) that proceedings with respect to the matters to which the application relates are continuing outside England and Wales, (b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, (c) that it should exercise its powers under Article 15 of the Council Regulation (transfer to a court better placed to hear the case), or (d) that it should exercise its powers under Article 8 of the Hague Convention (request to authority in another Contracting State to assume jurisdiction), the court may stay the proceedings on the application or (as the case may be) exercise its powers under Article 15 of the Council Regulation or Article 8 of the Hague Convention.[49]Finally, pursuant to the Children Act 1989 s 10(1) the court may make a child arrangements order in any family proceedings in which a question arises with respect to the welfare of any child if an application for such an order has been made or the court considers that the order should be made notwithstanding that no application has been made. The term ‘family proceedings’ in s 10(1) of the 1989 Act includes any proceedings under the inherent jurisdiction of the High Court in relation to children (Children Act 1989 s 8(3)(a)). Accordingly, within the context of proceedings under the inherent jurisdiction of the High Court, and provided it has jurisdiction to do so pursuant to the relevant provisions of the Family Law Act 1986, the court may make a child arrangements order notwithstanding that no application has been made for such an order. SUBMISSIONS TH

SUBMISSIONS

[50]On behalf of TH, Mr Devereux submits that the court has only ever been, and continues to be exercising the so called ‘emergency’ jurisdiction pursuant to s 2(3)(b)(ii) of the Family Law Act 1986 in respect of both children.

(i) SH

[51]At the date the mother retained SH on 9 August 2014, Mr Devereux submits that SH was habitually resident in Scotland. Whatever the position was thereafter in respect of habitual residence as a matter of fact, Mr Devereux submits that, by operation of the Family Law Act 1986 s 41, SH must be treated as having been habitually resident in Scotland until 9 August 2015. In the circumstances, Mr Devereux contends that, on any analysis, as at the date the mother’s application under the inherent jurisdiction in respect of SH was issued on 28 January 2015, the date TH’s application under the inherent jurisdiction was issued on 11 March 2015 and the date the court made orders for indirect contact between TH and SH and direct contact between the paternal grandmother and SHs late paternal uncle on 30 April 2015, SH was, or was deemed to be habitually resident in Scotland.[52]Within this context, Mr Devereux submits that when it made orders on 28 January 2015 further to the mother’s application placing SH in the interim care and control of the mother, providing that SH live with the mother and NC and prohibiting the father from having any form of contact with SH, and when it made interim orders for contact on 30 March 2015 further to TH’s application, the court could only have been exercising the ‘emergency’ jurisdiction pursuant to s 2(3)(b)(ii) of the Family Law Act 1986 (SH being neither(a) habitually resident in England nor(b) present in England and not habitually resident in any part of the United Kingdom or a specified dependent territory at the time the application was made). Mr Devereux accepts that each of these orders were s 1(1)(d) orders for the purposes of the Family Law Act 1986, being orders giving the care of SH to his mother and providing for contact.[53]With respect to the orders made by this court in respect of SH on 11 March 2016 regarding interim contact for SH and 26 April 2016 placing SH in the care of TH, Mr Devereux submits that at the time the court made those orders SH, although present in England, remained habitually resident in Scotland, he having neither become habitually resident in England nor lost his habitual residence in Scotland. In the circumstances, Mr Devereux submits that these orders too were made pursuant to the emergency jurisdiction provided by s 2(3)(b)(ii) of the 1986 Act, SH once again being neither(a) habitually resident in England nor(b) present in England and not habitually resident in any part of the United Kingdom or a specified dependent territory at the time the applications were made such that the jurisdiction under s 2(1)(b)(ii) and 2(3)(b)(i) to make substantive Part I orders could not arise.[54]As to the position now, Mr Devereux submits that in circumstances where the mother now invites the court to make a child arrangements order pursuant to the Children Act 1989 s 8 regulating contact, and in circumstances where no such application has been issued by the mother, the court only has jurisdiction under s 2(1)(b)(ii) to make a child arrangements order in respect of SH if, pursuant to s 7(c)(ii), it can be said that the court is ‘considering whether to make, or as the case may be, vary the order’ at a time when SH is habitually resident in England and Wales or is present in England and Wales and is not habitually resident in any part of the United Kingdom or a specified dependent territory. In circumstances where, says Mr Devereux, the term ‘considering whether to make, or as the case may be, vary the order’ in s 7(c)(ii) must be interpreted as ‘the date on which the order is made’, which in this case is the date of this hearing, and where SH is now be habitually resident in Scotland, it cannot be said that the court is at this hearing is ‘considering’ whether to make or vary an order at a time when SH is(a) habitually resident in England and Wales or(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom. Although he does not address it explicitly, these submissions must also apply to final orders under the inherent jurisdiction pursuant to the jurisdiction conferred by s 2(3)(b)(i) of the 1986 Act. Within this context, Mr Devereux submits that the court does not have jurisdiction to make s 1(1)(a) orders pursuant to s 8 of the Children Act 1989 (or, it must follow, substantive s 1(1)(d) orders pursuant to the inherent jurisdiction pursuant to the jurisdiction conferred by s 2(3)(b)(i)).[55]Mr Devereux submits that the emergency jurisdiction under s 2(3)(b)(ii) remains available to the court in respect of SH at this point. Within this context, Mr Devereux contends that the court is able now to make only interim orders governing the position in respect of contact pending the issue being taken up by the courts in Scotland if it concludes that such orders are necessary for his protection.[56]In answer to the logical consequences of this submission, namely that this court has, therefore, been exercising an emergency jurisdiction in respect of SH for a period exceeding a year, including undertaking an extensive fact finding hearing, Mr Devereux contends that the court has been necessarily exercising an emergency jurisdiction in circumstances where, due to the very particular facts of the case, no way forward was possible, even on an interim basis, until such time as certain facts had been found.[57]If the court is not with these submissions, and determines that it has jurisdiction to make final orders regulating contact then Mr Devereux invites the court to stay these proceedings pursuant to the Family Law Act 1986 s 5(2)(b) on the grounds that, having regard to the principles set out in Spiliada Maritime Corporation v Consulex [1997] AC 460, it is more appropriate for the issue of contact to be dealt with in Scotland in circumstances where(a) SH is habitually resident in Scotland,(b) SH is physically present in Scotland,(c) the litigation in this jurisdiction was the result of a well-planned deception on the part of the mother,(d) TH lives in Scotland,(e) the Scottish courts were first seised and remain seised,(f) the mother is able easily to travel to Scotland,(g) the Scottish court is able to undertake an assessment of SH’s best interests,(h) the mother previously agreed to engage in legal proceedings in Scotland and(i) save for the mother, all potential witnesses on the issue of welfare are in Scotland.[58]In the further alternative, Mr Devereux submits that if the court determines that it has jurisdiction to make final orders regulating contact in respect of SH and decides to exercise that jurisdiction, it should do so cautiously having regard to the particular facts of this case and to the words of Wilson LJ (as he then was) in the context of a relocation application in Re R (Leave to Remove: Contact) [2011] 1 FLR 1336 that: “Although a contact order is, as I have noticed, now occasionally made by way of attachment to a grant of leave, it is contrary to principle. A contact order would be an order taking effect until further order of the English court. But, on a grant of leave, the English court is, if only for practical reasons, surrendering its control over the child to the foreign court.” (ii). NC[59]With respect to the issues his submissions concerning SH raise in respect of NC, Mr Devereux submits that the order making NC a ward of court was neither a s 1(1)(a) order, not being an order pursuant to s 8 of the Children Act 1989, nor a s 1(1)(d) order, not being an order which gave care of NC to any person or provided for contact with, or the education of NC. In the circumstances, Mr Devereux contends that the only jurisdiction the court had to make NC a ward of Court on 13 October 2015 was one based on his nationality.[60]With respect to the orders made by this court in respect of NC on 11 March 2016 regarding interim contact for NC and 26 April 2016 placing NC in the care of BC those orders were made pursuant to the emergency jurisdiction provided by s 2(3)(b)(ii) of the 1986 Act in circumstances where NC was neither(a) habitually resident in England nor(b) present in England and not habitually resident in any part of the United Kingdom or a specified dependent territory at the time the applications were made, such that the jurisdiction under s 2(1)(b)(ii) and 2(3)(b)(i) to make substantive Part I orders could not arise.[61]With respect to the position now in respect of NC, Mr Devereux again repeats his submission in respect of SH, namely that in circumstances where it cannot be said that the court is at this hearing ‘considering’ whether to make or vary an order at a time when NC is(a) habitually resident in England and Wales or(b) is present in England and Wales and is not habitually resident in any part of the United Kingdom, the court does not have jurisdiction to make s 1(1)(a) orders pursuant to s 8 of the Children Act 1989 (or, it must follow, substantive s 1(1)(d) orders pursuant to the inherent jurisdiction pursuant to the jurisdiction conferred by s 2(3)(b)(i). Again, Mr Devereux concedes that the emergency jurisdiction under s 2(3)(b)(ii) remains available to the court in respect of NC at this point and that the court is able to make interim orders governing the position in respect of contact pending the issue being taken up by the courts in Scotland if it concludes that such orders are necessary for NC’s protection.[62]Finally, Mr Devereux repeats in respect of NC his submissions as to forum conveniens under s 5(2) of the Family Law Act 1986 and his submissions as to the caution required should the court determine that it has jurisdiction to make final orders in respect of NC and decides to exercise that jurisdiction.

The Mother

(i) SH

[63]With respect to the position at the outset of proceedings concerning SH, whilst Mr Momtaz concedes that SH was habitually resident in Scotland at the time he was retained by the mother in England in August 2014, Mr Momtaz submits that as at the date of the mother’s application under the inherent jurisdiction on 28 January 2015 SH was habitually resident in England. Mr Momtaz further submits that s 41 of the Family Law Act 1986 does not apply with respect to SH in circumstances where, at the date the mother retained SH, TH did not have the right to determine where SH resided for the purposes of s 41(2)(a) of the Act in the absence of a court order. If that is not correct, Mr Momtaz submits that on 28 January 2015 SH was in any event present in England and Wales and not habitually resident in any part of the United Kingdom or a specified dependent territory at date of the application (he having by that time lost his habitual residence in Scotland). Within one of these two contexts, Mr Momtaz submits that the court had substantive jurisdiction in respect of SH under s 2(1)(b)(ii) and s 2(3)(b)(i) in January 2015. In the further alternative, Mr Momtaz submits that on 28 January 2015 SH was present in England and it was necessary for the court to exercise its powers for his protection such that the court had ‘emergency’ jurisdiction under s 2(3)(b)(ii).[64]As to the current position, Mr Momtaz reminds the court that on 7 April 2016 the court directed the mother to file and serve a statement dealing with, inter alia, her proposals for contact, directed TH to file and serve a statement to include his further contact proposals and directed the Children’s Guardian to prepare a report containing her final recommendations, including those as to contact. On 7 April 2016 the mother and TH agreed interim contact. Within this context, Mr Momtaz submits that the court was on 26 April 2016 plainly ‘considering’, for the purposes of s 7(c)(ii) of the Act, whether to make an order regulating contact (the mother ultimately agreeing certain contact as recorded on the face of the order). Within this context, Mr Momtaz submits that, in circumstances where SH was, as at 26 April 2016, either(a) habitually resident in England and Wales or(b) present in England and Wales and not habitually resident in any part of the United Kingdom, the court had jurisdiction on 26 April 2016 to make s 1(1)(a) orders under s 8 of the Children Act 1989 pursuant to s 2(1)(b)(ii) of the 1986 Act.[65]Whilst not specifically relied on by Mr Momtaz during his submissions, the foregoing submission must, by parity of reasoning, apply also to the orders made by the court on 11 March 2016, in which the court made an order that the mother shall make SH available for unsupervised staying contact with his maternal grandmother and his late paternal uncle for a period of two weeks over the Easter school holiday.[66]Finally, Mr Momtaz submits that, in circumstances where the court gained substantive jurisdiction in this case in respect of SH in the manner set out above, it did not lose it by virtue of SHs return to Scotland in April 2016 and, accordingly, retains jurisdiction to make final orders s 1(1)(a) orders under s 8 of the Children Act 1989 regulating contact for SH. (ii). NC[67]In respect of NC, whilst again conceding that NC was habitually resident in Scotland at the time the mother retained him in England in July 2014, Mr Momtaz submits that by the time NC was made a ward of court on 13 October 2015 he was habitually resident in this jurisdiction. Mr Momtaz submits that s 41 of the Family Law Act 1986 is not relevant in respect to NC as 13 October 2015 was more than one year from the date on which the mother retained NC outside Scotland without the agreement of BC for the purposes of s 41(2)(a) of the Act. In the alternative, Mr Momtaz submits that on 13 October 2015 NC was in any event present in England and Wales and not habitually resident in any part of the United Kingdom at date of the application, having lost his habitual residence in Scotland. Within one of these two contexts, Mr Momtaz submits that the court had substantive jurisdiction in respect of NC under s 2(1)(b)(ii) and s 2(3)(b)(i) as at 13 October 2015. In the further alternative, Mr Momtaz submits that on 13 October 2015 NC was present in England and it was necessary for the court to exercise its powers for his protection such that the court had ‘emergency’ jurisdiction under s 2(3)(b)(ii).[68]As to the current position, Mr Momtaz repeats his submissions in respect of SH. Namely, that the court was plainly ‘considering’, for the purposes of s 7(c)(ii) of the Act, whether to make an order regulating contact on 26 April 2016 and that, in circumstances where NC was, as at 26 April 2016, either(a) habitually resident in England and Wales or(b) present in England and Wales and not habitually resident in any part of the United Kingdom, the court had jurisdiction on 26 April 2016 to make s 1(1)(a) orders under s 8 of the Children Act 1989 pursuant to s 2(1)(b)(ii) of the 1986 Act. I repeat my observation concerning the order of 11 March 2016, which contained an order that the mother make NC available for unsupervised contact with BC for two weeks over the Easter holiday.[69]As with SH, in respect of NC Mr Momtaz accordingly submits that, in circumstances where the court gained substantive jurisdiction in this case in respect of NC in the manner set out above, it did not lose it by virtue of NC’s return to Scotland in April 2016 and, accordingly, retains jurisdiction to make final orders s 1(1)(a) orders under s 8 of the Children Act 1989 regulating contact for NC. BC[70]As I have already noted, Ms Sangha Ms Sangha adopts the submissions made by Mr Momtaz on behalf of the mother and submits that the court has jurisdiction to make final child arrangements orders in respect of NC in this case.

The Children’s Guardian

[71]Likewise, Ms Jaffar ultimately tacked towards Mr Momtaz’s submission as to the nature and extent of the jurisdiction which the court has in this case, namely the jurisdiction to make final child arrangements orders under the Children Act 1989 s 8 pursuant to s 2(1)(b)(ii) of the Family Law Act 1986 in respect of both children. DISCUSSION Jurisdiction

DISCUSSION

[72]I am satisfied that this court has jurisdiction in respect of each child to proceed to make final orders with respect to contact. My reasons for so deciding are as follows.

(i) Habitual Residence

[73]Key to the question of the nature and extent of the court’s jurisdiction is the question of habitual residence in respect of each of the children at the relevant procedural stages of this litigation. In my judgment the position in respect of each child is as follows.[74]I am satisfied, and each party accepts, that at the time they were retained in England by their mother, SH and NC were habitually resident in Scotland. I am further satisfied that SH and NC lost their habitual residence in Scotland at a point subsequent to their arrival in England.[75]Following their retention in England in August 2014 SH and NC lost all contact with their respective homes in Scotland, their respective fathers and their schooling and peers in that jurisdiction. They did not visit Scotland between August 2014 and April 2016 and the mother took no steps to ensure that the children’s links with their family and environment in Scotland were maintained whilst they were in England. As at 18 April 2016 SH told the Children’s Guardian that he could not remember when he lived in Scotland and had not seen his father for a very long time. Within this context, and whilst limited contact continued for SH with his paternal grandmother and late paternal uncle, I am satisfied that, following their retention in England, as a matter of fact, both children ceased to be integrated in a social and family environment in Scotland. The court is not required to identify a specific date on which the children lost their habitual residence in Scotland but I am satisfied that each had done so by March 2016.[76]I am further satisfied that, notwithstanding that each child lost his habitual residence in Scotland in the manner I have described above, neither child acquired habitual residence in England following to their retention and during their period in this jurisdiction.[77]Subsequent to their retention in England, and having regard to the factual background and findings set out in my first judgment, it is plain that SH and NC’s time in England was very significantly disrupted. Following their retention in England, SH and NC were first taken to live with their mother with the mother’s new partner, ER. Whilst there they witnessed an extremely unfortunate incident prior to September 2014 when ER’s previous partner clung to the bonnet of ER’s car and screamed during a contact handover in respect of ER’s own children, to which incident a number of police cars and officers attended and as a result of which SH and NC were extremely upset. A little over a month after SH and NC were retained in England they were again moved suddenly with their mother to a domestic violence refuge following the mother’s false allegations against TH. Twelve weeks later in December 2014 SH and NC were moved again, this move happening suddenly amidst false allegations of risk of kidnap and harm. By September 2015 SH and NC had been moved a third time to another local authority area. The mother’s relationship with ER continued during this period, culminating in the mother alleging that she was assaulted and threatened by ER at home on 20 February 2016 at a time when the children were present in the property. The mother informed the Children’s Guardian that this incident went on all night and that ER had tried to strangle her, had pushed her, and that she had been sick. The children saw the ambulance arrive.[78]Each of the peremptory changes within the context of the disrupted environment I have described above dislocated SH and NC’s school attendance and their peer relationships. As at March 2016 the children were behind in their school work, a situation that their then teacher ascribed to the number of school moves the children had undergone during their time in England. The children’s wider environment was also significantly unsettled. Beyond the incidents of domestic discord and abuse witnessed by the children recounted in the foregoing paragraph, the serial moves they experienced took place within a context of SH and NC being seen over an extended period of time by multiple professionals in different local authority areas (when account is taken of the intervention by CAMHS, the children were questioned with respect to, or seen as a consequence of the allegations made in this case, often in the presence of each other, by no less than nineteen professionals on no less than twenty occasions for SH and no less than forty-four occasions for NC with five different police officers were involved with interviewing the boys).[79]Finally, during this time the children were having no contact with any other family members beyond their mother who, as I have found as a fact, was during this period placing unwarranted emotional pressure on the children by herself making false allegations and making them known to the children, by inappropriately involving the children in adult discussions and by, on occasion, actively coaching the children to make allegations. The quality of the children’s family relationship with their mother was, accordingly, poor. The Children’s Guardian relates that SH has since commented that his mother would get angry if he stated he wished to see his father. The net result was very significant physical, emotional and educational insecurity for both children. The children’s perception of their situation was confused. Indeed, I found in March that both children suffered significant emotional harm as a result of the care given to them by their mother during this period. The intention of the mother in retaining the children in England was, as I found, to avoid the return of the children to the care of their fathers and, in relation to SH, to avoid compliance with the lawful orders made by the Scottish court. TH and BC each intended the return of SH and NC to Scotland.[80]Within the foregoing context, I am not able to conclude that between their arrival in England in August 2014 and their departure in April 2016 either SH or NC acquired habitual residence in this jurisdiction. Within the context of the matters I set out in my first judgment, and in particular the aspects I have highlighted in the foregoing paragraphs, I am unable to conclude in the very particular circumstances of this case that, as a matter of fact, either SH or NC became sufficiently integrated into a social and family environment in England to establish habitual residence in this jurisdiction.[81]In summary, having regard to the evidence in this case and the findings made in my first judgment, I am satisfied as a matter of fact that as at the date they were retained in England, both SH and NC were habitually resident in Scotland. Thereafter, I am further satisfied that at a point after their retention in England both children lost their habitual residence in Scotland and that they had certainly done so by March 2016. Further, for the reasons I have given, I am equally satisfied on the evidence before the court and the findings made in my first judgment that neither child acquired habitual residence in the period between August 2014 and April 2016. To adopt Lord Wilson’s analogy in Re B (A Child)(Habitual Residence: Inherent Jurisdiction), in the highly unusual circumstances of this case whilst the children’s roots in Scotland came up such that they lost their habitual residence in that jurisdiction, the children were not able, for the reasons I have set out, to put down roots representing the requisite degree of integration in the environment of England such as to acquire habitual residence here. Whilst I accept that it is highly unusual to conclude that children are without a habitual residence, I am satisfied that, as a matter of fact, this was the result of the highly exceptional facts in this case.[82]Within the context of my conclusions as to habitual residence, I turn now to my conclusions as to the jurisdictional position under the Family Law Act 1986 at what I consider to be the key dates, namely the date proceedings were issued in respect of each child, the date the court made orders on 26 April 2016 regulating each child’s living arrangements, and the date of this hearing. (ii). Jurisdiction at Issue[83]As at the date proceedings were issued in respect of SH, he was present in England but habitually resident in Scotland, both as a matter of fact and by virtue of the deeming provisions of s 41 of the Family Law Act 1986. In the circumstances, I am satisfied that the court had jurisdiction under the 1986 Act only under s 2(3)(b)(ii), namely the jurisdiction to make s 1(1)(d) orders under the inherent jurisdiction of the High Court on the grounds that the immediate exercise of the court’s powers was necessary for SH’s protection. The same position pertained as at the date Roberts J made orders regulating contact in respect of SH on 30 April 2015 as, at that date, SH was, whilst present in England, still deemed to be habitually resident in Scotland pursuant to s 41 of the Family Law Act 1986.[84]I accept Mr Devereux’s submission that the jurisdiction under s 2(3)(b)(ii) of the Family Law Act 1986 is properly characterised as an ‘emergency’ or ‘protective’ jurisdiction, akin to the jurisdiction provided by Art 20 of BIIA or Art 11 of the 1996 Hague Convention. That much is clear from the wording of the section itself, which is expressed in terms of necessity for immediate measures of protection. It is plain that the jurisdiction conferred by s 2(3)(b)(ii) of the Act is designed to cover situations of urgency where the child is in need of immediate protection secured by swift action.[85]As at the date NC was made a ward of court on 13 October 2015 he was present in the jurisdiction and had been for over a year in the circumstances that I have outlined above. For the reasons I have already given I am satisfied that he had by this time lost his habitual residence in Scotland. The deeming provision in s 41 of the 1986 Act had ceased to apply in respect of NC, more than a year having elapsed since his retention in England. For the reasons I have also already given, I am satisfied he had not become habitually resident in England. I accept Mr Devereux’s submission that the order making NC a ward of court is not one that falls within s 1(1)(d) of the family Law Act 1986 and, accordingly, the court did not have jurisdiction in respect of NC under that Act at this point (Re A (Jurisdiction: Return of Child) at [28] and [29]). However, whilst it is plain that an order making a child a ward of court is not an order that falls within jurisdiction conferred by the Family Law Act 1986, the jurisdiction to make such an order in respect of NC is not excluded by the terms of the 1986 Act. In the foregoing circumstances, it is plain that on 13 October 2015 the court had jurisdiction to make NC a ward of court pursuant to its parens patriae jurisdiction based on NC’s physical presence in this jurisdiction. (iii). Jurisdiction in April 2016[86]On 26 April 2016 I made orders placing NC in the care of BC and SH in the care of TH. As at 26 April 2016 no application had been made by BC for an order placing NC in his care or by TH for an order placing SH in his care (TH’s application dated 11 March 2015 being for a contact order and a return order). I am however satisfied in respect of both children that on 26 April 2016 I was “considering whether to make…the order” for the purposes of s 7(c)(ii) of the 1986 Act.[87]As between the competing submissions regarding the proper interpretation of the word “considering” in s 7(c)(ii) of the 1986 Act, in so far as it is necessary for me to decide the issue I am inclined to favour Mr Momtaz’s submission. The meaning of the word ‘considering’ is plain, namely to contemplate in order to reach a conclusion, or to examine the merits of a course of action, or to give attention to a matter. Whilst he did not come to a settled conclusion on the point, it is clear that this is the sense in which Singer J interpreted the word in Re F (Residence[88]In the circumstances, I accept Mr Momtaz’s submission that the relevant date for determining whether the criteria in s 3 of the 1986 Act were satisfied for the purposes of determining whether the court had jurisdiction pursuant to s 2(1)(b)(ii) and/or s 2(3)(b)(i) (being the date the court was considering whether to make the order) was 26 April 2016 (once again, this conclusion is also capable, in my judgment, of applying to 11 March 2016).[89]Within this context, for the reasons I have given above, I am satisfied that as at the relevant date of 26 April 2016 both children were present in the jurisdiction of England and Wales and neither child was habitually resident in any part of the United Kingdom or a specified dependent territory. Accordingly, in respect of both children, I am satisfied that the requirement of s 3(1)(b) of the Act was met on 26 April 2016 for the purposes of s 2(1)(b)(ii) and s 2(3)(b)(i) of the Act and that, accordingly, the court had jurisdiction in respect of both children to make s 1(1)(a) orders pursuant to s 2(1)(b)(ii) of the Act and s 1(1)(d) orders pursuant to s 2(3)(b)(i) of the Act. (iv). Current Jurisdiction[90]Finally, I am satisfied that having gained jurisdiction pursuant to s 2(1)(b)(ii) and 2(3)(b)(i) of the Act in the manner set out above, the court did not subsequently lose that jurisdiction when the children returned to Scotland on 29 April 2016 and likely re-acquired habitual residence in that jurisdiction subsequent to that date. I accept the submission that there is nothing in the 1986 Act to suggest that a court that has jurisdiction under the Act, and that is seised of proceedings will subsequently lose that jurisdiction by virtue of the subject child thereafter either moving to another part of the United Kingdom or becoming habitually resident in another part of the United Kingdom. In the circumstances, I am satisfied that this court retains jurisdiction under s 2(1)(b)(ii) and 2(3)(b)(i) to make final s 1(1)(a) orders and/or s 1(1)(d) orders in respect of the children as at the date of this hearing.

(v) Stay of Proceedings

[91]Being satisfied that this court has substantive jurisdiction to make final orders in respect of the children, I go on to consider whether the court should exercise that jurisdiction or stay the proceedings pursuant to the provisions of s 5(2)(b) of the 1986 Act.[92]Whilst the factors prayed in aid by Mr Devereux in support of his submission that Scotland is now the most appropriate forum for the final determination of this matter are weighty, they are not in my judgment sufficient to outweigh what I consider to be the magnetic factor concerning the question of appropriate forum in this case. Namely, the fact that this court has been seised of these proceedings since January 2015 and has conducted an extensive fact finding exercise and given a detailed judgment, the contents of which inform in detail the welfare decisions required in this case. In these circumstances, this court is plainly the most appropriate forum to determine what welfare orders are in each child’s best interests having regard to the history of this matter. It would be strange step to take in this case, at very end of long and involved fact finding process, to divest the final stage of determining which welfare orders should be made consequent on the outcome of that process to a different court. Within this context, I note the observation of Baroness Hale in Re N (Children) [2016] UKSC 15 that:
“[50] Above all, in this particular case, the judge had heard and read all the evidence that anyone involved wished to put before him. He was in a position to decide the outcome. Although a transfer request can be made and determined at any time, it would be rare indeed that, the case having reached such a point, another court would be better placed to hear it.”
[93]I also bear in mind the view of the Children’s Guardian that these proceedings have had a huge impact on the children’s lives and their emotional well-being. It is crucial that they are now brought to a swift conclusion. For all these reasons, having regard to the principles set out in Spiliada Maritime Corporation v Consulex [1997] AC 460, I am satisfied that the appropriate forum for determining the welfare issues in respect of each child that arise in this case remains this jurisdiction.[94]I of course accept the need for caution where the court is making final orders that will govern the position for children who reside in another jurisdiction. In this respect, I note that the orders I make today will be registered in Scotland pursuant to the relevant provisions of the Family Law Act 1986.[95]A final upshot of the foregoing analysis is that it will be apparent that much of the preparation for the finding of fact hearing in this case took place following the court exercising its emergency or protective jurisdiction under s 2(3)(b)(ii) of the Act. Whilst it is, and should be, unusual for the court to embark on such a detailed process over such an extended period in proceedings commenced under a jurisdiction designed to cover only situations of urgency where the child is in need of immediate protection secured by swift action, to proceed in this manner was necessary on the particular facts of this case in circumstances where the court was not in a position to properly determine even the interim position (i.e. to keep the children with the mother or return them to their father) until the stark factual issues between the parties had been determined.

Welfare

[96]As to the now narrow question of what quantum of contact is in each child’s best interests, I am satisfied that I should make a final child arrangements order that SH should have contact with his mother on a supervised basis once per month for a period of three hours. I am likewise satisfied that I should make a final child arrangements order that NC should have contact with his mother on a supervised basis once per month for a period of three hours. My reasons are as follows.

(i) SH

[97]The Children’s Guardian described the first contact between SH and his father following TH’s bail conditions being revoked as follows:
“To say he was pleased to see his father is an understatement”
. SH has settled well in the care of his father since April of this year.[98]SH’s wishes and feelings as to contact are that he wants to see more of his mother and does not like Skype contact as it does not allow him physical contact with his mother. Contact between SH and his mother in August went tolerably well. SH told the Children’s Guardian that he wants to see his mother once every two weeks. SH plainly has an emotional need to maintain contact with his mother and to continue to maintain and develop his relationship with her. Having regard to the history of this matter, it is particularly important for SH to develop a ‘normal’ relationship with his mother moving forward. Against this however, I remain concerned that the mother still does not accept the findings made by this court regarding her conduct towards SH, conduct that has, I have found, caused him significant emotional harm. The mother told the Children’s Guardian that that which she alleged “did happen” but she just does not have “the evidence” to prove it. At this hearing the mother reiterated this position to me through counsel. Further, the mother appears to have determined she does not require therapeutic assistance. Within this context, I agree with the conclusion of the Children’s Guardian that the mother is not capable at this point in time of meeting SH’s emotional needs. In the circumstances, I am further satisfied that the TH is right to express caution in respect of contact and the risk of emotional harm such contact presents.[99]In respect of SH, I am satisfied that the competing factors of ensuring that SH is able to maintain and develop his relationship with his mother and the risk of emotional harm that I am satisfied his mother continues to present are properly and proportionately balanced by an order for monthly supervised contact for a period of three hours. This level of contact will assure that SH sees his mother on a regular basis, as he has expressed a wish to do, in order to maintain and develop his relationship with her. At the same time, this frequency of contact will allow SH to continue to settle in the care of his father and reduce any risk that contact will undermine that placement or upset his emotional equilibrium.[100]Within this context and having, as I must, SH’s best interests as my paramount consideration, I am satisfied that recommendation of the Children’s Guardian for monthly supervised contact is one that is in SH’s best interests and should be accepted by the court. In preferring the higher level of contact recommended by the Children’s Guardian I have born in mind that, whilst risks remain in respect of contact, there are protective factors in place, namely SH has settled well in the care of his father, his father and his wider paternal family are very well attuned to SH’s emotional needs, contact in August 2016 went well and SH has expressed a wish to see more of his mother. In respect of Skype contact I agree with the Children’s Guardian that it should cease for the time being. Plainly, this form of contact can be revisited in the future depending on the progress of direct contact and should SH express a wish to recommence such sessions. SH should be made aware that whilst Skype contact is to cease at present, the option for Skype contact remains open should he wish to utilise that option in the future. (ii). NC[101]NC too has now settled with into the care of his father, is happy at school and has achieved what is described as a “glowing” school report. NC initially rejected the court’s findings (they having been explained to him by means of a ‘children’s judgment’ prepared by the court with the assistance of the Children’s Guardian). More recently, NC has appeared more ambivalent in respect of the findings and simply does not want to speak about the past two years.[102]Like SH, NC has expressed a wish to see more of his mother. He would like to see her “twice every five weeks”. Again, direct contact between the mother and NC in August went tolerably well. NC has been observed by the Children’s Guardian to be very attached to his mother, with a wish to please her constantly. Even more so than SH, having regard to the history of this matter, NC has a need to develop and maintain a ‘normal’ relationship with his mother moving forward. Against this, and within the context of the matters set out at Paragraph 97 with respect to the mother’s inability to acknowledge the findings of the court and her inability to meet the emotional needs of the children, the Children’s Guardian remains concerned that NC is particularly vulnerable to mother’s emotional control. In these circumstances, the Children’s Guardian original recommendation had been that direct contact between NC and his mother should not commence until NC had commenced therapeutic intervention with CAMHS, with the nature and frequency of direct contact to be agreed in co-operation with NC’s therapist. However, in September 2016 CAMHS indicated that it did not consider NC required “mental health interventions” at present. They will review the position in December. In light of this, and having regard to the fact that contact in August went well, whilst the Children’s Guardian is concerned regarding the impact of extensive contact between NC and his mother in the context of the mother not accepting the findings and before NC and mother had the opportunity to benefit from therapeutic input, the Children’s Guardian on balance recommends direct supervised contact between NC and his mother once per month. The Children’s Guardian considers that it would not be in either child’s interest to differentiate the level of contact SH and NC have with their mother.[103]Once again, in the circumstances I have outlined, I am satisfied that BC is right to express caution in respect of contact between NC and his mother and the risk of emotional harm such contact presents. However, I am also satisfied that the competing factors of ensuring that NC is able to maintain and develop his relationship with his mother and the risk of emotional harm that I am satisfied his mother continues to present are properly and proportionately balanced by an order for monthly supervised contact. Whilst NC is more vulnerable than SH to his mother’s continued position in respect of the findings, I am satisfied that this level of contact will correctly balance NC’s need to maintain and develop his relationship with this mother and his need to continue to settle in the care of his father. I am further satisfied that it would not be in either child’s best interests to differentiate their respective levels of contact with the mother. Having regard to NC’s best interests as my paramount consideration, I am satisfied that the recommendation of the Children’s Guardian for monthly supervised contact is one that is in NC’s best interests and should be accepted by the court. In preferring the higher level of contact recommended by the Children’s Guardian, again I have born in mind that, whilst risks remain in respect of contact, there are protective factors in place, namely that NC is increasingly settled in the care of BC, his father is meeting his needs, contact in August 2016 went well, that CAMHS will be reviewing their role in respect of NC in December 2016 and that NC has expressed a wish to see more of his mother. Within this context, with respect to Skype contact between NC and his mother, I am satisfied that this should remain at its current level at this point in time.

CONCLUSION

[104]In conclusion, I am satisfied that this court has jurisdiction to make final child arrangements orders in respect of each of the children. I make a child arrangements order in favour of the mother in respect of SH that will provide that the mother will spend time with SH for three hours once per month in a supervised setting. I make a child arrangements order in favour of the mother in respect of NC that will, again, provide that the mother will spend time with NC for three hours once per month in supervised setting. Arrangements will need to be made for the registration of those orders with the Court of Session in Scotland. I make no order as to costs save that there be a detailed public funding assessment of children’s costs.[105]That is my judgment.

Order

Jurisdiction) [1995] 2 FLR 518 at 525 in which the court observed in relation to the meaning of the term ‘considering’ in s 7(c)(ii): “Is it sufficient for the mother’s representatives to say to the judge, ‘I would like you to consider, please, the question of interim contact’? The judge may say, as it looks as though he did say, ‘I will not consider that now, but I will give directions for it to be considered on a future occasion’, or the judge may say, ‘I have considered it, but I am not going to make a decision today and so I will adjourn it’. The first it would seem to me would give rise to the answer, ‘No jurisdiction’ and the second would give rise to the answer, ‘There is jurisdiction’, and yet the difference is so slender as to be one upon which one could come to harm if one did not tread gingerly.” Order: Jurisdiction to Vary) [1996] 1 FLR 688 in which the court suggested that “a situation of urgency” is required justify invoking the jurisdiction under s 2(3)(b)(ii) of the 1986 Act. Order: Jurisdiction) [1995] 2 FLR 518 at 525. Further, and within this context, whilst I note that Lowe et al suggest that the term ‘considering’ in s 7(c)(ii) refers to the date on which the order is made, that interpretation is clearly derived from the Law Commission report, which in turn makes clear (with emphasis) that this interpretation was only a recommendation. Notwithstanding that recommendation, Parliament chose the phrase ‘the date on which the court is considering’ rather than the phrase ‘the date the order is made”, which was a construction open to it had that been the intention. Thus, the statute does not say “the date the court makes the order” but rather “the date on which the court isconsidering whether to make…the order”. Within this context, I favour an interpretation of s 7(c)(ii) that relies on the plain meaning of the word ‘considering’. However, I say ‘in so far as it is necessary for me to decide the issue’ because even on Mr Devereux’s interpretation of the term “considering” as meaning ‘the date the order is made’ the result in this case is the same in circumstances where I made orders on 26 April 2016. On either interpretation I am satisfied that, on 26 April 2016, the court was ‘considering whether to make…the order’ placing SH and NC in the care of their respective fathers for the purposes of s 7(c)(ii) (I am also satisfied that this analysis could equally apply to the orders I made on 11 March 2016 providing for NC to have contact with his father and for SH to have contact with his paternal grandmother and late paternal uncle).