Case No. FD20P00572

1.In this judgment I shall refer to the applicant as “the mother” and to the respondent as “the father”. 2.On 11 September 2020 the mother issued an application in Form C100 at the Royal Courts of Justice seeking an order “as to whom a child should live with” pursuant to section 8 of the Children Act 1989. The application concerned her adopted daughter O whose date of birth is not known exactly but which has always been taken to be 15 October 2005. Thus, O is 15½ years old. 3.There is a preliminary issue as to whether the Family Court has jurisdiction to hear the mother’s application. This is my judgment on that issue. 4.The reason a jurisdictional issue arises is because O has never lived in England/Wales and has not set foot here since 9 January 2019. However, in the past there has been extensive litigation here concerning her. As I will explain, she was a ward of court between 2012 and 2016, and also for a few days in January 2019. Her Nepalese adoption was recognised under the common law by McDonald J on 10 October 2016. On that day he made orders providing for O to live with her father in Dubai and for her to have contact with her mother. The wardship for three days in January 2019 arose when the mother retained O after a period of contact. 5.I shall endeavour to state the background facts shortly. 6.The mother and father are both British citizens although each has an Irish background. The father has an Irish passport also. They were married in 2001. 7.O was born in 2005 in Nepal. She was abandoned by her natural parents and placed in an orphanage. 8.In July 2008 the mother and father adopted O under the laws of Nepal. Following the adoption the mother and father took O to live in Dubai. O gained British citizenship in September 2008. She grew up in Dubai. 9.The marriage broke down. In November 2011 the mother was deported from Dubai. The following year she issued divorce proceedings in Guildford. Decree nisi was pronounced on 4 July 2013, and was made absolute on 10 February 2014. 10.Custody proceedings concerning O were initiated in Dubai. On 10 May 2012 the first instance court in Dubai granted the custody of O to the mother. The father appealed. 11.On 21 June 2012, in reliance on the Dubai judgment of the previous month, the mother applied ex parte to the High Court in London to make O a ward of court. That application was granted and an order was made placing O in the care and control of the mother to be exercised in England and Wales. The jurisdictional basis for the order is unclear, as, at the relevant time, O was habitually resident in Dubai and was not present in England and Wales. Therefore, under section 2(3) of the Family Law Act 1986 the court was prohibited from making an order in wardship proceedings giving the care of a child to anyone. 12.The father lost his appeal to the Dubai Court of Appeal on 26 January 2014. However his further appeal to the Court of Cassation (the final Court of Appeal in Dubai) was successful and he was awarded custody of O. 13.In 2015 the father applied in the 2012 proceedings to discharge the wardship. Understandably, there was doubt as to the jurisdiction to entertain the application. However, an agreement was reached between the parties that the court did have jurisdiction not only under s.2(1)(b)(i) of the Family Law Act 1986 in circumstances where there were recently concluded divorce proceedings here, but also under article 12(3) of Council Regulation No. 2201/200 (“Brussels 2”). The latter basis of jurisdiction was established by virtue of the mother being habitually resident here; O being a British citizen; the parties expressly accepting the jurisdiction of the court; and it being in O’s best interests for the court here to exercise jurisdiction over her. 14.Plainly, the agreement made by the father which established jurisdiction under article 12(3) was only for the purposes of the matter before the court at that time. Plainly, he was not giving a jurisdictional blank cheque for any further proceedings that the mother might commence in the future. 15.On 15 October 2015 Macdonald J gave a judgment recording the parties’ agreement as to jurisdiction and the court’s acceptance of the same: see QS v RS [2015] EWHC 4050 (Fam). 16.In 2016 the proceedings changed course. The parents jointly applied for recognition under the common law of the Nepalese adoption of O. At some point in 2016 the wardship was discharged; the date is unclear to me. On 10 October 2016 Macdonald J gave an extensive judgment in which he navigated formidable legal obstacles on the way to his conclusion that the adoption could be validly recognised at common law. He further made a declaration under section 57 of the Family Law Act 1986 that O was the adopted child of the mother and father. He made a child arrangements order that she live with her father in the UAE and spend time with her mother both in the UAE and England: see QS v RS & Anor [2016] EWHC 2470 (Fam). 17.That order remains in force, although its status is somewhat uncertain. As I will explain, there is no jurisdiction in this case for this court to entertain any child arrangements dispute of any nature, and that want of jurisdiction extends, for sure, to any application to discharge or vary the residence or contact terms in the order of 10 October 2016. Further, on 4 December 2020 this court issued a certificate under article 41(1) and (2) recording the contact terms in the order of 10 October 2016, notwithstanding that the father was not heard on that occasion, and O was not given an opportunity to be heard. According to article 41, once the certificate has been issued, the rights of access shall be recognised and enforceable in another member state, in this case Ireland, without any possibility of the father opposing recognition. A mysterious aspect of this procedure is that there is no reference within it to the ability of the court in the other member state to vary the contact terms if the welfare of the child requires this. In this case, therefore, a literal interpretation of the regulation leads to the conclusion that the contact terms seem to be written in stone and are incapable of being varied either in England or in Ireland no matter how clamant a need for change might be. 18.The mother did not return O following a period of contact at Christmas 2018. The father applied to the court urgently. On 5 January 2019 Gwynneth Knowles J made O a ward of court (again) and issued a collection order. I assume that the basis of jurisdiction was the presence of O in England and Wales (see ss.2(1)(b)(ii) and 3(1)(b) of the Family Law Act 1986). 19.The collection order was duly executed and on the return date on 8 January 2019 HHJ Richards discharged the wardship and recorded that the father and O would return to Dubai the following day. O has not been in England since. 20.On 5 August 2020 the father and O (and their three dogs and cat) relocated from Dubai to County Clare in Ireland. This was a permanent relocation in circumstances where the father’s business in Dubai had been greatly impaired by the global coronavirus pandemic. On 28 August 2020 O began school in County Clare. 21.As recorded above, on 11 September 2020 the mother issued her application. The reason that there have been so many case management hearings is because of difficulties in serving the father. He says that he did not receive any of the documents sent to him by email and the first that he knew about the proceedings was when he received some documents in the post on 9 December 2020. The mother says that this is entirely untrue; he was well aware of the proceedings but chose to ignore them. It is not necessary for me to decide this dispute. 22.The mother’s application was issued in the context of communications by text and calls between her and O in which the mother alleged that O expressed a wish to move to live with her mother in England. The mother hatched a plan to travel to O’s school on Thursday, 26 November 2020 and to spirit her to England. The school became aware of this plan and foiled it. Since then the mother has had no communications with O. 23.I turn to examine the question of jurisdiction. The mother’s application was made before 31 December 2020; this means that Brussels 2 lives on for the purposes of this case. 24.Under s.2(1)(a) Family Law Act 1986 the first port of call is whether jurisdiction can be established under Brussels 2 or the 1996 Hague Convention. Article 8 of Brussels 2 states: “The courts of a member state shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that member state at the time the court seised.” Article 5 of the 1996 Hague Convention states: “The judicial or administrative authorities of the contracting state of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property.” 25.O is manifestly not habitually resident in England, and so there is no possibility whatsoever of jurisdiction being established under article 8 of Brussels 2. Nor is there any possibility of jurisdiction being established under article 12(3). The previous agreement of the father to vest jurisdiction in the court in 2016 under article 12(3) was, as I have stated above, plainly limited to those proceedings which concluded with the judgment and order of Macdonald J on 10 October 2016. 26.There is no other ground within Brussels 2 for establishing jurisdiction to determine the mother’s application of 11 September 2020. Nor is there any possibility of the mother establishing jurisdiction under the 1996 Hague Convention. 27.I now turn to the so-called residual jurisdiction under ss.2(1)(b)(1) and 2A(1)(a)(i) of the Family Law Act 1986. Conflating these provisions, they say that