Private Family Law Update – February 2021
Index of Cases
- Re AC (a child) [2020] All ER (D) 111 (Dec) – Specific Issue Order authorising the mother to accept inheritance of a share in an Italian property on behalf of the child.
- An NHS Foundation Trust v MK (by her litigation friend, the Official Solicitor) [2021] All ER (D) 06 (Jan) – An application by NHS Foundation Trust in respect of authorisation of medical treatment and a child arrangements order.
- TK v ML [2021] EWFC 8 – Consideration as to whether the Family Court has jurisdiction to hear the mother’s application.
https://www.bailii.org/ew/cases/EWFC/HCJ/2021/8.html
- Re AC (a child) [2020] All ER (D) 111 (Dec)
Judgement of Peel J.
An application by a mother under section 8 of the Children Act 1989 for a Specific Issue Order related to parental responsibility in respect of property of the child.
In April 2006 the future mother and father had purchased an Italian property in their joint names. AC, the child was born following the parties marriage in January 2007. The father died intestate in 2017, at the time he was habitually resident in the United Kingdom.
Under the Italian laws of intestacy and succession, AC was entitled to:
- Ine half of F’s 50% ownership of the Property. Thus, he will acquire 25% of the whole.
- The other half of F’s 50% share passes to M, whose ownership increases to 75% of the whole.
Following the death of the father, the mother sought to sell the property which was previously used as a family home and sought to invest AC’s proceedings on his behalf and to meet the legal costs from her share.
The Italian law and procedure required the following:
- The formal procedure under Italian law for M and/or AC to accept their respective inheritances requires:
(i) Instruction of a notary or court clerk who draws up an inheritance inventory, and a declaration by the heir that the inheritance inventory is accepted; OR
(ii) The heir to sign a public deed formally accepting his or her share of the estate.
- In M’s case there is no difficulty, and she is entitled to instruct an attorney on her behalf to comply with the formal requirements. She may elect which procedure she follows.
- By contrast, by Article 2 of the Italian Civil Code a minor is not permitted to accept the inheritance under Italian law. By Article 320 of the Italian Civil Code the formal acceptance must be made by an adult (usually a parent) and authorised by a tutelary judge who makes decisions on behalf of persons such as minors who do not have formal capacity. In the case of a minor, the acceptance can only be under the first of the two prescribed procedures (the inheritance inventory). The tutelary judge must be satisfied that the authorisation is both necessary and in the best interests of the minor. Once this is done, the minor (in this case AC) becomes the legal owner of his inheritance (in this case 25% of the Property)
- Italian domestic law defers to Council Regulation (EC) No 2201/2003 to determine where jurisdiction lies in authorising a parent to accept an inheritance on behalf of a minor. 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 is seised.”
The affect of the above meant that the Italian court would not make an order authorising acceptance of the inheritance on the basis that it did not have the jurisdiction in matters of parental responsibility, which falls to the courts of this jurisdiction.
The mother made an application in October 2020 under section 8 of the Children Act 1989 which authorised acceptance by the mother on AC’s behalf of his inherited share of the property.
The issues for the court to determine included whether:
(i) the jurisdiction the English court had over matters of parental responsibility pursuant to art 8(1) of the Regulation extended to authorising acceptance by M on AC’s behalf of his inherited share of the property;
(ii) the question which arose was an aspect of parental responsibility as defined by ChA 1989 s 3 and;
(ii) if so, the court should issue the order under ChA 1989 s 8 having regard to the welfare checklist and the paramountcy principle.
The Family Division held:
‘that it was satisfied that by article 8(1) of the Council Regulation (EC) No 2201/2003 concerning jurisdiction, the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, the court had the jurisdiction to make the order sought, namely a specific issue order related to parental responsibility in respect of property of the child. It was held appropriate to make such an order which was plainly in the interests of AC to have the issue of his heirship in Italy resolved to his financial benefit.
There was no disadvantage to him in making the order whereas the risk of leaving his heirship status hanging unresolved if the order was not made was all too obvious. There are no debts which he will become liable for. The application enables AC to receive property to which he is entitled. M has fully and faithfully discharged her parental responsibility in bringing the application’.
It is important to note that the specific issue order was only for AC’s inheritance to be accepted, if further orders were required to execute the contract of sale on AC’s behalf, the matter would need to return to court for orders specific to the sale of property.
- TK v. ML [2021] EWFC 8
Judgment of Mostyn J.
An application by a mother for a child arrangements order to determine as to whom a child should live with. The preliminary issue before the court was whether it had jurisdiction to hear the mother’s application.
The mother and father were both British citizens and each with an Irish background. They married in 2001.
The child in this matter is known an ‘O’ who was born in 2005 in Nepal. She was abandoned by her birth parents and placed in an orphanage.
In July 2008, the mother and father adopted O under the laws of Nepal and O gained British citizenship in September 2008. Following the adoption, they all went to live in Dubai, which is where O grew up.
In 2011 the marriage broken down and the mother was deported from Dubai in November. Upon returning to England, the mother issued divorce proceedings. The divorce was finalised and made absolute on 10 February 2014.
Custody proceedings were then initiated in Dubai and in the first instance, the mother was granted custody of O (10 May 2012). Following this, the mother applied ex parte to the High Court in London to make O a ward of court. This was granted and O was placed in the care and control of the mother to be exercised in England and Wales. The father had sought to appeal the initial outcome granting the mother custody of O. He lost his first appeal to the Dubai Court of Appeal (26 January 2014) but then went onto successfully appeal at the final Court of Appeal in Dubai. The father was awarded custody of O. In 2015 he then went onto apply to discharge the wardship made in 2012.
The question of jurisdiction arose. However, both parties reached an agreement that the court did have jurisdiction under the following:
s.2(1)(b)(i) of the Family Law Act 1986 – under the divorce proceedings;
article 12(3) of Council Regulation No. 2201/200 (“Brussels 2”) – by virtue of mother being habitually resident and O being a British Citizen.
Both agreed it was in O’s best interest for the court to exercise jurisdiction over her. The agreement on the father was purely on the basis of determining the matter before the court. Macdonald J’s judgment recording the parties jurisdiction agreement and the court’s approval is recorded at QS v. RS [2015] EWHC 4050 (Fam)
In 2016, the parties then jointly applied for recognition O’s Nepalese adoption under the common law. The wardship was discharged at some unknown point in 2016. Macdonald J gave judgement which concluded that the adoption could be recognised at common law. He also went onto make a declaration under s57 of the Family Law Act 1986 that O was the adopted child of both parties. A child arrangements order was made for O to live with her father in the UAE and spend time with her mother.
In regards to the child arrangements order, Mostyn J commented ‘[17] That order remains in force, although its status is somewhat uncertain. As I will explain, there is no jurisdiction in this case for the 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.’
Following the mother not returning O after a period of Christmas contact, O was again, albeit briefly, made a ward of the court for the second time (January 2019). ‘Mostyn J observes his assumption that the jurisdictional basis for this was O’s presence in England and Wales for that contact (ss.2(1)(b)(ii) and 3(1)(b) FLA 1986) [18]’. A collection order was executed and the wardship discharged on 8 January 2019, with O returning to her father the following day. She has remained with her father since.
In August 2020, O and the father permanently relocated to Ireland. The mother issued an application in England and Wales in September to determine who O should live with. The mother alleged that O had expressed a wish to move to England.
The issue was whether the court had the jurisdiction to entertain the mother’s application given that O was not habitually resident in England and jurisdiction could not be established under Brussels 2 or the Hague Convention 1996.
The court commented that it was ‘beyond doubt’ that the father and O had established habitual resident in Ireland. As per Lord Reed in AR v RN (Scotland) [2016] AC 76:
[34] “It is therefore the stability of the residence that is important, not whether it is of a permanent character. There is no requirement that the child should have been resident in the country in question for a particular period of time, let alone that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.”
The next step was to consider the so-called residual jurisdiction under ss.2(1)(b)(1) and 2A(1)(a)(i) of FLA 1986:
‘[27] …conflating these provisions, they say that where neither Brussels 2 nor the 1996 Hague Convention applies, the court here has jurisdiction where the question of making the child arrangements order “arises in or in connection with” divorce proceedings which are “continuing”. However, s.42(2) gives an extended meaning to “continuing”. It provides:
“For the purposes of this Part proceedings in England and Wales or in Northern Ireland for divorce, nullity or judicial separation in respect of the marriage of the parents of a child shall, unless they have been dismissed, be treated as continuing until the child concerned attains the age of eighteen (whether or not a decree has been granted and whether or not, in the case of a decree of divorce or nullity of marriage, that decree has been made absolute.”
[28] Section 2A(4) allows the court, where the residual jurisdiction is established, to make an order that no child arrangements order shall be made by any court under that jurisdiction if it considers that it would be more appropriate for that matter to be determined outside England and Wales.
[30] Articles 12(1) and (2) of Brussels 2 permit spouses going through divorce proceedings in country A to agree that a dispute about their child habitually resident in country B can be dealt with in country A. At least one of the spouses must have parental responsibility for the child. The jurisdiction expires on the date when the divorce is made final, but it remains alive to allow any child arrangements application pending on that date to continue to final judgment. Article 10 of the 1996 Hague Convention has an additional requirement that one of the spouses must be resident in country A. This could not be relied upon as the divorce proceedings were finalised.
As the divorce proceedings were finalised, the residual jurisdiction could only be invoked if the current application is “in connection with” those finalised divorce proceedings [39].
Mostyn J agreed that a clear causal link between the child arrangements application and the divorce must be demonstrated. ‘A causal link requires the facts giving rise to the present application to be fairly traceable to the now concluded divorce. This must be so because any other interpretation would make a mockery of the statutory requirement that the question of making the child arrangements order arises “in connection with” divorce proceedings’ [42].
Mostyn J considered the criterion of temporal proximity as the prime metric for establishing whether there is a causal link between the application for a child arrangements order and the concluded divorce.
He concluded that the mother application was neither ‘in’ nor ‘in connection with’ her divorce proceedings against the father which had concluded some 6.5 years earlier, commenting that ‘the marriage and its dissolution have absolutely nothing to do with the present dispute’.
It was held that regardless of whether O was habitually resident in Ireland or the UAE, residual jurisdiction was not available.
The mother’s application had no jurisdictional foundation whether under Brussels 2, the 1996 Hague Convention, or the residual jurisdiction, therefore the application was dismissed.
- An NHS Foundation Trust v MK (by her litigation friend, the Official Solicitor) [2021] All ER (D) 06 (Jan)
Judgment by Peel J.
An application by NHS Foundation Trust in respect of authorisation of medical treatment which was unopposed. A wider point of interest emerges about the use of a child arrangements order to confer parental responsibility on the close relative with whom the minor lives, so as to avoid the need for further such applications where there is agreement.
The application was following a team at the NHS Foundation Trust (Trust) deciding that the child, CK, who had a learning disability and suffered from a heart condition, required cardiac surgery. Medical evidence established that it was imperative that the surgery take place in December 2020.
The background of this case included a mother (MK) who also had a learning disability and therefore did not have capacity to consent to the proposed medical treatment. The father was not known. Throughout CK’s life, whilst the mother did spend some time living with her parents, it was the maternal grandmother who was CK’s main carer (GK). GK had applied for a Special Guardianship Order but the outcome of that was to be determined in March 2021, therefore at the relevant time, she did not have parental responsibility. Therefore, there was nobody with parental responsibility to provide lawful consent for the proposed surgery.
The Trust sought a declaration by the court that it was lawful and in the best interests of CK to undergo open heart surgery.
In respect of the issue of parental responsibility, the relief sought by the Trust was a combination of a section 8 order and declaratory relief under the inherent jurisdiction. This was supported by MK through her Official Solicitor and by GK.
The parties also invited the court to make a child arrangements order that CK was to live with GK, which would prevent the need to keep returning to court for further surgery or treatment as it would confer on GK parental responsibility by s12(2).
The court held that the use of the ‘live with’ child arrangements order for the above purpose was appropriate and expressed the following:
[20] A child arrangements order would plainly reflect the reality of the situation, which is likely in any event to be confirmed in March 2021 by the Special Guardianship Order. Further, it is apparent that the lack of a person with parental responsibility who is able to provide lawful consent has hampered provision of medical care for CK, in particular, generating delay at [an NHS Foundation Trust] which the clinicians there are anxious to avoid. That is wholly unsatisfactory, and inimical to CK’s welfare. Taking into account the paramountcy principle and the welfare checklist, I am entirely satisfied that it is appropriate to make an order that CK lives with GK.
