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Holman J calls for amendment to standard form Location Order following arrest of mother on plane

Guidance given regarding need for particular care in wording of location orders

In Taukacs v Taukaca [2015] EWHC 2365 (Fam) Mr Justice Holman established a serious deficiency in the language of standard location orders in Form 1A. Holman J held that the language of the order is capable of seriously misleading police officers who are routinely asked by the Tipstaff to execute location orders.

In this case the father issued an application pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction in which he asked for the summary return of his son, M to Latvia. The father contended that M had been wrongfully removed to England and Wales by his mother.

The father at once made a without notice application to a High Court judge sitting at the Royal Courts of Justice for a location order. Roderic Wood J was asked to make, and did make, a location order in prescribed Form 1A. That order, in summary, required the Tipstaff to locate the child concerned, and required delivery up to the Tipstaff of documents.

Three police officers from the West Midlands Police attended at the home address of the mother in Smethwick. They had copies of the order in their possession. The mother gave brief oral evidence that three officers attended at her home address. She said that they made available an interpreter over the telephone. She gave evidence that they told her that she needed to surrender the passport and any other identity documents of her son, M. She told them that she did have his passport but did not have any other identity documents for him. M was not present when the Police visited the mother and at the time of the hearing he was staying with his adult brother in Northamptonshire.

The mother produced M's Latvian passport to the police and, correctly and in obedience to the location order, they took it with them. They promptly forwarded it to the Tipstaff at the Royal Courts of Justice. It arrived in the post on the day of this hearing. That passport was retained by the Tipstaff, pursuant to the location order, and, of course, to prevent any foreign travel by M.

The mother gave evidence that the police also asked her about her own passport. She said that she was a citizen of Latvia alone. She had a Latvian passport. She produced it to the police. They examined it and made a note of the details. They then put it back on the table beside her and made no effort, and showed no desire, to take it with them.

The mother informed the police officers that about a month before this hearing, she and two friends had booked to go on a holiday to Spain, flying out the following Saturday. She did not have her ticket or any travel documents with her, because one of her friends had made the booking and still had the tickets. She told the police about this proposed travel and asked them whether she was still allowed, herself, to fly to Spain. There was no travel booking in relation to her son, M, and no plan whatsoever for him to travel to Spain or anywhere else. Rather, he was going to continue staying with his elder brother in Northamptonshire.

According to the mother the police said to her words to the effect that, "Yes, you can travel to Spain. This order is nothing to do with you. You cannot take your son abroad, but you can travel to Spain." The police then left, taking the son's passport with them, but leaving the mother's passport with her.

Holman J accepted the mother's evidence that she had also made efforts to confirm with both her local police station and the police at West Bromwich that she could lawfully travel to Spain and was told that this was not in breach of the order.

Having very creditably taken those steps, the mother went to Birmingham International Airport with her friends in order to fly to Palma in Spain. She actually boarded the aircraft, but, after she had boarded and before the aircraft took off, she was removed from it. The mother was arrested and then detained in custody.

Holman J held that the problem had arisen as a result of the location order which is in standard form, and reads as follows:

"The respondent and/or any other person served with this order must each hand over to the Tipstaff (for safekeeping until the court makes a further order) as many of the following documents as are in his or her possession or control:-

a) every passport relating to the child, including an adult's passport by which the child is also permitted to travel, and every identity card, ticket, travel warrant or other document which would enable the child to leave England and Wales; and

(b) every passport relating to the respondent and every identity card, ticket, travel warrant or other document which would enable the defendant to leave England and Wales."

At the time when the order was served upon the mother, the child was staying at the address of his brother in Northamptonshire. Holman J held that the child had continued to stay at his brother's address between the previous Wednesday and the time of the hearing and so the mother had not been and was not in breach of the order.

Holman J established that the standard form of location order is deficient in that it fails to expressly prohibit the respondent parent from leaving England and Wales and that this ambiguity in the standard order had led to the Police giving the mother incorrect information as to the lawfulness of her travelling abroad which subsequently led to her wrongful arrest and detainment.

The Judge took steps to ensure this decision was brought to the attention of the President of the Family Division and the Tipstaff and indicated that the wording of the standard form for location orders be clarified and improved forthwith.

The judgment and summary by Joseph Moore of 1 Garden Court Family Law Chambers, from which this item is derived, are here.

17/8/15