International Children Law Update: February 2017
Jacqueline Renton, barrister of 4 Paper Buildings, reviews the latest key decisions in international children law.
- The interplay between the wardship jurisdiction and immigration decisions;
- The jurisdiction to set aside orders in Hague Convention 1980 proceedings;
- Media interest in Hague Convention 1980 proceedings;
- Without notice orders in Hague Convention 1980 proceedings;
- Non-Hague Convention 1980 abduction proceedings.
The interplay between the wardship jurisdiction and immigration decisions
In Re H (A Child)  EWCA Civ 988, the Court of Appeal was concerned with 'A', a 10 year old child in proceedings in which his father sought an order that he be returned to Pakistan. A originally lived in Pakistan with both parties. In May 2012, the family then moved to Saudi Arabia. In August 2014, the mother and A visited England. The mother did not return to Saudi Arabia with A after the visit to England. On 15 September 2014, the mother issued a claim for asylum alleging ill-treatment on the part of the father. In March 2015, the father applied under the inherent jurisdiction for the summary return of A to Pakistan (A's Saudi Arabian visa having expired). In June 2015, A issued a claim for asylum in his own right.
On 8 July 2015, a final hearing took place before HHJ Finnerty, sitting as a Deputy High Court Judge. At this stage, both the mother and A's applications for asylum were pending. During the course of this hearing, a consent order providing for A's return was agreed between the parties and then endorsed by the court. The consent order included a number of undertakings, including an undertaking from the mother that she would withdraw the asylum applications.
The mother did not return to Pakistan with A, nor did she withdraw the applications for asylum. Accordingly, the father applied for enforcement of the order dated 8 July 2015, and mother applied to set aside / vary the order dated 8 July 2015. The mother claimed that she had been under 'duress' when she entered into the consent order.
On 27 October 2015, before these applications were heard, both the mother and A were granted asylum, pursuant to article 3 of European Convention on Human Rights 1950.
From 22 February 2015 – 26 February 2015, a hearing took place before HHJ Bromilow, sitting as a Deputy High Court Judge, in respect of the parties' cross-applications. HHJ Bromilow concluded that the mother had not been under duress and that there had been no material change of circumstances since the order dated 8 July 2015 was made. HHJ Bromilow did not consider that A's asylum grant was a reason to set aside the order dated 8 July 2015. Accordingly, the father's application for enforcement was successful.
The mother was then granted permission to appeal against the order of HHJ Bromilow. A was later joined as a party to his mother's appeal and also granted permission to appeal various orders in his own right, including the order dated 8 July 2015.
The Court of Appeal considered multiple issues, including whether A should have been made a party by HHJ Finnerty and by HHJ Bromilow. Black LJ concluded that:
- In respect of the order dated 26 February 2016, HHJ Bromilow had wrongly focused just on whether there had been a change of circumstances since the order dated 8 July 2015 was made, as opposed to considering welfare issues in the round. It was incumbent on HHJ Bromilow to consider welfare issues given that he was under the wardship jurisdiction. The mother's application should have been properly characterised as an application to vary the order dated 8 July 2015. HHJ Bromilow's failure to consider welfare, and to address properly A's immigration status (see below), meant that his order should be overturned.
- HHJ Bromilow had not adequately addressed the implications of A's asylum status. Black LJ considered the cases of Re H (Child Abduction: Mother's Asylum)  EWHC 1820 (Fam) and Re S (Child Abduction: Asylum Appeal)  EWCA Civ 843, noting that these cases both involved children whose mothers had applied for/been granted asylum. As such these cases were not an answer to the question of whether A, who himself had asylum status, could be returned to Pakistan. Black LJ did not however express a concluded view on the impact of a child having refugee status, but instead gave the following indication at : "The starting point for a consideration of the implications of A's refugee status will have to be, in my view, that at the very least it is unlikely to be appropriate for the family court to order A's return to Pakistan without first concluding that his situation did not, in fact, justify the protection afforded by the Secretary of State. It needs to be recognised that the position may go further in that, if some of the submissions made to us are correct, it might not even be permissible for the family court to order A's return unless and until his refugee status is revoked." Black LJ went on to set out a number of questions that would need to be addressed in the remitted proceedings [C39].
- A should have been joined to the proceedings in July 2015. In respect of the July 2015 hearing, HHJ Finnerty should have adjourned the proceedings so that A could be separately represented in the proceedings instead of simply 'rubber stamping' the parties' consent order. The features leading Black LJ to that view included: (a) the last minute nature of the mother's agreement, notwithstanding the risk that the father posed to her and A in Pakistan; (b) the pending asylum claims of the mother and A; (c) A's own serious allegations against the father which Cafcass considered had a ring of authenticity to them; and (d) the fact there was no expert evidence as regards the effectiveness of any undertakings given in England once there was a return to Pakistan, or how the Pakistani courts would approach welfare issues. Black LJ observed at : "A was the court's ward and the judge had a duty to satisfy herself that the proposed order was in his best interests. The degree to which a judge will probe into an agreement which has been reached between parents depends very much upon the circumstances of the case. However, the circumstances of this case were such as to require particular scrutiny." Black LJ also urged caution in approving parental agreements in the context of allegations of domestic violence, bearing in mind PD12J – Child Arrangements and Contact Order: Domestic Violence and Harm.
- • A should have been joined to the proceedings for the hearing in February 2016. The case was one of significant difficulty and A had a stand point which was quite distinct from the mother's. A's interest in February 2016 were not dependent on the validity of the mother's agreement to the order in July 2015.
As a consequence of the above, the orders dated 8 July 2015 and 26 February 2016 were set aside. The proceedings were then remitted to the High Court to determine the issue (amongst others) as to whether or not A's asylum claim is a bar to the court in wardship ordering his return.
Jurisdiction to set aside orders made during Hague Convention 1980 cases
In the above case of Re H , the father had sought to challenge the decision of HHJ Bromilow on the basis that he had no jurisdiction to hear an application to set aside HHJ Finnerty's order. Black LJ expressed doubts about the reasoning behind this argument, but did not ultimately decide the point:  – .
The issue was raised once again in Re F (Children)  EWCA Civ 1253. This case involved proceedings under the Hague Convention 1980 in respect of 3 children aged 14, 7 and 4. The parties and children were all Hungarian. Following the parents' separation, proceedings commenced in the Hungarian courts. The mother brought the children to England and Wales in the Summer of 2015, without the father's consent. In November 2015, the father commenced Hague Convention 1980 proceedings in which he sought the children's summary return to Hungary. On 2 February 2016, Nicholas Francis QC (as he then was), sitting as a Judge of the High Court, ordered that the children be returned to Hungary. On 9 June 2016, the mother and eldest child's appeals against the return order were dismissed (see Re F  EWCA Civ 546). The eldest child, L, then locked herself in the bathroom to avoid a return. On 1 August 2016, L's application for the return orders to be set aside was dismissed by Mostyn J (and L was later refused permission to appeal this order). L was then referred by her GP to a child psychiatrist because of his concerns about her state of mind, concerns which were then shared by CAMHS. On the intended return date, L was in the care of an Accident and Emergency department as a consequence of 'suicidal ideation'. The mother once again applied for the return orders to be set aside, and the father cross-applied for enforcement (although ultimately did not proceed with this application).
On 14 September 2016, the mother's application came before Jonathan Cohen QC, sitting as a Judge of the High Court. L was joined as a party to the proceedings. At this hearing it was conceded by the father that the High Court can, in an appropriate case, set aside a return order made under the Hague Convention 1980. Mr Cohen QC went on to set aside the return orders, placing most weight on the medical evidence of L's present state of mind. In considering the law, Mr Cohen QC directed himself as follows:
- The test to set aside an order is as set out in TF v PJ  EWHC 1780 (Fam),  1 FLR 861, namely a change of circumstances of such significance that the court might have been reasonably likely to come to a different conclusion.
- Great weight must, however, be given to not only the original decision to return but also the refusal of Mostyn J to revoke the order, each decision having been upheld by the Court of Appeal. However, there may be two changes of circumstances, one between February 2016 and 1 August 2016, and the other being between 1 August 2016 and today, which might each individually be insufficient to amount to a significant change but which cumulatively could amount to a significant change.
- A return of the two younger children to Hungary without L and the mother would place them in an intolerable situation.
The father appealed to the Court of Appeal. The father's appeal was dismissed. The father did not attempt to raise a new point on appeal that there was in fact no jurisdiction to set aside the order, but did ask for clarification as regards the application of the set aside law in the field of Hague Convention 1980 proceedings. Black LJ referenced Re H , mentioning that wardship orders can be varied by the first instance court wherever the child's welfare so requires. Black LJ was unwilling to state definitively whether the High Court has the power to set aside return orders in Hague Convention 1980 proceedings, noting that the only reported example of the exercise of such a power is the decision of Mostyn J in Re F (A Child) (Return Order: Power to Revoke)  1 WLR 4375 where he relied on Rule 4.1(6) of Family Procedure Rules 2010. However, Black LJ did offer the following observations:
- Re F  and the instant case show that it is plainly desirable that there should be such a power in the High Court.
- If a set aside application could only be made to the Court of Appeal this would have considerable practical disadvantages which would be likely to work against the interests of the children whose welfare should be served by the Hague Convention 1980. The Court of Appeal is not well suited to hearings of the type that would be required – as Thorpe LJ explained in Walley v Walley  EWCA Civ 910. Although every effort is made to accommodate Hague cases speedily in the Court of Appeal, any application would have to take its turn in an already very over-charged list. It would require determination by two or three judges rather than one. The only appeal route from the Court of Appeal's decision would be to the Supreme Court. And it would, furthermore, not be feasible for the same judges to deal with the application to set aside and any resulting re-hearing of the original return application.
Black LJ also used this case as a helpful reminder of the need for the English courts to find a mechanism to address the problem of delay in Hague Convention 1980 applications, bearing in mind the court's obligation to act expeditiously (article 11 of Hague Convention 1980), as bolstered by article 11(3) of BIIa where applicable. Black LJ observed at : "The disruption caused by a wrongful removal and an imposed return to the country of habitual residence is minimised if the whole episode is concluded within a matter of weeks. If more time goes by, life in the new country may start to seem to the children like their established pattern of existence, battle lines may become firmly entrenched with the other parent, and the scope for damage is infinitely greater."
Media interest in Hague Convention 1980 proceedings
In Re Alcott (2)  EWHC 2414 (Fam), Alex Verdan QC, sitting as a Judge of the High Court, dealt with the relevant considerations where there is media interest in Hague proceedings. The judgment should be read in conjunction with Re Alcott (1)  EWHC 2413 (Fam), where Mr Verdan QC gives the substantive decision in the case. At  –  of this judgment, there is a helpful summary of the relevant legal principles when considering a child's habitual residence.
The case involved a child, aged 3, D. The parties were the child's father and mother. The child's mother had previously worked as a children's television presenter. D had been born in England and had lived there all of his life. The parties had an on and off relationship over the course of 5 years. The father always lived in Australia. On 5 April 2016, the mother and D travelled to Australia to stay with the father. The circumstances of the travel were disputed between the parties (the father said it was a permanent move to Australia; the mother said it was a trial move to Australia.) On 12 April 2016, the mother and D returned to England and Wales. The father subsequently issued Hague Convention 1980 proceedings in which he sought D's summary return to Australia. The father's application was dismissed on the basis that the child had remained habitually resident in England and Wales during his time in Australia.
The case attracted a significant amount of media interested as a consequence of the mother's previous employment. Before the hearing commenced articles appeared in this jurisdiction in The Times, Daily Mail and The Sun. In these articles, the parties' identities were not revealed. However, an article also appeared in the Daily Telegraph of Sydney, together with an accompanying photograph, in which the parties and D were named. The court was also informed that the details of the case, by link to the Australian article, were available by using Google UK but only with a search of the names of both the father and mother.
Various members of the media attended day 1 of the hearing, and by the afternoon of day 1 some of the media (News Group Newspapers Ltd and The Times) were represented by counsel. The media sought:
- Clarification that there was no automatic statutory reporting restriction preventing the identification of the father and mother as parties to the proceedings;
- To lift the prohibition on reporting the evidence given at a private hearing which would otherwise engage section 12 of the Administration of Justice Act 1960;
- To be permitted to publish the judgment in the proceedings.
The media's application was adjourned until day 2, and in the meantime Mr Verdan QC invited Cafcass Legal to attend and make submissions on D's behalf. This reflected his concern that the positions of the parents could not adequately represent D's interests. Cafcass Legal made clear that it was likely to be contrary to D's best interests and harmful to his emotional welfare if in a few years' time he is able to find online references to these very personal matters relating to his parents' private lives. As a consequence, the reporting of the parties' evidence was opposed, but no privacy injunction was sought on D's behalf.
The question was raised during the hearing whether section 12 of Administration of Justice Act 1960 was applicable to Hague Convention 1980 proceedings, as such proceedings are not specifically referred to in the text of the statute. However, it was accepted by all of the parties and the court that the inherent jurisdiction could be invoked such that the case would fall within section 12(1)(a)(i) of Administration of Justice Act 1960. As a consequence, the parties could be named, pursuant to the Administration of Justice Act 1960. It was also agreed by all parties that section 97 of the Children Act 1989 did not apply to Hague Convention 1980 proceedings.
Mr Verdan QC concluded as follows:
- In determining the applications, the court must undertake the 'ultimate balancing' exercise between the competing articles of article 8 and article 10 of European Convention on Human Rights 1950. When undertaking the balancing exercise, the court should take account of Lord Steyn's four propositions set out in Re S  UKHL 47 at .
- Within the balancing exercise, the court must take account of D's best interests which are a primary but not paramount consideration. D's best interests must be considered first, but can be outweighed.
- The restriction of section 12 of Administration of Justice Act 1960 should not be lifted to allow for the reporting of the parties' evidence. This was a very unusual application, and there was no legitimate public interest in the reporting of the evidence which would be against interference with the parties' article 8 rights and pose a risk of harm to D's welfare given that the evidence included full details about the parents' private lives, in particular the allegations of the father's infidelities. The interest in such evidence was only inappropriately inquisitive, prying, prurient and voyeuristic.
- The judgment should be published in a way that identifies the parties given the unusual and specific facts of this case. Given D's young age he can be protected from his parents' exposure to any subject publicity. In years to come D may learn more about the history of the case and some of the details of his parents' private lives and this may cause him to suffer harm, but there is also a chance that in years to come such details will be less accessible. However, the likelihood of harm and risks are relatively low given the context of the judgement which had been carefully crafted to avoid the sensationalist detail. Further, the reality is that D's identification is already possible given the press reports that are already in circulation;
- An injunction prohibiting the publication of D's name in relation to these proceedings (both via the traditional paper press and online media) was ordered, pursuant to section 39 of Children and Young Persons Act 1933. The injunction was agreed to by all parties and not opposed by the media.
Without notice applications
Re A (A Child) EWCA Civ 572 is the latest authority in respect of guidance from the Court of Appeal as regards without notice applications. The case brought together two appeals within the same set of proceedings, but for the purposes of this article I shall focus on the first appeal.
The proceedings involved a child aged 4 years old, A. In 2014, A's parents fled Sweden following the involvement of social services, taking A and his sister, F, around the world before travelling to Germany. The mother and H then returned to Sweden, and the father and A then arrived in England. The mother took steps to secure A's return to Sweden, and consequently commenced Hague Convention 1980 proceedings. The mother claimed that F had been forcibly abducted from Germany where the family had been staying.
On 9 October 2015, MacDonald J granted the mother a Tipstaff Collection Order on a without notice basis, together with various case management directions. The Tipstaff Collection Order was executed and A was placed into local authority care. At the return date before Mostyn J on 16 October 2015, the court ordered A's return to Sweden the next day, unless the Swedish court ordered that A could remain in the father's care before a return took place.
The father appealed the orders of 9 October 2015 and 16 October 2015. The father's appeal was successful in relation to the order dated 16 October 2015, but not 9 October 2015 order.
The President gave the lead judgment in the appeal against the order dated 9 October 2015, and in doing so gave clear guidance on the general use of without notice applications in Hague proceedings, namely:
- There is a long line of authorities in the Family Division setting out the information to be provided and the procedure to be followed when seeing without notice relief – see, for example, Re W (Ex Parte Orders)  2 FLR 927, Re S (Ex Parte Orders)  1 WLR 211,  1 FLR 308, X Council v B & Others  EWHC 2015 (Fam),  1 FLR 341, Re X (Emergency Protection Orders)  EWHC 510 (Fam),  2 FLR 701, B Borough Council v S (By the Official Solicitor)  EWHC 2584 (Fam),  1 FLR 1600, KY v DD (Injunctions)  EWHC 1277 (Fam),  2 FLR 200, and B v A (Wasted Costs Order)  EWHC 3127 (Fam),  2 FLR 958. It is a matter of great concern that these clearly established principles are not regularly followed.
- The same principles apply in the Family Court and the Family Division as in the County Court and other division of the High Court. These principles also reflect much earlier authority – see, for example, R v The General Commissioners for the Purposes of the Income Tax Acts for the District of Kensington ex parte Princess Edmond de Polignac  1 KB 486.
- The guidance given in X Council v B (EPO)  EWHC 2015 applies to all without notice orders, not just applications for EPOs. A compelling case for applying without first given the other party notice must be given. A without notice application will normally be appropriate only if the case is genuinely one of emergency or other great urgency or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on. Even in case of emergency or urgency, it should normally be responsible to give some kind of, albeit informal, notice to the other party.
- The judgment of Charles J in B v A  is to be followed and was specifically endorsed by the President. In particular, see Charles J at -.
- There is a need for there to be particularised evidence to make good the argument that the relief claimed should be granted without notice. The evidence must be full, detailed, precise and compelling: X Council v B ;
- One of the frequent reasons for an application for a without notice Tipstaff location order, and specific to such an application, is the applicant's assertion that he does not know where the respondent and the child(ren) are. That assertion, if true, will in the nature of things justify a without notice application, though the court will no doubt wish to see evidence indicating the steps which have been taken to find them. However, if this is put forward as the basis for seeking a location order, the court will also no doubt want an explanation as to why the relevant information cannot be obtained expeditiously in some other and less intrusive way, for example by means of disclosure orders directed to the usual agencies. Apart from this situation, a without notice application will normally be appropriate only if there is an emergency or other great urgency or if there are compelling reasons to believe that the child's welfare will be compromised if notice is given, as per X Council v B .
- It should be an unusual case where it is impossible to give any notice (however informal) in this day and age of different form of virtually instantaneous communication are available. Informal notice is better than no notice.
- The other potential jurisdiction for a without notice application is where compelling reasons can be given to demonstrate that the child's welfare will be compromised if notice is given. A proper evidential foundation needs to be given in respect of such an assertion. The party seeking without notice relief needs to be demonstrate that there is a real risk that if the other party is alerted to what is proposed, he/she will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice.
- What is required, in every Hague Convention 1980 case, is a careful analysis, based on solid evidence, of exactly what the risks are in the particular case, and what level of protection is required in order to manage those risks. The evidence in every Hague Convention 1980 case must also explain, in particular, why the identified risks are such as to require a without notice application. If a Tipstaff location order is sought, evidence must be produced to demonstrate that the applicant does not know and is unlikely to be able expeditiously to establish the whereabouts of the respondent or the children. If a Tipstaff passport order is sought the applicant must produce evidence demonstrating the existence of sufficient flight risk to warrant such an order. A Tipstaff collection order will only be justified if the applicant produces clear evidence that unless an order for the children's collection is made they will face real peril such that not to remove them would expose them to greater harm than making the order.
- The issue of 'flight risk' is commonly pleaded in Hague proceedings. However, when assessing the issue of flight risk, the court must consider the guidance given in Re X (Children), Re Y (Children)  EWHC 2265 (Fam) at :-
"… the central focus … is on three factors: first, the magnitude of the risk that the parents will … be minded to remove [the children] …; second, the magnitude of the risk that, if they do, they will be able to evade the protective measures put in place by the court and designed to prevent their departure from this country; and, third, the magnitude of the consequences for the children if, in the event of their parents attempting to remove them …, they are able to evade those protective measures."
And at :
"… the mere fact that there is … some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question … That question, in the final analysis comes down … to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?"
- As a consequence of the above, cases in which great urgency justifies proceeding without any notice at all will be comparatively rare.
The President observed that the consequence of the above guidance is that the current practice of commencing proceedings on a without notice basis allows for the further listing of a return date in an expedient way, helpful case management directions having been obtained at the first without notice hearing. As a consequence, the absence of such a without notice hearing may well hamper such progress, and this issue will need consultation with the profession so as to find an appropriate solution to the difficulty.
Non-Hague Convention 1980 abduction proceedings
Re R (A Child)  EWCA Civ 1016 was a case about internal removal (abduction) in which the Court of Appeal concluded that the welfare principle, pursuant to section 1(1) of Children Act 1989 was the determinative principle in respect of such applications. In determining this issue, Black LJ also made various observations in respect of Re J (Child Returned Abroad: Convention Rights)  UKHL 40 which are helpful in respect applications in wardship for the return of a child who has been abducted where at least one state is not a signatory to Hague Convention 1980, namely:
- Hague Convention 1980 principles have no place in non-Convention case;
- The welfare principle is determinative, pursuant to section 1(1) of the Children Act 1989;
- It may well be in the best interests of a child to be summarily returned to his home country but this is not a presumption, still less a rule. At most, the judge may find it convenient to start from the proposition that it is likely to be better to return the child to his home country. A case against doing so has to be made. However, this process does not dictate any particular outcome, and the weight to be given to the said proposition will vary enormously from case to case.
The author is grateful to Abigail Bridger, pupil at 4 Paper Buildings, for her assistance with this article.