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Re X (A Child) [2017] EWHC 158 (Fam)

Judgment of Munby P granting, inter alia, a without notice location order in a case where relief was required to enforce an order made by the Scottish Court.

The father made a without notice application for a location order and disclosure of information order before Munby P.

Background
The family had resided in Scotland. After the mother removed the child to England, the father obtained an order from Lord Brailsford, the Lord Ordinary sitting in the Court of Session in Scotland, which:
(1) prohibited the mother from removing the child from the UK;
(2) ordered the mother to surrender the child's passports to the Messenger-at-Arms;
(3) prohibited the mother or anyone on her behalf applying for replacement passports.

The Judgment of Munby P
Munby P granted the orders requested and commented on the unusual situation. Having crossed the border, it seemed the mother had put herself outside the reach of the Messenger-at-Arms and so it was appropriate to grant the orders to give effect to the relief previously granted by the Scottish Court.

The passports would now need to be seized by the Tipstaff instead (who could then arrange their transfer to the Messenger-at-Arms).

The President considered that, in accordance with re A (A child) [2016] EWCA Civ. 572, it was proper to grant a without notice location order in this case as he considered that there was a very real prospect that the mother "would re-abduct the child, either taking the child abroad or moving to some other place either in this country or some other part of the United Kingdom" if notice of the application was given to her.

Summary by Hannah Gomersall  barrister, Coram Chambers

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Neutral Citation Number: [2017] EWHC 158 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Friday, 27th January 2017

Before:

THE RT. HON. SIR JAMES MUNBY
(President of the Family Division)

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In the matter of X (A Child)
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Transcribed by BEVERLEY F. NUNNERY & CO.
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
5 New Street Square, London.  EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
info@beverleynunnery.com
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MR. ALISTAIR G. PERKINS (instructed by Morton Fraser) appeared on behalf of the Applicant Father.
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J U D G M E N T
THE PRESIDENT:
1. Mr. Perkins applies without notice for a location order and a disclosure of information order in somewhat unusual circumstances. 

2. The family were living in Scotland.  Sometime towards the end of last year the mother removed the child, an eleven year old boy, from Scotland to England. The father made an application to Lord Brailsford, the Lord Ordinary, sitting in the Court of Session, on 25 January 2017. It may be helpful for me to set out the essential provisions in his fairly short order:

"The Lord Ordinary, having heard Counsel on the motion of the Pursuer before service and calling, there being no caveat,

ad interim, and in terms of section 35 of the Family Law Act 1986, interdicts the Defender from removing or attempting to remove the child [name and date of birth set out] outwith the United Kingdom;

orders the Defender, in terms of section 37 of the Family Law Act 1986, to surrender to Messenger-at-Arms for onward transmission to the Deputy Principal Clerk of Session any United Kingdom, Albanian, Italian or other passports in her possession or under her control which has been issued to or contains particulars of the said child …; for that purpose grants warrants to open such lock fast places at which the Defender and the child…may be found;

ad interim interdicts the Defender or anyone acting on her behalf from applying for a replacement passport in relation to the said [child], and decerns;

refuses parts (i) and (iv) of the motion in hoc statu."

3. Expressing that in English terms and substituting a reference to the Tipstaff for the reference to the Messenger-at-Arms, Lord Brailsford, as I understand the order, injuncted the mother from removing the child from the United Kingdom, made an order equivalent to an English Tipstaff passport order (albeit only, it should be noted, in relation to the child's passports) and injuncted the mother from applying for a replacement passport. 

4. The mother being, it is believed, in London (and indeed it appears from material put before me that, as recently as yesterday, the child had been at school in Hampstead) Mr. Perkins applies for the relief I have mentioned.  He puts at the forefront of his case, understandably, the submission that in the circumstances it is appropriate and proper for this court, acting in comity with the courts of Scotland, to grant relief so as to make efficacious in this part of the United Kingdom the relief previously granted in relation to Scotland by Lord Brailsford. 

5. He very properly reminds me of what I said in In re A (A child) [2016] EWCA Civ. 572, [2016] 4 WLR 111 at para.61, repeated very recently in para.7(b) of Practice Guidance: Family Court - Duration of Ex Parte (Without Notice) Orders, dated 17 January 2017, as to the need for the court in a case such as this to be satisfied that the grant without notice of a location order is proper.  It is perfectly apparent to me from the papers I have read, and also - and this is a significant matter - from the very fact that Lord Brailsford thought it appropriate to make such an order in Scotland, that this is indeed a case in which I should grant the relief sought without notice.  I am satisfied that if notice was given of this application to the mother there is, as Mr. Perkins' client fears, a very real prospect indeed that she would re-abduct the child, either taking the child abroad or moving to some other place either in this country or some other part of the United Kingdom. 

6. Accordingly, I propose to grant the orders sought.  The first will be a location order in standard form, including a passport order in relation to the passports both of the child and of the mother.  The other order is an order seeking disclosure in the usual form from the child's school as to the child's address and whereabouts; it being contemplated that this order will not be executed if, as is anticipated, the Tipstaff is able within short order successfully to execute the location order. 

7. I mention one matter which arises as a matter of judicial comity.  There is, as I have mentioned, an order from the Court of Session requiring the delivery by the mother of the child's passports to the Messenger-at-Arms.  The location order I am making, of course, requires the delivery of those passports and, as I have said, also her own passports to the Tipstaff.  That is an order which I make not with any intention of cutting across the order made by Lord Brailsford.  On the contrary, it is an order I make so as to enable his order to be implemented as it were, from his perspective, "outside the jurisdiction". 

8. My assumption, although I stress it is only an assumption bearing in mind that this case has come on at short notice, is that, just as the Tipstaff has no jurisdiction outside England and Wales, the Messenger-at-Arms has no jurisdiction outside Scotland. So the passport order I propose to make is intended to make efficacious the order which the Court of Session has made in circumstances where, having successfully crossed the border, the mother has seemingly put herself outside the reach of the Messenger-at-Arms. 

9. In the circumstances, Mr. Perkins suggests, and I agree, that the location order - which will be made in the standard form - should be understood as authorising the Tipstaff, having seized the passports, to retain the passports in his control until the return day which I agree with Mr. Perkins should be in seven days' time. 

10. In the meantime, once the Tipstaff has executed the location order, consideration can be given by means of appropriate communications between the Tipstaff and the Messenger-at-Arms or, probably more conveniently, between this court and the Court of Session, as to whether it should be the Messenger-at-Arms acting on behalf of the Court of Session or the Tipstaff acting on behalf of this court who should thereafter hold the passports. 

11. For those reasons, and because an application of this kind arising as between Scotland and England is something I have not come across before - indeed Mr. Perkins with his great experience of these matters is unaware of such a case having arisen previously - it seemed to me appropriate to give this very brief judgment.  I shall direct that the judgment is to be transcribed as a matter of urgency at public expense. 

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