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Home > Judgments > 2009 archive

A Minor (Family Proceedings: Electronic Tagging), Re [2009] EWHC 710 (Fam)

Judgment concerning the use of electronic tagging to allow contact where the mother has twice wrongfully removed the child to her country of origin. Contains specimen order.

The child at the centre of these proceedings had twice been wrongfully removed by the mother to her country of origin and returned under the Hague Convention. The mother has followed the child back to the UK and after an unsuccessful attempt to appeal the Hague decision was seeking contact with her child. The decision facing the judge was whether she should allow the mother to spend substantial periods of time with the child under an interim order whilst the issues are investigated and given the father's fears that she would remove the child again. In the event the parties agreed that the mother should be under a curfew supported with the aid of electronic tagging.

This judgment has been published, after requests for guidance from the respective counsel, to assist practitioners who may seek similar orders by confirming that electronic tagging is available to the family courts and setting out the procedure for making such an order. A specimen order is also included.

____________________

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
No. EP07P00173


Royal Courts of Justice
Tuesday, 17th March 2009


Before:

MRS. JUSTICE PARKER
(In Private)

B E T W E E N :

 
RE A (MINOR)

_________

Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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________


MR. E. DEVEREUX (instructed by Bowles & Co.) appeared on behalf of the Applicant Father.

MR. J. REDDISH (instructed by Anthony Louca Solicitors) appeared on behalf of the Respondent Mother.

_________
J U D G M E N T
(As approved by the court.  There be leave for it to be reported.)

MRS. JUSTICE PARKER:
1. These proceedings are confidential and the names of the parties and the child are not to be disclosed. 

2. The parents of “A” are parties to proceedings about her care and her future brought pursuant to the inherent jurisdiction.  The mother originates from outside the UK and the father is Greek but settled in England.  In 2007 the mother removed “A” from this jurisdiction to the mother’s country of origin.  The father involved the English Central Authority and “A” was eventually returned by agreement.  In 2008, the mother again removed “A” to her country of origin.  The court of that country ordered that “A” be returned to England pursuant to the Hague Convention on the Civil Aspects of Child Abduction 1980.  The mother then made an unsuccessful application to the court of that country seeking to overturn the decision.  That application inevitably delayed the return of the child.  “A” has now been returned to England and is presently in the care of the father. The mother followed her back to England. 

3. It is accepted by the mother that both removals were wrongful within the meaning of the Hague Convention 1980. 

4. The issue before me was whether “A” should spend substantial periods of time with the mother under an interim order whilst all the many issues in this case are investigated.  The father fears that unless safeguards are put in place the mother may remove “A” again.  The mother says that she has no such intention, but accepts that the father has a legitimate concern that needs to be allayed. 

5. The  parties have now agreed that when the child is with the mother, the mother should be subject for the time being to a curfew supported by electronic tagging.  On this basis, the parents have agreed that the child will spend substantial periods with each parent in the interim.  The availability of tagging arrangements in appropriate cases in family proceedings is apparently not widely known and counsel have asked that I describe them for the assistance of the profession. 

6. In Re C (Abduction: Interim Directions: Accommodation by Local Authority) [2003] EWHC 3065 (Fam), [2004] 1 FLR 653, Mr. Justice Singer said:

“[Para.45] An innovation in this case was the mother’s suggestion that the package of protective measures should include a direction, pursuant to s.5 of the Child Abduction and Custody Act 1985, that she undergo electronic tagging.  I take the view that such a direction may be made under that provision if it is necessary ‘for the purpose of securing the welfare of the child’ and/or ‘to prevent changes in the circumstances relevant to the determination of the application’”.

“[Para.46] Although in future cases there may be funding issues to be resolved, in principle arrangements for electronic tagging can be made if the court so orders, which I assume it would ordinarily only do with the consent of the individual concerned (or perhaps as a condition, non-compliance with which might bring about alternative safeguards against the perceived risk).  I emphasise that such requirements are unlikely to be appropriate save in very few cases.”

At that time there was no specific procedure in place whereby such arrangements might be implemented.  Mr. Justice Singer invited the parties to contact the office of the President to assist in making enquiries and arrangements. 

7. Since that decision, the President’s office has devised a procedure whereby electronic tagging can be arranged through the Tagging Team of the National Office for the Management of Offenders (NOMS).  Electronic tagging works by monitoring the whereabouts of the person wearing a tag, but  only in a specific location.  The tag is monitored by a device which needs to be installed in particular premises,  that device monitors the tag, and the tagging office is notified if the tagged person is either not in the premises during the relevant times or if the tag is removed.

8.  The President’s office has confirmed that tagging is available in family cases and has provided the following information as to how orders are to be drafted and implemented:

(1) An order needs to be made and sealed by 3.30 on the day before its implementation.
(2) A representative will attend the premises to install the device the next day.  The order must contain the following information:

(i) The full name of the person(s) to be tagged.
(ii) The full address of the place of curfew.
(iii) The date and time at which the tagged person agrees to be at home (and any other relevant places) for the installation of the monitoring device. 
(iv) A schedule of the times at which the court expects the person to be at home (or any other relevant places) so that the service can monitor compliance. 
(v) The start date of the curfew and, if known, the end date of the curfew, the days on which the curfew operates and the curfew hours each day.
(vi) The name and contact details of the relevant officer to whom the service should report to if there is any breach of the above schedule or if the person appears to have removed the tag.

I am extremely grateful to Karen Dadson of the President’s Office for her swift response to the enquiry made by counsel this afternoon. 

Annex
Specimen Electronic Tagging Order

Order

No.

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

BEFORE MR/MRS JUSTICE [] SITTING IN CHAMBERS AT THE ROYAL COURTS OF JUSTICE, STRAND, LONDON W2CA 2LL ON

IN THE MATTER OF [] (A MINOR)

AND IN THE MATTER OF THE INHERENT JURISDICTION

AND IN THE MATTER OF THE SUPREME COURT ACT 1981

BETWEEN:


Applicant/Respondent

and

Respondent/Applicant


UPON hearing counsel for the Applicant father/mother, (“the father”/ “the mother”), and counsel for the Respondent mother/father, (“the mother”/ “the father”)

BY CONSENT
IT IS ORDERED THAT:

1. The National Offender Management Service in liaison with the Family Division Lawyers of the President of the Family Division’s office, President’s Chambers, Royal Courts of Justice, Strand, London WC2A 2LL, is requested to take such steps as are necessary to effect and to continue the electronic tagging of the [] in accordance with the schedule of information provided below.

Schedule of information provided for the purposes of effecting and continuing the electronic tagging of a person

  1. Full name and date of birth of person to be electronically tagged  
  2. Address of the place of the curfew  
  3. Date and time at which the person who is to be electronically tagged agrees to be present at the address of the place of curfew so that the electronic tagging device can be installed   
  4. State date of the curfew  
  5. End date of the curfew  
  6. Days on which the curfew is to be in place  
  7. Curfew hours  
  8. Name and contact details of relevant person whom should be contacted if there is a breach of the curfew or if the tag is removed or otherwise interfered with 

DATED