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ES v LS [2021] EWHC 2758 (Fam)

A Hague Convention outward return case in which Mostyn J gives a series of strongly worded reminders on how such proceedings should be conducted. He also considers the meaning of the phrase “now settled” in Article 12.


The facts

The parents are both from Latvia. They have 2 children aged 14 and 12 at the time of the hearing. The mother brought the children to the jurisdiction in December 2019 to live with her new partner. The father commenced his application in March 2021 with a without notice application for a location and passport order. The mother raised 4 defences i) Settlement under Article 12, ii) Children's Objections under Article 13, iii) Consent and Acquiescence under Article 13(a), iv) Grave risk of harm and intolerability under Article 13(b). The judge decided that he would consider the settlement and objections defences and only then, if necessary, the other defences. He decided that the father knew of the mother's move and where she and the children were and by the time that proceedings were begun the children were settled. He refused to make the return order on the basis that the mother's first 2 defences were made out.

The procedural issues.

The judge identified matters which he regarded as poor practice, which should not be repeated in other cases. He was concerned that such cases are taking up too much of the High Court's time. He specifically noted

1. There were 2 bundles 484 and 153 pages contrary to PD27A r 5.1.[350pp in 1 file], and a bundle of authorities with 14 authorities (409 pages), contrary to PD27A r4.3A.1 (maximum of 10 authorities);

2. The case had been listed for 2 days with the expectation of oral evidence from the Family Court Adviser and the parents. When Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P para 3.8 says that oral evidence will rarely be directed and only if it is necessary. The procedure was supposed to be a simple summary remedy in effect an interim order (similar to a freezing order) pending the substantive welfare decision in the country from which the children came, if return is ordered. Oral evidence would rarely be required to determine any of the defences in such circumstances.

3. Although the father knew where the children lived he made a without notice application for amongst other things location orders and orders to secure details of the address from Government departments. The application was unnecessary and the evidence did not comply with the requirements of the Practice Guidance (above) paras 2.1-2.2 and the case law which founded the Guidance. The routine use of such applications should have ceased and "the time had come to insist on the scrupulous observance of the Practice Guidance". He drew attention to the practice in the Administrative Court of imposing sanctions on lawyers who made baseless applications Re the Court's exercise of the Hamid jurisdiction [2021] EWHC 1895 (Admin) .

Article 12

4. The judge held [paras 36] that "in order to be settled somewhere, a person must not only physically reside in a new home as a permanent residence but must genuinely intend to establish that place as a new home. Thus there must be proof of both a physical constituent and a mental constituent. For a younger child the relevant mental state will be that of her primary carer; for an older child it will be the mental state of the child herself". He rejected the need for there to be a finding that the subject children are living in a stable, contented, normative, conflict-free family environment. (in this case discord had arisen between the mother and her new partner after 11 months). [para 46-50].

5. He also construed "now" as referring to the time the judge came to decide the proceedings and not as at the commencement. [para 69]. In this he accepted he was reaching a different conclusion to Bracewell J in Re N (Minors) (Abduction) [1991] 1 FLR 413. He also accepted that it was not necessary for him to do so as he was satisfied on the facts that the children had become settled well before the proceedings began so that it did not make a difference to the conclusion.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII