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Are the Alarm Bells Ringing? Identifying a potential Hague Convention case and responding appropriately

Mandeep Gill, associate solicitor with The International Family Law Group LLP, considers the recent cautionary reminder given by Mr Justice Bodey that all practitioners must be able to identify whether there are potential Hague Convention implications in any children case with an international element.

Mandeep Gill, associate solicitor, The International Family Law Group LLP

Mandeep Gill, associate solicitor, The International Family Law Group LLP

C v D [2013] EWHC 2989 (Fam), decided by Bodey J, serves as a reminder as to the procedure to be followed by the judicial and administrative authorities of the Contracting State to which a child has been removed, or in which he or she has been retained.  It also emphasises the professional duty upon practitioners in children cases involving an international element. Further, the case highlights the usefulness of international judicial liaison in high emotion international child abduction cases.

This case concerned Hague Convention proceedings in relation to a boy, aged 4, who had been removed to England from Spain by his mother. The proceedings were brought by the father for the summary return of the child to the jurisdiction of Spain.

The facts
The mother and father were British. The parties met in Spain in or about 2000 and cohabited there for 12 years until autumn 2012. During their relationship they had a son who was born in Spain but was British. The parties' relationship subsequently failed amidst mutual recrimination and cross-allegation, each accusing the other, amongst other things, of being volatile and aggressive. The mother left the family home in August 2012 and the child was left in the father's care.

In October 2012, it was alleged by the father, the mother went to the family home and forcibly removed the child from his care. Having successfully brought the child away from the family home, the mother removed the child to the jurisdiction of England and Wales. 

The mother's application in the county court
In November 2012, shortly after arriving in England, the mother applied for a residence order from her local county court. The application was served on the father in Spain who responded, confirming that the child had been removed from Spain illegally without his permission, and he asked for the child to be returned to Spain. Several hearings took place and in February 2013, the judge in the mother's local county court made a residence order in the mother's favour.  It was noted in the preamble to the court's order that there was no evidence that the mother's removal of the child from Spain had constituted any offence under Spanish or English law and that the child had now resided in England for a period in excess of 3 months (since October 2012).

The father's application in the High Court
In July 2013 the father instructed English solicitors for the first time and an application under the 1980 Hague Convention for the summary return of the child to the jurisdiction of Spain was made on his behalf. The mother pleaded Article 13(a) defences of consent, acquiescence and also challenged the father's rights of custody. The mother applied to have the application transferred down to be dealt with by the county court judge who had made the residence order. Understandably the transfer application was rejected because of the nature of the other applications before the court. Part way through the proceedings, the mother sought to rely on the additional defence of Article 13(b) intolerable harm but she conceded that it must be right that the father had rights of custody.

The final hearing came before Mr Justice Bodey. At this hearing the mother abandoned her consent and acquiescence defences but continued to pursue her intolerable harm defence on the basis that she was at risk of being prosecuted in Spain for the removal and that she and the child would suffer financial hardship. Mr Justice Bodey rejected the mother's defence of intolerable harm as enquiries undertaken by the mother's own legal team revealed that the criminal reports made by the father for abduction had been archived by the Spanish authorities and the father further provided a non-prosecution undertaking. Mr Justice Bodey stated that there were substantial factual disputes between the parties in relation to finances but Hague Convention proceedings cannot become quasi maintenance applications.  The circumstances did not amount to the sort of situation of destitution and homelessness alluded to in Re M (Abduction: Undertakings) [1995] 1 FLR 1021, and the father had provided several financial undertakings to last until the first interpartes hearing in Spain. 

The mother argued that the undertakings offered by the father could not be enforced in Spain, although her Spanish lawyer had confirmed that they could be if the father was ordered to comply with them. Mr Justice Bodey found that the mother would be able to enforce the undertakings.  There were three safeguards as regards the enforceability in Spain of the father's undertakings.  First, the preamble to the court order stipulated that such undertakings were intended and interpreted by the court as "measures" for the purpose of Article 23 of the Hague Convention 1996.  Second, Mr Justice Bodey ordered the father to comply with his undertakings, and third, the father provided an undertaking in the court order to cooperate with any application made by the mother in the relevant court in Spain for an order to be obtained that embodied the undertakings.     

It was additionally argued by counsel for the mother that the court could and should permit the mother to remain in England with the child pending the resolution of relocation proceedings in Spain.  Mr Justice Bodey stated that in F v M and N (Abduction: Acquiescence: Settlement) [2008] EWHC 1525 (Fam), [2008] 2 FLR 1270, the court had permitted the mother to remain in England with the child pending the resolution of relocation proceedings in Poland. However, the Article 12 'settlement' defence had been established in that case and therefore the Court could exercise its discretion in relation to whether to make a return order.  No defence had been established in this case and to give the mother a suspension of time to return the child forthwith would undermine the purpose and proper application of the Hague Convention. 

Counsel for the mother expressed concern about the time it may take to get the case before the Spanish court.  Mr Justice Bodey asked that the case be referred for judicial liaison to try to obtain a speedy interim inter partes hearing in Spain (if one was sought) as the Spanish liaison judge might feel able to make such arrangements.

Ultimately, Mr Justice Bodey considered that the Article 13(b) harm defence was not established and the summary return of the child to the jurisdiction of Spain was ordered.

It was plain on the facts of this case that the procedure set out by Mr Justice Holman in Re H [2000] 2 FLR 294 had not been followed in the county court when the mother brought the residence proceedings and the father made it clear that the child had been wrongfully removed. Mr Justice Bodey considered that in the circumstances of a case such as this, it was incumbent on the county court to be proactive in seeing that the primary issue of the child coming to be in the jurisdiction was expeditiously resolved.  The county court should have transferred the case to the High Court for directions on notice to the father, or at the very least, the county court judge's order should have contained a preamble bringing the existence of the Hague Convention clearly to the father's notice so that he could swiftly avail himself of it if so advised. The county court should not have granted the mother a residence order in the face of Article 16 of the Hague Convention. 

So what does Article 16 of the Hague Convention say?

"After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice."

As a result of Article 16, any pre-existing application for residence should not be decided once it is known that the principles of the Hague Convention may apply to a particular case. The residence application should be stayed and it is the court's duty to consider first the issue of whether there has been a wrongful removal or a wrongful retention within the meaning of the Hague Convention.

Identifying a Hague Convention case
Mr Justice Bodey in this case considered it of utmost importance to reiterate the procedure to be followed by county courts when faced with such situations and to use this case to serve as a reminder of the guidance already given by the court in Re H [2000] 2 FLR 294.

Mr Justice Bodey said that in Re H Mr Justice Holman spoke in trenchant terms about the duty of the court to be alert to the Article 16 provision, and to transfer the case to the High Court if in any doubt.  Mr Justice Holman spoke of 'alarm bells ringing' and it was Re H and the other authorities cited in that case which led to a note   in the The Family Court Practice 2013 (Jordan Publishing) at p.448 which states as follows:

"Where the court becomes seised of a matter relating to a child and it becomes apparent that there has been wrongful removal or retention within the meaning of the Convention, the court has a duty to take steps to secure that the parent in the other state is informed of his rights under the Convention.  The English central authority should be requested to inform the central authority of the state from which the child has been removed of the circumstances of the case.  The court should also communicate with the parent in that state by means of directions to the effect that he should seek legal advice expeditiously as to his rights and communicate with the central authority of his state of which he should be given the name and address." 

Re H [2000] 2 FLR 294 was a case in which Mr Justice Holman found that a father had wrongfully retained the child from Sweden. There had been a huge delay in the issue of the wrongful retention being dealt with as the mother's initial solicitors failed to grasp that this was a situation in which the Hague Convention might apply. The father made a Children Act application out of the Wrexham County Court. Three hearings took place in relation to the Children Act application and the proceedings were set up for a full contested hearing in relation to residence and a schedule of interim contact was drawn up. Shortly afterwards, the mother consulted specialist solicitors and it was only then that the mother's application under the Hague Convention was made. The mother had always maintained her wish for her child to be returned to Sweden. The final hearing in respect of the mother's Hague Convention application came before Mr Justice Holman. He found that the child was still habitually resident in Sweden and he dismissed the father's defence of consent and made a forthwith return Order. Before concluding his judgment, Mr Justice Holman made important points in relation to the duty of the court and practitioners in potential child abduction cases as follows:

"There may be a tendency to think that child abduction is a specialist branch of family law and only to spot it when there has been an obvious "snatch". It is specialist, which is why it is heard only by the very small number of judges in the Family Division of the High Court. but, just as every general practitioner must be alert to spot a rare illness even if he does not have the expertise to treat it, so also anyone, whether judge or practitioner, having any involvement with cases concerning children, must always be alert to spot a possible case of international child abduction."

Mr Justice Holman went on to say that "as soon as a Court learns that it is concerned with a child who has formerly lived abroad in a Convention country, and whom one parent does, or may, wish to return to that country, a possible case under the Hague Convention may arise. The concept and ambit of "wrongful retention" extends the arm of the Convention way beyond a 'snatch', and means that it can apply even after a child has been here for a substantial period of time."

Mr Justice Holman said that if there is any doubt about the legality of the child remaining in this jurisdiction then a transfer of the case to the High Court should be considered at once and/or expert advice should be sought from experienced practitioners and/or advice should be sought from the International Child Abduction and Contact Unit.

It is rather alarming that some 13 years after Re H, history repeated itself in the present case so that the child had to endure several months of delay before the crucial issue was dealt with. It is even more alarming because in this case it was a "snatch" type of wrongful removal which was being alleged by the father. This fact should have made it that much easier to recognise that this case was one involving a possible international child abduction.

This current case highlights again the need for practitioners and the courts to tread very carefully in a children case with an international element. If there is any suggestion that the subject child previously lived in a different jurisdiction and one of the parent wishes for the child to return there, then practitioners at the outset of the case must pause to consider whether the Hague Convention could in principle apply. If it can, then there is a duty on them, whether they are acting for the "left behind parent" or the "abducting parent" to bring this to the court's attention. Obviously if no domestic children proceedings are brought by the abducting parent, then this duty cannot arise but any solicitor consulted by such a parent must warn them of the potential application that could still be made against them under the Hague Convention.

It is often the case that an abducting parent will seek to stabilise his or her position in this jurisdiction by applying for residence of the child after the wrongful removal or retention. Children Act proceedings can then in turn lead to Hague proceedings being initiated as a result of the left behind parent becoming aware of their rights under the Convention.

Left behind parents must be able to rely on the reassurance that Article 16 of the Hague Convention offers them in terms of the abducting parent not being able to march forward with a tactical advantage in an abduction situation by simply issuing Children Act proceedings. In such cases, the issuing of Children Act proceedings should not "legalise" the abduction and instead should mean that the left behind parent benefits from the opportunity of being told about his or her potential remedy under the Hague Convention and should be given the necessary contact details to make the appropriate application.

In conclusion, the area of international children law is complex and international elements can arise in many cases that may be seen by some as "run of the mill" and therefore practitioners must be alive to their duties and if they are in doubt then advice should be sought from specialist solicitors or the ICACU.

Note: Contact details for the ICACU can be found here.

Mandeep Gill acted for the father in C v D.