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International Children Law Update: February 2015

Jacqueline Renton, barrister of 4 Paper Buildings, reviews the latest key decisions in international children law.

Jacqueline Renton, barrister, 4 Paper Buildings

 













Jacqueline Renton, barrister, 4 Paper Buildings

Introduction

In this article, I shall focus on the following areas:

- Article 20 defence
- Costs


Habitual residence

LC v RRL & Others [2014] EWHC 8 is the final chapter in the Hague litigation involving four children who were retained in England during Christmas 2012 having been relocated to Spain 5 months previously on the agreement (as the court found) of both parents. [Please click here for a fuller background to the case and the Supreme Court's determination: In the Matter of LC (Children) (No 2) [2013] UKSC 221.] As a consequence of the Supreme Court's decision, the proceedings were remitted to the High Court where Wood J had to determine whether, inter alia, the children were habitually resident in Spain at the time of the retention. Wood J made findings in relation to the children's state of mind at the time of the removal to Spain based on evidence that was not before the original trial judge (Cobb J). Wood J concluded that all of the children remained habitually resident in England at the time of the retention, and accordingly there was no 'wrongful retention' within the meaning of article 3 of Hague Convention 1980. It is particular important to note that the judge concluded that even the youngest child (aged 4 at the appropriate time) was not habitually resident in Spain at the point of retention in light of the fact that he was part of an elder, tightly bonded sibling group and the group had shared experiences of life in Spain as compared to life in England. As a consequence of this determination, the mother's Hague Convention 1980 application was struck out, and she was also prevented from pursuing her application for a return of the children through the Spanish courts under articles 11(6)-(8) of BIIR.

[In the alternative, and in any event, Wood J also found that: (a) article 13(b) / harm defence was established on the basis that a return of the three younger children to Spain would involve them being separated from their eldest sibling, T, which would be intolerable for them all and (b) having determined that he was permitted to examine once again the article 13(b) / objections defence, the middle two children objected to a return to Spain within the meaning of article 13(b).]

In Re R (A Child: Habitual Residence) [2014] EWHC Civ 1031, the Court of Appeal upheld the appeal of the mother against a habitual residence declaration made by Parker J. The father was Scottish. The mother was Italian. The family had lived in England prior to their separation in 2009. In August 2009, the mother was granted permission to relocate the child (and her older sister) to Kenya. Shortly thereafter the mother and children returned to this jurisdiction, and the mother was then granted permission to relocate the child (and her older sister) to Italy in July 2010. The mother and child subsequently lived in Italy from July 2010 onwards. In January 2011, the mother was diagnosed with cancer and received chemotherapy. On 31 August 2013, the mother and child arrived in England with two suitcases. The father subsequently issued proceedings seeking residence (as it was then called) of the child. On 12 October 2013, the mother returned the child to Italy. There had been a long running dispute between the parties over the former matrimonial home. In 2012 an order had been made for the property to be sold. That order had not yet taken effect. In the property proceedings, the father contended that the mother permanently lived in Italy so that the house could be sold and the mother contended that she permanently lived in England as to avoid the house being sold (a reversal of their positions to the family court).

At first instance, Parker J declared that the child had become habitually resident in England and Wales between 31 August 2013 and 12 October 2013 as a consequence, primarily, of the mother's clearly documented intention to remain living in England and Wales on a permanent basis during the said period of time. Parker J did not hear oral evidence from either party before making such a declaration as a consequence of neither party seeking such a course of action to be taken.

The Court of Appeal upheld the mother's appeal and remitted the proceedings to the High Court for a fresh determination as regards the issue of habitual residence on the basis that:

In Re H [2014] EWCA Civ 1101, the Court of Appeal gave guidance concerning the 'rule' that where there are two parents with parental responsibility, one parent cannot change a child's habitual residence unilaterally. In this case, the parents and children travelled to Bangladesh in May 2008. In August 2008, the father returned to England alone. Between 2009 and 2012, the father visited the children in Bangladesh on three occasions, last seeing the children in November 2012. The father instigated proceedings in Bangladesh and those proceedings concluded in a way that was unsatisfactory to him. On 4 February 2013, the father issued proceedings in the High Court for a return of the children to England. The mother did not participate in the proceedings, but it was clear from the Bangladeshi proceedings that she claimed that the father had abandoned her and the children in Bangladesh in 2008. The father claimed that the English court had jurisdiction on the basis of habitual residence (and in the alternative, parens patriae).

At first instance, Jackson J determined that the court had no jurisdiction. In respect of habitual residence, Jackson J stated that even if the children had been unlawfully retained in Bangladesh, the children had ceased to be habitually resident in England due to the passage of time that had elapsed. In the alternative, the judge considered that on the facts of this case it was inappropriate to exercise the parens patriae jurisdiction given that the courts of Bangladesh had already been seised of welfare issues and there was nothing to stop the father from litigating once again in Bangladesh.

The Court of Appeal concluded as follows:


Enforcement of foreign orders

The use of Brussels II Revised Regulation 2003 to enforce foreign orders has become increasingly common over the years. Such applications are sometimes made in preference to the commencement of Hague Convention 1980 proceedings, and sometimes are free standing applications.

In MD v AA & Another [2014] EWHC 2756 (Fam), Jackson J considered a free standing enforcement application by a father who sought to enforce a custody order in his favour in respect of the parties' child. The order was made on 27 November 2013 by the Romanian Supreme Court. The parties were both Romanian and had been involved in litigation in Romania since November 2007, albeit the child had lived in England with the mother for his entire life, save for the first two months. At the time of the hearing before Jackson J, the child was nearly 8. The mother challenged enforcement of the order on various grounds: (1) procedural challenge to the way in which the order was registered by the Central Family Court; (2) article 23(a) – public policy; (3) article 23(b) – the child was not given an opportunity to be heard; (4) articles 23(c) and (d) – service issues. Unusually for enforcement proceedings, the child had been joined at the PTR by Jackson J, albeit the Child's Guardian's role was limited to making legal submissions on his behalf (no welfare enquiry was undertaken for the purpose of the enforcement proceedings, although there was a limited welfare investigation under article 20 of BIIR undertaken so as to determine interim care arrangements for the child pending the conclusion of the enforcement process).

In his judgment, Jackson J determined as follows:

Permission to appeal has been granted by the Court of Appeal in respect of this case as regards all grounds on which Jackson J refused to enforce the order. An appeal hearing is due to take place in March 2015.

Since November 2012, it has also been possible to recognise and enforce foreign orders in the English court under 1996 Hague Child Protection Convention. In Re P (Recognition and Registration of Orders under the 1996 Hague Child Protection Convention) [2014] EWHC 2845 (Fam), Moylan J (in his capacity as one of two judges from England and Wales registered to the International Hague Network of Judges) provided a partial guide to the procedure for recognition or registration of an order made in another contracting state under 1996 Hague Child Protection Convention. Moylan J stressed a 'light touch' in the application of the procedural rules for recognition and registration, especially given the increasing number of litigants in person. Some procedural formalities can be easily dispensed with where an application follows a direct request for assistance from a Judge of the International Hague Network of Judges, the Network being founded on mutual respect, trust and co-operation.

Enforcement of foreign orders is also possible under the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children 1980. Suffice to say, this Convention is rarely used but was so used in AA v TT [2014] EWHC 3488 (Fam). In this case, Holman J determined an application by a father to enforce a custody order dated 26 November 2013 in his favour from a Turkish court. The father was Turkish. The mother was English. The parties had two children who were born in England. The parties lived in England initially and then moved to Turkey in 2009. Their relationship subsequently broke down. Both parties made allegations of domestic violence against the other party (those allegations never being determined by any court). In September 2011, the parties divorced in Turkey. In June 2012, the mother was granted a final custody order in relation to the children from the Turkish court. In September 2012, the mother married her second husband and subsequently removed the children without the father's consent to England.

The father promptly commenced Hague Convention 1980 proceedings for the summary return of the children to Turkey. The mother sought to defend the proceedings on the basis of an article 13(b) objections and article 13(b) harm defence. A report from Cafcass made clear that both children wished to return to Turkey. At the final haring, the mother made clear that she also wished to return to Turkey on the basis that the father put in place adequate safeguards / protective measures to meet her article 13(b) harm defence. The father refused to do so and went on to withdraw his Hague Convention 1980 application, having made clear that he would seek custody of the children in Turkey.

Subsequent to the final hearing, the children and mother remained in England with the father having one direct contact only in the 18 months that then passed until his enforcement application. The father pressed ahead with his custody application in the Turkish court. The mother engaged with the father's application and attended various hearings. During the Turkish proceedings, the father claimed that the mother was living in Turkey with her new husband and had left the children in England to be cared for the maternal grand-mother. [In the English proceedings, this was denied by the mother who claimed that her marriage had come to an end as a result of her being unable to return safely (on her case) to Turkey and that she had remained living with the children in England, save for various short periods of time between 2012 – 2013 when the children were left in the care of her parents in Turkey, and 1 fortnight in Ireland. The mother did not make these points to the Turkish court.]

In November 2013, the Turkish court ordered that guardianship (custody) of the children be transferred from the mother to the father (this being the order that the father then sought to enforce in the English court). In his judgment, Holman J determined as follows:

Article 10
(1) Recognition and enforcement may also be refused on any of the following grounds:

(a) if it is found that the effects of the decision are manifestly incompatible with the fundamental principles of the law relating to the family and children in the State addressed;

(b) if it is found that by reason of a change in the circumstances including the passage of time but not including a mere change in the residence of the child after an improper removal, the effects of the original decision are manifestly no longer in accordance with the welfare of the child..."

o The children (aged 12, 9 and 7) have lived continuously in England since September 2012. They have been interviewed three times including by a psychologist and social services expert in Turkey who concluded that their behaviour and psychological state had been adversely affected by violent behaviour, they displayed behavioural problems, were close to their mother and frightened of their father. When the children were first interviewed by Cafcass they stated that they preferred to live in Turkey safely with the mother and were very frightened of, and resistant to the idea of living with, the father. When interviewed for the second time, they were clear that they did not wish to live in Turkey and complained about their father calling him "horrible".

o As a consequence of the above, to remove the children from the mother and from the environment in which they had been living for over two years, in light of a judgment based on an utterly mistake foundation or premise, was manifestly incompatible with the fundamental principles of English law.

o Further, given the passage of time that had elapsed and the children's views, it was manifestly contrary to the welfare of the children to enforce the decision.

o As regards the exercise of discretion once the article 10 threshold has been crossed, Holman J refused to exercise his discretion in favour of enforcement making clear that to enforce the decision would be utterly contrary to the welfare of the children to the point of being inhuman.


Hague Convention 1980 proceedings

Article 20 defence
In SP v EB and KP [2014] EWHC 3964 (Fam), Mostyn J determined that the parties' child (14½) should not be returned to Malta. In doing so, Mostyn J found that an article 20 / human rights defence was established, together with an article 13(b) / objections and article 13(b) harm defence. This is the first case ever in this jurisdiction where an article 20 / human rights defence has been successfully established.

The full background to the case is summarised in the Court of Appeal decision of Re KP [2014] EWCA Civ 554. The child was wrongfully removed from Malta to England by the respondent mother on 12 June 2013. A final hearing took place in September 2013. That hearing led to a successful appeal in the Court of Appeal in May 2014. As a consequence of the successful appeal, the case was remitted to the High Court for a re-trial. The new final hearing came before Mostyn J in November 2014. By this time, the child had been in the jurisdiction for nearly 18 months. The Child's Guardian was clear that she was very settled in England, technically habitually resident in England and that it would be unthinkable that she should be forced to return. Throughout the Hague proceedings in England, the father had at no stage issued proceedings in Malta.

In determining the article 20 / human rights defence, Mostyn J stated as follows:


Costs
CL v MB [2014] EWHC 927 (Fam) is a recent judgment from Hayden J dealing with the issue of costs order in Hague Convention 1980 proceedings. The father issued Hague Convention 1980 proceedings seeking the summary return of the parties' child to Israel. The mother contended, in her defence to the proceedings, that article 3 was not engaged as the child was habitually resident in England and Wales. The mother succeeded at first instance. The father attempted without success to appeal to the Court of Appeal. In parallel to the English proceedings, were proceedings in Israel that were pursued up to that country's Supreme Court. Hayden J remarked that the Israeli litigation had been 'entirely futile'. The mother sought her costs against the father in respect of the Hague Convention 1980 litigation.

Hayden J awarded the mother half of her costs and remarked as follows:


Wardship – hearing the child

In Re S (A Child) (Abduction: Hearing the Child) [2014] EWCA Civ 1557, the Court of Appeal allowed an appeal against an order for a summary return of the parties' child (7) under the inherent jurisdiction. The child was born in England but then shortly thereafter returned to Russia to live. The parties subsequently separated and the Moscow court was then seised of cross residence applications. The Moscow court remained seised at the time of the Court of Appeal hearing, albeit the proceedings were suspended pending a psychological assessment of the child and parents. Approximately 3 years earlier the mother had entered into a new relationship with a man who is a political activist in Russia. The mother's partner came to England in April 2014, and subsequent criminal charges were laid against him in Russia. The other's partner's asylum claim remains pending to date. Two days after the mother's partner arrived, the mother and child came to this jurisdiction. The mother was pregnant with her partner's child at that time and subsequently gave birth to his child in London. The mother stated that she initially intended on returning to Russia after giving birth, but then later took the view she would remain in England with the child. The mother did not make her own asylum application as she understood she could be a dependent on her partner's asylum claim. In due course, the mother commenced litigation in this jurisdiction, and then the father commenced his own application for the summary return of the child in wardship to Russia.

Hogg J ordered the child's return to Russia on a summary basis. At first instance, there was no consideration of the child's wishes and feelings or the welfare of the child from her perspective. This issue was the main focus of the mother's appeal.

The Court of Appeal allowed the appeal and remitted the case for fresh consideration to the High Court. Ryder LJ (giving the lead judgment) stated:

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