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International Children Law Update: February 2017

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


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

The interplay between the wardship jurisdiction and immigration decisions

In Re H (A Child) [2016] EWCA Civ 988, the Court of Appeal was concerned with 'A', a 10 year old child in proceedings in which his father sought an order that he be returned to Pakistan. A originally lived in Pakistan with both parties. In May 2012, the family then moved to Saudi Arabia. In August 2014, the mother and A visited England. The mother did not return to Saudi Arabia with A after the visit to England. On 15 September 2014, the mother issued a claim for asylum alleging ill-treatment on the part of the father. In March 2015, the father applied under the inherent jurisdiction for the summary return of A to Pakistan (A's Saudi Arabian visa having expired). In June 2015, A issued a claim for asylum in his own right.

On 8 July 2015, a final hearing took place before HHJ Finnerty, sitting as a Deputy High Court Judge. At this stage, both the mother and A's applications for asylum were pending. During the course of this hearing, a consent order providing for A's return was agreed between the parties and then endorsed by the court. The consent order included a number of undertakings, including an undertaking from the mother that she would withdraw the asylum applications.

The mother did not return to Pakistan with A, nor did she withdraw the applications for asylum. Accordingly, the father applied for enforcement of the order dated 8 July 2015, and mother applied to set aside / vary the order dated 8 July 2015. The mother claimed that she had been under 'duress' when she entered into the consent order. 

On 27 October 2015, before these applications were heard, both the mother and A were granted asylum, pursuant to article 3 of European Convention on Human Rights 1950.

From 22 February 2015 – 26 February 2015, a hearing took place before HHJ Bromilow, sitting as a Deputy High Court Judge, in respect of the parties' cross-applications. HHJ Bromilow concluded that the mother had not been under duress and that there had been no material change of circumstances since the order dated 8 July 2015 was made. HHJ Bromilow did not consider that A's asylum grant was a reason to set aside the order dated 8 July 2015. Accordingly, the father's application for enforcement was successful. 

The mother was then granted permission to appeal against the order of HHJ Bromilow. A was later joined as a party to his mother's appeal and also granted permission to appeal various orders in his own right, including the order dated 8 July 2015.

The Court of Appeal considered multiple issues, including whether A should have been made a party by HHJ Finnerty and by HHJ Bromilow. Black LJ concluded that:

As a consequence of the above, the orders dated 8 July 2015 and 26 February 2016 were set aside. The proceedings were then remitted to the High Court to determine the issue (amongst others) as to whether or not A's asylum claim is a bar to the court in wardship ordering his return.

Jurisdiction to set aside orders made during Hague Convention 1980 cases

In the above case of Re H [2016], the father had sought to challenge the decision of HHJ Bromilow on the basis that he had no jurisdiction to hear an application to set aside HHJ Finnerty's order. Black LJ expressed doubts about the reasoning behind this argument, but did not ultimately decide the point: [9] – [15].

The issue was raised once again in Re F (Children) [2016] EWCA Civ 1253. This case involved proceedings under the Hague Convention 1980 in respect of 3 children aged 14, 7 and 4. The parties and children were all Hungarian. Following the parents' separation, proceedings commenced in the Hungarian courts. The mother brought the children to England and Wales in the Summer of 2015, without the father's consent. In November 2015, the father commenced Hague Convention 1980 proceedings in which he sought the children's summary return to Hungary. On 2 February 2016, Nicholas Francis QC (as he then was), sitting as a Judge of the High Court, ordered that the children be returned to Hungary. On 9 June 2016, the mother and eldest child's appeals against the return order were dismissed (see Re F [2016] EWCA Civ 546). The eldest child, L, then locked herself in the bathroom to avoid a return. On 1 August 2016, L's application for the return orders to be set aside was dismissed by Mostyn J (and L was later refused permission to appeal this order). L was then referred by her GP to a child psychiatrist because of his concerns about her state of mind, concerns which were then shared by CAMHS. On the intended return date, L was in the care of an Accident and Emergency department as a consequence of 'suicidal ideation'. The mother once again applied for the return orders to be set aside, and the father cross-applied for enforcement (although ultimately did not proceed with this application).

On 14 September 2016, the mother's application came before Jonathan Cohen QC, sitting as a Judge of the High Court. L was joined as a party to the proceedings. At this hearing it was conceded by the father that the High Court can, in an appropriate case, set aside a return order made under the Hague Convention 1980. Mr Cohen QC went on to set aside the return orders, placing most weight on the medical evidence of L's present state of mind. In considering the law, Mr Cohen QC directed himself as follows: 

The father appealed to the Court of Appeal. The father's appeal was dismissed. The father did not attempt to raise a new point on appeal that there was in fact no jurisdiction to set aside the order, but did ask for clarification as regards the application of the set aside law in the field of Hague Convention 1980 proceedings. Black LJ referenced Re H [2016], mentioning that wardship orders can be varied by the first instance court wherever the child's welfare so requires.  Black LJ was unwilling to state definitively whether the High Court has the power to set aside return orders in Hague Convention 1980 proceedings, noting that the only reported example of the exercise of such a power is the decision of Mostyn J in Re F (A Child) (Return Order: Power to Revoke) [2015] 1 WLR 4375 where he relied on Rule 4.1(6) of Family Procedure Rules 2010. However, Black LJ did offer the following observations: 

Black LJ also used this case as a helpful reminder of the need for the English courts to find a mechanism to address the problem of delay in Hague Convention 1980 applications, bearing in mind the court's obligation to act expeditiously (article 11 of Hague Convention 1980), as bolstered by article 11(3) of BIIa where applicable. Black LJ observed at [28]: "The disruption caused by a wrongful removal and an imposed return to the country of habitual residence is minimised if the whole episode is concluded within a matter of weeks. If more time goes by, life in the new country may start to seem to the children like their established pattern of existence, battle lines may become firmly entrenched with the other parent, and the scope for damage is infinitely greater."

Media interest in Hague Convention 1980 proceedings

In Re Alcott (2) [2016] EWHC 2414 (Fam), Alex Verdan QC, sitting as a Judge of the High Court, dealt with the relevant considerations where there is media interest in Hague proceedings. The judgment should be read in conjunction with Re Alcott (1) [2016] EWHC 2413 (Fam), where Mr Verdan QC gives the substantive decision in the case. At [21] – [25] of this judgment, there is a helpful summary of the relevant legal principles when considering a child's habitual residence.   

The case involved a child, aged 3, D. The parties were the child's father and mother. The child's mother had previously worked as a children's television presenter. D had been born in England and had lived there all of his life. The parties had an on and off relationship over the course of 5 years. The father always lived in Australia. On 5 April 2016, the mother and D travelled to Australia to stay with the father. The circumstances of the travel were disputed between the parties (the father said it was a permanent move to Australia; the mother said it was a trial move to Australia.) On 12 April 2016, the mother and D returned to England and Wales. The father subsequently issued Hague Convention 1980 proceedings in which he sought D's summary return to Australia. The father's application was dismissed on the basis that the child had remained habitually resident in England and Wales during his time in Australia.

The case attracted a significant amount of media interested as a consequence of the mother's previous employment. Before the hearing commenced articles appeared in this jurisdiction in The Times, Daily Mail and The Sun. In these articles, the parties' identities were not revealed. However, an article also appeared in the Daily Telegraph of Sydney, together with an accompanying photograph, in which the parties and D were named. The court was also informed that the details of the case, by link to the Australian article, were available by using Google UK but only with a search of the names of both the father and mother.

Various members of the media attended day 1 of the hearing, and by the afternoon of day 1 some of the media (News Group Newspapers Ltd and The Times) were represented by counsel. The media sought:

The media's application was adjourned until day 2, and in the meantime Mr Verdan QC invited Cafcass Legal to attend and make submissions on D's behalf. This reflected his concern that the positions of the parents could not adequately represent D's interests. Cafcass Legal made clear that it was likely to be contrary to D's best interests and harmful to his emotional welfare if in a few years' time he is able to find online references to these very personal matters relating to his parents' private lives. As a consequence, the reporting of the parties' evidence was opposed, but no privacy injunction was sought on D's behalf.

The question was raised during the hearing whether section 12 of Administration of Justice Act 1960 was applicable to Hague Convention 1980 proceedings, as such proceedings are not specifically referred to in the text of the statute. However, it was accepted by all of the parties and the court that the inherent jurisdiction could be invoked such that the case would fall within section 12(1)(a)(i) of Administration of Justice Act 1960. As a consequence, the parties could be named, pursuant to the Administration of Justice Act 1960. It was also agreed by all parties that section 97 of the Children Act 1989 did not apply to Hague Convention 1980 proceedings.

Mr Verdan QC concluded as follows:

Without notice applications

Re A (A Child) EWCA Civ 572
is the latest authority in respect of guidance from the Court of Appeal as regards without notice applications. The case brought together two appeals within the same set of proceedings, but for the purposes of this article I shall focus on the first appeal.

The proceedings involved a child aged 4 years old, A. In 2014, A's parents fled Sweden following the involvement of social services, taking A and his sister, F, around the world before travelling to Germany. The mother and H then returned to Sweden, and the father and A then arrived in England. The mother took steps to secure A's return to Sweden, and consequently commenced Hague Convention 1980 proceedings. The mother claimed that F had been forcibly abducted from Germany where the family had been staying.

On 9 October 2015, MacDonald J granted the mother a Tipstaff Collection Order on a without notice basis, together with various case management directions. The Tipstaff Collection Order was executed and A was placed into local authority care. At the return date before Mostyn J on 16 October 2015, the court ordered A's return to Sweden the next day, unless the Swedish court ordered that A could remain in the father's care before a return took place.

The father appealed the orders of 9 October 2015 and 16 October 2015. The father's appeal was successful in relation to the order dated 16 October 2015, but not 9 October 2015 order.

The President gave the lead judgment in the appeal against the order dated 9 October 2015, and in doing so gave clear guidance on the general use of without notice applications in Hague proceedings, namely:

"… the central focus … is on three factors: first, the magnitude of the risk that the parents will … be minded to remove [the children] …; second, the magnitude of the risk that, if they do, they will be able to evade the protective measures put in place by the court and designed to prevent their departure from this country; and, third, the magnitude of the consequences for the children if, in the event of their parents attempting to remove them …, they are able to evade those protective measures."

And at [86]:

"… the mere fact that there is … some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question … That question, in the final analysis comes down … to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?"

The President observed that the consequence of the above guidance is that the current practice of commencing proceedings on a without notice basis allows for the further listing of a return date in an expedient way, helpful case management directions having been obtained at the first without notice hearing. As a consequence, the absence of such a without notice hearing may well hamper such progress, and this issue will need consultation with the profession so as to find an appropriate solution to the difficulty.

Non-Hague Convention 1980 abduction proceedings

Re R (A Child) [2016] EWCA Civ 1016 was a case about internal removal (abduction) in which the Court of Appeal concluded that the welfare principle, pursuant to section 1(1) of Children Act 1989 was the determinative principle in respect of such applications. In determining this issue, Black LJ also made various observations in respect of Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 which are helpful in respect applications in wardship for the return of a child who has been abducted where at least one state is not a signatory to Hague Convention 1980, namely:  

The author is grateful to Abigail Bridger, pupil at 4 Paper Buildings, for her assistance with this article.