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International Children Law Update: September 2018

Jacqueline Renton and Charlotte Baker, both barristers of 4 Paper Buildings, review the latest key decisions in international children law.

Jacqueline Renton and Charlotte Baker of 4 Paper Buildings 

This article will focus on the following areas:

Repudiatory retention in Hague Convention 1980 proceedings

In the Matter of C (Children) [2018] UKSC 8, the Supreme Court upheld the Court of Appeal's determination that repudiatory retention is a legally binding principle and provided some guidance to assist in identifying it in the future.

The facts of C were as follows: the father had agreed to the mother and children travelling to England for May-June 2015. They left Australia and entered England with 6-month tourist visas. The father then agreed, in June, to the children remaining for a year (although it was unclear whether that year was to commence from the point of his revised agreement, or ran from the children's initial departure in May). Unbeknownst to the father, in November 2015 the mother applied for British citizenship for the children. In support of her application, she made it clear that they intended to remain in England in the long-term.

The father continued to question the mother about her plans to return, and in February 2016, was told she wanted to stay in England "in the short term". In June 2016 (i.e. the latest point for return based on the agreement above), she sent another email saying the same thing. The father's application for the children's summary return under the Hague Convention 1980 followed a month later in July 2016.

At first instance, HHJ Bellamy did not accept that repudiatory retention was a legally binding principle and in any event, found the children were habitually resident in England by June 2016. The Court of Appeal overturned HHJ Bellamy's decision and found that repudiatory retention was a legally blinding principle, but were split on its definition: Lady Justice Black (as she then was) considered that repudiation could only exist where the subjective intention was communicated to the left-behind parent, whereas the majority, Lady Justices Sharp and Thirwall, did not find that communication was necessary for repudiatory retention to exist. The Court of Appeal unanimously overturned HHJ Bellamy's decision on habitual residence and remitted the father's application for a fresh hearing.

When the matter finally came before the Supreme Court in October 2017, it upheld the Court of Appeal's decision that repudiatory retention is a legally binding principle. It held that a parent who repudiates the temporary nature of a stay and sets about making it indefinite, putting down roots (for example) with a view to making it impossible for the child to return, is acting contrary to the spirit and principles enshrined in the Hague Convention 1980. In such circumstances, the "Article 12 clock" (i.e. the settlement defence) would start to run from the date of repudiatory retention, regardless of whether the left-behind parent knows that the travelling parent has repudiated their agreement.

Once satisfied that repudiatory retention is possible in law, the Supreme Court set about defining what it must comprise of, albeit avoiding any attempt at an exhaustive definition. Lord Hughes, in the majority, held: "the question is whether the travelling parent has manifested a denial, or repudiation, of the rights of the left-behind parent" [§51].

This will inevitably require a subjective intention not to return (or not to honour some other fundamental part of the parents' agreement), and an objectively identifiable act or acts of repudiation before it can be described as wrongful. Crucially, that is not to say the breach of the agreement must be communicated to the left-behind parent, simply that the travelling parent must do something, (the Supreme Court gave the example of applying for permanent leave to remain in a country, with an undertaking that the parent's intention was to remain permanently) for the retention to exist, above merely an intention to retain. A declaration of intent to a third party may suffice, but a purely internal, unmanifested thought on the part of the travelling parent will not constitute repudiatory retention.

The Supreme Court confirmed that nothing in its judgment undermined or overruled the decision of the House of Lords in In re H; In re S [1991] 2 AC 476, which held that wrongful retention must be an identifiable event and is not a continuing process. In cases of repudiatory retention, it may not be possible to say anything more than the retention had occurred not later than a particular date.

Notwithstanding its determination on the existence and application of repudiatory retention to the present case, the Supreme Court overturned the Court of Appeal's decision on the children's habitual residence, and upheld HHJ Bellamy's first instance assessment (that the children had become habitually resident in this jurisdiction by June 2016), effectively "striking out" the father's application for their return.

Seeking English return orders when a child has been abducted to an EU Member State

Re S (Abduction – Hague Convention or BIIA) [2018] EWCA Civ 1226, concerned a child who lived and was habitually resident in England, but had spent the summer of 2017 in the Netherlands with his father. In September 2017, contrary to the parents' agreement, the child did not return and so the mother commenced proceedings in this jurisdiction seeking, amongst other orders, the child's summary return to this jurisdiction. At a hearing on 13 October 2017, Mrs Justice Knowles granted the mother's application and directed the child's immediate return to this jurisdiction.

The return order was sent to the Dutch Central Authority, and the mother was informed that (unlike the process under the Hague Convention 1980) she would have to appoint her own lawyers to act for her in the Netherlands to attempt to enforce that order. She therefore then made an application for the child's return under the Hague Convention 1980.

Meanwhile, the father appealed against the summary return order. The appeal was settled, and the return order was discharged. The mother accepted that her the child's return should, at least initially, be progressed through her application under the 1980 Convention.

The Court of Appeal determined that absent a good reason to the contrary, it is better for an English Court to defer making a return order until the Hague Convention 1980 application has been determined in the other Member State, for the following reasons [§48-9]:

1. A higher degree of assistance is likely to be provided by the authorities in the requested Member State in a Hague Convention 1980 application, versus an action to enforce a summary return order;

2. There is a specific requirement that Hague Convention 1980 applications are determined within six weeks. There is no equivalent requirement for applications to enforce parental responsibility orders within any timeframe;

3. If a non-return order is made, Article 11 of BIIR contains a tailor-made procedure governing what should happen next, and how Member States should engage with the case and each other;

4. If a return order is made, there is an expedited enforcement procedure under Chapter III, Section 4 of BIIR.

None of that, of course, prevents a parent from commencing proceedings in this jurisdiction, not least to ensure England & Wales's substantive jurisdiction is engaged.

The jurisdiction to set aside orders made in Hague Convention 1980 proceedings

Re W (A Child) [2018] EWCA Civ 1904 is the latest in a line of decisions considering the Court's jurisdiction to set aside orders made in Hague Convention 1980 proceedings.

In October 2016, the mother had unlawfully travelled to England with the parties' child. The father commenced proceedings under the Hague Convention 1980 in June 2017, which the mother sought to defend relying on Article 13(b) and specifically, the impact returning to Spain would have on her mental health. Her defence did not succeed, and a return order was made in November 2017 which required her to return to Spain by the end of December. In the interim, the mother applied for that order to be set aside on the basis that her already precarious mental health had deteriorated markedly since the final hearing. The order was set aside, and that decision was appealed by the father.

However, when the matter came before the Court of Appeal, the father accepted that whatever the outcome, the matter would need to be reheard, making the appeal itself academic. The hearing before the Court of Appeal had been listed on short notice and the Court concluded that resolving the proper meaning and scope of section 17 of the Senior Courts Act 1981 would require significant additional argument, which neither party was in a position to fully argue that day. Therefore, although the Court of Appeal concluded that it was neither necessary nor appropriate to address whether the High Court has jurisdiction to set aside a final order made under the Hague Convention 1980, Lord Justice Moylan did decide to make some brief observations as follows:

"66. In conclusion, my provisional view is that the High Court has power under the inherent jurisdiction to review and set aside a final order under the 1980 Hague Convention.  This power can be exercised when there has been a fundamental change of circumstances which undermines the basis on which the original order was made.  I set the bar this high because, otherwise, as Mr Devereux observed, there would clearly be a risk of a party seeking to take advantage of any change of circumstances such as a simple change of mind. 

67. I would add that the re-opening of a final Hague order (whether for return or non-return) is likely to be a rare event indeed and that, as the process is a summary one, any application for such an order will necessarily have had to be filed without delay.  Further, where an application for rehearing has been issued, the court will case-manage it tightly so that only those applications that have a sufficient prospect of success are allowed to proceed and then only within parameters determined by the court."

Enforcement and recognition of orders

In Oller Kaminska v Poland [2018] ECHR 70, the European Court of Human Rights concluded that the Polish authorities had failed to act swiftly to enforce the Irish judgments as required under EU law.

The child had spent the summer of 2009 in Poland with her father, pursuant to a consent order made by the Irish Court. She was supposed to return on 15 August 2009 but was unlawfully retained by her father. The mother attempted variously to secure the child's return by enforcing orders from the Irish Court, and under the Hague Convention 1980. None of which were successful. Eventually, the mother took matters into her own hands, found the child and took her back to Ireland with her.

The ECHR restated the State's positive obligations to take measures to reunite parents with children, and to apply principles of the ECHR in accordance with the principles of international year, and in particular with those relating to the international protection of rights. For international child abduction, that means that the positive obligations that Article 8 imposes on contracting states must be interpreted in the light of the Hague Convention 1980 and the UNCRC. Importantly, the ECHR emphasised that in cases of this kind, the adequacy of a measure is to be judged by the swiftness of its implementation. The ECHR added that given this case concerned the return of a child from one EU Member State to another, BIIR applied and ought to have supplemented the rules laid down in the Hague Convention 1980.

F v M [2018] EWHC 2106 (Fam) concerned a rare example of an appeal a decision not to register an order under Article 23 of the Hague Convention 1996. The District Judge had declined to register the order of the Moscow District Court ordering the return of an 11-year-old girl on the grounds that the child's views had not been heard. A further bar considered at appeal, but not relied upon by the District Judge refusing registration, concerned the child's refugee status (see below for further discussion on the immigration point). Mr Justice Cohen ultimately agreed with the District Judge's decision, and considered that the child was not provided with an opportunity to be heard, which was fatal to the subsequent registration of the decision in this jurisdiction.

Mr Justice Cohen declined to endorse the father's criticism of the District Judge, commenting that the fact she had been more assiduous then others and acted on a gap she had identified could not possibly be a ground of appeal. He was also satisfied that her reasons, although brief, were sufficiently clear for the father to understand why recognition had not been granted and therefore were adequate.

Immigration issues and return orders

The High Court continues to grapple with issues in relation to immigration, both in respect of parents and children applying for and being granted refugee status in this jurisdiction, and abducting parents who assert they are unable to re-enter the state of the child's habitual residence, and therefore rely on an Article 13(b) defence.

Asylum applications

In F v M and A and the Secretary of State ("SSHD") [2017] EWHC 949 (Fam), wardship proceedings concerning a Pakistani child brought to this jurisdiction in 2014, and retained here by his mother, Mr Justice Hayden held that the grant of refugee status to a child is an absolute bar to their return to an alternative jurisdiction by the Family Court. The Court set out the relevant international and domestic legislation, including provisions from the Procedures Directive, the Refugee Convention, the Qualification Directive and the Immigration Rules, concluding at [§42] that "the determination of the refugee status of any adult or child falls entirely within 'an area entrusted by Parliament to a particular authority'", i.e. the SSHD.

The weight and combination of the provisions as set out in the judgment made it clear that neither the Family Court nor the High Court are able to intervene on the merits of such a decision. It is simply beyond either Court's powers and a decision that is entrusted solely to Parliament.

Once a person has been granted refugee status, the principle of non-refoulement is engaged (see Article 32 of the Refugee Convention) thus preventing the jurisdiction which has granted asylum from expelling or returning a refugee, unless they have been convicted of a particularly serious crime and therefore constitutes a danger to the community. However, a grant of asylum can be revoked when the SSHD is satisfied that "the person's misrepresentation or omission of facts, including the use of false documents, were decisive for the grant of refugee status". Again, this is a power exercised solely by the SSHD: the Court cannot revoke or alter the SSHD's decision to grant or subsequently revoke a grant of asylum.

In F v M and A, the grant of asylum was founded on allegations of violence made by the mother that the father said were untrue. He wished to challenge the grant of asylum and sought that it be revoked. In light of the above, Mr Justice Hayden concluded that the only role the Court could play would be as follows [§63]:

In the course of the contemplated hearing F will be in a position, via his counsel, to advance any allegations that he wishes to make in relation to M's representations to the SSHD.  I will, in due course, deliver a judgment, which   will be released to the SSHD.  At this point, of course, I have no idea, having not yet heard the evidence, what my findings might be.  Hypothetically, were I to be satisfied that misrepresentations had been made, to the extent that they cast doubt on the legitimacy of the grant of asylum, the Secretary of State would be bound both by the Immigration Rules and by Public Law principles to have regard to them. 

Mr Justice Hayden also considered the issue of disclosure of the documents held by the SSHD into family law proceedings. He did not agree that there should be a presumption of "exceptionality" before SSHD disclosure orders were made, but did acknowledge that disclosure might be necessary in only a very limited number of cases.

Following shortly after Mr Justice Hayden's decision, Mr Justice Mostyn considered the relationship between an application for a grant of asylum, and an application for the summary return of a child under the Hague Convention 1980 in FE v YE [2017] EWHC 2165 (Fam)

He concluded that it is impossible for a return order to be made while an asylum claim is pending and until all rights of appeal have been exhausted, however, in those circumstances, it is both possible and desirable for the Family Court to hear the return application under the Hague Convention 1980, but to provide that no return order shall take effect until no less than fifteen days after the promulgation of the immigration tribunal's decision.

Mr Justice Cohen, in F v M [2018] EWHC 2106 (Fam) (explored above under the heading "Enforcement and recognition of orders"), adopted the approach of Mr Justice Hayden in F v M and A [2017]. In that case, the child's refugee status was granted as a result of and dependent on the asylum status granted to her mother's new partner, the father to her younger, half-brother.  

The Court was not persuaded by the submission that the subject child's refugee status, granted as a dependent, should be considered any less of a bar to return than it was in F v M and A [2018], notwithstanding its acceptance that the child had no well-founded fear of persecution herself, concluding: "there are no different tiers between refugees" [§58].

Mr Justice Cohen further declined to invite the Secretary of State to participate in the proceedings, or to encourage her to reconsider her decision to grant asylum to the child in light of the Russian Court's decision that her best interests were served by returning to Russia. He held, per Mr Justice Hayden in F v M and A [2017], that it was not for the Court to suggest the SSHD should reconsider her decision without any evidence of error.

Re-entering the state of habitual residence and Article 13(b) of Hague Convention 1980

In Re W [2018] EWCA Civ 664, the mother (a British national) who had unlawfully removed the child from the USA, maintained that she was unable to return to the USA and therefore the children, aged 3 and 5, would be placed in an intolerable situation pursuant to Article 13(b). At first instance, Mrs Justice Knowles ordered the children's return, with or without their mother. The Court of Appeal overturned her decision and substituted it with an order that the children should only return if their mother was able to enter the USA with them, with liberty to restore the application if there was any indication that the mother is not pursuing her visa application.

Although the substantive issue related to the mother's immigration status, it was adjudicated through the prism of Article 13(b). The Court of Appeal confirmed:

1. There is no, two-stage test to assessing a defence under Article 13(b). Whether Article 13(b) has been established requires a consideration of all the relevant matters, including protective measures, but in some cases this may not require lengthy analysis.

2. The Court must focus on the child, not the source of the risk, and must look in detail at what the situation would be from the children's perspective, if they were returned.