username

password

Established
Family Law Week Email SubscriptionHousing Law WeekAlphabiolabsBerkeley Lifford Hall Accountancy Services

Home > Judgments

P (A Child) (Abduction: Inherent Jurisdiction) EWCA Civ 1171

The case concerned P, a boy aged 4. His parents are Indian citizens. Although both sets of grandparents live in Gujarat, neither parent currently lives in India. F’s father (“F”) became a US citizen following a previous marriage and is an Overseas Indian Citizen, so can enter India without a visa. P’s mother (“M”) lives in the United States, although entered the country in 2015 without a visa and has an outstanding asylum application. The parties met in 2015 and P was born in 2016. He is a US citizen.

___

Background

In March 2017 M and F entered into a custody agreement in New Jersey which permitted F to travel with P without M's consent.  A sole custody order was made in F's favour by the New Jersey Court on 2 May 2017.  F claimed the sole custody order was because M knew he was moving to India with P, and M claimed it was because she told he needed it to travel to India for one month with P.

On 28 June 2017 F told M he had bought one-way tickets for himself and P, leaving on 27 July 2017.  The parents disagreed about whether M was aware that F intended to move to India permanently, and that F (at least) took the view the parents' relationship was over.  M contacted New Jersey lawyers on 3 August 2017 to discuss abduction.

M commenced proceedings on 12 July 2018 and obtained an order for joint custody on 16 September 2018.  F became aware of the order shortly after.  M made a criminal complaint against F for kidnapping and an international arrest warrant appears to have been issued against F.  He was arrested under that warrant on 2 October 2020, having travelled to England on 1 October 2020.  F alleges that M lured him to bring A to England in order to facilitate his arrest.  F remains in prison.  P was in foster care in England and has been re-introduced to M through video contact.

M had issued Hague Convention and inherent jurisdiction proceedings and (following P's arrival), P was made a ward of court.  On 23 March 2021 the New Jersey Court awarded M temporary custody of P to secure his return to the US so that the court could take longer term decisions about P. 

The Convention proceedings were heard from 15-19 March 2021.  At that hearing M sought P's return to the US and F sought his return to India.  The Guardian supported P's return to the US if M's account was accepted, and P's return to India if F's account was accepted.  On 26 March 2021 the judge dismissed M's application that P return to the US, and ordered that he should return to India. 

On 9 April 2021 the wardship was discharged, and the judge directed that P should return to India on 16 April 2021.  The judge preferred F's account of P's departure from the US.  M applied for permission to appeal on 12 April 2021 and a stay was granted on 15 April 2021.  Following the decision P moved to his paternal aunt's care in anticipation of his return to India, and remained there following the grant of permission to appeal on 16 April 2021.

Issues on appeal

There were 3 broad grounds of appeal:


(1) A failure to respect international comity by ignoring the New Jersey Court order for P to return there;

(2) An inadequate welfare analysis, and in particular the (un)likelihood of contact between M and P if P returned to India;

(3) A challenge to the finding that M consented to permanent removal from the US to India.

Decision

The court dismissed ground 3, the challenge to the finding about consent.  M argued that the trial judge gave insufficient weight to the fact she sought legal advice a matter of days after P's departure to India.  The Court of Appeal noted that there was other evidence which supported F's case, and that the judge's conclusions were sustainable on the evidence as a whole.

In relation to ground 2 (judicial comity), it was noted that the court was not being asked to recognise or enforce the New Jersey Court orders (and noted the US has not ratified the 1996 Hague Convention on Jurisdiction, Applicable Law Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children).  More fundamentally, the US orders were made on the basis of M's allegation of abduction, and in light of the trial judge's finding that P had not been abducted, she was entitled to give no weight to the existence of those orders.  Ground 2 was therefore also dismissed.

The Court of Appeal noted that ground 1 (welfare analysis) was really the crux of the appeal.  At the outset, Jackson LJ noted the unusual circumstances that P had been taken from the US (a Convention signatory) to India (not a signatory), hence the hybrid nature of the hearing, considering both Convention defences and the inherent jurisdiction.  Having considered the leading Convention authority of Re M (Children) [2007] UKHL 55 and the leading inherent jurisdiction authorities of Re J [2005] UKHL 40 and Re NY [2019] UKSC 49, Jackson LJ confirmed [para 39] that "what is therefore needed in all cases is an inquiry that sufficiently identifies what the child's welfare requires".  Whilst recognising that the judge could have expressed her decision more fully, the Court of Appeal dismissed M's appeal on this ground, concluding that the judge was entitled to find that M did not offer a viable placement for P at this time, as her actions had led to P being removed from F's care and being placed with strangers (para [47]).

Case summary by Julia Belyavin, Barrister, St John's Chambers

For full case, please see BAILII