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MA v DB [2010]

Proceedings, concerning the alleged wrongful removal of children from Greece to England, under the Child Abduction and Custody Act 1985 and pursuant to Brussels II Revised and Hague Convention. Issue as to the jurisdiction of the court to make residence and contact orders. Held that the orders would be made under the court’s inherent jurisdiction.

Judgment in Hague Convention proceedings alleging wrongful removal from Greece. The father lived in Greece and the mother in England. It was established that the father had no rights of custody and therefore the originating summons was dismissed. However both parties were anxious for the residence and contact arrangements to be settled by English court order and for there to be other safeguards by way of undertakings and declarations in respect of habitual residence. A question arose as to the court's jurisdiction to make orders for residence and contact in such circumstances. Parker J briefly reviewed the court's power to make section 8 orders under the inherent jurisdiction and, accepting the mother's undertaking to issue an originating summons and dispensing with the formalities of evidence and service, made the residence and contact orders to take immediate effect but to be confirmed upon issue of the originating summons.

Summary by Stephen Jarmain, barrister, 1 Garden Court

FAMILY DIVISION                                       
Royal Courts of Justice
Thursday, 27th May 2010

(In Private)

B E T W E E N :

MA Applicant

-  and  -

DB Respondent


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Ms. Jacqueline Renton (instructed by Anthony Louca) appeared on behalf of the Applicant.

Mr. John Reddish (instructed by Lloyd Solicitors) appeared on behalf of the Respondent.


(For revision)

1. I am dealing with two children - M who was born in April 2001 and L who was born on 1st May 2002 - in proceedings pursuant to the Child Abduction and Custody Act 1985 alleging wrongful removal from Greece  and which also, therefore, are pursuant to Brussels II Revised and the Hague Convention.  These proceedings come before me today for final hearing.  Advice has been taken from a Greek expert who has established that the father has no rights of custody in relation to these children.  Therefore, the father now accepts that the originating summons must be dismissed. 

2. The father lives in Greece.  The mother is living in England with the children.  The parties are both anxious that arrangements in respect of the residence of the children and contact should be made the subject of an English court order, and also that there should be other safeguards - by way of undertakings and declarations - in respect of the habitual residence of the children within the body of the order. 

3. The question arises as to what is the jurisdiction of the court pursuant to Hague Convention proceedings, which are not family proceedings within the meaning of the Children Act 1989, to make such orders.  This is an issue which has previously concerned me in other cases.  I raised this with counsel who suggested to me that the matter might be dealt with by way of recitals and agreements, although the father's representative in particular was concerned that this would not be effective for annex 2 and annex 3 certificates to issue pursuant to the Council Regulation and that the orders would not be enforceable.  I think that she is right in that regard.  I am told that this issue has recently come before other Judges of this Division and that Mrs. Justice Black has recently made an order for residence and contact pursuant to the inherent jurisdiction without the issue of proceedings.  Mr. Justice Roderick Wood has recently directed that proceedings be brought pursuant to the Children Act 1989 under the Principal Registry, thus providing the foundation for a series of s.8 orders.  He suggested that the way in which this matter might be dealt with at the Principal Registry is for the mother to file a statement along with her Children Act application, which would explain to the Principal Registry that it was intended that the order of the High Court - made essentially without notice, but by agreement of the parties - should come into effect without further formality. 

4. I am quite clear in my mind that there needs to be a jurisdictional foundation for the court's order.  Although once family proceedings within the meaning of the Children Act are in being, the court may make any order of its own motion but only a s.8 order pursuant to s.10 of the Children Act.  I am quite satisfied that proceedings pursuant to the inherent jurisdiction of the court in relation to children are family proceedings within the meaning of the Children Act.  The Act says so by s.8(3).  I am also quite satisfied that it is not necessary for a child to be made a ward of court in the order for the inherent jurisdiction of the High Court to be invoked.  That is a proposition which has been repeatedly confirmed in decisions prior to this.  I am also quite satisfied that, once inherent jurisdiction proceedings are in being, the court has powers to make any s.8 order.  I am also satisfied that this court has the power to dispense with all formalities in order to bring proceedings to a mutually agreed conclusion.  Certainly, that was something which was frequently done in the old days when wardship was the jurisdiction of choice and often the only jurisdiction available to parties prior to the implementation of the 1989 Act, in order to seek various forms of relief in relation to children. 

5. Part 5 of the Family Proceedings Rules lays down the procedure for the issue of an originating summons and what steps need to be taken to bring that originating summons - pursuant to the inherent jurisdiction - on for hearing.  Where these parties agreed at the conclusion of Hague proceedings that the jurisdiction of the English court should be invoked, and have reached a mutually agreed conclusion, I do not see any reason for the formalities which would otherwise be a necessity to be entered into. 

6. The order, therefore, that I intend to make is: first of all, to take an undertaking from the mother to issue an originating summons pursuant to the inherent jurisdiction.  One of the reasons why I am persuaded by counsel to go down the inherent jurisdiction route rather than the Children Act route today is because it is just possible that the mother's existing public funding certificate -because these proceedings are also brought under the inherent jurisdiction of the High Court  as well as under the Statutory regime - may serve to cover the cost of the issue of an originating summons.  I intend that my order for residence and contact - which is in the form agreed between the parties on which I need not elaborate, save to say that the mother will have a residence order in respect of the children and the father will have contact order to take effect both in England and Greece - should take effect as from today, but shall be confirmed upon the issue of the originating summons. 

7. I dispense with service of the originating summons and the filing of any evidence.  I dispense with any conciliation appointment or any further hearing and/or other formalities.  I give the parties liberty to apply to me in relation to implementation of the order. 

8. So far as any issue which might arise upon the issue of the originating summons in the PRFD is concerned, I shall direct that should be allocated to the Senior District Judge and shall invite him to liaise with me in respect of any matter arising. 

9. I should add, of course, that if the parties wish to vary these arrangements -consensually or otherwise - they are at liberty to issue Children Act proceedings in the normal way, which will proceed to a normal conclusion if they cannot resolve matters by agreement.  No order made in relation to children is ever a final order.  My order is not intended to oust the jurisdiction of the court or the ability of the parties to invoke it if necessary. 

10. I am asked to provide for a transcript of this judgment both to assist the Principal Registry, should that be necessary, and because it is thought that the proposed way forward in this case may assist in other cases.  It seems that this problem, certainly in my experience, has arisen in other cases.  I shall therefore order that there be a transcript at public expense. 

11. If, of course, it transpires that I or counsel have overlooked anything in seeking to use this method of  providing a proper jurisdictional foundation for the order, the parties may invoke the liberty to apply and we will have to look to see whether there is some other route or mechanism to achieve the same result.  I hope that that will not be necessary.

In fact after this judgment had been delivered  I looked again at the papers, to find that the Originating Summons had in fact been issued pursuant to the Hague Convention only, although the orders drawn had all referred to the inherent jurisdiction in their headings.