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H (A Child) [2012] EWCA Civ 913

Appeal by father against order in child abduction proceedings. Appeal allowed on the basis that the order was made as a result of a series of misunderstandings about the litigation history.

This is an appeal against an order of Mostyn J made following a two day hearing. The appeal purported to raise legal questions as to whether a child habitually resident in another jurisdiction and wrongfully retained in this jurisdiction could remain on the basis that by intervening delay or by acts or omissions on the part of the applicant parent had resulted in a shift of jurisdiction or acquiescence.

The parties had agreed that the Afather would have primary care of their child in Malta. During a period of contact in England the mother made an application to Leeds County Court and obtained a time limited prohibited steps order and residence orders. It was subsequently, erroneously, believed that those orders remained in force and also that the father had issued child abduction proceedings. Those perceived proceedings were transferred by HHJ Heaton to the High Court and listed for hearing before Mostyn J.

The Court of Appeal held that there had been a series of misunderstandings about the litigation history which resulted in Mostyn J delivering a judgment on a case that had never been before him and which was the product of misunderstanding, mismanagement and misinformation. His order would be set aside.

In relation to submissions about the child's habitual residence the Court considered the provisions of Articles 10 and 17 of the Regulations Brussels II Revised and Thorpe LJ held that:

(i) 'In a case where there has been a wrongful retention in this jurisdiction the court must of its own motion decline to entertain an application which offends the primary responsibility of another European State'; and
(ii) 'It is absolutely plain that an abductor is prevented by the provisions of Article 10 from successfully asserting a change of habitual residence as a consequence of the wrongful retention'.

Summary by Elise Kinnear, barrister, Field Court Chambers

Case No: B4/2012/0874
Neutral Citation Number: [2012] EWCA Civ 913

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 29 May 2012


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(DAR Transcript of
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Ms R Kirby (instructed by Lubna Shah) appeared on behalf of the Appellant father.

Mr D Maxwell-Stewart (instructed by Mr Lloyd Bergen) appeared on behalf of the Respondent mother.

Mr T Gupta QC and Mr A Powell appeared on behalf of the Intervener.

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(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. This is an appeal from the order of Mostyn J dated 12 March 2012 following a two day hearing in his court, which resulted from a directions order made by His Honour Judge Heaton sitting in Leeds on 6 January.

2. On the face of it, this appeal raised legal questions as to whether a child habitually resident in another jurisdiction and wrongfully retained in this jurisdiction could nonetheless remain on the basis that by intervening period of delay or by acts or omissions on the part of the applicant parent had resulted in a shift of jurisdictions or acquiescence sufficient to satisfy the provisions of Article 13 of the Hague Convention.

3. An investigation of the litigation history this morning has established that the conclusions reached by Mostyn J below cannot survive on the simple basis that his understanding of the litigation history was distorted by misstatements of fact or the withholding of relevant information.  So he was led into giving judgment on a factual scenario which was inconsistent with reality.

4. I will briefly explain by reference to a very helpful chronology which has been set before us by Ms Kirby who throughout has acted for the appellant husband.  The proceedings in this jurisdiction are between the appellant father and the respondent mother who have one child born on 20 January 2007.  The parties separated in the spring of 2011 and the separation reflected the father's exodus to Malta at the beginning of the year in order that he should manage a family business.

5. The mother experienced problems in 2011 which were investigated by the Social Care Department of Leeds City Council and during a period of acute difficulty the father returned to this jurisdiction to care for their daughter. Shortly thereafter, the parties agreed that he would undertake or take over the primary care in Malta for a period of three to four years, during which it was envisaged that the mother would pursue an academic course here in Leeds.

6. The father returned to England with the child to facilitate a regime of contact to the mother over the Christmas period.  He arrived on 21 December and the return tickets were bought for 5 January.  On the following day, the mother applied in the Leeds County Court to a district judge who, on her brief statement, made a Prohibited Steps Order and a Residence Order in her favour.  These orders were of limited duration.  Although there was no express return date, a date was fixed in the court calendar for another district judge to reconsider the case on notice on 4 January.  At that hearing the judge transferred the case to the circuit judge and on the following day HHJ Heaton simply stood the matter over to the following day to enable the father to obtain legal representation.

7. That evening counsel instructed on the father's behalf had a telephone conversation with Peter Jackson J in which he sought to engage the court under the Child Abduction Act 1985.  Peter Jackson J, noting that the case was due to return before HHJ Heaton on the next day, simply left matters in that judge's capable hands.

8. Here we find the first substantial misunderstanding or misstatement.  For it was thereafter understood and believed that Peter Jackson J had given directions and made an order which appeared on three typescript pages in the case papers subsequently prepared for future hearings.  The order was a complete fiction.  It may be that it was prepared by counsel and it may be that he intended to seek that order from Peter Jackson J, but we now know for certain sure that no such order was ever made.

9. On 6 January, HHJ Heaton transferred what he believed to be either existing or shortly to be issued  proceedings under the 1985 Act to the Royal Courts of Justice for a directions hearing on 20 January and for a final hearing for two days thereafter.  He stayed the proceedings that had been issued by the mother in the Leeds County Court.

10. It is to be inferred that Judge Heaton either believed that the proceedings under the Abduction Act had been issued or would be immediately issued from the fact that he gave clear directions for their future conduct.  Again, we come upon an erroneous assumption.  We cannot know what was said to Judge Heaton, but we now know that nothing had been issued on the 5th and whether he understood an undertaking as to immediate issue, again there is nothing in his order so to indicate.

11. When the matter came before Moylan J on 20 January he gave further directions, but all in relation to interim contact.  The failure of the parties to agree interim contact led to an application by the mother for an interim contact hearing in the Leeds County Court on the form appropriate for domestic Children Act proceedings.

12. Moylan J joined the general assumption that Child Abduction Act proceedings had been issued and both on 20 January and again on 27 February when the case returned to Judge Heaton's list there was a general and erroneous assumption not only that Abduction Act proceedings were on foot, but also that the father was bound by restrictions on his exeat from the jurisdiction which had been imposed by the retention of the passports achieved by the first order of the District Judge and by an undertaking which he had given to Judge Heaton on 6 January.

13. The reality was that the undertaking was to remain within this jurisdiction and not to seek to remove the child from this jurisdiction, but only until 12 January.  The nature and duration of the undertaking was clear on the court file but unfortunately was not within the case papers considered by Moylan J and in due course by Mostyn J on 12 March.

14. Ms Kirby has explained that the application under the Abduction Act was approved for issue by the Central Authority on 5 January.  It was the understanding of the Central Authority that Ms Kirby's instructing solicitors (who were already on the approved list) would issue the proceedings forthwith either in the Principal Registry or in Leeds.  Unfortunately, the person with responsibility for the case was taken seriously ill on the following day and the application was not in reality issued, and appropriately issued in the Principal Registry, until 7 March.

15.  So in summary, Mostyn J did not appreciate that, first, no application had been issued on either the 5 or 6 January; second, that no order had been made by Peter Jackson J on 5 January, third, that the restriction on the father's return with the child to Malta expired on 12 January; and finally, that the application that he was determining had not been issued until 7 March.  That catalogue of error led him to give judgment on a case that was quite simply never before him.  The case on which he gave judgment was simply the product of misunderstanding, mismanagement and misinformation.  Accordingly, the proceedings on and after 7 March are almost certainly completely superfluous and have led to a considerable waste of costs, both at first instance and in this court.

16. Ms Kirby in her submission this morning has hardly been called upon to justify three grounds of appeal.  Rather, she has had to investigate with the court the true facts, an investigation which has revealed the extent to which Mostyn J proceeded on false facts.  So Mr Maxwell Stewart who has presented the respondent's case with great skill and economy both on 5 May when we gave permission and today, has simply accepted that he cannot hold the order made below.  His concession that the proceedings were superfluous, which flows from his concession that the father had no need of judicial  remedies since he had no impediment to departure, must result in his abandonment of the arguments within his skeleton.

17. He has sought to suggest that the issue that could still be argued for his client's benefit is as to the child's habitual residence on 7 March, the date of the application under the 1985 Act.  That submission seems to me to be hopeless.  The provisions of Articles 10 and 17 of the Regulation Brussels II Revised show that in a case where there has been a wrongful retention in this jurisdiction the court must of its own motion decline to entertain an application which offends the primary responsibility of another European state.

18. Furthermore, it is absolutely plain that an abductor is prevented by the provisions of Article 10 from successfully asserting a change of habitual residence as a consequence of the wrongful retention.  So it seems to me that we should set aside the order below in its entirety.  We should dismiss the proceedings in the Leeds County Court which should never have been issued and which are fit for declaration of the court's own motion under Article 17.

19. We should nonetheless release to the Maltese court the judgment below and the judgment given today.  The judgment below has an abiding validity in so far as it makes clear findings as to fact and credibility in relation to the conflict between the parents and the arrangements that they had voluntarily entered into for the future of their daughter and contained the judge's discretionary conclusion that the court in Sheffield was the more convenient court to decide welfare issues in the future.  For what they are worth, those findings no doubt will be considered no doubt by the Maltese judge when an application is made for Article 15 transfer by the mother's Maltese lawyers.  I can think of nothing else at this stage.

Lord Justice Rimer:
20. I agree.

Lady Justice Black:
21. In fact, the proceedings that Mostyn J was hearing were not any longer necessary by the time they were issued.  I agree that in view of that fact and the various other unfortunate misapprehensions upon the basis of which the case proceeded before the judge we should set aside his order in its entirety and make the consequential orders that my Lord has indicated.

Order: Appeal allowed