Seeing the child - postscript

On 6th December 2011 Mostyn J declined to order the return of the children to Poland he accepting that they objected and that his discretion should be exercised in favour of a refusal. He made observations on the circumstances in which it might be appropriate to make a suspended return order and when a return should be refused and the Applicant left to invoke his remedy under Article 11(6-8) of BIIR.

Seeing the Child

On 2nd December 2011 the Court of Appeal delivered judgment in Re J, an the appeal by 3 children against an order for their return to Poland pursuant to the 1980 Hague Convention. The children were 15, 13 and 10. The Court of Appeal allowed the appeal in part on the basis that at that age and in the circumstances of the case the judge should have seen the children himself. Guidance was given on the applicability of the President's Practice Note on  judges seeing children (April 2010).

When should judges see children?

The Court of Appeal (Thorpe and Hallett LJ and Sir Mark Potter) today considered a Hague child's objections case involving children aged 15, 13 and 10. A central issue was how the views of the children had been put before the court at first instance, in particular whether the judge should have seen the children. The appeal was allowed with judgments to follow. It seems likely that some guidance on the circumstances in which children are seen by judges may be given.

The Libya Project

Have just come away from court on a case involving 2 children living in Libya. CFAB's Libya project have been involved with the family. They have done amazing work over the last few years in maintaining contact between children who have been taken to live in Libya and left behind family. There was a great documentary on it last year following the 2010 trip.
As a result of events in Libya over the last few months there may be a change in attitudes to women's rights. Gaddafi was at least nominally supportive of the rights of women and children. It is not clear whether the change in regime will further the rights of women and children or result in a stricter adherence to Sharia law.

1996 Hague Convention

The latest news on the implementation of the 1996 Hague Convention is ... it will come into effect on 1st April 2012.
Chambers is intending to run a 1/2 day course on the Convention in late March 2012 so keep an eye out on the website for details.

Supreme Court refuse permission on habitual residence case

On Friday 4th November 2011 the UK Supreme Court refused the father's application for permission to appeal against the decision of the Court of Appeal which concluded that the children were habitually resident in England. (Court of Appeal decision: Re H-K [2011] EWCA Civ 1100)
The Court of Appeal had concluded that Mrs Justice Hogg had wrongly applied the test to determine habitual residence by looking for a degree of permanence in the move which was not required. Ward LJ re-affirmed the importance of the House of Lords decision in Ex parte Shah.  He noted that the judgment of the Court of Justice of the European Union in Mercredi-v-Chaffe could be read as suggesting that the presence of the children in the country had to be permanent which was not so.  A temporary presence, provided it was voluntary and for settled purposes and for an appreciable period of time would be enough to create habitual residence and thus jurisdiction. Ward LJ resolved the apparent conflict between the CJEU and the HL by interpreting the CJEU judgment so as to remain consistent with the HL test in Ex parte Shah.

However it remains plain that
- there is a conflict between the language used by the CJEU and the House of Lords.
- there is some risk of different tests for habitual residence emerging depending on whether the countries concerned are BIIR signatories or not
- a family which moves for an extended holiday, a sabbatical or a time limited employment contract could very well lose the jurisdiction of the courts of the 'home' state.
- there is a significant divergence between different countries to the definition of habitual residence. Some (including some EU countries) would define it in terms closer to the English concept of domicile as would some states of the USA. There is no unanimity in terms of an automonous  meaning of habitual residence in respect of the 1980 Hague Convention


It is slightly surprising that the UKSC declined permission given the important points of principle of general public importance engaged. They also declined permission in the Mercredi-v-Chaffe case itself which was a BIIR case so it would seem that the UKSC would need a truly compelling case for habitual residence to be considered by that tribunal.

European Arrest Warrants, extradition and child abduction

In many child abduction cases brought under the 1980Hague Convention the left behind parent makes a report to the local police. This is most likely when the case is one of wrongful removal, particularly when covert, rather than in wrongful retention cases. By a strange anomaly a wrongful retention is not an offence under the Child Abduction Act 1984 although wrongful removal is. However very few cases result in criminal proceedings being pursued. This is largely because most left behind parents recognise that the prosecution and imprisonment of the the other parent is not likely to be in the child's welfare interests. This approach is reinforced by the Hague Conference Good Practice Guide which itself suggests that the Requesting State should take steps to ensure that the possibility of a criminal prosecution inhibiting a return order is taken into account by the prosecuting authority. Paradoxically it is in those cases where the child has been removed years ago and where they may very well be settled in the requested state that a prosecution is most likely. I say paradoxically because the Hague Convention recognises that the welfare of a settled child may not be promoted by a return to the country of origin yet it is in this sort of case where the Hague Convention process may well be over-taken by the arrest and extradition of the abducting parent, thus nullifying the 'settlement' defence. In European cases where a European Arrest Warrant can be obtained and which it is nigh on impossible to challenge extradition may be almost automatic.  There has been at least one occasion where the abducting parent returned on the same flight as the child - so what I hear you say- well the child was with the left behind parent and the abducting parent with the police and in handcuffs. It is both interesting, and perhaps reassuring, that so few left behind parents seek to use the criminal law as a remedy in child abduction situations given that it can 'trump' the Hague Convention proceedings. An example of parents putting their child's welfare before their own desire for retribution.

Defeat in the Supreme Court

The Supreme Court of the UK delivered judgment today in the first child abduction case they have considered. The good news was we won many of the arguments. The bad news was we lost the case and our appeal was dismissed. The judgment might lead to a mild relaxation of the courts attitude to mums who wrongly remove their children from their home country to oppose their return where they have been exposed to domestic abuse. Lord Wilson of Culverdon (formerly Lord Justice Wilson) and Baroness Hale of Richmond delivered the judgment of the court. I have been trying to work out who wrote which bit. It was Lord Wilson's first judgment since his appointment in May. The judgment is a good read (even to non child abduction lawyers!) as it is pacey and direct (as the authors are in court) as well as being clear and concise. It might set a new benchmark for this sort of case in England and appears to have discarded most of the body of precedence built up by the High Court and the Court of Appeal over the 25 years since the 1980 Hague Convention was enacted.  The case marked Baroness Scotland of Asthal's return to legal practice after 14 odd years as a government minister. Apart from the odd reference to the other silks as 'my noble friend' (House of Lords speak not Supreme Court speak) it was a welcome return for an advocate who mixes great charisma with passion for the clients cause and inside knowledge of the political aspects. Henry Setright QC put on his wide-brim measured hat to weather the blustery showers of James Turner QC's forthright and abundant rhetoric. Richard Harrison (surely QC next year) and Deirdre Fottrell had both worked so hard on their submissions neither put a foot wrong. As for yours truly apart from managing to raise a muffled titter with a gag about John Snow's election night graphics (I shan't try to repeat it) I had little to say in my supporting role to HSQC. Net result: UKSC 1, HSQC and DW Nil. (Even if they did adopt the analysis of Art 3.1 UNCRC and 1980 Hague Convention that I proposed at the original trial in the High Court; or pretty close to it anyway.)