Ex parte applications: Health Warning: Wasted Costs

B-v-A 10.12.12 Charles J

The judge made a wasted costs order in respect of the Respondent's costs incurred in relation to proceedings in which a Location order had been made ex parte and which after it had become apparent the Respondent was not in the jurisdiction, was left in place as a precaution.

Charles J is scathing in respect of the practises and procedures of the FD in respect of Tipstaff orders and what he perceives as the casual attitude to their use.  

His judgment is long and is worth reading for those who practise in this field.

One extract illustrates his view.

'The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young  [2012] 2 FLR 470 at paragraph 26 (ii) to (v). 

KY v DD (Injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 confirms the need for caution, care, rigour  and close scrutiny in respect of applications for and the grant of Tipstaff orders on a without notice basis.

In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated'Understandably, the father’s solicitors also point out that each of the judges (and in particular the judge on 12 December 2011) made the orders sought  on the basis of the information provided and did not raise points or make any complaint about any non-compliance with the principles and procedures relating to without notice applications.  This leads to the point (not raised by the father’s solicitors, but by me during argument) whether such a failure can be said to be negligent if it accords with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications.

I have dealt with the serious and in my view inexcusable failures to comply with the principles and procedures relating to without notice applications in this case in paragraphs 56 to 79 hereof.

Although, as I have mentioned I have sympathy with the father’s solicitors, in my view, those serious failures to comply with those principles and practices are negligent in the Ridehalgh sense, and cannot be justified or excused by endemic failures to apply them by practitioners and judges in the Family Division.

Wardship: a new lease of life

Hunt v Hunt [2012] All ER (D) 217 (Oct)

The Family Division considered proceedings issued by the mother under the Hague Convention on the Civil Aspects of International Child Abduction alleging wrongful retention of the child or otherwise seeking summary return to Mexico.

The court found that an agreement ostensibly reached between the parties in the Mexican court had not acted as retrospective consent to fix the child's habitual residence in Mexico. This was because the Applicant father had made the child a ward of court in England soon after her abduction and Macur J held that as a result the father was not able to consent on his own to her remaining in Mexico or giving the Mexican courts jurisdiction. Only the court could do so and thus the Convention proceedings were dismissed on the basis of the child's habitual residence in the UK.

This case is a useful example of how the wardship jurisdiction provides additional protection to children. Had the father only issued Children Act proceedings he would have been able to consent on his own to the child remaining in Mexico and the mother's application for a return might have succeeded.

IFLG and Prof. Teitz on the 1996 Hague Convention

The International Family Law Group hosted an address by Prof Louise Teitz, the First Secretary of the Hague Conference speech  on the 1996 Hague Convention and an update on the work of the Conference. David Hodson and Denise Carter welcomed Prof Teitz and she proceeded to give a frank and informative update to the work of the Conference. The USA is in process of implementing the Convention and measures are going through the Senate and Congress to amend the UCCJEA. Other countries also considering implementation include New Zealand and Canada and Turkey is considering signing the  1996 Convention. The Hague Conference is working hard to extend its reach into South America and Asia.  Prof Teitz remined practitioners of INCADAT the case database maintained by the Conference. The Good Practice Guide is currently in draft and the final version should be published in Spring 2013. Prof Teitz commended the English Central Authority the ICACU as an exemplary Central Authority. She also noted that  the Convention promotes the adoption of mediated or agreed settlements not just the use of legal redress. Amongst the other work of the Conference is the 2007 Maintenance Convention which enters into force in Jan 2013. It has limited coverage now but the USA has signed and it is going through Congress. The Conference is working on an initiative to create a mentor system between central authorities of existing & new members. The ECtHR decision in X-v-Latvia  from the Grand Chamber not available yet. The Conference was unable to file an intervention as the Council (the governing body of the Conference) had raised issues with the Conference having filed an Interveners brief in the Abbott case in the US Supreme Court. A Working Group to publish a Good Practice guide on Art 13b is being established. The group will meet in June 2013. An Experts working group is looking at cross border recognition and enforcement of mediated multiple issue agreements. The Malta process involving Sharia based countries has issued protocols but there has not been concrete progress. A Mediation sub-group of 6 members & 6 non members is at work and a sub-group has resulted in contact points between some countries to work in a way analogous to CA'srying to promote contact points within Embassies to include providing Skype to facilitate contact. The guide to good practice is being translated into all official EU languages and Arabic by  the EU  There is also ongoing work on cross border recognition of civil protective measures, on surrogacy and research on relocation which is trying to build consensus that relocation should receive more attention by experts working group. Building such a consensus is hard. During a lively question and answer session Prof Nigel Lowe  gave some feedback on his most recent research which has found substantial increase in abduction cases and  increasing delay. Carolynn Usher thanked Prof Teitz and echoed the thoughts of all - how do they do so much on a budget of 3million euros?

Adoption: Placement abroad

ADOPTION: Re B (Placement For Adoption: Grandmother’s Objection) 20.11.12 (Thorpe, Elias and Black LJJ)

The Court of Appeal allowed an appeal from a Slovakian grandmother against a placement order in respect of her grandchildren. The case illustrates the difficulties of assessment of relatives from abroad and how LA’s may need to show more flexibility in their approach.

Parental Rights in EU countries: Information from EJN

Check out the following web pages if you want to check the position on PR in EU countries. For Hague cases where there is a lack of clarity over rights of custody this might contain the answer.
As it is part of the European Judicial Network it's contents may carry some weight and might avoid an expensive SJE or unnecessary Article 15 applicaiton.

http://ec.europa.eu/civiljustice/parental_resp/parental_resp_gen_en.htm

Relocation: Munby LJ considers K-v-K

RE F (A Child) [2012] EWCA Civ 1364
Munby LJ has considered the decisions of Thorpe LJ, Black LJ and More-Bick LJ.
He emphasises in particular
(a) do not get bogged down in debates about whether it is a primary carer or shared residence case.
(b) the only principle is welfare
(c) the Payne discipline can still be useful in ensuring that all relevant factors are taken into account but ultimately one is applying the welfare checklist and the Payne discipline can be incorporated within that where relevant

1996 Hague Convention

There will be separate Central Authorities for England and Wales under the 1996 Hague Convention.

BIIR: Recognition of orders and habitual residence

Whilst we were all enjoying our summer holidays Lord Justice Munby was delivering the judgment of the Court of Appeal in Re L (A child) [2012] EWCA Civ 1157 in which the decision of Macur J not to recognise a Portuguese order and to accept jurisdiction in England was over-turned.
The two principle issues were
(a) the interpretation of Article 23(a) BIIR  'manifestly incompatible with public policy having regard to the best interests of the child', and
(b) habitual residence

The Court of Appeal confirmed the very high threshold for non-recognition that is set by Art 23(a). They considered that BIIR already incorporated the best interests of the child in the same way the UKSC considered the 1980 Hague Convention incorporated them. Only in exceptional cases would it be possible to say that the enforcing court's assessment of the child's best interests meant Art 23(a) was engaged. In order to meet the very high bar the court would have to conclude that there was a very high degree of disparity between the orders effects if enforced and the child's current welfare interests. The CA endorsed the previous approaches of Holman J in Re S, Singer J in W-v-W and Roderic Wood J in LAB -v-KAB.
The court considered that a procedural flaw in the process by which the order was originally generated could (theoretically) meet the Art 23 (a) test (as well as (b) and (d)) but only where it was so fundamental it resulted in an 'egregiously unfair trial'.

In respect of habitual residence Munby LJ confirmed
(i) habitual residence for BIIR has an autonomous meaning (and interestingly that it is different from our domestic interpretation)
(ii) that a child cannot have 2 habitual residences within the EU,
(iii) that a child who moves between two countries on a 2 monthly cycle will retain his habitual residence in the country where he was habitually resident before the cycle commenced and which had the original jurisdiction to make the order sought to be enforced. To hold either that habitual residence switched every 2 months or that the child had no habitual residence was a recipe for jurisdictional chaos and was contrary to the principle of BIIR.  

The limits of the Inherent Jurisdiction

The Court of Appeal addressed the perenially thorny problem of the limits of the Inherent Jurisdiction of the court with respect to children in Re N [2012] EWCA Civ 1086 , a decision of  McFarlane LJ, Thorpe LJ, Sullivan LJ on 11th July 2012. The issue was whether the High Court had jurisdiciton over a British child who was neither habitually resident nor present in England (and where there was no prorogation of jurisdiction). Without ruling out the possibility completely McFarlane LJ(with whom Thorpe and SUllivan LJJ agreed) cast considerable doubt on the jurisdiction and expressed the view that if it did exist it was only in the most extreme cases.

"It seems to me that if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum. Hogg J spoke of very dire circumstances justifying what Thorpe LJ in Al Habtoor was rightly concerned should be a very careful exercise of the jurisdiction if it is to be exercised at all. In Re B the dire circumstances referred to were the circumstances of the 15-year--old young person concerned, who had thrown herself on the mercy of the British authorities and the British authorities had sought orders from the High Court to assist their ability to protect her."

Parental Rights in Germany, Austria and Switzerland

One of the lessons which I learned from the Anglo-Germanophone Conference was not to pass judgment too swiftly in respect of judicial attitudes to the Hague Convention in these Germanophone countries. Whilst we in England have grown accustomed to the fact that unmarried fathers acquire parental authority by being named on the birth certificate or by a relatively straight-forward application to the court the position for unmarried fathers in the Germanophone countries has only recently begun to change. In Germany as a result of the ECtHR decision in Zaunegger and a Federal Constitutional Court decision the German Constitution is being changed to make it easier for unmarried father's to acquire PR. A similar situation exists in Austria.
So when dealing with a case involving an unmarried father from these countries it would seem wise to pause for a moment to consider the possible implications and to recognise that judges in those countries are applying a laws which are (or were until recently) very different from ours in respect of the rights of unmarried fathers.

Bearing that in mind the suggestion that the 1980 Hague Convention distinction between rights of custody and rights of access is redundant is far from being the case. A far greater alignment of the laws of the signatory states would be required before one could contemplate a change to the Conventions to eradicate that distinction.

Children and Families Bill

The draft Children and Families Bill was published on 3rd September 2012. It can be found at:
http://www.official-documents.gov.uk/document/cm84/8437/8437.pdf

The proposals for shared parenting have not yet been published and will be published later in the autumn.

The Justice Select Committee is calling for evidence and submissions are required by 19th October: see
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/new-inquiry-pre-legislative-scrutiny-of-the--children-and-families-bill/

Bi-cultural mediation in international child disputes

An organisation call MiKK can provide mediation in cross border child disputes which involves co-mediation in two languages. http://www.mikk-ev.de/english/bi-national-projects/. The project is still developing.

X-v-Latvia: ECHR Grand Chamber: Art 13b

The Grand Chamber is hearing X-v-Latvia in October. Surprisinglyu only a few national governments are seeking to intervene (apparently Finland and the Czech Republic are) and the UK charity reunite is filing a written intervention. Issues of EU/national external competence may be getting in the way of other EU governments intervening - budget issues may also be playing a part.
In the UK the the 'Neulinger' issues were definitively settled in Re E and Re S by the UK Supreme Court. Whether the ECtHR will adopt the approach of the UKSC will be seen (assuming someone argues it). If the ECtHR does not adopt that approach then the issue will continue to cause problems within the EU in particular but in reality in all ECHR signatory states. The CJEU has said that the EU Charter on Fundamental Rights and Freedoms is a mirror to the ECHR and that it would follow the jurisprudence of the ECtHR on these issues (JMcB -v-LE 2010). What will happen though if divergent approaches develop between the UK/Ireland and other EU countries (who might follow an ECtHR line of authority? As the UK is not a party to the EU Charter (we entered a derogation in the Lisbon Treaty) a schism could develop. We await the decision of the Grand Chamber with interest.

News from Thun.

The Anglophone -Germanophone Judicial Conference took place on 6-8th September 2012. It was attended by judges, government representatives and practitioners from the UK and Ireland, Germany, Austria, Switzerland, Lichtenstein and Holland.

1996 Hague Convention

The UK deposited its instrument of ratification of the 1996 Hague Protection of Children Convention on Monday 30 July. The Convention will therefore be in force for the UK on 1 November 2012.  The MoJ proposes to make an announcement for entry into force. For further information go to http://www.4pb.com/media/publications/Seminar_Notes/Hague_Seminar_Final_Draft.pdf

Applying to register a BIIR order and obtaining Annex Certificates

There has been some debate about the correct forms to use to make an application to register and enforce an order supported by an Annex II certificate. This arises from the reference to use of the FPR Pt 19 procedure. However the combined effect of PD31A para 1.1, FPR r.19.1(2)(a) and PD5A makes clear it should be done using Form C69.
As an aside when applying for a Certificate to support an English order although FPR 31.18 talks of the 'form' to be used, the PD does not specify one but only refers to a statement or affidavit.
There are standard forms now for the Annex Certificates Annex I (D180), Annex II (C60), Annex III (C61), Annex IV (C62)

Mr Justice Ryder reports on family justice

The much anticipated review of Mr Justice Ryder was published on 30th July 2012. The full report can be accessed at : http://www.judiciary.gov.uk/publications-and-reports/reports/family/the-family-justice-modernisation-programme/family-modernisation-final-report

International Judicial Liaison

The Hague Conference published 'Emerging Guidance' in respect of international judicial liaison. This has been a topic of considerable discussion over the years as a result of disagreements as to the manner in which liaison should occur and what can be the appropriate subject matter of liaison. The USA statutes provide for inter-state liaison which, when it involves anything other than purely administrative matters, requires that the parties be given the opportunity to participate and to make factual and legal submissions. In the UK no statute permits such an approach. The Emerging Guidance emphasises the limits of liaison and the need to operate within national constitutional boundaries.

1996 Hague Convention: Part III: A New Hope Rises

Latest word is that the problems over data protection have been settled and the Convention will come into effect November or December 2012.

Lord Justice Munby...

Will be back in the Court of Appeal soon completing his stint as Chair of the Law Commission on 1st August 2012.
Mr Justice Lloyd Jones will replace him.

Joinder of parties to Hague Convention cases

Mr Justice Peter Jackson declined to join a 1/2 sibling of a subject child as a Respondent to Hague Convention proceedings. He did not accept the 1/2 sibling played a role in the care of the child and concluded care meant physical care not emotional support.
He also doubted that FPR 16.2 could be used as a route to join a non-subject child if they did not qualify to be joined as a Respondent

The President has issued a PD relating to applications for recognition and enforcement of maintenance obligations: [2012] 1 FLR 1075

Practice Direction 34C – Applications for Recognition and Enforcement to or from European Union Member States

EU Service Regulation

Moor J had to consider the provisions of the EU service regulation in a recognition and enforcement case last week. The Respondent relied on lack of service of the originating process as a defence. Michael Gration of 4 PB put up a compelling argument, relying on a detailed analysis of the EU service regulation and Articles 18 and 23 of BIIR.
The critical point was that the Service Regulation provides where service has not been proved, that the court cannot proceed to final determination until 6 months have elapsed since service was attempted. The provisions of the Regulation set out a detailed scheme for dealing with service between Member States. The Foreign Process Section in the QBD is the transmitting and receiving agency for England and unless one of the other forms of acceptable service is adopted (service by the courts of the other MS etc) then in order to proceed to final judgment the applicant will need a certificate of service.

BIIR - 1 : Hague Convention - 0

JG-v-EB. Mostyn J has confirmed that in EU cases recognition and enforcement of an existing order is the appropriate route to follow rather than a 1980 Hague application. He points out the relative difficulty in opposing recognition and enforcement as compared with a Hague application and the saving of court time, legal aid money and Cafcass resources as being key reasons for preferring that route and relies on the overriding objective.
In this particular case the Applicant was entitled to non-means and non-merits legal aid to enforce as he had been legally aided in the original proceedings in France. In other cases however obtaining legal aid or private funding could be a stumbling block. The provisions of Art 21(4) might allow the issue to be determined within Hague proceedings and it may be sensible to commence Hague immediately whilst also registering for enforcement. The appeal against enforcement could then be listed within the Hague case with the summary return application being adjourned while that route was pursued.

1996 Hague Convention

The implementation of the 1996 Hague Convention looks as if it might be put back again due to issues raised in relation to data protection and exchanges of information with the other signatory states.
Watch this space.
The 4PB Chambers seminar on the Convention on 22nd June 2012 will go ahead.

Potential Abduction situations: a reminder.....

from Holman J of his judgment in Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 that practitioners and judges need to be alert to potential abduction situations in private law cases.
In Jan 2011 a father removed his child from a Hague Convention country to England and within 7 days commenced proceedings in the PRFD. Despite the fact the child had lived abroad for 4 years and that this was plain from the application forms neither solicitors, counsel, Cafcass or the District Judges identified it as a potential abduction situaiton. Appropriate provisions to serve the left behind parent were not made and the case proceeded to an final hearing where the left behind parent was not represented. A residence order was made.
The left behind parent eventually made a Hague Convention application and the case came before Holman J for final hearing.
By this point the child had been in England for over a year. Had the case been identified as an abduction situation when proceedings had been issued in England it would have been referred to the High Court and/or the ICACU  and a Hague application made a year earlier. 
The fact that the case had been dealt with at the PRFD and by counsel from a chambers specialising in international family law made the failure to spot the case as an abduction situation all the more alarming.  Article 16 of the Hague Convention and the positive obligations on the state not to interfere with Article 8 rights impose a duty on those involved in the family justice system to recognise abduction situations and draw them to the attention of the relevant authorities.
So .... keep an eye out.

UKSC Judgment in Re S

The Supreme Court delivered judgment in Re S on 14th March. The appeal related to Article 13b of the 1980 Hague Convention. It is apparent from the judgment (delivered by Lord Wilson) that the court agreed to hear the appeal because they were concerned that the Court of Appeal judgment diverged in its approach from the UKSC decision in Re E and there was a danger of confusion arising as a result.
The UKSC allowed the appeal and held that the Court of Appeal had been wrong to overturn the first instance decision of Charles J which the UKSC accepted was one which he was entitled to reach on the totality of the evidence available to him. The judgment criticises the restricted focus of the Court of Appeal judgment.
At the core of the appeal was the issue of whether an abducting mother who had mental health problems needed to show there were objectively verifiable risks which would cause her mental health to deteriorate to such an extent that the child would suffer harm or whether proof that her health would in fact deteriorate was enough even though the deterioration was a result of her purely subjective perception of risk.
The UKSC re-affirmed what they said in Re E which was that if it was established that a risk to the child would arise it mattered not what the source was and thus if an individual believed they would be harmed, even if in fact objectively it was unlikely, and as a result their mental health would deteriorate that would create a risk that could be relied on.

In fact the subjective argument did not actually arise on the facts because Charles J decided that the evidence of risk was so strong that there were objectively reasonable grounds for the mother to fear she would suffer abuse on return.

The decision adds nothing new to the law on Article 13b although it does confirm that for this sort of defence to succeed there will need to be powerful evidence which would include
a) evidenceof psychiatric vulnerability predating the Hague proceedings
b) expert psychiatric evidence confirming the mental health problems, the likelihood of deterioration and the likely ineffectiveness of protective measures to prevent that deterioration.
In Re E the UKSC agreed that Pauffley J's was entitled to find that the protective measures would in fact prevent the mother's mental health deteriorating.

What some people are concerned about is the situation of primary carer abductors asserting they will not return with the child and that this will create an intolerable situation. This assertion is often heard but the judiciary have been robust in refusing to accept bare assertions of that sort. Although it will not be enough simply to say 'coach and horses' when such assertions are made (although the UKSC did not consign that argument to history) it can be expected that any such assertion should be scrutinised most carefully and that for the court to accept that the primary carer abductor will not in fact return there will need to be either strong objective evidence which would justify that decision or a determination that whether objectively justified or not the primary carer would not in fact return. It is hard to see a court accepting that without psychiatric evidence to support it in most cases. A person without mental health issues who for no good reason refused to return would find it difficult to prove that they would not, when push came to shove, return.

Although it will no doubt be used by abductors to support that sort of argument it seems unlikely those arguments will succeed save in the rarest of cases where there is strong psychiatric evidence (pre and post the Hague proceedings) to justify a decision not to return.

1996 Hague Convention

Informed sources say that the intention is for the Convention to enter into force on 1st July 2012.
4 Paper Buildings is holding a 1/2 day seminar at 2pm on Friday 22nd June 2012. Speakers will include Lord Justice Thorpe, the Cafcass High Court Team/Cafcass Legal, Helen Blackburn of iFLG and 4 PB's own Henry Setright QC, Marcus Scott Manderson QC, Teertha Gupta (QC by then) and myself.
Drinks afterwards and proceeds to CFAB.
Invitations/application forms will be coming out shortly.

Rumour has it....

1. Cafcass High Court Team are being put under so much pressure by late notification of orders for them to provide reports in Hague Convention cases that they are compiling a league table of those who tell them promptly of such orders and those who do not! I usually include in the directions that the Applicant's solicitors are forthwith to send a copy of the order and a copy of the Bundle to Cafcass.
2. A review of staffing at the RCJ is considering re-grading the role of Associate so that all the current Family Division associates might be re-allocated and staff with a lower civil service grade used in that role. If true it would seem to be a great waste of a enormous pool of accumulated experience and knowledge.  With the retirement of Walter Williams last week after 40 years in government employment any further losses would almost certainly affect the smooth running of the Division.

Commission recommends the EU recognise 8 additional countries as parties to the 1980 Hague Convention.

The European Commission proposed the EU accept Russia and seven more countries as parties to the 1980 Hague Convention on child abduction. If accepted by the Council the move will effectively extend protection for children in the EU to eight new countries: Russia, Albania, Andorra, Armenia, Gabon, Morocco, Seychelles and Singapore.

Article 38(4) of the 1980 Convention stipulates that the Convention applies between the acceding country and Contracting States that declare their acceptance of the accession. Therefore, the European Union has to decide whether to accept the accession of Russia and other countries. As the matter of international child abduction falls into the exclusive external competence of the European Union, the decision whether the EU, via its Member States, should accept other countries' accession to the 1980 Convention has to be taken by means of a Council Decision.

http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/1582&format=HTML&aged=0&language=EN&guiLanguage=en

UK Supreme Court hears Re S today.

The Uk Supreme Court is hearing the case of Re S today (20th February 2012) The case concerns the approach that ought to be taken to the assessment of the evidence in cases where the Respondent relies on the Article 13b exception, particularly where the abductor relies on the impact on themself of a return. The High Court and the Court of Appeal both refer to guidance on the Article 13(b) exception given by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 A.C. 144, including as to the potential relevance of protective measures. The main questions before the Supreme Court are (i) as to whether, and if so in what circumstances, the Article 13(b) exception can be established on the basis of the subjective perceptions of the abducting parent; and (ii) the circumstances in which an appellate court is entitled to interfere with an assessment made by the judge at first instance.

If it is televised find it on http://news.sky.com/home/supreme-court
Case information at http://www.supremecourt.gov.uk/current-cases/CCCaseDetails/case_2011_0265.html

Government response to Norgrove Review

The coalition governments response to the Norgrove Report was published this morning. By and large they have accepted the recommendations of the Report. One significant area where they have departed from the Report is on the question of whether there should be a legislative presumption of shared parenting. The Norgrove Report concluded (based largely on feedback from other countries) that such presumptions were very difficult to operate in practice and could lead to greater rather than less litigation. However the Government have decided that they will introduce some form of legislative shared parenting presumption. The form that such a presumption will take is to be considered by a committee of ministers and is always to be subject to the child's best interests. However it is likely to affirm that it will be in a child's best interests to have a meaningful relationship with both parents post separation provided it is safe to do so. It is hoped that by doing so the importance of both parents will be emphasised with a view to encouraging separating parents to reach arrangements which allow both to play a meaningful role in the life of their child. The Response recognises that there are strong views on each side of the debate and that the evidence in relation to the benefits of such presumptions is not clear but nonetheless the Government has concluded it is a worthwhile enterprise to pursue.

Supreme Court grant permission to appeal in abduction case.

The UK Supreme Court has granted permission to appeal in a case involving the grave risk of harm defence under Article 13b of the 1980 Hague Convention. The main point in the appeal involves a challenge to the way the Court of Appeal approached the question of harm to a child arising out of the likely impact on a mother's mental health where the impact would be caused not by an objective risk to the mother and child but because of her subjective fear of risk. In Re E (UKSC May 2011) the court appeared to approve of the proposition that the source of the harm was irrelevant if in fact it was likely to cause harm to the child but the Court of Appeal judgment suggests that the risk of harm must be objectively a real one. James Turner QC and Geraldine More O'Farrell instructed by Rosleys are for the Appellant and Nic Anderson instructed by Philippa Morgan at Lyons Davidson for the Respondent.
The hearing is listed for 20th February 2012.

1996 Hague Convention Update

The latest news on the implementation on the Convention is May or June 2012. 4 Paper Buildings will be running a 1/2 day seminar on the Convention in April or May.

Hague Conference 6th Special Commission

The Sixth Special Commission meeting to review the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Protection of Children Convention, opened today in the Hague and will continue until 31st January 2012. The programme which follows up Part I which took place in June 2011 includes  presentations and discussions on:

• the enforcement of mediated agreements;
• grave risk of harm defence in return proceedings;
• international family relocation; and
• the future of the Malta Process, a dialogue between senior judges and high ranking government officials from Contracting States to the 1980 and 1996 Conventions and non-Contracting States with Sharia based law. The Process is aimed at improving State co-operation in order to assist with resolving difficult cross-border family law disputes in situations where the relevant international legal framework is not applicable.

Conclusions and Recommendations of the Special Commission on the above topics, as well as other items discussed, will be issued following the closing of the meeting

The Conclusions of Part I can be found at:  http://www.hcch.net/index_en.php?act=publications.details&pid=5378&dtid=2

ECHR decisions on Article 13b Hague Convention

Two recent decisions of the ECHR seem to show somewhat different approaches in the aftermath of the storm that followed their decision in Neulinger and Shuruk-v-Switzerland (June 2010). Following the concerns expressed by the international legal community the President of the ECtHR  made clear in observations to the France - British -Irish Judges Conference in May 2011 that the Court had not intended the decision to be read in the way it had been. These observations were referred to by the UK Supreme Court in the decision of Re E [2011] UKSC 27 [2011]  FLR 758 when that court rejected the contention that the effect of Neulinger was to require a full welfare investigation within Hague Convention proceedings.
In Sneersome and Kampanella -v-Italy (App 14737/09) [2011] 2 FLR 1322 the Court considered whether the Italian Courts had acted in breach of the Article 8 rights of the mother and child when using the 'second bite of the cherry' provisions of Art 11 (7) &(8) of BIIIR to over-ride a non-return order made by the Latvian courts in Hague Convention proceedings. The ECtHR concluded that the Italian courts had breached those rights, primarily because they did not deal with the risks identified by the Latvian courts but also because they did not consider the Italian courts had taken sufficient steps to satisfy themselves that the protective measures proposed were adequate to safeguard the child's welfare on a return. The court DID NOT say that a full welfare investigation had to be undertaken.
This case is interesting for the emphasis laid on the need to consider the reasons for refusal of the Hague court to return as required in order to issue the necessary certificate but also for the emphasis on consideration of protective measures under Art 11(4) to reduce or ameliorate a risk. In this respect the approach of the Court mirrors that of the UK Supreme Court in Re E.

In  X v. Latvia (ECHR Application 27853/09) decided on December 13, 2011 the ECtHR (Third Section) seemed to go further in finding that the decision of the Latvian courts in making a return order was a breach of Article 8. The majority (6) criticised their failure to give weight to a psychological report on the child and other matters and concluded that as a result of a failure to conduct an in-depth examination of the family situation the making of the return order was a disproportionate interference. Interestingly 2 members of the Section gave dissenting judgments in which they stated that they considered the majority decision was to substitute their own assessment of the best interests of the child with that of the domestic courts.  Although the language used by the majority is less emphatic than in the Neulinger stream of cases the decision itself is most unusual for the 'hands on' approach adopted and the way they seem to have acted as a superior appellate court of the sort they are not supposed to be.

Overall  the two cases do not add any further fuel to the Neulinger flames - if anything they are evidence of a retreat by the ECtHR from that stream of decisions.  They do not seem to me to be as radical as Jeremy Morley sees them: http://www.internationalfamilylawfirm.com/2012/01/hague-abduction-convention-under-threat.html?m=

Of interest to European abduction lawyers in particular is  the opening of a route to challenge certificates issued under BIIR Art (7) & (8).

Criminal and Civil Penalties for Child Abduction

The Court of Appeal has considered the role of penal sanctions in child abduction situations in 2 recent cases. Interestingly Lord Justice McFarlane is the link between the two.
In Re W [2011] EWCA Civ 1196 the court confirmed that an abductor could face repeated committals for on-going failures to either return the child or to provide information as to whereabouts. The necessary pre-condition was that each committal would have to be founded on the breach of a new order rather than an on-going breach of one single order. At each committal the court would consider the proportionality of the use of committal.
In R-v-Kayani and Solliman [2011] EWCA Crim 2871 the Court confirmed that the common law offence of kidnapping could be used in parental child abduction situations but recognised that proof of the 4 ingredients would make its use problematic. The offence under the Child Abduction Act 1984 was much more straightforward to prove BUT the Court expressed the view that the 7 year maximum sentence was too low and should be increased.
In neither case did the Court deprecate the use of penal sanctions in parental child abduction situations but rather confirmed that they were appropriate. It may be that one could argue the Court was dealing with abductions at the extreme end of the spectrum where the child had been hidden away for years and the relationship with the left behind parent irreparably damaged but to interpret them so narrowly would suggest that the lower end of the range of criminal penalties for parental child abduction would or should never be used because offences of less seriousness should not be prosecuted.  The accepted wisdom of the last 20 odd years has been that abducting parents should not be prosecuted and non-prosecution undertakings are commonly sought. It may be that in 'straightforward' primary carer removals or holiday retentions where the child/parent relationship has sustained little damage as a result of the abduction that this pragmatic approach will and should continue however the more one moves away from this situation and where the emotional harm to the left behind parent and child becomes greater there will presumably come a 'threshold' when the harm created by a prosecution of a primary carer will be outweighed by the emotional harm caused by the abduction and the public interest in prosecution. It will be interesting to see whether there is any shift in emphasis in this regard following these robust condemnations in the Court of Appeal. The language used in both is stark in describing the impact of abduction and would suggest that the Court of Appeal does not have the same distaste for the use of criminal penalties that family practitioners in the field have accepted as the natural order of things for so long.