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.
Friday 16 March 2012
Thursday 15 March 2012
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.
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.
Wednesday 7 March 2012
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.
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.
Tuesday 6 March 2012
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.
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.
Subscribe to:
Posts (Atom)