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?