Declarations and Human Rights in Abduction Cases

L v C

[2014] EWFC 1; [2014] WLR (D) 188

Fam Ct: Peter Jackson J: 2 May 2014

There was nothing explicit in the Human Rights Act 1998 to state that declarations could not be granted in the absence of proceedings brought under section 7 and there was no good reason to infer such a restriction. The terms of the 1998 Act did not exclude the court’s power to make free-standing declarations as to Convention rights in appropriate cases and such an application could be approached in the same manner as any other application for a declaration.

(1) granting an application by Ms L for a declaration that she shared family life within the meaning of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms with G, the child, at the point at which G departed from England in January 2014,
(2) refusing to make a declaration that Ms L was acting as G’s “psychological parent” at that time, and
(3) dismissing Ms L’s applications for a residence order and a contact order under section 8 of the Children Act 1989 on the grounds that at the time Ms L’s proceedings were issued G was not habitually resident in England and Wales. The respondent, Ms C, G’s biological mother, opposed the applications on the grounds that the English court lacked jurisdiction.

Although the court did not have jurisdiction to make substantive orders over the child the court did have jurisdiction to make Declarations which might assist in the progress of applications made elsewhere.

Without Prejudice

BE-v-DE [2014] EWHC 2318 (Fam)

Bodey J summarises the law on without prejudice as follows:

THE LAW

20. I have been provided with a lever arch file of 17 authorities. I have not however gleaned that there is any, or any significant, disagreement between counsel about the principles to be applied. I can therefore refer essentially to Phipson on Evidence 18^th edition. The starting-point is that written or oral communications made in a genuine attempt to settle a dispute between the parties will not generally be admitted into evidence: Phipson paras.24-09 and 24-13. The policy is that parties should be encouraged to settle their disputes without resort to litigation and such that they can speak freely: Cutts v. Head [1984] Ch 290 at 306 per Oliver LJ. A first unsolicited letter offering settlement or negotiations marked 'without prejudice' will as a matter of policy therefore be protected; and so it is that the without prejudice principle is said to rest partly (a) on that public policy just mentioned and partly (b) on an express or implied agreement between the parties that they will not later rely in an open context on the contents of settlement negotiations. There has to be a bona fide attempt to resolve a dispute, in the absence of which the without prejudice principle is not engaged: Phipson 24-11. As Mr. Bishop QC says, the words "without prejudice" are not essential, although clearly persuasive. When they are not used, the occasion or document may still be found to be without prejudice "...if it is clear from the surrounding circumstances that the parties were seeking to compromise the action": Rush & Tompkins v. GLC [1989] 1 AC 1280 at 1299 per Lord Griffiths. At para.24-13(d) Phipson puts it in this way:
    
    

    "Even if the words 'without prejudice' were not used, the without prejudice principle will still apply if the circumstances, judged objectively, were such that it can be assumed to have been intended that the communications in question, being made with a view to settlement, be not admitted in evidence."

    
    
21. There is a modest and, in my judgment, obiter suggestion in South Shropshire DC v. Amos [1986] 1 WLR 1271 at 1277 by Parker LJ that the applicable test might be subjective, i.e. that the subjective intent of the person making the proposal - here the husband – is critical as to whether the circumstances of an alleged negotiation showed it to be without prejudice. I read the relevant sentence in South Shropshire as being said in the context of the particular facts of that case. Further, in Pearson Education Ltd. v. Prentice Hall India Private Ltd. [2005] EWHC 636, Crane J declined to follow any such suggestion as may be read in South Shropshire, noting that it would be contrary to the tenets of contractual construction and would lead to the undesirable need for oral evidence and cross-examination on interlocutory applications (such as this one before me). He cited from a decision of Laddie J in Schering Corporation v. CIPLA Ltd. and Neolab Ltd. [2004] EWHC 2587 where Laddie J said at para.17 of his Judgment:
    
    

    "... Can the document be regarded as a negotiating document? If so, and if it is clear that it is intended by the author to be treated as without prejudice, it must be covered by the privilege."

    
    But he, Crane J, further noted that Laddie J had earlier said at para.14 of his judgment:
    
    

    "The court has to determine whether or not a communication is bona fide intended to be part of or to promote negotiations. To determine that, the court has to work out what, on a reasonable basis, the intention of the author was and how it would be understood by a reasonable recipient." [Emphasis added].

    
    
22. Accordingly, in para.22 of his judgment in Pearson, Crane J said that in his view the test is an objective one. I respectfully agree. So too do the editors of Phipson, when they say that the question "... must surely be determined objectively": para.24-14. That is therefore the test which I propose to apply in determining this case. This hearing has in any event not been set up for any examination of the parties' respective subjective views of what was happening or intended to happen on 22^nd April 2013 (ie according to the husband, a start of negotiations by way of his giving the wife 'the document', as his offer; and, according to the wife, a cynical ambush to bully and coerce her into conceding the country X property regime and giving up many of her rights). I therefore have to and shall determine the issue on the paper evidence of the parties, which will almost always be the appropriate approach in any event, if the proper test is an objective one.

Inchoate Rights of Custody: Supreme Court considers the rights of carers

RE K [2014] UKSC 29 The key issue in the case was whether at the time Karl was removed from Lithuania and taken to Northern Ireland his grand mother had ‘rights of custody’ over him so as to make the kidnapping (for that is what it was) of him wrongful (i.e. a breach of the grandmother’s legal rights of custody over him). It is clear that underpinning the analysis was both a moral and philosophical rationale that ‘real world effects’ should take priority over strict legal rights. The decision is, unsurprisingly given that Baronness Hale wrote the judgment, firmly rooted in child welfare and pragmatism. The decision is a majority of 4-1. The majority concluded that where the care of a child is wholly delegated to a third party another by the holder/s of parental responsibility that the third party will acquire rights of custody over the child. They identified 5 criteria which would be required to confer such rights. (a) They must be undertaking the responsibilities, and thus enjoying the concomitant rights and powers, entailed in the primary care of the child. (b) They must not be sharing those responsibilities with the person or persons having a legally recognised right to determine where the child shall live and how he shall be brought up. They would not then have the rights normally associated with looking after the child. (c) That person or persons must have either abandoned the child or delegated his primary care to them. (d) There must be some form of legal or official recognition of their position in the country of habitual residence. This is to distinguish those whose care of the child is lawful from those whose care is not lawful. Examples might be the payment of state child-related benefits or parental maintenance for the child. (e) there must be every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being, so that the long term future of the child could be determined in those courts in accordance with his best interests, and not by the pre-emptive strike of abduction. The justices reached this conclusion by asserting that a distinction is to be drawn between the ‘domestic’ question (namely what rights did the Applicant have under the laws of the country of habitual residence at the time of removal) and the ‘Convention’ question of whether the factual situation resulted in inchoate rights which amounted to ‘right of custody’ for the purposes of the Hague Convention. The 1980 Hague Convention covers rights of custody acquired by operation of law, by court order or by agreement having legal effect under the laws of the country where the child was habitually resident immediately before removal. The justices concluded that ‘inchoate’ rights might fall into the category of an agreement having legal effect. The answer is both yes and no. It has long been a feature of English law (both domestic and Convention) that ‘rights of custody’ can be acquired by a person to whom exclusive care of a child has been delegated by the holder/s of PR. It has long been clear that those sharing the care of a child with the holder/s of PR do NOT acquire inchoate rights. So in that sense this decision does not add much , save to set out some criteria by which the court can evaluate whether inchoate rights have been acquired. The answer is also no because the decision was reached in the face of evidence from Lithuania which made it clear that the Lithuanian authorities did not regard the grandmother as having any rights of custody under Lithuanian law. The decision does place England is head-on conflict with many other jurisdictions who delineate far more clearly between legal and moral rights. The civil law jurisdictions in the EU will find it hard to understand, still less accept the sort of approach the Supreme Court took. Lord Wilson took an approach and delivered a judgment which lawyers will find far easier to understand and accept; based as it was, so firmly in black letter law. The decision of the majority is consistent with the approach the English courts have taken over many years but is difficult to square with the previous appellate decisions in Hunter-v-Murrow (CA) and Re D (HL). The critical difficulty and where the Supreme Court decision may have a dangerous side effect is that it may lull lawyers and others into a false sense of security in thinking that a client has ‘rights of custody’ when for the majority of Hague countries, in particular the EU, they won’t be so viewed. EU countries struggle to accept that a prohibited steps order amounts to a right of custody and still less are they likely to accept that ‘inchoate’ rights of custody are acquired by caring for a child. If this decision results in lawyers or carers delaying an application to court for PR or a CAP it could have lasting consequences for the child. A local authority to whom a parent has delegated care under section 20 CA 1989 will almost certainly not have rights of custody for most other countries, ditto grand-parents with sole and exclusive care. The advice MUST be to apply to court as soon as possible to secure an order which actually gives PR under the Children Act 1989. If there is a threat of sudden removal the MIAM’s exemption should be applied and an immediate application made.