Ex parte orders - how long?

Duration of ex parte orders

In Re W (Minors) [2016] EWHC 2226 (Fam) Mostyn J was dealing with a final hearing in respect of an application for a

location order. His judgment provides practitioners with guidance in respect of the duration of ex parte orders.

The mother had obtained an ex parte non molestation order which had been made for a period of one year, with provision in the order for it to be considered at a further hearing on a date to be fixed by the court officer on request by the respondent.

Mostyn J clarified that the order clearly flouts the guidance set out by the President in the President's Practice Guidance of 13 October 2014 in which it is made clear that the duration of an ex parte order prior to a review at an inter partes hearing should not normally exceed 14 days and that provision must be made for a specific return date.

Mostyn J draws practitioners' attention to the editorial notes in the Red Book in respect of ex parte orders, which criticises the President's Guidance as unworkable in practice and which reduces the protection for victims.

"It is perhaps unsurprising that this order was made in this form given the terms of the editorial note which prefaces the Guidance as it is printed in the 2016 edition of the Family Court Practice at p.2681. This note, which in my judgment is intemperate, disrespectful and legally wrong, in effect incites the lower judiciary to ignore the Guidance and to continue with the bad practices that the Guidance was intended to eradicate."

An` ex parte order must specify a return date providing for a full inter partes hearing in order to review the hearing as soon as possible.

Article 15 Transfers; The CJEU give judgment

Child and Family Agency v D [2016] CJEU case 428/15 (27^th October 2016) L. Bay Larsen, President of the Chamber, M. Vilaras, J. Malenovský (Rapporteur), M. Safjan and D. Šváby, Judges – Curia link http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30d579fb7ee630aa40c1a6a3ca3d4fbbcde3.e34KaxiLc3qMb40Rch0SaxyKaxr0?text=&docid=184896&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=796653

 

Summary

The Irish Supreme Court referred to the Court of Justice of the European Union for a preliminary ruling the matter of whether a request for the transfer of Irish Public Law children proceedings from the Irish High Court to the courts of England and Wales fell within the scope of Art 15 BIIa. The CJEU (differing from the Opinion of the Advocate-General) concluded that it did, notwithstanding that the parties would be different and possibly the factual matrix in each state. Any other interpretation would run counter to the purpose of the Regulation and Art 15.  

Issue: Does Article 15 apply to public law care applications by a local authority in a Member State, when, if the Court of another Member State assumes jurisdiction, it will necessitate the commencement of separate proceedings by a different body pursuant to a different legal code and possibly, if not probably, relating to different factual circumstances?
Answer: Yes, it does

Issue: was guidance given on the approach to ‘particular connection’ under Article 15(1)?

Answer: Yes – in order to rebut the ‘strong presumption’ that an Article 8 jurisdiction would be maintained, the establishment of a ‘particular connection’ was essential for there to be eligibility to transfer, and the criteria under Article 1(3) were exhaustive, and were in character evidence of a relation to proximity.




Issue: was guidance given on the approach to ‘a court that is better placed to hear the case’?
Answer: Yes – in addressing that question, the court having jurisdiction must ask itself whether a transfer to the other court was ‘such as to provide genuine and specific added value, with respect to the decision to be taken in relation to the child’,




Issue:  was guidance given on the approach to ‘the best interests of the child’?
Answer: Yes – the requirement that the transfer must be in ‘the best interests of the child’ implied that the court with jurisdiction must be satisfied ‘having regard to the specific circumstances of the case’ that the transfer was ‘not liable to be detrimental to the situation of the child’

Internal Abduction

Re R (child) [2016] EWCA Civ 1016.
The Court of Appeal have said that the test in relation to internal abduction is purely a paramount welfare test. They do acknowledge that the approach set out in Re J (A Child) (Custody Rights: Jurisdiction) [2006] 1 AC 80 may be of some utility. That being so it may be argued that a starting point for a judge hearing an application for the return of a child 'abducted' within England could be that an immediate return would be in the child's welfare interests.
The Court of Appeal declined the invitation to formally adopt the Re J starting point in internal abductions.

Asylum and abduction

Re H (a child) (international abduction: asylum and welfare) [2016] EWCA Civ 988, [2016] All ER (D) 79 (Oct)

 

The Court of Appeal, Civil Division, allowed a mother's appeal from High Court orders for her son to be returned to Pakistan. The mother had claimed asylum in the UK for herself and her son, but subsequently agreed a consent order to return with the child to Pakistan, where the father was living. When she failed to comply with the order, the High Court ordered it to be enforced, even though she and the child had, in the meantime, been granted asylum because her fear of persecution in Pakistan was well founded and there was a real risk of them being subjected to serious harm. However, the Court of Appeal held that the High Court had paid insufficient attention to the asylum claim when it made the consent order and to the grant of refugee status when it decided the order should be enforced. The Court of Appeal set aside both the consent order and the subsequent order enforcing it.

 

What was the background to the case?

 

The father, mother and child were of Pakistani origin. They moved to live in Saudi Arabia. The mother and child visited the UK and refused to return to Saudi. The mother and child applied for asylum in the UK based on allegations of violence and possible exposure to radicalisation.

 

The father sought the child’s ‘return’ to Pakistan using the inherent jurisdiction of the High Court. At the final hearing, the mother agreed to return and the court made an order by consent. Shortly afterwards she resiled from that agreement, and her and the child’s asylum claims were granted.

 

The father sought to enforce the return order and the mother in turn sought to set it aside on the bases of duress by her legal team and a change in circumstances. The court refused her application and made an order enforcing the return order.

 

The mother appealed to the Court of Appeal. The child saw a solicitor and was joined to the proceedings and appealed in his own right on the basis that the High Court should never have approved the original consent order and should have in any event varied it following the grant of asylum. The father cross-appealed, arguing that the High Court had no power to set aside its own order.

 

What issues did the case raise?

 

The case raised a host of issues:

 

• the duty of a judge presented with a consent order to independently consider the child’s best interests
• the circumstances in which a child should be joined as a party
• the powers of a court to set aside its own orders
• the effect, if any, on the courts' powers to order the return of a child where the child has been granted asylum from the ‘return’ country in his own right by the Secretary of State
• whether a grant of asylum can be set aside where it was granted on the basis of allegations denied by the other parent, and whether it can be set aside by the family court or only the Secretary of State
   
   What did the Court of Appeal decide?
   
  The court allowed the appeal on all grounds and set aside the original consent order, observing that the child should have been made a party at that stage. The court also set aside the subsequent order enforcing the original consent return order. The application was remitted for re-hearing with a direction that the child should be a party and the Secretary of State should be joined so that the asylum issues could be properly explored. The reasons for doing so were, in short summary, as follows.
   
  A judge (particularly in wardship) presented with a consent order has a duty to independently consider whether the proposed order is in the child’s best interests. In unusual cases, such as this and in particular where domestic violence is a feature, the court should not rubber-stamp a parental agreement but must instead carry out its own evaluation and, if necessary, adjourn to enable the child to be separately represented so that his interests are not obscured by the parental agreement.
   
  In unusual circumstances, the court of its own motion must consider whether the child’s interests require separate representation. Where factors referred to in Practice Direction 16A of the Family Procedure Rules are present, separate representation may be required.
   
  The grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State may constitute an absolute bar to the return of those children to the country from which they have been granted asylum. An order for return might place the state itself in breach of the protections provided by the UN Convention on the Rights of the Child and the EU Directives. In the alternative, if the grant of asylum (or humanitarian protection) to children in their own right is not an absolute bar, at the least such a grant is  a very significant welfare factor. The Court of Appeal did not determine this issue. The interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State is a very important issue, of which there is no reported case to date, and will require  careful examination at the remitted hearing in the High Court.
   
  The Court of Appeal concluded that because this was a wardship case where welfare was paramount, it did not need to determine the thorny problem of the  powers of a court to set aside its own orders. Where welfare was paramount, the court could always vary its own order on the basis of a fresh welfare evaluation. It was not constrained in the same way as a court considering, for instance, a 1980 Hague Convention order.
   
  What are the practical implications of the decision?
   
  Although the asylum issues are the most complex and interesting, there are a limited number of cases where they will raise their head. As set out above, the remitted hearing will determine the interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to the child in his own right by the Secretary of State and is therefore a work in progress.
   
  In relation to day-to-day practice, the most significant feature is the reminder to practitioners, Cafcass and judges that whilst parental agreement is a good thing, that does not absolve the court from the duty to independently consider the child’s welfare. Rubber-stamping parental agreement, in particular where there is some ‘flag’ such as domestic violence, should be a thing of the past. It is also a reminder that orders under the Children Act 1989 can be re-visited by a court at first instance, albeit not without some change of circumstances.
   
  How helpful is this judgment in clarifying the law in this area? Are there any remaining grey areas?
   
  The focus in the judgment on the need for judges to independently consider welfare, irrespective of parental agreement or how the parents formulate the issues in a dispute, is powerfully emphasised. The possible need for independent representation of the child is also helpfully highlighted.
   
  Grey areas remain in the interplay between the wardship jurisdiction and the grant of asylum (or humanitarian protection) to children in their own right by the Secretary of State, and in the ability of a court at first instance to set aside its own orders where they are not based on a paramount welfare jurisdiction. 
   
  How does the decision fit in with other developments in this area?
   
  Perhaps the most powerful message from the judgment viewed as a whole is the focus on the child and not the parents and their issues. That is wholly in line with the tidal flow in relation to the rights of the child. There is an interesting tension between the emphasis of appellate courts on the need for parents to ‘own’ decisions over their children and the need for the court to ensure the position of the child is not obscured by the position taken by the parents. The asylum issues are a whole different area and we await developments in the remitted proceedings before the High Court.

1980 and 1996 Hague Conventions: new members

The EU has recommended that the accessions of Kazakhstan and S Korea are accepted.
Serbia will join the 1996 Hague Convention on 1 November 201
A Bill has been presented to the Indian Parliament  to permit the country to join the 1980 Hague Convention

Brussels IIa re-cast

Summary of the main changes proposed

 

The Commission proposes to re-cast BIIa. This means repeal and replacement by a new Regulation. The old Regulation will therefore lapse (subject to any transitional provisions) and new cases which do not fall within BIIa Recast will for those who do not adopt BIIa not be covered by either BIIa or BIIa Recast.

For the UK we would be like Denmark – although the 1996  HC or the Luxembourg Convention might apply.

 

Introduction of measures increasing efficiency and improving the functioning of the "overriding mechanism"

• Several substantial modifications are proposed with the aim of improving the efficiency of the return of an abducted child and the problems relating to the complexity of the "overriding mechanism" under the Regulation.
• First of all, the proposal clarifies the time limit for issuing an enforceable return order in line with the view prevailing among those Member States which handle return cases under the 1980 Hague Convention most quickly. A separate six-week time limit would apply to the proceedings before the first instance court and the appellate court, respectively. In addition, the proposal would oblige Central Authorities to also work under a six-week time limit to receive and process the application; locate the respondent and the child; promote mediation while making sure that this does not delay the proceedings, and refer the applicant to a qualified lawyer or file the case with the court. Moreover, the measures proposed include an obligation for Member States to concentrate jurisdiction for child abduction cases in a limited number of courts while respecting the structure of the legal system concerned.
• The proposal limits the number of possibilities to appeal a decision on return to one and explicitly invites a judge to consider whether a decision ordering return should be provisionally enforceable.
• it obliges the Member State where the child was habitually resident immediately before the wrongful removal or retention to conduct a thorough examination of the best interests of the child before a final custody decision, possibly implying return of the child, is given. In this context, when conducting this examination of the best interests of the child, any child who is capable of forming his or her own views has the right to be heard, even if not physically present, using alternative means such as videoconferencing as appropriate.
• The cooperation between the Central Authorities or a direct communication by a judge with the relevant court in the Member State of origin should be facilitated to assess measures ("ad-equate arrangements") put in place in the Member State to which the child should be returned.
• Where the child might be at a grave risk of harm or might otherwise be placed in an intolerable situation if returned to the country of the child’s habitual residence without any safeguards, it should also be possible for the court of the Member State of refuge to order urgent protective measures required there and which, if necessary, can also "travel with the child" to the State of habitual residence where a final decision on the substance has to be taken. Such an urgent measure would be recognised by operation of law in the Member State where the child was habitually resident immediately before the wrongful removal or retention but would lapse as soon as the courts of that State have taken the measures required by the situation.
  Creation of an autonomous consent procedure to be applied to all cross-border placements, flanked by a time limit of eight weeks for the requested Member State to respond to the request
  The proposal concerning cross-border placements foresees the introduction of the following new rules:

• Making consent of the receiving State mandatory for all cross-border placements originating from a court or authority in a Member State
• Introducing uniform requirements for documents to be submitted with the request for consent: the requesting authority has to submit a report on the child and set out the reasons for the contemplated cross-border placement
• Introducing a rule on translation requirements: the request has to be accompanied by a translation into the language of the requested Member State
• Channelling all requests through Central Authorities
• Introducing a time limit of eight weeks for the requested State to decide about the request.

 

Abolition of exequatur with appropriate safeguards to be invoked at the stage of enforcement, i.e. to challenge the recognition or enforcement of the decision given by the State of origin or to challenge concrete enforcement measures ordered by the State where enforcement is sought, in one and the same procedure in the State where enforcement is sought

NB: This is not quite what it sounds!

• As a substantial change, the proposal therefore abolishes the exequatur procedure for all decisions covered by the Regulation's scope. The abolition of exequatur will be accompanied by procedural safeguards which ensure that the defendant's right to an effective remedy and the right to a fair trial as guaranteed in Article 47 of the EU Charter on Fundamental Rights are adequately protected.
•  The defendant parent would have remedies at his/her disposal by which he or she could in exceptional circumstances prevent a decision given in one Member State from taking effect in another Member State. Where there is a concern that any of the grounds of non-recognition or grounds to challenge concrete enforcement measures might apply, the defendant could make an application to challenge recognition and/or enforcement in the Member State of enforcement in one and the same procedure.
• The proposal includes uniform rules to define in which situations not only cross-border enforceability but also enforcement as such could be opposed. The latter rules would govern for example the situation where a change of circumstances occurred. In addition, the rules settle in unified manner situations where the child opposes enforcement or enforcement cannot be carried out due to temporary factual obstacles.
• As such, the time and costs of the exequatur procedure will be saved while the necessary protection of defendants will remain ensured.
  Introduction of an obligation to give the child an opportunity to express his or her views
• The proposal leaves Member States' rules and practices on how to hear a child untouched, but requires mutual recognition between the legal systems.. Notably a distinction is made, as it is the case in the respective Article of the Charter of Fundamental Rights, between the question when the child needs to be given the opportunity to be heard on the one hand (i.e. when he or she is capable of forming/expressing his or her own views) and the question what weight the judge shall give to the child's views on the other hand (which depends on the age and maturity of the child). This distinction has to be recorded in the decision and in a certificate annexed to it. For a parent seeking recognition of a decision on another Member State, this means that a court in that country will not refuse to recognise it on the mere fact that a hearing of the child in another country was done differently comparing to the standards applied by that court.
  Introduction of targeted measures to improve the efficiency of actual enforcement
• Where a decision from another Member State needs to be further detailed or adapted in order to be enforced under the national law of the Member State of enforcement, the competent court of that Member State should make the necessary specifications or adaptations while respecting the essential elements of the decision.
• A party challenging the enforcement of a decision given in another Member State should, to the extent possible and in accordance with the legal system of the Member State addressed, be able to invoke, in the same procedure, in addition to the grounds for refusal of recognition, the grounds for refusal against enforcement as such. The incompatibility with the child's best interests which has been caused by a change of circumstances (such as serious illness of a child) or by the strength of the objections of a child of sufficient age and maturity should only be considered if it reaches an importance comparable to the public policy exception.
• The proposal also foresees an indicative time limit for the actual enforcement of a decision. In case the enforcement has not occurred after the lapse of 6 weeks from the moment the enforcement proceedings were initiated, the court of the Member State of enforcement would have to inform the requesting Central Authority in the Member State of origin (or the applicant, if the proceedings were conducted without Central Authority assistance) about this fact and the reasons for the lack of timely enforcement.
• The proposal further provides that the court of origin could declare a decision provisionally enforceable (i.e.e pending appeal) even if this possibility does not exist in its national law..
  Clarification of the Central Authorities' and other requested authorities’ tasks plus addition of an article on adequate resources
• The proposal clarifies the following aspects: (1) who can ask (2) which assistance or information (3) from whom and (4) under which conditions.. It makes clear that this is (for courts) a cost-free alternative (except for possible translation costs) to the Evidence Regulation and creates a legal basis for child welfare authorities to obtain the necessary information from other Member States through the Central Authorities. For example, a court in a Member State, before making its decision on taking a child into care who is currently present in its jurisdiction, may obtain information through Central Authority channels on whether there are pending proceedings in another country and ask for copies of any decisions ordering protective measures for other children from the same family, and for any social reports on the siblings and their relationship with each other, or on the parent, which are of relevance for the pending proceedings.
• the proposal states that Member States shall ensure that Central Authorities have adequate financial and human resources to enable them to carry out the obligations assigned to them under this Regulation.
   
  the following Articles remain unchanged in the meaning of a Recast: 1, 2, 3, 4, 5, 6, 7, 8(2), 9, 10, 11(1), (2), (3), (5), (7), 12(2), (4), 13,14, 15(1)-(5), 16, 17, 18, 19, 20(2), 21(1), (2), (4), 22, 23(a), (c)-(f), 24, 25, 26, 27, 41(2), 42(2), 44, 48, 49, 51, 53, 54, 55(b)-(e), 56 (2), (3), 58, 59(1), 60(a)-(d), 63, 66, 67 (a), (b).
   
  David Williams QC

The 1996 Hague Convention will enter into force for Norway on 1 July 2016.

Norway deposited its instrument of ratification with the Hague Bureau.

The habitual residence see-saw

Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4

The Supreme Court allowed the appeal of a parent against the Court of Appeal’s decision to uphold the High Court’s finding that the English court had no jurisdiction to determine her application for a shared residence or a contact order in respect of her child, B, because B had ceased to be habitually resident in England immediately she was removed to Pakistan by her other parent. The Supreme Court ruled that a child’s loss of its habitual residence was no longer to be determined on the basis of parental intention, as held in Re J (a minor) (abduction: custody rights), Re [1990] 2 All ER 961, but occurred when the child had disengaged sufficiently from the environment of that residence. Usually a child would not become sufficiently disengaged until they had integrated elsewhere and thus habitual residence would usually be lost at the same time another was gained. That had not occurred in the instant case by the time the parent in England had made her applications. The Supreme Court also confirmed that in cases where the court considered exercising the parens patriae jurisdiction on the basis of British nationality that the reasons why extreme circumspection was to be used was not because exceptionally serious welfare concerns had to be demonstrated but because in such cases there was a risk of a clash of jurisdiction and risks that any order made could not be enforced.

 

 

Radicalisation Cases in Wardship: Guidance from Munby P

On 8 October the President issued Guidance on dealing with radicalisation cases:  http://flba.co.uk/blog/2015/10/08/presidents-guidance-radicalisation-cases/
 

Contempt: A reminder from the Court of Appeal

In the matter of L and Gous Oddin [2016] EWCA Civ 173

78. Before any court embarks on hearing a committal application, whether for a contempt in the face of the court or for breach of an order, it should ensure that the following matters are at the forefront of its mind:

(1) There is complete clarity at the start of the proceedings as to precisely what the foundation of the alleged contempt is: contempt in the face of the court, or breach of an order.
(2) Prior to the hearing the alleged contempt should be set out clearly in a document or application that complies with FPR rule 37 and which the person accused of contempt has been served with.
(3) If the alleged contempt is founded on breach of a previous court order, the person accused had been served with that order, and that it contained a penal notice in the required form and place in the order.
(4) Whether the person accused of contempt has been given the opportunity to secure legal representation, as they are entitled to.
(5) Whether the judge hearing the committal application should do so, or whether it should be heard by another judge.
(6) Whether the person accused of contempt has been advised of the right to remain silent.
(7) If the person accused of contempt chooses to give evidence, whether they have been warned about self-incrimination.
(8) The need to ensure that in order to find the breach proved the evidence must meet the criminal standard of proof, of being sure that the breach is established.
(9) Any committal order made needs to set out what the findings are that establish the contempt of court, which are the foundation of the court's decision regarding any committal order.

RE C (INTERNAL RELOCATION) [2015 EWCA Civ 1305

the proper approach to the whole issue of relocation may be stated in summary as follows:


a) There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child.
b) The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child
c) In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

New Guidance on role of ICACU in cross border placement cases

Care cases with an international element: New ICACU form for requests for cooperation

under Brussels IIa and the 1996 Hague Child Protection Convention and

guidance notes

The International Child Abduction and Contact Unit (‘ICACU’) discharges the day to day

duties of the central authority in England and Wales for Council Regulation (EC) No

2201/2003 (‘'Brussels IIa’) and in England for the 1996 Hague Child Protection

Convention. It acts as a contact point for requests for co-operation into and out of this

jurisdiction made under either Brussels IIa or under the 1996 Hague Convention.

A request for co-operation can be made where the issues are covered by Brussels IIa or the

1996 Hague Convention and the other country is a Member State of the European Union

and/or the 1996 Hague Convention is in force between the other country and the UK

including, for example, if:

• a local authority needs information to assist it in developing a care plan for a child either

because the child or their family are originally from the other country or because they

have family in the other country who may be able to care for the child; or

• because the local authority needs to share information about a child with the authorities

in the other country.

The ICACU has published a form and guidance notes

https://www.gov.uk/government/publications/international-child-abduction-unit-request-forco-

operation-form

for local authorities to use in child protection cases to make a request for co-operation to

another country. The form is intended to help local authorities check their request is covered

by the Regulation or Convention and to ensure that they include enough information to enable

the ICACU to process their request. The form can be completed by a local authority lawyer

or social worker.

The aim of the form is to:

• to reduce delay and improve care planning for the child where the case has an

international element and

• to help local authorities make better formulated requests for information or assistance

to the other country and

• to improve communication when sharing information about the child with the other

country.

The form should be read in conjunction with:

1. the guidance published by the President of the Family Division about the ICACU’s

role in these cases:

http://www.judiciary.gov.uk/publications/presidents-guidance-on-the-internationalchild-

abduction-and-contact-unit-icacu-and-its-role/

2. Departmental advice published by the Department for Education for local authorities

where a case has a cross border element:

2

a. October 2012: Cross-border child protection cases: the 1996 Hague

Convention:

https://www.gov.uk/government/publications/cross-border-child-protectioncases-

the-1996-hague-convention;

b. January 2013: Advice on Placement of Looked After Children across Member

States of the European Union:

https://www.gov.uk/government/publications/placement-of-looked-afterchildren-

in-eu-member-states

c. July 2014: Working with foreign authorities: child protection cases and care

orders: Departmental advice for local authorities, social workers, service

managers and children’s services lawyers.

https://www.gov.uk/government/publications/child-protection-working-withforeign-

authorities