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.

BIIR: Articles 16 and 19: Court First Seised

Re G (A Child) [2014] EWCA Civ 680 The key issue in the case was whether an order for temporary leave to remove a child (made on an application for temporary leave to remove) was a final order so as to conclude proceedings in England with the result that a later application (within the time-span of the temporary leave) in the courts of another EU Member State would result in that court being first seised for the purposes of Article 19 of BIIR. The Court of Appeal decision that such an order concluded the proceedings in England so that there was no ‘lis pendens’ or pending suit in England is a triumph of logic and Europeanism. Whilst this decision on Article 19 does not obviously dove-tail with other recent decisions on other Articles of BIIR which have recently been considered by the English or European Courts the overall approach is wholly consistent with the gradual divesting of Anglo-centric interpretations and tests and the adoption of a European approach. In the “Trilogy’ of UK Supreme Court cases we saw the jettisoning of the long –established and firmly rooted ‘Ex parte Shah’ test for the evaluation of habitual residence in favour of the CJEU approach in Mercredi-v-Chaffe. In Re E in January 2014 we saw the President trenchantly reminding judges and practitioners of both the need to clearly deal with jurisdictional issues but also firmly rejecting any suggestion that the English approach to social work or judicial process was inherently superior to others. All systems are created equal in eyes of EU law. The Court of Appeal rejected the argument (based in large measure on the English concept that orders relating to children are never final) that an order giving temporary leave to remove meant that the English court remained seised of proceedings during the period for which leave to remove was given. The Court of Appeal noted that whilst orders relating to children were not final in the substantive sense that they could not be varied where circumstances required, they were final in the procedural sense that they finally determined that application. Such an interpretation was consistent with the scheme of BIIR which accepted that jurisdiction would shift when there was a change in the child’s habitual residence. To have adopted the Appellant’s contention would have run counter to the fact-based assessment of habitual residence and created an obstacle to the way BIIR was intended to operate. The decision is significant in 2 ways. Firstly it marks another step along the path to a real acceptance of the spirit as well as the letter of BIIR. Secondly the Court of Appeal highlight the fundamental and much mis-understood distinction between jurisdiction and seisin. Much of the Appellant’s argument was in truth an assertion that the English court had retained jurisdiction (based on the child remaining habitually resident during the temporary relocation), rather than an assertion that the court had remained seised of proceedings. The Court of Appeal made very clear that whilst a court might have jurisdiction, it was the job of the court first seised to consider its own jurisdiction and if it concluded another court had jurisdiction, it was obliged to declare that and stay its own proceedings in favour of the court with jurisdiction (Articles 17 and 19 BIIR). Equally if a court was second seised, even though it might be clear that it had jurisdiction, it was obliged under Article 19 to stay its own proceedings until the court first seised determined its own jurisdiction. Mutual trust amongst Member States are key to the proper operation of the Regulation. They are enshrined in Recitals 2 and 21 to the Regulation. This means trusting the courts of other Member States to operate the Regulation according to both the spirit and letter. Without such trust and respect the Regulation could not operate as intended. That in 2014 we are coming to a true appreciation of how BIIR impacts upon the day to day business of families, lawyers and courts shows what a slow-burn EU law is. Slowly the English and European Courts are exploring not only the main darker recesses of BIIR but also the main structures. In the sense that such exploration is highlighting some of the difficulties in interpretation and creating a body of case-law that is harder to keep abreast of (particularly if it originates from the CJEU) it is becoming a more difficult area. However light is being shed and it is undoubtedly becoming easier to see how BIIR operates in practise and to understand (if you know where to look) what the real meaning of various Articles is. The decision highlights the real practical implications of temporary leave to remove decisions and the impact that has on jurisdiction and seisin of a court. Can jurisdiction be retained on such applications? Can proceedings remain live? Both are very uncertain. If you want to attempt to retain ‘live’ proceedings any order will have to be very clearly a provisional order to be reviewed on the return of the child – probably with a hearing date set. Even that might not be enough if it is really only a device to maintain pending proceedings despite a change in habitual residence and a shift in jurisdiction. The CJEU heard the case of E-v-B on 15th May 2014 in which the ability of the parties to permanently prorogue jurisdiction was considered. Declarations that habitual residence will endure whilst the child lives abroad are almost certainly untenable following the “Trilogy” of Supreme Court cases. Very careful consideration needs to be given to the wording of temporary leave to remove orders if the parties wish to retain jurisdiction in England and to prevent a court in another EU Member State (or 1996 Hague Convention Contracting State) becoming first seised of an application over a child.

European Commission Consultation on BIIR

The International Child Law Group submitted a response to the European Commission consultation on the operation of BIIR. Our response can be found at http://www.4pb.com/media/PDFs/ICLG_Response_on_Consultation_on_the_functioning_of_the_Brussels_IIa_Regulation_16_7_14_2.pdf

Passports and other orders against third parties: coercion and legitimate use.

In the matter of B (A Child) [2014] EWCA Civ 814 Many of the Family Division judges have expressed reservations over recent years about the way in which the powers of the court, in particular those under the inherent jurisdiction, have been deployed without sufficient consideration to the often draconian impact they have on the rights of individuals who have not been heard and who may be entirely innocent of any role in the abduction: KY v DD (injunctions) [2011] EWHC Fam 1277, [2012] 2 FLR 200 and B v A [2012] EWHC 3127 (Fam), [2012] All ER (D) 87 (Dec), per Charles J.. Im this case the President identifies the question of general public importance, namely to what extent can a court compel third parties without parental responsibility to take steps to assist in the return of an abducted child, but only gives a partial answer. On the facts of the case he did not need to give the issue a complete review and restatement of the principles; indeed he specifically refrained from doing so and expressed himself in terms which did not seek to place strict parameters around the courts powers. That being said Munby P did make some very clear statements about certain aspects of the use of the supposedly unlimited powers of the inherent jurisdiction. In particular he made very clear that the court cannot deploy its powers as a means of placing pressure on relatives or friends in order to coerce them to assist or to coerce the abducting parent into taking action. He made clear that this was simply unacceptable. Orders can only be made against third parties if they are lawful, have a legitimate purpose and are necessary and proportionate. What the case does not tell us, and deliberately so, are the extent to which the court can make orders preventing a third party from assisting an abductor (by sending money for instance) or requiring them to take steps which might have an effect on the mind of the abductor. Great care needs to be taken in regard to these sorts of orders as in respect of any close family member of the abductor, they will impact on the ability of that person to exercise ordinary rights to family life with the abductor. Care also needs to be taken in respect of the ambit of disclosure orders. The Court of Appeal made clear that a passport order is a form of deprivation of liberty. It restricts the right to freedom of movement which is guaranteed by domestic and EU law. The removal or restriction of that right is a serious matter which can only be applied if it is in support of some other legitimate obligation which the ‘target’ is under. Thus a passport order can be made to prevent an anticipated abduction. A passport could be removed (probably) if there was evidence the ‘target’ had assisted in the abduction and might be guilty of contempt (but only to ensure they remain subject to the court’s jurisdiction). A passport can be removed pending compliance by the target with a disclosure order. A passport could be removed to ensure the target remains within the jurisdiction pending compliance with another legitimate order or until any court process to which the ‘target’ was subject was completed. A passport cannot be removed to restrict the ‘target’s movement in order to induce the abductor to return. When applying for such orders great care should be taken to ensure that it is not applied for or granted on the basis that restricting international movement might induce the abductor to return because they cant see their family or it might result in the target putting pressure on the abductor. The particular issue in the case was that the non-subject child might have been able to provide information about the whereabouts of his mother and sister. The judge required him to give evidence. The Court of Appeal were clear that if a child was to give evidence the court had to carry out a balancing exercise considering the welfare of the child and any harm that giving evidence might result in against the benefit to the court process of such evidence being given. In particular with a child who has Article 8 rights in respect of his family life with the abductor great care needs to be taken to ensure that the child is not put in the invidious position of ‘snitching’ on his parent/sibling with the possible result that all remaining communications are cut. The President was careful to ensure that the decision was not interpreted as a sea-change in the way the powers of the court are deployed in abduction situations. It is unlikely that we will see a dramatic change in the approach of judges or practitioners. What the case should result in is a more measured assessment of the ambit of the orders sought and their potential impact on the target and the reason why they are being sought. In the heat of an abduction situation with the focus on the harm to the child and the left behind parent it is very easy to lose sight of the fact that others, in particular family members also are effected and have rights that are engaged. When considering what orders should be sought the practitioner should be applying (in the background at least) a mental cross check of (a) is the order I am contemplating lawful, (b) is there a legitimate purpose in seeking this order against this individual (c) What rights of that party are engaged? (d) What is the extent to which it is necessary to over-ride those rights in order to protect the child. (e) Where the ‘target’ is a child there must be very careful consideration given to the welfare of the child and the interference with his own Article 8 rights. (f) Is the order proportionate? Bearing in mind applications for these orders will often be done ex parte where the target has no say the duty on practitioners to ensure that only those orders are made which are lawful, have a legitimate purpose, are necessary and proportionate is enhanced.

Costs Allowances in Abduction and Relocation Cases

Legal Services Orders and Costs Allowances. In England the possibility of securing funds from the other party to pay for litigation against that party have expanded significantly in recent years as a result of statutory and judge-led developments. In part this has been to fill the void created by the reduction in availability of legal aid but also has been a natural evolution from the ‘sharing’ principles and from a greater judicial willingness to be more flexible in interpreting the provisions of Schedule 1. A return perhaps to unlocking the principles of equity which lie captive in the judicial breast. Legal services orders are available under the MCA 1973 and costs allowances can be applied for under Schedule 1 Children Act 1989. Recent examples include Rubin-v-Rubin [2014] EWHC 611 (Fam) (Mostyn J 10 March 2014) - this contains a very helpful analysis of the criteria and explores the possibility that such orders might be available in Hague Convention cases. Re PG AND TW (No 1) (Child: Financial Provision: Legal Funding) [2012] EWHC 1892 (Fam)(Theis J; 4 May 2012) For a useful overview of both, see the articles by David Burrows in Family Law: ‘Costs allowances and legal services orders: MCA 1973, s 22ZAQ and 22ZB' [2013] Fam Law 318 and ‘Costs allowances in family proceedings' [2013] Fam Law 457).