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.