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Coulibaly v Coulibaly & Ors (Alleged incompatibility of the Children Act 1989 with the ECHR) (Rev 1) [2018] EWHC 936 (Fam)

In brief: This case began as a private law dispute where the mother (“M”) was very concerned that the father (“F”) would abduct the child. Subsequently (and it is not clear what led to this), the local authority (“LA”) obtained an interim care order and removed the child. The judgment concerns a number of applications (brought by M) for declarations pursuant to the Human Rights Act 1998 that ss 2, 8, 38, 50, and 97 CA 1989 and the whole of the Child Abduction Act 1984 were incompatible with the ECHR. The fundamental point M made was that the statute was not strong or effective enough. Surprisingly, the High Court did not take the opportunity offered to them of overturning huge chunks of statute.

  • Neutral Citation Number: [2018] EWHC 936 (Fam)

    Case No: FD 17 F 00076

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Friday, 9 March 2018

    Before:

    MR JUSTICE HOLMAN

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    Between:

    OLIVIA COULIBALY (Applicant)

    - and -

    (1) GOLO COULIBALY

    (2) MARK VERITY (For the child by his guardian)

    (3) THE LORD CHANCELLOR (Respondents)

    (Alleged incompatibility of the Children Act 1989 with the ECHR)

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    Digital Transcription by Marten Walsh Cherer Ltd.,

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    The Applicant appeared in person assisted by her Mckenzie Friend Mr Charles Duke

    Mr Neil Sheldon appeared for the Third Respondent, The Lord Chancellor

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    JUDGMENT (As approved by the judge)

    If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

    MR JUSTICE HOLMAN:

    1. This judgment is wholly ex tempore and, for reasons which I will explain in a moment, purely summary in nature. The consideration which I have given to the issues which are raised today has, admittedly, been brief.

    2. There was listed today, with one day allowed, a number of wide-ranging applications for declarations pursuant to section 4 of the Human Rights Act 1998 that a number of sections of the Children Act 1989, and also the whole of the Child Abduction Act 1984, are incompatible with the European Convention on Human Rights.

    3. There were delivered to my room yesterday afternoon 7 lever arch files of material. I have not counted up the number of pages, but if one were to assume about 300 to 400 pages on average per bundle, then somewhere between about 2,100 and 2,500 pages are involved. Frankly, the bundles are not coherently arranged and presented, and I could not even readily identify the skeleton arguments for this hearing. In any event, the applicant's series of written submissions themselves total about 70 pages. If one were to assume a reading rate of about 2 minutes per page, that alone would require between 2 and 2? hours of reading time, which ought to be an integral part of the estimated length of the hearing.

    4. Patently, in these circumstances I could, and can, only give to these applications summary consideration today. I therefore made plain at the outset of this hearing that the course I would adopt today was to see if there appears to me to be, even arguably, substance in any of the underlying applications. If there is, I would fix a further and longer hearing for more profound consideration of any such application or applications. My approach, therefore, has broadly been similar to the approach on an application for permission (when permission is required) to make an application, and to see whether it seemed to me that there is underlyingly any arguable case.

    5. The applicant is Mrs Olivia Coulibaly. She appears today in person, but has been assisted throughout the hearing by her brother, Mr Charles Duke, as her McKenzie Friend. At her request, I have indeed permitted Mr Duke to present all the submissions and argument, and the forensic role of Mrs Coulibaly during this hearing has essentially been a passive one, although I perfectly understand that all these issues are ones of intense interest and concern to her.

    6. The factual context of the present applications is, as I understand it, that Mrs Coulibaly is the mother of one child, now aged 7. She is, or was, married to that child's father, so the father has always had parental responsibility for the child jointly with Mrs Coulibaly. As I understand it, the child has always, until very recently, lived with his mother, but there has been a long history of intense litigation between the parents with regard to contact and maybe other matters. As I understand it, throughout that litigation, and still today, Mrs Coulibaly has a very intense fear that the father may try to abduct their son abroad, although he has never so far done so. So a significant part of the background, both to the private law litigation between the parents, and also to the present applications for declarations of incompatibility, is that great fear of Mrs Coulibaly of the risk of her son being abducted abroad.

    7. There have been numerous hearings in the Family Court and also appeals or applications to the High Court, and I believe also on occasion to the Court of Appeal. A very recent development is that last month an interim care order was made on the application of the relevant local authority, and the son has in fact been removed, at any rate for the time being, from the care of his mother and placed with a foster family. That has resulted in a widening or enlargement by Mrs Coulibaly of the range of declarations of incompatibility which she now seeks.

    8. The proposition that certain provisions of the Children Act 1989 are incompatible with the European Convention on Human Rights was first formally raised in the High Court by an appellant's notice issued by Mrs Coulibaly on 2 May 2017. Since then she has, at various times, filed a considerable number of supplementary documents and submissions, the most recent of which was earlier this week. That procedural history, of course, creates a somewhat confusing moving target, in particular for the Lord Chancellor, who has been named as the respondent to these applications, to meet. However during the oral submissions of Mr Duke this morning it was clarified and confirmed and agreed that, by a combination of her appellant's notice dated 2 May 2017 and her various subsequent written skeleton arguments or written submissions to the court, and the oral submissions made today, the totality and scope of all the applications for declarations of incompatibility is as follows.

    9. First, that section 2 of the Children Act 1989 is incompatible with Article 3 of the European Convention on Human Rights (ECHR); second, that section 8 of the Children Act 1989 is incompatible with Article 3 of the ECHR; third, that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the ECHR; fourth, that section 50 of the Children Act 1989 is incompatible with Article 3 of the ECHR; fifth, that section 97 of the Children Act 1989 is incompatible with Article 3, read with Article 10, and also with Article 6 of the ECHR; sixth, that section 1 of the Child Abduction Act 1984, and also the whole of that Act, are incompatible with Article 3 of the ECHR.

    10. So that is the menu of applications which I now consider by this judgment and, as I have explained, my sole consideration today is whether it seems to me that any of these applications is properly arguable, or whether all or any of them should all be summarily dismissed today.

    11. It is next necessary to set out the statutory framework. So far as declarations of incompatibility are concerned, section 4 of the Human Rights Act 1998 provides as follows:

    "4. Declaration of incompatibility.

    (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

    (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

    (3) …

    (4) …

    (5) In this section 'court' means –

    (a) …

    (b) …

    (c) …

    (d) …

    (e) in England and Wales…, the High Court…"

    12. I will in due course summarise the impugned provisions of the Children Act 1989 and the Child Abduction Act 1984 when I come to address each application in turn. It is, however, convenient at this point to set out the material parts of the relevant Articles of the European Convention on Human Rights. Article 3 provides as follows:

    "ARTICLE 3 – Prohibition of torture.

    No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

    Article 5 provides as follows:

    "ARTICLE 5 – Right to liberty and security.

    1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law –

    …"

    There are then set out in paragraphs (a) to (f) various circumstances in which the arrest or detention of a person may be permissible within the scope of Article 5. Article 6 provides as follows:

    "ARTICLE 6 – Right to a fair trial.

    1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…"

    Article 8 provides as follows:

    "ARTICLE 8 – Right to respect for private and family life.

    1. Everyone has the right to respect for his private and family life, his home and his correspondence.

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

    Article 9 provides as follows:

    "ARTICLE 9 – Freedom of thought, conscience and religion.

    1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

    2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

    Article 10 provides as follows:

    "ARTICLE 10 – Freedom of expression

    1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…"

    13. I now come in turn to the sections of the Children Act 1989 which it is alleged are incompatible with one or more of those various rights under the European Convention on Human Rights, and I will briefly describe and address the arguments. It will emerge that some points and themes, particularly in relation to international child abduction, recur several times in relation to a number of the statutory provisions under challenge. The fundamental and essential point is an assertion by, and on behalf of, Mrs Coulibaly that the statutory provisions simply are not strong enough and effective enough to prevent international child abduction which, she submits, may amount to "inhuman or degrading treatment" within the meaning of Article 3 of the Convention. Without so holding, may I make quite clear for the purposes of this case and this judgment that I fully accept that international child abduction, whether it takes the form of unlawful removal from this country, or unlawful retention of the child abroad after a lawful removal, does, or may, expose the child concerned to a form of inhuman or degrading treatment. So, insofar as child abduction is the fear of Mrs Coulibaly, and insofar as her argument focuses on child abduction, I readily accept, but need not keep on repeating, that Article 3 is engaged.

    14. During the course of his submissions, Mr Duke said that "the Children Act is useless" and that "the entire Act needs to be rewritten." Part of the context of his argument is that circumstances have changed in the almost 30 years since that Act was enacted. International child abduction has become more prevalent, and some of the safeguards such as strict border controls on exit have tended to be removed or relaxed. Another phrase used a number of times by Mr Duke during the course of his submissions is that "the Children Act is incomplete." Those points and submissions indicate, to my mind, the flaw or fallacy in the whole, or much, of the argument on these applications. The issue for the court on an application under section 4 of the Human Rights Act is whether or not a provision of the primary, or any subordinate, legislation in point "is compatible" with a Convention right, or whether it "is incompatible" with a Convention right. That is a wholly different question from whether there are gaps in a particular statute, or the whole corpus of legislation generally, and whether or not an Act of Parliament is "incomplete". I readily accept, for the purposes of this hearing and this judgment, that mechanisms for preventing the scourge of international child abduction may be able to be strengthened; but that is a world apart from saying that such provisions as there are in the legislation, whether specifically directed to child abduction or more generally, are themselves incompatible with Article 3.

    15. With those general observations, I turn, first, to the submission and argument that section 2 of the Children Act 1989 is incompatible with the Convention. It is not necessary for these purposes to quote section 2 of the Children Act at length. It makes provision for parental responsibility for children. It includes express provision at section 2(1) that "Where a child's father and mother were married to each other at the time of his birth, they shall each have parental responsibility for the child." So it is that, in the case of Mrs Coulibaly's son, both she and his father have parental responsibility for him. Mr Duke says, correctly, that there is no provision within section 2 or elsewhere in the Children Act 1989 for removing or taking away the parental responsibility of a father or mother who were married to each other at the time of the birth of a child, unless and until an adoption order is made in relation to that child. His argument is that where a parent has abducted a child, or apparently where it is feared, with good objective reason, that a parent might abduct a child, then there should be a power within section 2 or elsewhere in the Children Act for the court to divest that parent of parental responsibility. He submits that the absence of any such power in section 2 renders that section incompatible with Article 3 of the Convention. I express no view whatsoever as to whether or not the Children Act might, or should, usefully be amended to contain such a power. That, as it seems to me, is purely a matter of policy, exclusively for decision by government and, ultimately, Parliament. But that particular argument in relation to section 2 is indeed a vivid example of a situation in which Mr Duke submits that the Children Act "is incomplete" and is useless and needs to be rewritten. In my view it is quite impossible to suggest that the absence from section 2 of some power to divest a parent of parental responsibility when he has abducted or may abduct a child, renders the section or the Act itself incompatible with Article 3 of the Convention.

    16. I move from section 2 to section 8 of the Act. That is headed: "Child arrangements orders and other orders with respect to children", and contains the very well-known "menu" of child arrangements orders which a court may make under the Children Act 1989. These include "a prohibited steps order", which is defined as meaning "an order that no step which could be taken by a parent in meeting his parental responsibility for a child, and which is of a kind specified in the order, shall be taken by any person without the consent of the court". The scope of a prohibited steps order, as so defined, is clearly very wide and very general. There is nothing in section 8 which particularly flags up, or refers to, child abduction. Equally, it is well within the scope of a statutory prohibited steps order for the court to make a prohibited steps order which does prohibit the removal of a child from England and Wales, and indeed several times on every single working day orders of that kind are made within this very building, not to mention courts around the country.

    17. The argument of Mr Duke is that, even when courts do make a prohibited steps order purporting to prohibit the removal of a child from England and Wales, such orders may not always be effective. He refers, in particular, to the fact that there are no longer what he calls "border guards", and the relatively perfunctory scrutiny that may be given to passports at the point of exit. He says, therefore, that a prohibited steps order is "not a watertight solution" to the scourge of international child abduction, and that something much stronger is required. Although I have not studied them, he says that statistics have been obtained from police forces around the land that show, statistically, the incidence of child abduction even when there is a prohibited steps order in place. One only has to summarise the argument and submission to see that it is not, in reality, an argument which turns upon the legislation, but upon the absence of sufficiently strict border control. Again, I express no view as to whether border controls should be made more strict, for that is entirely a matter for government and, possibly, ultimately for Parliament. But the fact that section 8 of the Children Act does not itself contain some different or more express provision in relation to prohibiting international child abduction does not even arguably render section 8 incompatible with Article 3 of the Convention. I mention, for completeness, that initially Mr Duke began to develop similar arguments and submissions around section 13 of the Children Act 1989, which is headed "Change of child's name or removal from jurisdiction"; but he rapidly accepted that any argument based on section 13 did not advance the case at all, and the application and claim that section 13 is incompatible with a Convention right was expressly withdrawn.

    18. I turn, next, to the argument that section 38 of the Children Act 1989 is incompatible with Articles 3, 5, 8, 9 and 10 of the Convention. Section 38 of the Children Act falls within Part IV of the Act, which deals with care and supervision. Section 31 of the Act makes provision for what I will call "full" care or supervision orders. Section 38 makes provision for the making of interim care or supervision orders. Again, it is not necessary to cite any of the express provisions of section 38, for much of the argument of Mr Duke is directed not to what section 38 does contain, but, rather, to what it fails to contain. There is, however, one overarching submission in relation to section 38, namely that it is incompatible with Article 5 of the Convention. I have already quoted the opening words of Article 5 above. The submission is that when an interim care order is made and implemented, it has the effect of depriving the child or young person concerned of his liberty. By Article 5 no one shall be deprived of their liberty save in the cases then listed at paragraphs (a) to (f), and in accordance with a procedure prescribed by law. Clearly, when an interim care order is made there is a procedure prescribed by law, namely the provisions of section 38 itself, but the thrust of the submission of Mr Duke is that the circumstances in which an interim care order is made do not fall within any of paragraphs (a) to (f). I do accept that most of those subparagraphs are clearly not in point at all, but, as Mr Neil Sheldon submits on behalf of the Lord Chancellor, one has to have regard to the content of the subparagraphs in order to understand what is contemplated by the words "deprived of his liberty", which is proscribed by Article 5, save in the permitted circumstances.

    19. I accept the submission of Mr Sheldon that when a child is taken into care pursuant to the making of an interim care order, he is not thereby "deprived of his liberty" in the manner which Article 5, read as a whole, contemplates. Further, I accept the submission of Mr Sheldon that if, in the particular circumstances of an individual case, there is a deprivation of liberty, then that deprivation of liberty can be the subject of case-specific challenge under the provisions of section 7 of the Human Rights Act. This indeed ties in with an important overarching point. The express effect of section 6 of the Human Rights Act 1998 is that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." That section is binding on all public authorities, including, indeed courts. The provisions of the Children Act 1989, wherever they confer a discretionary power, always have to be read and applied with regard to section 6 of the Human Rights Act 1998 and any relevant provision of the Convention. If Mr Duke is correct in his argument that the making of an interim care order necessarily infringes a right guaranteed by Article 5, then the argument would apply no less to the making of a "full" care order under section 31 of the Children Act 1989. Frankly, carried to its logical conclusion, the argument and submission of Mr Duke is that every care order, whether an interim order or a full order, that has ever been made since the Children Act 1989 came into force has been contrary to Article 5 of the Convention, and has been unlawful since the Human Rights Act came into force. I admire Mr Duke for his courage and boldness in making that submission, but, at any rate at the level of the High Court, I reject it as being unarguable.

    20. Other reasons why it is said that section 38 is incompatible with a range of Articles of the Convention are the following. First, Mr Duke argues that there is nothing in section 38 itself which compels a local authority to provide medical assistance to a child whom they have taken into their care pursuant to an interim care order. This, he says, may involve a breach of Article 3 of the Convention. Just to understand the context in which the submission is made, I have been told (I stress that I have absolutely no independent evidence whatsoever with regard to this) that on 7 February 2018 Mrs Coulibaly's son was "forcibly removed" from her care by the police. She says that her son later reported that the police had hurt his arms, and they were really painful. The complaint is that it was apparently not for 13 days that the local authority arranged for her son to be seen by a doctor. Mr Duke submits that there should be an added provision within section 38, or elsewhere in the Children Act 1989, to compel a local authority to undertake an immediate, or very early medical examination of every child whom they take into their interim care, both to check that he or she has not been harmed during the process of removal, if forcible, and also to check for such matters as allergies. He submits that the absence of some such express duty in section 38 or elsewhere in the Act infringes the positive obligation on a state to ensure that no one is subjected to inhuman or degrading treatment, as Article 3 of the Convention requires. Again, I make absolutely clear that I express no view whatsoever on whether or not it should be made mandatory for a local authority immediately to arrange a medical examination of a child taken into their care. That, again, is a matter for government and Parliament. But at its highest, in my view, this is another example of the Act being "incomplete". There is nothing in this regard that renders the Act incompatible with the Convention.

    21. Mr Duke argues also that section 38 of the Act is incompatible with Article 8 of the Convention. He says, in particular, that in order that the important rights under Article 8 of the Convention are respected (which is what Article 8 requires), there should be express statutory provision for what he calls "a transfer plan" before any child is taken into care. He submits that a local authority can at the moment "just come and grab a child, which disrupts the child's private life" and that unless there is an express statutory requirement of "a transfer plan", section 38 is incompatible with Article 8. He further says that often, when a child is taken into care, the child is not enabled immediately to take his own personal belongings with him, and that in order for the Act to be compatible with Article 8 there must be express statutory provision for a child to be able to do so. Again, in my view, these are, at best, matters of good practice, or examples of the legislation being "incomplete", but the absence of express statutory provisions of the kind that Mr Duke contends for does not render section 38 itself incompatible.

    22. Next, Mr Duke submits that section 38 is incompatible with Article 9 of the Convention, which I have quoted above, which guarantees the right to manifest one's religion in worship and other ways. The background to this complaint is that apparently Mrs Coulibaly's son is of the Roman Catholic faith. He was in the habit of regularly attending church while living with her. In the month or so since he was taken into interim care I am told (but I have no evidence from the local authority with regard to this) that "his religion is not being nurtured. He is not going to church." So it is submitted that the absence of some express provision in section 38 or elsewhere in the Children Act positively requiring that a child who is taken into interim care can seamlessly continue to practise his religion and worship is incompatible with Article 9. Again, in my view, this represents, at most, an example of the Act being "incomplete". There is nothing at all in section 38 or anywhere else in the Children Act 1989 which, by statute, impedes or prevents the exercise of the rights guaranteed by Article 9.

    23. Finally in relation to section 38, it is submitted that there is also a breach of the rights guaranteed by Article 10, which I have quoted above. The context is that I am told (again I am unable to investigate this) that since he was taken into interim care Mrs Coulibaly's son has been "restricted from using the internet or making telephone calls." I do not know whether that is so. It may or may not involve an interference with his right guaranteed by Article 10. It may or may not justify some claim or complaint by him, or pursued on his behalf, that that right has been breached; but the absence of some express provision within section 38 of the Act does not render either section 38 or the Act generally incompatible with the Convention.

    24. I turn, next, to the application in relation to section 50 of the Children Act 1989. This is headed "Recovery of abducted children etc" and makes provision in the specified circumstances for a court to be able to make a statutory "recovery order". Mrs Coulibaly and Mr Duke have two quite separate and discrete complaints about section 50. The first is that section 50(3) provides that a recovery order "(d) authorises a constable to enter any premises specified in the order and search for the child, using reasonable force if necessary". As I have already mentioned, it is said that when Mrs Coulibaly's son was taken into interim care early last month, the police applied some degree of force to him personally, which it is said hurt his arm. So Mrs Coulibaly and Mr Duke argue that the permissive provision of section 50(3), which permits the use of "reasonable force if necessary", is directly incompatible with Article 3 of the Convention. The submission starts with the proposition that "any force in any circumstances upon a child infringes Article 3 and is inhuman or degrading treatment." Frankly, I simply cannot accept that starting point. Article 3 is, of course, one of the most important of all the Articles in the Convention. But it does prohibit "torture" and "inhuman or degrading treatment". Those are strong words, and it is not every application of some physical force upon any person, whether a child or not, that amounts to "torture" or "inhuman or degrading treatment". The approach of Strasbourg jurisprudence to the Convention repeatedly acknowledges the concept of proportionality and, in my view, the fact that section 50(3)(d) of the Children Act does authorise the use of "reasonable force if necessary" is not incompatible with the prohibition in Article 3 of the Convention. Of course, if in any given case force which is not reasonable, or which was not necessary, is used upon a child, then there may be a grave breach of Article 3, for which the child may claim a remedy. But that is a very different matter from saying that section 50(3), which authorises the use of reasonable force if necessary, is incompatible.

    25. Mr Duke makes a quite separate and unrelated complaint and application in relation to section 50. It will be recalled that section 50 is headed "Recovery of abducted children etc". It is quite plain that section 50 is, in its scope, limited to the recovery of children within England and Wales, or, at most, the United Kingdom. That plainly follows from many of the detailed provisions of the section. The complaint is that in section 50, or alternatively elsewhere in the Children Act 1989, there is a lack of any positive obligation on a local authority to recover a child who is in their care if that child is then abducted abroad. This, again, is, at most, an example of the Act being "incomplete". Again, there are in fact very considerable policy as well as resource implications in relation to local authorities seeking to recover abducted children from abroad, and whether or not they should be put under some express statutory duty to do so is a matter of policy for the Government or Parliament. But in my view it is not even arguable that the absence of some express provision to that effect in section 50 or elsewhere in the Children Act 1989 renders that section specifically, or the Act generally, incompatible with Article 3 or any other Article of the Convention.

    26. I turn, next, to the complaints and application in relation to section 97 of the Children Act 1989. This is headed "Privacy for children involved in certain proceedings", and then makes express statutory provision in relation to publishing material which is intended, or likely, to identify any child as being involved in any proceedings before the High Court or the family court. The sanction under section 97 is a criminal offence. This is said to be incompatible with Article 3, the prohibition on torture, read with Article 10, the right of freedom of expression and, separately, incompatible with Article 6, the right to a fair trial. This part of the application engages topical and much trodden ground with regard to the extent to which family courts should or should not sit in private, and the extent to which their judgments should be publicised. The particular complaint of Mr Duke is that the effect of section 97 is to fortify what he describes as "secret hearings" within the family courts, and the non-publication of judgments. He draws a contrast between the practice in family courts at first instance, including the High Court, and the practice in the Court of Appeal and the Supreme Court in which hearings are almost invariably in public, even when concerning children, and very full judgments are published, subject only to anonymisation of the name and maybe personal identifying features of the child concerned. The precise submission of Mr Duke is that the lack of compulsion in legislation on courts to hold proceedings concerning children in public and to publish their judgments (albeit anonymised) means that the legislation is incompatible with Article 6 of the Convention. It will be recalled that Article 6 normally requires a "public hearing" and that "judgments shall be pronounced publicly", but with exceptions which include "the interests of juveniles or the protection of the private life of the parties".

    27. It is well known that I personally, probably more than any other current judge of the Family Division, strongly favour and practise openness and transparency in family proceedings. I personally sit in public in almost every case I hear, whether it concerns a child or children, or, for instance, personal financial matters. I am accordingly personally sympathetic to the complaint by Mrs Coulibaly and Mr Duke that family hearings at first instance are too "secret" and that there is too little publicity. That, however, is not the question which currently arises. The question is whether or not section 97 itself is, even arguably, incompatible with Article 6, or Article 3 read with Article 10, of the Convention. There is nothing in section 97 which compels a court to sit in private, and nothing in section 97 which of itself produces incompatibility with the protected rights.

    28. Mr Duke has a separate point, which is that he says that if courts hearing cases or applications in relation to threatened abduction were to sit more publicly and make their decisions instantly publicly known, that might give added efficacy to preventing the abduction of children in breach of court orders. This, of course, brings us back full circle to some of the first applications which I addressed earlier in this judgment. I express no view as to whether Mr Duke is even right in his premise that if a court considering threatened abduction was to sit publicly and make its order publicly, that might more effectively prevent the abduction. Frankly, I am not sure that efficacy is likely to be added by what some officer at Gatwick, or some other airport, may happen to hear on the wireless or read in the newspapers sometime later. But at all events it is always open to a judge immediately to invite widespread publicity in any case in which a child is missing, or international abduction is feared, and indeed from time to time judges of the Family Division do do so. There is, in my view, nothing whatsoever in section 97 of the Children Act 1989 which is incompatible, even arguably, with the Convention.

    29. I turn from the Children Act 1989 to the application and complaint in relation to the Child Abduction Act 1984. Section 1 of that Act makes it an offence in certain circumstances to "take or send" a child out of the United Kingdom without the appropriate consent. It is very well known, and has been appreciated by the courts for many years, that that section is limited in its scope and effect. It applies only to a situation in which a child is unlawfully taken or sent out of the United Kingdom, or in other words unlawfully removed. It has no application if a child is lawfully removed, for instance for an agreed holiday abroad, and after that removal a person then decides to retain or keep the child abroad. Under the Hague Convention on the Civil Aspects of International Child Abduction "wrongful retention" of a child is clearly recognised as every bit as much international child abduction as "wrongful removal" of a child. Unfortunately, that position under the Hague Convention and the civil law is not currently reflected in the domestic, criminal statute. So Mr Duke submits that there is a grave gap in the Child Abduction Act 1984, and accordingly that it does not sufficiently protect against the "inhuman or degrading treatment" involved if a child is unlawfully retained abroad after earlier lawful removal. I quite agree that there is that gap. It is, however, a matter for the Government and Parliament whether or not to close the gap, and just as with all the arguments in relation to the Children Act 1989, this argument amounts in the end to the Child Abduction Act 1984 being "incomplete" rather than "incompatible".

    30. Mr Duke has a quite separate argument in relation to the whole of the Child Abduction Act 1984. He rightly says that Article 3 of the Convention imposes not only negative, but also positive, duties on a state to protect people from being subjected to torture or to inhuman or degrading treatment or punishment. He then submits that the state should be under a positive obligation to repatriate from abroad children who have been abducted abroad, whether through a process of unlawful removal, or a process of unlawful retention. Again, this involves very considerable policy issues with regard to extraterritoriality and what steps one state may or may not permissibly take within another state, and with regard to resources; but in my view it is not even arguable that the absence from the Child Abduction Act 1984 of an express statutory obligation on this state to repatriate abducted children of itself makes that Act incompatible with the rights protected under Article 3, even when viewed as positive obligations on the state.

    31. For the reasons I have given, I am crystal clear, even at this short summary hearing today, that none of these applications for declarations of incompatibility are, in the least, arguable. I will accordingly make an order which, first, recites by list all the applications that Mrs Coulibaly has made for declarations of incompatibility as I listed them at the outset of this judgment, and then orders that all the applications for declarations of incompatibility listed under that recital are summarily dismissed.


Judgment, published: 26/04/2018

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Published: 26/04/2018

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