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S (Abduction: Hague Convention Or BIIa) [2018] EWCA Civ 1226

The specific issues in this case were whether the court has the power to make a return order summarily at the outset of proceedings in England and, if it has, whether it should do so or should wait before exercising its substantive jurisdiction under BIIa until the determination of proceedings under the 1980 Convention in the other Member State.

  • Neutral Citation Number: [2018] EWCA Civ 1226

    Case No: B4/2017/2982

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM

    Mrs JUSTICE GWYNNETH KNOWLES

    HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 25 May 2018

    Before :

    LORD JUSTICE PATTEN

    LORD JUSTICE MOYLAN

    and

    LORD JUSTICE PETER JACKSON

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    Between :

    Re: S (Abduction: Hague Convention or BIIa)

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    Ms Jacqueline Renton and Ms Charlotte Baker (instructed by Brethertons LLP) for the Appellant

    Mr Richard Harrison QC and Ms Jennifer Perrins (instructed by Anthony Louca Solicitors Limited) for the Respondent

    Hearing date : 8th March 2018

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    Judgment Approved

    Lord Justice Moylan :

    Introduction

    1. The broad context for the issue raised by this appeal is the relationship between Council Regulation 2201/2003 (“BIIa”) and the 1980 Hague Child Abduction Convention (“the 1980 Convention”) in circumstances when a child, habitually resident in England and Wales, is alleged to have been wrongfully removed to or retained in another EU Member State. The specific issues are whether the court has the power to make a return order summarily at the outset of proceedings in England and, if it has, whether it should do so or should wait before exercising its substantive jurisdiction under BIIa until the determination of proceedings under the 1980 Convention in the other Member State.

    2. The appeal in this case was by a father from a return order made summarily at the outset of proceedings. I have said “was” because, following some observations from the court, the appeal was resolved by consent at the outset of the hearing of the appeal. The mother sensibly agreed to the discharge of the summary return order which had been made on 13th October 2017 by Gwynneth Knowles J. She still sought the return of her son (aged 13 at the date of the hearing before the judge) from the Netherlands but accepted that this should, at least initially, be progressed through an application she had made under the 1980 Convention.

    3. Although the appeal had been resolved, the court requested counsel to make submissions on the issue referred to above. We did this because it appeared to us appropriate to address this issue by way of a judgment, given its broader significance. I am grateful to counsel for their respective submissions which, in my view, sufficiently covered the relevant considerations.

    Background

    4. It is necessary to set out only a very brief summary of the background. The parties have two children. Since 2010 they had been living with the mother in England pursuant to an order made by the English court in November 2010. In 2017 the parties agreed that the elder child (who I will call “M”) would spend the summer holidays with the father in the Netherlands. M was due to return to England early in September 2017 in time for the new school term.

    5. The father did not return M on the agreed date. The circumstances leading to this are disputed by the parties.

    Proceedings

    6. On 26th September 2017 the English Central Authority (ICACU) received an application on behalf of the mother for the enforcement of the November 2010 order. ICACU replied on 11th October 2017 making a number of observations, including that any enforcement application would require the relevant Annex Certificate (under BIIa) to be completed and that another option would be for the mother to make an application under the 1980 Convention.

    7. On 10th October 2017 the mother commenced proceedings in England seeking, among other things, an order for M’s summary return to England. These were supported by a statement from the mother.

    8. On 13th October the hearing took place before Gwynneth Knowles J. The mother was represented by counsel. The father was not represented but attended the hearing by telephone. He had provided a position statement prepared for him by English solicitors but he had not by then filed any evidence. The position statement submitted that an application under the 1980 Convention was “the correct means of resolving” the issues including because this would provide an opportunity for M’s voice to be heard.

    9. The hearing was short. The judge heard submissions from counsel for the mother and from the father. The judge decided that she had substantive jurisdiction and that it was in M’s best interests for him to be returned immediately to England. She acknowledged that he “appears to have expressed the wish to remain living with his father” but considered that evaluating M’s wishes was not a straightforward matter because of his particular circumstances.

    10. On 16th October the mother’s solicitors informed ICACU of the order made by the court on 13th October. They then sent a draft copy of the order and a draft Annex II Certificate to ICACU on 18th October 2017.

    11. On 18th October ICACU informed the Dutch Central Authority of the mother’s prospective enforcement application. The Dutch Central Authority replied on the same day providing information about how an order could be enforced in the Netherlands. This information was provided to the mother’s solicitors. In simple terms, the mother would have to appoint her own lawyers to act for her in the Netherlands because the Central Authority could not itself provide any assistance.

    12. The mother telephoned ICACU on 25th October 2017. The mother asked what she should do. ICACU told her that they could not give her advice but reminded her that, as set out in the letter to her dated 11th October 2017, she could make an application under the 1980 Convention.

    13. The mother then made an application under the 1980 Convention which was sent by ICACU to the Netherlands Central Authority on 27th October 2017. It was re-sent by email on 8th November 2017. On 20th November 2017 the Netherlands Central Authority formally responded, stating that the father had been notified of the request and explaining the procedure in the Netherlands for progressing the application. This included that, in the absence of a voluntary return, legal proceedings would need to be commenced by the mother acting through a lawyer authorised to litigate in the Netherlands. Details were also given of the International Child Abduction Centre which would be able to assist the mother in finding a specialist lawyer and to deal with the availability of legal aid.

    14. On 30th November 2017 the Netherlands Central Authority notified ICACU that the father would not agree a voluntary return and asking whether the mother wanted to participate in mediation or to commence court proceedings. This was sent to the mother on 14th December 2017.

    15. The mother replied that she did not wish to engage in mediation but, for reasons which we did not explore, she did not commence proceedings in the Netherlands until February 2018.

    16. On 7th March 2018 this court was informed by the parties that the first hearing in the Dutch court of the mother’s application under the 1980 Convention had taken place earlier that day and that the parties had agreed to attend mediation. The mediation would conclude by 12th March. In the absence of an agreement, the substantive hearing of the application under the Convention would take place within four weeks.

    Submissions

    17. In her written submissions, and more mutedly in her oral submissions on behalf of the father, Ms Renton first argued that the judge had failed to consider the issue of jurisdiction and that the court did not have jurisdiction to make a summary return order. This was based in part on a submission that a summary return order does not fall within the provisions of Articles 1(1)(b) and 1(2) of BIIa and that any application for a return order has to be made under the 1980 Convention in the requested state.

    18. Ms Renton sought to gain support for this submission by reference to what was said to be the practice in other Member State, particularly the Netherlands and France. She relied on a decision of the Dutch Supreme Court: ECLI:NL:PHR:2011:BU2834. In addition, she sought to rely on information gathered from specialist practitioners in other jurisdictions. Whilst a great deal of effort had gone into obtaining these informal observations, we clearly cannot take into account information provided in this way for the purposes of this appeal.

    19. Ms Renton submitted alternatively that, if the court did have jurisdiction to make a summary return order, it should not have exercised its jurisdiction in circumstances where the mother could pursue an application in the Netherlands under the 1980 Convention. She submitted that the proper route to seek to procure M’s return was by way of an application under the 1980 Convention.

    20. Ms Renton made a number of points in support of this submission. First, that the primary route for seeking a child’s return in these circumstances is or should be under the 1980 Convention. This provides, she submitted, an effective and simple means by which any grounds raised in opposition to a summary return can be considered and by which the voice of the child can be heard. Secondly, that taking this course diminishes the risk of conflicting decisions. Thirdly, that orders made after summary hearings are more likely to encounter enforcement difficulties. This is both because of the nature of the enforcement process itself and because of the grounds for non-recognition under Article 23.

    21. Lastly, Ms Renton submitted that the judge was wrong to make a summary return order without having heard the voice of the child, M being a teenager who was said to be expressing opposition to returning.

    22. For the mother, Mr Harrison made a number of general observations about the need to deter and combat child abduction having regard to the harm it causes. This, he submitted, should make the court cautious about giving general guidance. Also, cases are highly fact or context specific and the use of such “expeditious mechanisms” as are available to the court should not be unduly restricted.

    23. As to the issue of jurisdiction, Mr Harrison submitted that the court had jurisdiction to make a summary return order under BIIa. The breadth of the Regulation can be seen from Recital (5), which states that it “covers all decisions on parental responsibility”, and Articles 1(1)(b) and 2(7). He also referred to A v A (Children: Habitual Residence)(Reunite International Child Abduction Centre and others Intervening) [2014] AC 1.

    24. As for the 1980 Convention, Mr Harrison submitted that it is complementary to the court’s powers under BIIa and is not given primacy over the latter. He referred to Article 18 of the Convention and the Explanatory Report by Professor Perez-Vera (paras 39 and 112). In respect of BIIa he referred to Recital 17 and Article 60.

    25. Mr Harrison also pointed to what he submitted could be advantages of the court making a summary return order. These included that an order can provide clarity as to the existence of rights of custody as demonstrated, for example, by In re S (A Minor)(Custody: Habitual Residence) [1998] AC 750. Such an order can lead to the expeditious return of a child while an application under the 1980 Convention can take some considerable time to determine. Such an order also represents an appropriate response by the court to unilateral action by one parent and the court would be entitled to act on the presumption that the parent would comply with an order.

    26. As to the voice of the child, Mr Harrison submitted that the judge had heard the voice of the child in a manner which was appropriate to the circumstances of the case.

    Discussion

    27. I start by setting out some of the provisions of BIIa. Recital 17 provides:

    “(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”

    28. The structure referred to in Recital 17 is set out in Articles 11, 40 and 42. Article 11 contains the mechanism by which the 1980 Convention is “complemented by” BIIa. In particular Article 11(8) makes clear that the courts of the Member State of the child’s habitual residence can make an order requiring the child to be returned even after a “judgment of non-return” has been made by the requested state.

    29. An order made “pursuant to Article 11(8)” is then enforceable under the provisions of Chapter III Section 4, in particular Article 40(1)(b) and Article 42. These contain more robust enforcement provisions (applicable also to access orders) than those applicable to other parental responsibility orders. In particular it is provided, by Article 42(1), that the order is enforceable “without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2”. This paragraph provides that the judge can issue the certificate if a number of requirements have been satisfied:

    “(a) that “the child was given the opportunity to be heard” unless this was considered inappropriate because of the child’s age or degree of maturity;

    (b) that the parties were given an opportunity to be heard; and

    (c) that the court “has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention”.

    30. For other types of parental responsibility orders, Article 23 contains a number of grounds on which recognition can be refused.

    31. Article 60 provides that BIIa takes “precedence” over the 1980 Convention in matters governed by the Regulation.

    32. The background to the structure adopted by BIIa, as referred to above, is explained in some detail in International Movement of Children, Lowe Everall Nicholls 2nd Ed. (paras 28.2 to 28.7) which I quote in full:

    “28.2 In contrast to the original Brussels II Regulation, which did not affect the operation of the Hague Abduction Convention, Art 60(e) of the revised Regulation provides that in relations between Member States of the European Union the Regulation takes precedence over the Hague Abduction Convention 'insofar as they concern matters governed by this Regulation'.

    28.3 The background to this radical change is as follows. It began with a French proposal aimed at facilitating the exercise of cross-border rights of access which was followed by the European Commission's proposal designed to improve the original Brussels II Regulation but which controversially addressed the problem of child abduction through provisions on jurisdiction and on the return of the child. Eventually, the two proposals were amalgamated into a new Commission proposal. This proposal would have effectively disapplied the Hague Abduction Convention within the Community in favour of allowing courts of the State to which the child had been abducted at best only to make provisional holding orders and even then only provided the exceptions akin to those set out in Art 13 of the Hague Abduction Convention applied, with the courts of the child's habitual residence free to make custody orders according to the merits.https://www.lexisnexis.com/uk/legal/ - link0

    28.4 The proposal attracted passionate and protracted debate and Member States were split. However, just when the Commission appeared to be giving up on getting an agreement the Danes (who ironically are not party to the Regulation) brokered a compromise. That compromise was broadly that applications for return of children wrongfully removed or retained would continue to be dealt with under the Hague Abduction Convention but in the event of a refusal to return the court then had to notify the court of the requesting State which in turn had to notify the parties giving them the opportunity to pursue the custody claim which would be decided upon the merits. If that court then required the child's return, that order would be enforceable without further question.

    28.5 This compromise seemed to satisfy all parties and negotiations were eventually completed in November 2003. In fact, however, the impact of the Regulation on the operation of the Hague Abduction Convention is, as will now be seen, rather more intrusive than might have been contemplated at the time of the compromise.

    The basic scheme under the Regulation

    The basic scheme of the Regulation is to:

    (a) preserve the pre-eminence of the Hague Abduction Convention for dealing with applications for the return of abducted children but nevertheless to give some direction on how that Convention should be applied as between Member States; and

    (b) govern the position in cases where a court refuses to make a return order under the Convention.

    The crucial provision is Art 11.”

    33. This background was also referred to by Thorpe LJ in Vigreux v Michel [2006] 2 FLR 1180 (para 37) and by Dr Hans van Loon in his 2015 paper for the European Parliament The Brussels IIA Regulation: Towards a review? (para 2.2).

    34. More recently, the relationship between BIIa and the 1980 Convention was considered by Black LJ (as she then was) in In re A (A Child) [2016] 4 WLR 111 (at paras 26 to 38). The context of that case was different to the present case because England was the requested state under the 1980 Convention application and the appeal was from a summary return order purportedly made under Article 20 of BIIa. However, the judgment sets out a detailed analysis including extracts from the European Commission’s Practice Guide for the Application of the Brussels IIa Regulation which states that the 1980 Convention “continues to apply in relation to cases of child abduction between Member States” as “supplemented by certain provisions of the Regulation” (para 4.1).

    35. In the course of her judgment Black LJ referred to the structure of Article 11 of BIIa as being based “on the premise that the process by which the return of the child is sought” will be an application under the 1980 Convention (para 31). She concluded as follows.

    “38. Given all these indicators that the return of a child who has been abducted from one member state to another is expected to be dealt with under the 1980 Hague Convention and article 11 of Brussels IIA, it seems to me that there would have to be a particularly compelling reason even to think of circumventing a properly constituted 1980 Hague Convention application for the return of a child, by proceeding instead under article 20 of Brussels IIA. In so doing, the court would be falling out of step with the other member states of the EU and abandoning the detailed provisions of the Convention and the Regulation, which have been carefully calibrated to safeguard the interests of parents and children (see: for example, commentary on the Convention by the Supreme Court in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144, paras 14–18). Article 20, useful though it is in appropriate cases, contains no guidance as to the circumstances in which the court will act, save that the case will be urgent and the measures taken “provisional, including protective”. There is no route map of the kind provided by the Convention and article 11, which focuses the minds of the parties and the court upon the issues which are likely to bear upon whether a return order should or should not be granted.

    39. Although the judge was rightly concerned to act quickly in the interests of the child, there was no reason in the present case to abandon the Hague Convention proceedings in favour of article 20 and it was, in my view, wholly inappropriate to do so.”

    As I have said, Black LJ was dealing with what the court should do when a child had been abducted to England and Wales. However, her observations about how the return of a child is “expected to be dealt with” also apply to the situation as existed in the present case.

    Determination

    36. I propose to start by making the following general observations.

    37. First, as I said at the outset of this judgment, this case is dealing with an alleged wrongful removal to or retention in another Member State. Different considerations will arise when the other state is not a Member State and is not a party to any relevant international instrument or is a party to, say, the 1980 Convention. The latter situation was addressed in Re H (Abduction: Habitual Residence: Agreement) [2013] 2 FLR 1426: per Thorpe LJ (at para 8).

    38. Secondly, I fully accept Mr Harrison’s submission about the need to deter and to combat child abduction. In the recent decision of Re W [2018] EWCA Civ 664 I said:

    “Child abduction is well-recognised as being harmful to children. As was noted in Re E, the “first object of the Convention is to deter either parent … from taking the law into their own hands and pre-empting the results of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any disputes can be determined there”.

    39. I also agree that it would be unwise to be unduly prescriptive about how and when the court should deploy a specific type of order available to it given the many varied situations which will arise and the need for courts to deal with cases of abduction expeditiously.

    40. I now turn to deal with the issue of jurisdiction.

    41. I am unable to accept Ms Renton’s argument as to the scope of BIIa. By Article 1(b), BIIa applies to “the attribution, exercise, delegation, restriction or termination of parental responsibility”. Article 1(2) contains a non-exhaustive list of matters within 1(b) and includes dealing with “rights of custody”. Article 2(7) contains a very broad definition of parental responsibility. As Baroness Hale said in A v A, in respect of a summary order requiring children to be returned to England and making them wards (para 29):

    “Parental responsibility is given a wide definition in article 2(7) and must include deciding where the child shall be for the time being. The order to bring the children to this jurisdiction related to the exercise of that power. Furthermore, the order made the children wards of court, which places them in the guardianship of the High Court, and is thus one of the examples expressly referred to in article 1(2)(b).”

    The breadth of the matters within the scope of parental responsibility is also confirmed by the CJEU’s decision in Gogova v Iliev [2016] 1 FLR 158 (paras 26 to 29), to which Mr Harrison referred.

    42. The Dutch decision to which we were referred (see 18 above) appears to have been dealing with the question of which state has jurisdiction to make an order under the 1980 Convention. The child was habitually resident with his father in the Netherlands and had been retained by the mother in Belgium. The father sought an order under the 1980 Convention from the court in the Netherlands. The Supreme Court decided that an application under the 1980 Convention “can only be submitted to the judge in the country where the child is located” (para 3.6). It is not, therefore, relevant to the situation in the present case although it is interesting to note that the application by the father had not been made under any other domestic provision.

    43. I do not consider that the matters relied on by Mr Harrison from the 1980 Convention and the Explanatory Report assist on the issue of the scope of the powers of the courts of the home state under BIIa. In my view Article 18 and paragraphs 39 and 112 of the Explanatory Report are dealing with, as referred to in Article 34, the “state addressed”. Paragraph 39 of the Report makes clear that it is addressing Article 34. The focus of both Article 18 and paragraph 112, when viewed in context, is also on the state in which the child is located. The “competent authorities” mentioned in paragraph 112 are the authorities of the requested state because it is those authorities with which the 1980 Convention is concerned and it is those authorities which can order the return of the child under the Convention.

    44. However, I do accept Mr Harrison’s submission that the court in England and Wales has power to make a summary return order when it has substantive jurisdiction under BIIa. I do not see how it can be argued that an order requiring a child to be returned from another Member State to England does not fall within these provisions. It forms an aspect of the exercise of parental responsibility. Indeed, such orders are commonly made as part of, say, an order permitting a child to spend time with a parent in another Member State. If such an order is within the scope of BIIa, it could not be excluded simply because it was made at a summary hearing. The summary nature of the hearing does not change the nature of the order which would still be dealing with the exercise of parental responsibility and would remain governed by section 1 of the Children Act 1989, making the child’s welfare the court’s paramount consideration.

    45. Accordingly, contrary to Ms Renton’s submissions, I consider that the judge had jurisdiction to make a summary order for M’s return. It is also clear that the judge specifically addressed the question of whether she had jurisdiction by considering where M was habitually resident which was the relevant factor either under Article 8 or Article 10.

    46. The real issue is how the court should approach the question of whether it should exercise the power to make a summary return order when a child is alleged to have been wrongfully removed to or retained in another Member State.

    47. The situation in this case is not the same as that in In re A. I do not, therefore, consider that a “particularly compelling reason” would be required before it would be appropriate for a court to make a return order summarily at the outset of proceedings. However, having regard to the matters set out above, I consider that, absent a good reason to the contrary, the better course is for the court to defer making a return order until an application under the 1980 Convention has been determined in the other Member State. As Black LJ said this is how the return of a child is “expected to be dealt with”. Once such a determination has been made the court can then decide what order to make pursuant to Article 11(8) of BIIa.

    48. Apart from this being the “expected” route, it has certain real advantages. First, a higher degree of direct assistance is likely to be provided by the authorities in the requested state to a party bringing an application under the 1980 Convention than in respect of an application for the enforcement of an order. Secondly, there is a specific obligation on states to determine applications under the 1980 Convention within 6 weeks. There is no such specific requirement in respect of the enforcement of parental responsibility orders. Thirdly, Article 11 provides what is to happen if a non-return order is made. There is, therefore, a tailor-made procedure through which the courts of the respective Member States engage with the case and engage with each other. Additionally, any subsequent return order has an expedited enforcement procedure under Chapter III, Section 4 and, to repeat, “without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with” Article 42(2). The making of a summary return order does not necessarily lead to the expeditious return of a child.

    49. The advantages of an application being made under the 1980 Convention as against making a summary return order are evident from the circumstances of this case. Having obtained a summary return order, the mother found herself unable effectively to apply for its enforcement. It is not, therefore, known whether she might have encountered other difficulties under Article 23, for example on the issue of whether the voice of the child had been heard. Although there were some delays in the mother’s application under the 1980 Convention being progressed, once she engaged with the process required in the Netherlands to progress an application under the 1980 Convention, the court there dealt with the application with expedition. That such applications are dealt with expeditiously can be seen from the information provided in its Annual Report for 2017 by the Dutch Office of the Liaison Judge for International Child Protection (BLIK). This is not to say that a return order would be made but that the process was more likely to be expedited by making an application under the 1980 Convention than seeking to enforce a summary return order by means of BIIa.

    50. I do not propose to deal further with the submissions as to the voice of the child which do not require determination. All I would note is that hearing the voice of the child has an important place in both the 1980 Convention and BIIa.

    51. Finally, I make clear that I do not criticise the commencement of proceedings in England by the mother. There can be good reasons for starting proceedings, including to seek to ensure that the home state is seised of proceedings to make clear that its substantive jurisdiction is engaged. However, it does not follow from this that an order for summary return should be asked for or made, for the reasons given above, as illustrated by the events that occurred in this case.

    Lord Justice Peter Jackson:

    52. I agree.

    Lord Justice Patten:

    53. I agree also.


Judgment, published: 29/05/2018

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