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R v B (Stranded: Habitual Residence: Forum Conveniens) [2020] EWHC 1041 (Fam)
An application was brought for return orders from Saudi Arabia under the inherent jurisdiction of the High Court. The central factual issue was the question of abandonment, and the alleged stranding of the mother and the children in Saudi Arabia. The mother's case was that she wished to return to the United Kingdom but was unable to, and that the father had engineered this situation. The father said that the mother had settled in Saudi Arabia. She also made allegations of domestic abuse, which HHJ Mark Rogers found to be credible. He also found that the husband's departure from Saudi Arabia, taking the family's passports, was a response to the family breakdown and his desire to isolate his wife and weaken her position. She was stranded in Saudi Arabia, against her will, in circumstances brought about in part, if not in whole, by the father. The children were not in full-time education, and had no access to proper healthcare, and the judge came to the conclusion that they were not habitually resident in Saudi Arabia. The children were British and he was satisfied they required the court's protection and that subsequent matters should be dealt with here. Orders would be required to secure the return of the children to the United Kingdom. Judgment, 22/09/2021, free -
Re A and S (Children) [2021] EWHC 2492 (Fam)
The 15-year-old daughter applied for the release of her own Russian and Greek passports, currently held by the mother's solicitors pursuant to a previous order, so that she could travel for about three weeks with her maternal grandmother to Barnaul in Russia. The father opposed the application. In Holman J's view, the risk of non-return was a low one. The daughter was old enough and mature enough to understand the gravity of a solemn promise given to a judge and to her father, and the gravity of breaking it. Formal undertakings would be given by both the mother and the grandmother which would carry sanctions if broken. The mother's passport would be lodged, together with that of the daughter's sibling, so that if the daughter did not return from Russia, there would be no question of the mother and sibling travelling there to join her. The risk was far outweighed by the benefits to her of the proposed trip and her own strong wish to travel there. The trip would therefore be permitted and the daughter's passports released. Judgment, 20/09/2021, free -
C (A Child) (Abduction: Article 13(b)) [2021] EWCA Civ 1354
The father appealed against the dismissal of his application under the 1980 Hague Convention for the summary return of his eight-year-old daughter to Poland. The judge had determined that there was a grave risk that returning her to Poland would expose her to physical or psychological harm. The father argued that the judge had failed to apply the correct legal principles; wrongly made or purported to make findings of fact; wrongly determined that the Polish authorities would not be able to protect the child following a return to Poland; and made a flawed decision in respect of her objections to a return. Moylan LJ found that there had been no analysis in the judgment of the child's circumstances were she to return to Poland nor of why or whether those circumstances would potentially expose her to a grave risk of harm, as required by Article 13(b). The sole focus in that section of the judgment had been on the allegations about past events. He concluded that the appeal had to be allowed. It would have been preferable, he said, if the court had been able to determine the application, but it was not in a position to undertake the broad analysis required, in particular in respect of how the discretion to make a return order should be exercised in the light of the judge's conclusion that the child objected to returning. Newey LJ and Sir Andrew McFarlane, President of the Family Division, agreed. The appeal was allowed and the matter was remitted to be reheard, as soon as could be arranged. Judgment, 18/09/2021, free -
MZ v RZ (Hague Convention 1996. Habitual Residence. Inward Return) [2021] EWHC 2490 (Fam)
Both parents lived in England. The mother had taken their three-year-old daughter to India in March 2019, and returned without her, leaving the child with the maternal grandparents. Though born in England, the daughter was not yet a British citizen. In April 2021, the father had applied under the inherent jurisdiction for a wardship order and a return order. This hearing was to determine whether the court had jurisdiction (including the question of habitual residence), and whether the father's delay in issuing proceedings was fatal to his application. Peel J concluded that the child had continued to be habitually resident in England and Wales and had been so at the date of the father's application. He noted that the mother had offered very little evidence about the child's situation in India. As to delay, that would be a factor in considering whether wardship and return orders should be made, but it did not entitle the court to strike out the claim unless the prospects of success had been so hopeless as to justify the exercise of case management powers in such a profoundly draconian way. Judgment, 18/09/2021, free -
“certainly not … academic”: Re X (Children) (Article 61 BIIa) [2021] EWCA Civ 1305
The Court of Appeal was concerned with an appeal from a decision of Nicholas Cusworth QC (sitting as a Deputy High Court Judge). By that decision Mr Cusworth QC had determined that the proceedings concerning the parties’ children were subject to the 1996 Hague Child Protection Convention (‘the 1996 Hague Convention’) for the purposes of the lis pendens provisions in article 13. Case note, 10/09/2021, free -
LF v DF (Financial Remedy: Appeal: Costs Debts in a Needs Case)
The former wife appealed against an order consequent upon a financial remedies hearing which had occupied several days in November and December 2020, following which the judge had circulated a draft reserved judgment which itself generated a request for clarification, further email submissions and ultimately a slightly revised approved judgment. The three live grounds of appeal were that the judge had been wrong to make no provision for the wife’s liabilities, had failed to step back and cross-check his award to ensure fairness, and had wrongly imposed a s 28(1A) bar. The latter ground of appeal was dismissed: the actual order made was within the available discretionary outcomes, and justifiable on the evidence. However, in the view of HHJ Mark Rogers, the practical impact of the judge’s exclusion of the costs liability had been to reduce the capital available to the wife for housing by about 37%, contrary to his own assessment of her housing need. The judge’s approach to the calculation of the correct needs-based lump sum had been wrong in law. As to the cross-check, failure to carry one out was not strictly capable of being a ground of appeal, as it was the ultimate decision that was under review, but, in the view of HHJ Mark Rogers, the judge’s failure to do so was clear and illustrated his failure to engage with the true discretionary process. The appeal was allowed and the lump sum order of £475,000 was set aside. The matter was not remitted; HHJ Mark Rogers assessed the appropriate lump sum award at £600,000. He directed that the husband should pay the wife’s costs of the appeal, the quantum of which was determined in a summary assessment, at the joint request of the parties. Judgment, 31/08/2021, free -
J v J (Return to Non-Hague Convention Country)[2021] EWHC 2412 (Fam)
Both parents were British citizens with Overseas Citizens of India status, and both had been living in India. One day before the first court hearing in child welfare proceedings brought by the father, the mother had flown their five-year-old son to England. The father now applied under the court's inherent jurisdiction for the summary return of their son to India, and asserted that this was a "hot pursuit" case. The application was opposed by the mother, who alleged domestic abuse and coercive behaviour. Cobb J reached the clear conclusion that it was in the boy's best interests to be returned to India forthwith, and for his future to be determined in the courts there. He was habitually resident in India, while his situation in England was at best transitory and fragile; for example, he was not attending school here. In Cobb J's judgement, the mother's clandestine and unilateral action in bringing the boy to England had been primarily prompted by her wish to avoid engaging in family court proceedings in India. The allegations of domestic abuse had been laid before the Indian court in the child welfare proceedings there. In his view, the risk of harm to the mother from the alleged abuse could be appropriately mitigated by the protective measures offered by the father, the fact that she could return to live with her parents, and the availability in India of civil law process (the equivalent of non-molestation proceedings). He was satisfied that the Indian court was appropriately seised of child welfare proceedings regarding the child. Judgment, 31/08/2021, free -
Re S (Children) (Inherent Jurisdiction: Setting Aside Return Order) [2021] EWCA Civ 1223
The mother appealed against an order dismissing her applications under the inherent jurisdiction in respect of her children who were residing with their father in Libya. She submitted that the judge had wrongly interpreted and applied the rules in relation to the setting aside of an order under the inherent jurisdiction and in particular had failed to consider whether the children's welfare required the non-return order to be set aside. She also submitted that the judge had given undue weight to the likelihood that an order would not be directly and reciprocally enforced in Libya. For the father it was submitted that the judge had correctly identified the applicable law and made correct findings, and that the judge's characterisation of the mother's litigation conduct as Henderson abuse was a good example of judicial vigilance against repeat applications. In Baker LJ's judgment, to import Henderson abuse into children's proceedings was neither necessary nor appropriate: for example, where a child's welfare was in issue, a second application to the court would rarely be capable of being simply dismissed as a collateral attack on the first decision. He also disagreed as to the relevance of whether the order would be enforceable in Libya: the court was required to assess the welfare of the children, not the enforceability of its order. He also disagreed with the judge's two primary reasons for dismissing the mother's application. He concluded that the judge's approach to the set aside application had been flawed and that the mother's appeal against his decision to dismiss the application had to be allowed. Stuart-Smith LJ and Moylan LJ agreed. Judgment, 24/08/2021, free