O v P
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker |
| Judgment Date | 04 July 2014 |
| Neutral Citation | [2014] EWHC 2225 (Fam) |
| Docket Number | Case No: FD00P00001 |
| Court | Family Division |
| Date | 04 July 2014 |
[2014] EWHC 2225 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Baker
Case No: FD00P00001
In the Matter of an Application Under Schedule 1 to the Children Act 1989
And in the Matter of the Senior Courts Act 1981
And in the Matter of S (A Minor)
Henry Setright QC and Stephen Lyon (instructed by Thomson Snell and Passmore) for the Applicant
Susan Jacklin QC and Caroline Willbourne (instructed by Kingsford LLP) for the Respondent
Hearing dates: 7 th, 8 th, 9 th, 10 th and 30 th April 2014
INTRODUCTION AND SUMMARY OF BACKGROUND
This is the substantive hearing of an application for financial provision for a child under Schedule I to the Children Act 1989 started as long ago as 29 th February 2000 – Leap Year Day in Millenium Year. It has already been the subject of a number of interlocutory hearings, notably a hearing as to jurisdiction which resulted in the judgment on 5 th August 2011 reported under neutral citation number [2011] EWHC 2425 (Fam). The historical background set out below is substantially the same as recited in the 2011 judgment. For convenience, however, I shall set it out again, with minor modifications.
The father was born in 1951 and is now aged 63. The mother was born in 1960 and is therefore now aged 53. The parties met in 1984 at a time when both were married to other people. The father was then living in Kent, and the mother in Glasgow. The father suggested a relationship with the mother, but she apparently declined. The following year the mother separated from her husband and moved to live in Andorra for three years. Then in 1988 she travelled to Australia where she stayed for nine months, during which time she met another man, hereafter referred to as X. In 1989 she returned to Scotland and her marriage was dissolved.
Later that year the parties met again in Scotland and shortly afterwards started a relationship. At that stage the father was the owner of a company, a substantial property in Kent, Z House, and an island in Scotland. He had recently separated from his wife by whom he had two daughters. At first the parties lived at Z House and spent every other weekend on the Scottish island. The mother worked for the father's company. In January 1992 the father experienced financial difficulties, the company went into liquidation and the island was sold. Thereafter the parties continued to live together at Z House in Kent, with the mother continuing to work for the father. In oral evidence before me, the mother said that, although their lifestyle was not quite as it had been before the island was sold, it was still "very privileged". In 1994, with the father's support, the mother embarked on a course training as a nutritionist. Meanwhile the mother had used monies received following the sale of her former matrimonial home to purchase a flat in Glasgow. She and the father stayed there occasionally until 1996 and thereafter the flat was let.
On 18th April 1997, the mother gave birth to a daughter, hereafter referred to as "S", in Kent. Shortly afterwards the relationship between the parties began to break down. The mother alleged that the father was violent towards her. In August 1999, she told the father that she was taking S to her parents in Aberdeen. According to the mother, the father threatened to destroy her and her family, and told her that he had put things in place with a hit man. Believing herself to be in danger, the mother took S away from Z House with the assistance of the police and flew to Scotland where they stayed with the maternal grandparents.
It is the mother's case that, fearing that she was still not safe, she then decided to take S to Australia and flew there on 13 th August on return tickets. On the same day the father issued an application in the Tunbridge Wells County Court under the Children Act 1989 seeking orders for parental responsibility, residence and contact. On 27th August that court made an order for the disclosure of information as to the whereabouts of the child and the delivery of S for staying contact with the father. Meanwhile, the mother had engaged solicitors in Australia who made an application for a child protection order in the court in Townsville, Queensland. She had earlier made contact with X and on her arrival in Australia they resumed their relationship.
On 3rd September 1999, the father applied to the High Court under the Hague Child Abduction Convention. The proceedings in the Tunbridge Wells County Court were subsequently transferred to the Principal Registry of the High Court. On 6th September, the father made an application in the Queensland Court for the equivalent of prohibited steps and residence orders pending the return of the child to the United Kingdom. The mother filed affidavits in the Australian proceedings expressing a wish to remain in Australia. In reply, the father filed an affidavit stating that he would support S on her return to the United Kingdom and would assist the mother financially. On 16th September, the judge in the Queensland Court ruled that the best place for "the complicated issues" to be determined was in the English court. The mother undertook to return S to the United Kingdom within two weeks and, on the basis of that undertaking, was granted residence of S pending their return. Thereafter, orders were made in the English court prohibiting the mother from removing S from England and Wales upon return to the jurisdiction, and directing her to hand over her passport to her solicitor on arrival at Heathrow.
On 1st October 1999, the mother and S arrived back from Australia. By a further interim order in the High Court dated 4th October, the mother was permitted to take S to Scotland until the final hearing of the father's applications on the basis that she and the child lived at the maternal grandparents' home. The order further provided, however, that there should be regular contact between the father and S for periods of ten days every three weeks. Subsequently, the parties filed affidavits in the English proceedings — the father seeking a residence order whereunder he and S would live together in Z House in Kent, the mother expressing a wish that she and S should remain in Scotland with the maternal grandparents.
In November 1999, unbeknownst to the mother, the father applied for and received new passports for himself and S using a false name, On 1st December, pursuant to the order of 4th October, the mother flew with S from Aberdeen to Gatwick to deliver the child to the father for the purposes of a ten-day period of staying contact. Seven days later, however, the father and S left England under the false passports on the Eurostar bound for Paris and from there flew to Australia later that day. Thus, when the mother arrived at Gatwick a few days later to collect S in accordance with the agreement between the parties, there was no sign of S or the father. The police were alerted and ex parte location and freezing orders were made in the High Court. On 17th December, S was made a ward of court and a direction was made that the father should return her to the care of the mother forthwith.
The police established that the father and S had travelled to Australia under the false passports. On 23rd December, the mother applied to the England and Wales Central Authority to invoke the Hague Convention to secure the return of S to this country. On 30th December, the mother's passport was released by the court to enable her to travel to Australia to assist in the location and recovery of the child and she duly flew to Australia on 1st January 2000. It is her case in these proceedings that she received substantial financial assistance from her own mother to enable her to travel to Australia.
On 4th January, the Family Court in Australia made seek and find orders, and a further order preventing the removal of S from Australia. Six weeks later, on 16th February, S was recovered by the Australian police in Melbourne and reunited with the mother. The father was arrested and detained as an illegal immigrant into the country. On the following day, he made an application claiming refugee status in Australia.
On 29th February 2000, the mother's solicitor filed an application under Schedule 1 to the Children Act 1989 in the proceedings that had been started in Tunbridge Wells and transferred to the Principal Registry. It is that application which, fourteen years later, this court is finally determining.
On 21st March 2000 the Family Court of Australia ordered that S be returned to the United Kingdom. The father had maintained in those proceedings that, if S's habitual residence was Scotland, the Australian court had no jurisdiction to return her on the application of the Central Authority for England and Wales. The judge rejected this argument holding that "it would be a clear violation of the spirit of the Convention if what I see as a technical argument were to succeed and thereby to prevent the court from returning the child to the United Kingdom if the circumstances for doing so are otherwise established." The father duly filed a notice of appeal against the order for return, and pending determination of the appeal the mother and S remained in Australia.
By a letter from Australia dated 31st March 2000, the father served notice of acting in person in relation to both the Children Act proceedings and the wardship proceedings and indicated in correspondence that he had been informed of the Schedule 1 application by his former solicitors, although he did not file any formal acknowledgement of service of that application.
On 9th May 2000 the father was arrested and charged with two counts of inciting to solicit the murder of the mother and her friend, X. On 26th May, the father's...
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O v P
...in earlier judgments delivered by me, first on 5 th August 2011 on the issue of jurisdiction in the schedule 1 proceedings (reported as O v P [2011] EWHC 2425 Fam) and subsequently, on 4 th July 2014 at the conclusion of the schedule 1 proceedings (reported as O v P [2014] EWHC 2225 Fam) – ......