AA v BB & Ors (rights of custody vested in court: welfare: forum)
| Jurisdiction | England & Wales |
| Judge | LIEVEN J |
| Judgment Date | 12 July 2022 |
| Court | Family Division |
Abduction – Rights of custody – Rights vested in court – Test – Need for court to be materially engaged in issue of rights of custody – Whether application permitting making of an order concerning rights of custody – Interaction between English care proceedings and abduction proceedings – Grave risk of harm in potentially permanent separation from main carer even when care proceedings underway.
Care proceedings – Abduction – Interaction between English care proceedings and abduction proceedings – Welfare issues – Jurisdiction – Forum.
The parents, who both lived in the USA but in different states, met online in 2015 and began a relationship. From an early stage this was highly acrimonious, with numerous abusive messages passing between them. There was some evidence of the father having mental health problems, both in the past and after the relationship began. He had some convictions and had served three prison sentences. In February 2017, a warrant of arrest and mandatory protection order was issued in Colorado against him due to his alleged behaviour against the mother. Texts from the father to the mother recorded threats to harm her and to kill himself. However, there were also messages in which the mother contacted the father and arranged to see him, and also abusive messages from the mother to the father, including apparently false allegations.
In March 2019, the mother told the father that she was pregnant. The father sent some very disturbing texts, encouraging the mother to take an abortion pill. In May, after the mother had moved to Oklahoma, the father threated to remove the child to save it ‘from your sociopathy’; in September he told the mother that he would take ‘full custody’.
The child was born in 2019 in Colorado. In the period after the birth, the father raised the mother’s mental health with various statutory agencies. There was an investigation by the relevant Oklahoma authority, but no court interventions were requested. In January 2020, the mother successfully applied in Oklahoma for a victim protective order. In March, the father made an unsuccessful application in Oklahoma for a temporary custody order. Throughout this period the father was raising concerns about the mother’s ability to parent the child, and claiming that the mother was threatening him and people connected to him, while the mother was raising concerns that the father was harassing her.
In July 2020 the father applied again to the Oklahoma court for a temporary custody order and petitioned in relation to paternity and the mother applied for temporary protection orders, including orders to prevent either party from molesting the other or from removing the child from Oklahoma. In August a victim protective order was made in favour of the mother and child. On 29 October the father applied for an emergency custody order, seeking sole custody, or alternatively an order that the mother and child remain in Oklahoma during the proceedings and provide a genetic sample from the child. According to the expert, at this stage under Oklahoma law the father was a ‘legal stranger’ to the child because paternity had not been established. On 17 December the Oklahoma court granted the father’s application for DNA testing and required the mother to submit the child for such testing.
Instead, on 18 March 2021, the mother and child travelled to the UK, claiming asylum. On the following day, 19 March, the mother having failed to make the child available for DNA testing, the Oklahoma court ruled that the father was the child’s father. On 19 May, the mother and child were moved to a mother and baby unit provided by the English Home Office. On 27 May, the local authority created a child protection plan, due to concerns about the mother’s mental health and possible neglect of the child. On 31 July the English police exercised emergency powers to take the child into police protection and he was placed in foster care.
On 3 August 2021, the Oklahoma court granted the father a full emergency custody order and a writ of assistance to remove the child from the mother’s care. The mother signed a motion objecting to this order. On 10 August an interim care order was made by consent in the English Family Court. On 11 August the Oklahoma Emergency Custody Order was registered in California, which was where the father was living.
On 8 September 2021, the father applied to the English court for the child’s summary return under the 1980 Hague Convention on Abduction. On 19 September an English judge found that the English court had jurisdiction to make a care order under s 3(1)(b) of the Family Law Act 1986, on the basis of the child’s presence in England. On 17 September a court in California filed criminal charges against the mother on the grounds of child deprivation of custody and issued an arrest warrant, setting bail at US$200,000. On 4 November the Oklahoma court ceded jurisdiction to California.
On 6 December 2021 the English court found on an interim basis that the mother lacked litigation capacity. On 23 December, DNA testing confirmed the father’s paternity and the mother stopped attending for direct contact with the child, claiming that she was fearful for her safety. On 11 March 2022, the Home Office refused the mother and child’s asylum applications. On 16 March the Official Solicitor agreed to act as the mother’s litigation friend. On 24 March the mother was admitted to hospital under s 2 of the Mental Health Act 1983, but she subsequently regained capacity and the Official Solicitor was eventually discharged on 25 May.
In the English proceedings the father was seeking the child’s summary return under the 1980 Convention, and also a stay and a transfer of proceedings to California, where he had made a number of applications. The father accepted that he did not have rights of custody at the time of the removal to England, but relied on rights of custody that he claimed should be attributed to the US courts, for the purposes of art 3 of the 1980 Convention. It was abundantly clear from his statements, from the parenting assessment and from numerous texts and messages that the father intended strenuously to resist the mother having any contact with the child. In the Hague proceedings he did not put forward any protective measures to enable the mother to accompany the child and did not suggest that he would seek to withdraw any allegations against the mother or to persuade the police or courts in the US to lift the arrest warrant.
Held, refusing the father’s applications—
(1) Applying Re H [2000] 2 AC 291, where the court had the issue of custody before it and one parent pre-empted the final decision by removing the child unilaterally, the 1980 Hague Convention on Abduction should be interpreted to prevent this unilateral action being determinative. The mischief that Re H and subsequent cases had been seeking to deal with was where the left-behind parent did not have legal rights of custody but was in the process of obtaining them through the home court. If the interpretation proposed in Re H was not adopted, the abducting parent would be incentivised to flee the jurisdiction before the court made orders. The authorities did not set out clear tests to be applied, and some of the cases referred to somewhat different stages of proceedings and also the forms of proceedings varied across jurisdictions but, trying to find a principled approach to the issue, it was clear that the court in question must, as a minimum, have before it for determination an application for the court to make an order relating to rights of custody and must also have the power to make such an order. In other words, there needed to be an application before the court (in whatever form) that would allow it to make an order concerning rights of custody. If such a test was not applied, it was not clear how the court could be said to have ‘rights of custody attributed to any other body’ which, in any real sense, it could be said to be ‘exercising’ for the purposes of art 3(b) of the 1980 Convention. The court did not understand any of the authorities, when their facts were considered, to be positing any more tenuous a test. While, applying Re H, service was a requirement, Re H did not indicate that service alone would be sufficient. It was clear from Re VB (abduction: custody rights)[1999] 2 FCR 371 that the matter in which the court was seised must relate to rights of custody and not rights of access, so that proceedings that were merely relevant to the child were not of themselves sufficient to engage art 3 (see [47], [58]–[61], below).
(2) In this case, the Oklahoma court, as at the date of removal, had not had before it an application by the father which would have allowed it to make an order for custody in his favour. According to the expert on Oklahoma law, the father’s application for a paternity order did not itself relate to or establish rights of custody, so that application alone would not have allowed the court to give the father rights of custody. The provisions about attribution of rights of custody only made sense if the application, or the exercise of the court’s powers, had been made on behalf of the ‘left-behind’ parent, as the removal had to involve a ‘breach’ of rights of custody, and there would be no such breach where the only relevant application had been made by the person removing the child (in this case the mother), rather than by the ‘left-behind’ parent (in this case the father). There had been no unlawful removal in this case and art 3 was not engaged (see [62]–[64], below).
(3) If the court ordered the child’s return to California there was a very significant possibility that the child would be separated from the mother for a prolonged period, quite possibly irrevocably and that the father would take steps to ensure a complete cessation of all contact, even letterbox contact, with the mother. That would create a grave risk of psychological harm and...
To continue reading
Request your trial