DL v EL (Abduction: Effect of Court Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Arden,Lord Justice Beatson |
| Judgment Date | 16 July 2013 |
| Neutral Citation | [2013] EWCA Civ 865 |
| Docket Number | Case No: B6/2013/0266 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 July 2013 |
[2013] EWCA Civ 865
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISON
SIR PETER SINGER
SITTING AS A DEPUTY HIGH COURT JUDGE
FD12P01871
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Arden
and
Lord Justice Beatson
Case No: B6/2013/0266
and
and
Richard Harrison QC and Samantha Ridley (instructed by Bindmans LLP) for the Appellant
Henry Setright QC and Michael Gration (instructed by Freemans) for the Respondent
Teertha Gupta QC, Edward Devereux and Michael Edwards (instructed by Lyons Davidson LLP) by written submissions for Reunite International Child Abduction Centre
David Williams QC (instructed by Mishcon de Reya) by written submissions for the Centre for Family Law and Practice.
Introduction
The issue for consideration in this appeal are what remedies are available to the parent whose child is removed from the country of habitual residence pursuant to a return order made on a successful application under the 1980 Hague Abduction Convention which is subsequently set aside by an appellate court.
That gives rise to two questions. The first is whether the child loses his habitual residence when the return order is implemented. The second question is whether an appeal against the return order initiated after the child's departure is doomed to fail, the return being irreversible and the appeal therefore academic.
The appeal arises from a judgment of Sir Peter Singer, sitting as a deputy judge of the Family Division given on the 17 January 2013. Permission to appeal was granted on paper on the 26 th February 2013.
The case before Sir Peter was on any view extraordinary and the points which I have identified above have not previously been covered directly by authority in this jurisdiction.
This case is also remarkable in that a case on similar facts, Chafin v Chafin, had reached the Supreme Court in the USA and had been argued in December 2012. Judgment was pending when Sir Peter handed down his judgment. The Supreme Court judgment has since been delivered and the judgment of Sir Peter is more than once cited. That is in part because the respondent to this appeal had sought to take to the Supreme Court the very point advanced by Mrs Chafin. Once the court had decided against Mrs Chafin's appeal the respondent's attempt to appeal to the US Supreme Court fell away.
In almost all cases concerning children, whether domestic or international, the facts are of crucial significance. During 5 years of bitter litigation between the parties there have been clear findings made by courts in the State of Texas, particularly in the judgment of the US Court of Appeals for the Fifth Circuit dated 31 July 2012.
The family background and the procedural history were carefully recorded by Sir Peter in his judgment and I will pick out only those points most material to the present appeal.
Background
The parents are of Ghanaian origin. The father is a US citizen, a pharmacist in the US Air Force with the rank of Lieutenant Colonel.
The mother came to this country as a child. Currently she has indefinite leave to remain. She is a social worker.
The parties married in Texas on 28 December 2005 and their only child, K, was born on the 7 August 2006. The father has a son by a previous relationship, KL (now a university student). Thus from the birth of K they lived as a family of four until the breakdown of the marriage in 2008. The father petitioned for divorce in Texas in March 2008.
Thereafter primary care of K depended largely on parental availability and will. Between June 2008 and August 2009 the father was posted to Afghanistan. In July 2008 the mother brought K to London where she remained until March 2010.
During this period of possession the mother behaved in a way that was to be strongly criticised in the Texan courts, both in relation to seeking immigration status for K in the UK and in relation to the father's contact.
It was the final order of 7 March 2010 in the divorce and custody proceedings that granted the father custody of K and the exclusive right to designate his place of residence. This was a welfare based judgment at the conclusion of proceedings in which both parties participated and were legally represented. The judge was highly critical of the mother in a number of respects.
Nevertheless, she later issued an application for a return order under the 1980 Hague Abduction Convention. She asserted that K was habitually resident in England by 2 March 2010 and the father, by relying on the order of 7 March, had wrongfully retained him in Texas.
The prospects of the mother succeeding on her application must have seemed negligible and the resulting order of the 10 August 2011 seems to me to be bizarre in the extreme. It required the father to deliver to the mother K, and K's passport immediately.
The father and mother received the court's ruling on Wednesday 10 August 2011. On the evening of Friday 12 August the father delivered K's passport to the mother. She was then free to depart and did depart on Sunday 14 August.
The rules of the Texan court allow 28 days for the filing of an appeal. The father's appeal was filed on 9 September 2011, just in time.
The mother's response sought the dismissal of the appeal only on the ground that it was academic, she having established K's habitual residence in this jurisdiction, perhaps even before the appeal was launched. She did not assert the merits of the first instance judge's conclusion.
The point that she took did not find favour with the United States Court of Appeal for the 5 th Circuit, which allowed the father's appeal. She did not comply with that court's order for K's return but sought to renew her argument that the father's appeal to the 5 th Circuit had been moot, to use the US expression.
Her failure in the US Supreme Court and the father's failure to obtain a return order from Sir Peter leaves the orders of the US and the UK courts in conflict. K has now resided in this jurisdiction without interruption since mid-August 2011.
The Legal Proceedings
To record all the steps in the development of proceedings here and in the USA would be both tedious and superfluous. It is sufficient to emphasise the highlights many of which I have touched on in recording the background.
The first orders in Texas were made in 2008 and the first order in this jurisdiction was effectively a mirror order of the 3 March 2009.
The decisive orders in Texas were the final custody and divorce order of 7 March 2010 and the Federal Court's order on the mother's Hague Convention application of the 10 August 2011.
After the mother's arrival with K pursuant to the order of 10 August 2011 she commenced proceedings under the Children Act 1989 on 20 October 2011. Pending his appeal to the Fifth Circuit Appeal Court the father himself issued an application for residence and contact in this jurisdiction on 3 March 2012.
Following the success of the father's appeal on 31 July 2012 there were a flurry of applications by the mother in this jurisdiction and in the Fifth Circuit Appeal Court, all culminating in the order of 29 August 2012 by a Texas Court Federal judge (the same judge who had made the by now reversed Hague return order) directing the mother to return K to the United States and further to the custody of the father.
Between those two orders, on the 9 August 2012 the father issued his application in this jurisdiction under the 1980 Hague Convention for the summary return of K to the USA.
On the 7 September 2012 the mother petitioned the US Supreme Court for Writ of Certiorari and for consolidation with the case of Chafin. She also applied unsuccessfully for a stay of the order of 29 August 2012.
The father's convention application was the subject of a series of directions orders which perhaps explain the extended period between issue and final hearing on 10 December 2012 with a five day time estimate. Chafin was listed for argument in the US Supreme Court a few days prior, namely on 5 December 2012.
As already indicated Sir Peter Singer reserved his judgment to 17 January. Proceedings in this court I have already recorded.
Submissions
The parties filed full skeleton arguments; the father's was updated following the receipt of the judgement of the US Supreme Court in Chafin. Both the Centre for Family law in Practice and Reunite sought to intervene in the appeal attracted by the policy considerations that it seemed to raise. Both applications were partially granted but limited to written submissions only.
The skeleton argument from Family Law in Practice, settled by Mr David Williams QC, sought to uphold the rulings of Sir Peter Singer on all points and submitted that the appeal should be dismissed.
The skeleton argument filed by Reunite, settled by Mr Tertha Gupta QC Mr Edward Devereux and Mr Michael Edwards addressed only the relevant policy questions and did not seek to support either the father's appeal or the mother's response. However, Mr Harrison in his oral submissions adopted a number of the points made in Reunite's skeleton.
Mr Harrison argued his appeal with great skill both in his skeleton and in his oral submissions.
In reviewing the history Mr Harrison stressed the Texan Court's findings of fact recorded on 9 July 2012, particularly in paragraphs five and nine. The mother's clandestine...
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