ES v LS
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWHC 2758 (Fam) |
| Year | 2021 |
| Court | Family Division |
Children - Custody rights - Breach - Mother removing children to England from Latvia and father taking no action to seek their return for more than a year - Father’s application for summary return defended on ground children “now settled” in England - Whether settlement requiring children to be happy and free from abuse - Whether date on which settlement to be demonstrated date of commencement of proceedings or date of trial -
The mother and her two children left Latvia to reside in the United Kingdom, allegedly with the express consent of the father. The father took no action to seek the return of the children for more than a year but then made an application for their summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985F1. The mother defended the application on the grounds, inter alia, that the children were “now settled” in their new environment within the meaning of article 12 of the Hague Convention so that the court ought not to exercise its discretion to order a return. The father submitted that for there to be a finding of “settlement” the court ought to be satisfied that the children were living in a stable, contented, normative and conflict-free environment, which was not supported by the evidence. An issue also arose as to the date at which it had to be determined whether the children were “now” settled, namely, whether that was the date when the application was made or the date when it was finally determined.
On the father’s application—
Held, refusing the application, (1) that in so far as “settlement”, on its established meaning, incorporated both a physical and a mental constituent, it was clear that the mental constituent required no more than a bona fide intention on the part of the child, or their carer (depending on the child’s age), to make a certain place their permanent home; that, analogous to the test for determining acquisition of habitual residence and contrary to the father’s submissions, there was no additional requirement to show the child was happy, well cared for, emotionally stable or free from abuse; and that to impose such a requirement would defy the natural linguistic interpretation of the concept and be inconsistent with the relevant case law; that, applying the correct test, the children had been settled in England at the date when proceedings had commenced and had remained so until the present day with the effect that Latvia had lost its jurisdiction; and that, exercising the consequential discretion against a return, the father’s application was to be dismissed (post, paras 37, 42–45, 50, 51, 69, 72–75, 81).
Per curiam. (i) To interpret the word “now” in the term “now settled” as referring to the date of the commencement of the proceedings would be completely contrary to the natural meaning of the word and would ignore the clear intention of the framers of the Hague Convention that a settled child should not be sent back to the originating state. Although delay in hearing a case may affect the outcome and prejudice the left-behind parent’s claim where the child’s settled status changes over the intervening time, the children (whose interests are at least as important if not more so than those of the left behind parent) may themselves be prejudiced if settlement is not reviewed as at the date of trial. Perverse results might flow if a child who was not settled as at the date of the commencement of proceedings, but has become settled by the date of trial, could be sent back. Accordingly, after careful consideration, it is clear that “now” means “as at the date of trial” (post, paras 61–64).
(ii) Many outward return cases under the Hague Convention have become disproportionately complex, lengthy and expensive, occupying an unreasonable amount of the resources of the High Court at the expense of other urgent cases. It is important to have clearly in mind the summary nature of the relief sought and awarded under the Convention and, while procedural fairness will generally insist that in substantive proceedings concerning the welfare of children a party should be entitled to confront in cross-examination a Family Court Adviser or guardian who has given evidence adverse to that party, no such right arises on interim procedural applications. Whenever it is suggested that oral evidence should be given in an outward return case, whether by a party or by a court adviser, the court should strictly apply paragraph 3.8 of the Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P on 13 March 2018 and will have in mind that to permit oral evidence is highly exceptional. The definition of “necessary” as interpreted by the authorities should apply to cases governed by paragraph 3.8 and the court should allow oral evidence only where it is “demanded” to resolve the case justly. It should not allow oral evidence where it is merely reasonable or desirable to have it (post, paras 4, 10–12).
(iii) Although the present proceedings are governed by a self-contained set of special rules which do not give decisive weight to objections from a Gillick competent child in respect of a child’s objections defence pursuant to article 13 of the Hague Convention, when weighing a child’s objections under the Convention due regard should be had to the universal policy that underpins the Gillick principle, namely that a child who has achieved a sufficient degree of maturity should have her decisions about her life respected provided that they are not foolish or irrational (post, para 79).
APPLICATION
By an application to the Latvian Central Authority dated 19 March 2021 the father, ES, commenced a welfare case in Latvia seeking the return of his daughters by the mother, LS, who in December 2019 had removed them to reside in England, allegedly with father’s full knowledge and consent. The proceedings were duly transmitted to the English courts and on 13 May 2021 the father issued an application on Form C67 for the children’s summary return under the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985. The following day the father applied ex parte for a location order, and for disclosure orders against the Department of Education and the NHS, which applications were granted.
Jonathan Evans (instructed by Sills & Betteridge LLP, Lincoln) for the father.
Mehvish Chaudhry (instructed by Dawson Cornwell) for the mother.
Jamie Niven-Phillips, solicitor (of Cafcass Legal) for the children.
The court took time for consideration.
18 October 2021. MOSTYN J handed down the following judgment.
1 On 5 October 2021 there was listed before me a two-day Hague Convention 1980 application. It was the second in as many weeks. It was listed for two days so that oral evidence could be given about defences of settlement and the children’s objections. The children, girls aged 14½ and 12, had been joined as parties and were separately represented. The costs of everybody were met by the taxpayer. I received two bundles of documents containing 484 and 153 pages respectively. I received a bundle of authorities containing 14 reported cases running to 309 pages. No regard was paid to the rules about bundles in FPR PD27A, paras 4.3A.1 and 5.1.
2 On 6 October 2021 I announced my decision on the application and stated that my reasons would follow in a written judgment. This is that judgment.
3 Before I turn to the facts of the case I wish to make some observations of a general nature.
A simple summary process4 I have reached the conclusion—and I know that this is a view shared by other judges—that many of these outward return cases under the Hague Convention 1980 have become disproportionately complex, lengthy and expensive. Invariably they bristle with abstruse legal points. They occupy an unreasonable amount of the resources of the High Court at the expense of other urgent cases of a serious and substantive nature, which are pushed to the back of an ever-lengthening queue.
5 It is important to have clearly in mind the nature of the relief sought and awarded under the 1980 Convention. I endeavoured to summarise this in my own decision of E v E (Secretary of State for the Home Department intervening [2017] EWHC 2165 (Fam); [2018] Fam 24 at paras 14–15:
“14. It is therefore important to recognise that the nature of the relief which is granted under the 1980 Convention is essentially of an interim, procedural nature. It does no more than to return the child to the home country for the courts of that country to determine his or her long-term future. The relief granted under the Convention does not make any long-term substantive welfare decisions in relation to the subject child. If one were to draw an analogy with a financial dispute the relief is akin to a freezing order coupled with a direction that the assets the subject of the dispute be placed within the jurisdiction of the forum conveniens.
“15. It is for this reason that the procedure for a claim under the 1980 Convention is summary. Oral evidence is very much the exception rather than the rule. The available defences must be judged strictly in the context of the objective of the limited relief that is sought. Controversial issues of fact need not be decided.”
6 Yet, as I have...
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Re- B (Children) (Abduction: Consent: Oral Evidence) (Article 13(b))
...judgment at the conclusion of the hearing. 20 In respect of the issue of oral evidence, he referred to Mostyn J's decision of ES v LS [2021] EWHC 2758 (Fam), [2021] 4 WLR 134 and then summarised its effect as follows: “The proceedings are summary and oral evidence is very much the exception......
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