Re D
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 10 March 2016 |
| Neutral Citation | [2016] EWHC 504 (Fam) |
| Docket Number | Case No: FD15P00438 |
| Court | Family Division |
| Date | 10 March 2016 |
[2016] EWHC 504 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: FD15P00438
Mr Richard Harrison QC (instructed by Lyons Davidson) for the applicant father
Mr Edward Bennett (instructed by Dawson Cornwell) for the respondent mother
Hearing date: 20 January 2016
Sir James Munby, President of the Family Division:
This is an application by a father for relief under the Hague Convention. It raises an important question of practice on which it is desirable that I give a considered judgment.
The background
The background facts are shortly stated.
The father is American, the mother English. Their two children were born in 2007 and 2008 respectively. Until the events giving rise to the litigation, the family lived in the United States of America. Following the breakdown of the marriage, there were proceedings in the Superior Court of the State of California, County of Orange. I need not go into the details. What is important for present purposes is that on 18 February 2015 that court awarded legal and physical custody of the children to the mother and granted her a domestic violence restraining order against the father, and that on 17 March 2015 the same court made an ex parte order authorising the mother to remove the children from the United States.
In the course of subsequent proceedings in the Court of Appeal of the State of California commenced by the father on 20 April 2015 (that is, after the stay had expired), that court, in a judgment given on 24 September 2015, made clear that under the law of California a stay of 30 days of the order made on 17 March 2015 arose automatically by operation of law (see Transcript of judgment of Fybel J, with whom Rylaarsdam Acting PJ and Ikola J concurred, page 12). On 25 March 2015, while that stay was in place, the mother brought the two children to this country. Whether or not she was aware of the stay I do not know. It has not been explored before me.
On 15 September 2015 the father commenced proceedings in this court seeking the summary return of the children to the United States in accordance with the Hague Convention. I need not go through the subsequent history of the proceedings in this country. More important is the litigation in California.
On 24 September 2015 the father's challenge to the order that had been made on 17 March 2015 was determined, being allowed in part and denied in part. The reasons for that decision were explained in detail in the judgment of Fybel J. It suffices for present purposes to quote the following passage from the Introduction to his judgment (Transcript, page 2):
"We grant [the father's] writ petition in part and order the issuance of a peremptory writ of mandate directing the respondent court to (1) conduct an evidentiary hearing on the issue of visitation and contact, make appropriate findings, and issue a new visitation and contact order; (2) conduct an evidentiary hearing on [the mother's] request to move to England with [the children]; and (3) conduct an evidentiary hearing to determine permanent custody. We will not, however, vacate any part of the domestic violence restraining order or the ex parte move-away order and will not require [the mother and children] to return to Orange County pending the evidentiary hearings. As we shall explain, the record disclosed exigent circumstances justifying the respondent court's ex parte order permitting [her] to move to England with [them]."
Later in his judgment (Transcript, page 14) Fybel J said that "[The mother and children] need not return to Orange County but may testify by telephone or Skype unless the respondent court, in exercise of its discretion and for good cause, determines otherwise."
Following that, the case was further heard in the Superior Court on 13 November 2015, 8 January 2016 and 15 January 2016. I have transcripts of the first and third of those hearings. It appears from the latter that the hearing in the Californian court has now been fixed for 2 May 2016. When the father's attorney asked Judge Miller on 15 January 2016 whether he would be ordering the children and the mother back for the hearing, the Judge replied (Transcript, page 14): "Unlikely. If you want to bring a formal motion, I'll consider it."
The hearing on 20 January 2016
It was in that state of affairs that the Hague proceedings came before me on 20 January 2016. The father and the mother were each represented by counsel expert in such cases, the father by Mr Richard Harrison QC and the mother by Mr Edward Bennett. Each acknowledged that, in the circumstances, there was no utility in continuing with the Hague proceedings. They differed in their analysis of what I should do. Mr Harrison sought permission to withdraw the Hague proceedings; Mr Bennett said they should be struck out or summarily dismissed; Mr Harrison disputed that the court had jurisdiction to make an order in the terms sought by Mr Bennett. Each was concerned that, whatever order I made, the parties should not be left exposed to the risk of the kind of uncertainties that Sir Mark Potter P had had to consider in somewhat similar circumstances in Re G (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2007] EWHC 2807 (Fam), [2008] 2 FLR 351, paras 58–62.
In the event the parties were able to agree the terms of a consent order, which I was content to make, giving the father "permission to withdraw his application". The order, appropriately in my judgment, recited the basis upon which it was being made. It is convenient to set out those recitals to the order in the Annex to this judgment.
The law: the authorities
It is convenient to start with the decision of the Court of Appeal in W v Ealing London Borough Council [1993] 2 FLR 788, a case involving an application for contact under section 34 of the Children Act 1989. As it happened, I appeared for the appellant. My submission, summarised by Sir Stephen Brown P at 793, was that the case raised a question of law of general importance as to the power of the court to dismiss summarily, without hearing oral evidence or further investigation, an application under the Act for which the leave of the court is not required; that where Parliament has said that proceedings can be brought without leave it is not for the court to cut those proceedings short by summarily dismissing them unless it can be shown, in accordance with established principle, that the proceedings are an abuse of the process; and that proceedings are only to be 'struck out' if they are obviously frivolous or vexatious or obviously unsustainable or if it is perfectly clear that the claim cannot succeed.
Giving the judgment of the Court of Appeal, Sir Stephen said this (at 794):
"We reject Mr Munby's contention that an applicant in all applications for which leave is not required is entitled to a full trial unless only the respondent can satisfy the stringent test required to justify striking out proceedings in ordinary civil litigation. In the first place, as Balcombe LJ said in … [ Re A (Minors) (Residence Orders: Leave to Apply) [1992] Fam 182, 194] '… this is not ordinary civil litigation: it concerns children'. In our judgment that is a salutary observation and it would be unwise in this jurisdiction to seek to restrict the discretion of the court by imposing a rigid formula upon the conduct of proceedings … [The judge] had to decide what, if any, further directions should be given and in particular whether the matter should proceed to what has been termed a 'full hearing' with further statements and oral evidence."
I can now jump forward to four more recent cases in the Court of Appeal: Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089; Re B (A Child) [2012] EWCA Civ 1545; Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250, paras 27–28, where the relevant passages from the two earlier cases are set out; and Re Q (A Child) [2015] EWCA Civ 991. The relevant principles are to be found in Re C, paras 14–15:
"14 … these are not ordinary civil proceedings, they are family proceedings, where it is fundamental that the judge has an essentially inquisitorial role, his duty being to further the welfare of the children which is, by statute, his paramount consideration. It has long been recognised – and authority need not be quoted for this proposition – that for this reason a judge exercising the family jurisdiction has a much broader discretion than he would in the civil jurisdiction to determine the way in which an application … should be pursued. In an appropriate case he can summarily dismiss the application as being, if not groundless, lacking enough merit to justify pursuing the matter. He may determine that the matter is one to be dealt with on the basis of written evidence and oral submissions without the need for oral evidence. He may … decide to hear the evidence of the applicant and then take stock of where the matter stands at the end of the evidence.
15 The judge in such a situation will always be concerned to ask himself: is there some solid reason in the interests of the children why I should embark upon, or, having embarked upon, why I should continue exploring the matters which one or other of the parents seeks to raise. If there is or may be solid advantage to the children in doing so, then the inquiry will proceed, albeit it may be on the basis of submissions rather than oral evidence. But if the judge is satisfied that no advantage to the children is going to be obtained by continuing the investigation further, then it is perfectly within his...
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