Re I-L (Children) (1996 Hague Child Protection Convention: Inherent Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Arnold,Lord Justice Peter Jackson |
| Judgment Date | 15 November 2019 |
| Neutral Citation | [2019] EWCA Civ 1956 |
| Date | 15 November 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/1888 |
[2019] EWCA Civ 1956
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT FAMILY DIVISION
DEPUTY HIGH COURT JUDGE GEEKIE QC
FD19P00319
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lord Justice Peter Jackson
and
Lord Justice Arnold
Case No: B4/2019/1888
Miss D Fottrell QC and Miss E Jones (instructed by Rayden Solicitors) for the Appellant
Father Miss S King QC and Miss J Renton (instructed by Payne Hicks Beach Solicitors) for the Respondent Mother
Hearing date: 15 th October 2019
Approved Judgment
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Introduction
The father appeals from the order made on 16 th July 2019 by Mr Geekie QC sitting as a Deputy High Court Judge. The judge dismissed the mother's application under the 1980 Child Abduction Convention (“the 1980 Convention”) but made an order under the inherent jurisdiction requiring the parties' two children to be returned to Russia.
In dismissing the application under the 1980 Convention, the judge decided that the children were habitually resident in Russia at the relevant date but that the father had not acted in a way which amounted to a repudiatory and wrongful retention as asserted by the mother. There had, therefore, been no effective breach of the mother's rights of custody.
As initially framed, the father's appeal contended that the judge's determination in respect of habitual residence was flawed and that his decision to make an order under the inherent jurisdiction was insufficiently welfare based. The mother cross-appealed the judge's decision in respect of wrongful retention.
Prior to the hearing of the appeal, the parties were informed that they would additionally need to address the relationship between the 1996 Hague Child Protection Convention (“the 1996 Convention”) and the inherent jurisdiction having regard to the decision of In re J (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 1291. These were not matters which had been drawn to the attention of the judge below although they impacted on his decision to make an order under the inherent jurisdiction. The issue, simply expressed, was whether it was appropriate for the court to exercise the inherent jurisdiction having regard to the effect of the provisions of the 1996 Convention in the circumstances of this case.
At this hearing the father was represented Ms Fottrell QC (who did not appear below) and Ms Jones and the mother was represented by Ms King QC and Ms J Renton (neither of whom appeared below).
At the conclusion of the hearing we informed the parties of our decision, namely that the appeal and cross-appeal respectively against the habitual residence and the repudiatory retention determinations would be dismissed but that the judge's order under the inherent jurisdiction would be set aside. These are my reasons for agreeing with that decision.
Background
The mother is a Russian national. The father is British. They married in 2013 and initially lived in England. They have two children born in early 2015 and late 2016.
As set out in the judgment below, until the birth of the younger child, the elder child “spent his time living between Russia and England” either with both parents or with each parent alone. Between January and September 2016, he lived in England, at times with both parents and at times with the father alone. Following the birth of the younger child, both children lived with the mother in Russia with the father visiting on frequent occasions and with the children also frequently spending time with the father in England.
In August 2016, the mother purchased a property in England.
In May 2017, the mother issued divorce proceedings in Russia. Despite this step, the parents were able, sensibly, quickly to reach an agreement about the future arrangements for the children. The agreement was formalised in accordance with the provisions of the Russian Civil Code. It provided that the children would live with the mother and that the father would have extensive contact in both Russia and England. By way of example, in 2018 the children spent 73 days with the father in England.
Everything, it would appear, proceeded largely smoothly until the end of 2018. Russian lawyers acting for the mother then informed the father that the mother intended to spend three months with the children in the USA. The father did not agree to this so the mother travelled on her own to the USA on 10 th January 2019, leaving the children in Russia. While in the USA the mother gave birth to a child by a new relationship.
The mother returned to Russia on 20 th March 2019. While she had been in the USA, the father had been unable to have direct contact with the children, either in Russia or in England, pursuant to the previous agreement. On 13 th April 2019 the children went to the USA with the mother on an agreed holiday.
In May 2019 the parties communicated extensively about their proposals for the future. The mother proposed that the children should be with the father in England from 9 th to 31 st May and that from 1 st June to 1 st October 2019 they would be with her, also in England. Meanwhile, the mother rented out her home in Russia until the beginning of September 2019. She also asked the father to look at a nursery she had identified in England and to see what availability they had for the spring and summer terms. The father responded by asking what the mother was “thinking from 1 October”.
During the course of her messages to the father and others, the mother said: that what happened after October 2019 would “depend on what is available in the UK right now”; that she was “not living and working where I lived anymore. I am living with my new husband in the USA”; that a particular nursery proposed by the father would provide “good transition in case the boys spend the rest of time not in UK”; that she was in “transition” and that Russia was “out of scope”.
The judge summarised the position as follows:
“The words (of an exchange between the parents on 19 th May 2019) have a plain meaning. The mother is in transition. She is likely to be in the UK until October. She wishes to live in the USA. She does not wish to return to Russia. She uses the words “out of scope”. When the father replies using slightly different words (“not an option”) she does not challenge his understanding of her words. I will consider the mother's written and oral evidence about this below, but note at this stage, that, without more, the meaning of her words and the message they conveyed to F are plain.”
On 21 st May the mother's Russian lawyer wrote to the father saying that from October 2019 the mother planned to live with the children in the USA. In response to concerns raised by the father, the mother said that he was “right” about the USA not being convenient for contact and that the boys “need (their) father”. She then asked him to look at a specific school in England and suggested that they visit together.
The parties appear to have been, albeit somewhat chaotically, exploring options and trying to see whether they could agree what would be best for the children. As will be seen, these discussions came to an end following the commencement of proceedings in England.
I now turn to deal with the progress of legal proceedings in Russia and in England.
Proceedings in Russia and England
On 17 th January 2019, the mother filed an application in the court in Russia seeking to amend the 2017 agreement. In February 2019, the father filed his own application in the Russian court, being unaware at that stage of the mother's application. On 14 th March 2019 the respective claims were consolidated. On 2 nd April 2019 a report from social services was ordered. On 24 th April 2019 there was an ineffective hearing in Russia.
On 31 st May 2019 the father commenced proceedings in England under the Children Act 1989 and made a without notice application to a family court. The judge refused to make any orders without notice to the mother and adjourned the proceedings to 12 th June.
On 4 th June the Russian court allowed the father to withdraw his application.
On 10th June 2019 the mother commenced proceedings in England under the 1980 Convention. The judgment takes the relevant date as 12 th June as this appears to have been how the case was argued before him. There is no material difference between the two dates and I will use 12 th June to be consistent with the judgment below. It was the mother's case that there had been a repudiatory retention by the father when he commenced proceedings in England.
On 12 th June, these proceedings and the father's proceedings came before Newton J. He gave directions in the former, including listing it for hearing on 8 th and 9 th July 2019, and stayed the Children Act proceedings until the conclusion of the 1980 Convention proceedings.
On 24 th June 2019 the Russian court made an order requiring the father to return the children to the mother. On 25 th June the father appealed against this order.
On 2 nd July 2019 District Judge Gibson registered the Russian court's order of 24 th June 2019 and gave permission for it to be enforced although the time for appealing had not expired.
On 3 rd July 2019 the mother's English solicitors informed the father's solicitors that, if no order was made under the 1980 Convention, an order for the summary return of the children would be sought alternatively under the inherent jurisdiction.
Following a hearing on 8 th and 9 th July, the judge provided his judgment to the parties on 15...
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...or referred to in the skeleton arguments:I-L (Children) (1996 Hague Child Protection Convention: Inherent Jurisdiction), In re [2019] EWCA Civ 1956; [2020] 1 FLR 656, CAJ (A Child), In re [2015] UKSC 70; [2016] AC 1291; [2015] 3 WLR 1827; [2016] 4 All ER 1048; [2016] 1 FLR 170, SC(E)M and T......