Re M and J (Children) (Abduction: International Judicial Collaboration)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Year | 1999 |
| Date | 1999 |
| Court | Family Division |
Child abduction – Judicial collaboration – Children in care of maternal great-grandmother in California – Mother removing children to United Kingdom – Great-grandmother seeking children’s return – By leaving California mother breaching her probation conditions and warrant issued for her arrest upon return – High Court judge fearing detriment to children’s welfare – Judge communicating and collaborating with Californian judges to ensure mother not facing imprisonment pending resolution of any custody proceedings in California – Californian family judge negotiating undertakings whilst mother still in United Kingdom resulting in her voluntary return with children – Benefits of judicial co-operation between different jurisdictions.
The American mother and English father met and lived in California. In October 1991 the mother gave birth to M, but she subsequently relinquished the day-to-day care of him to the maternal great-grandmother, A. In September 1995 A and the maternal grandmother, B, were appointed co-guardians of M, thereby obtaining parental responsibility for him. In September 1997 the mother gave birth to her second son, J. However, when J was only eight months old the mother was arrested for drug-related offences and remanded in custody, and so he also went to live with A. Thereafter the mother was released from prison on probation and subject to strict conditions, and she went to live with A and her two sons. However, in January 1999, without A’s knowledge or consent, the mother brought the children to the United Kingdom to be reunited with their father, who had been deported from America following his release from prison for drug-related offences. In April 1999 A instituted proceedings for the children’s summary return under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention), as set out in Sch 1 to the Child Abduction and Custody Act 1985, or alternatively under the court’s inherent jurisdiction. The mother opposed the application contending that if returned the children would be exposed to a grave risk of psychological harm or otherwise placed in an intolerable situation within the meaning of art 13(b) of the Hague Convention as it was likely she would be imprisoned for breaching her probation conditions and would therefore be unable to initiate proceedings in the Superior Court to determine which country was best for the child’s welfare, which was her intention if she had to return. The wife’s probation officer confirmed that a bench warrant had been issued for the wife’s arrest upon her return to California, and that it was likely that her probation would be revoked so that she would have to serve the balance of her original sentence. Whilst all the parties were prepared to give
undertakings to ensure that the children remained with the mother until the custody proceedings, in light of the uncertainty posed by the criminal proceedings and the detrimental effect it would have on the children, the High Court judge spoke directly to the Californian judge who had issued the warrant and outlined the family’s circumstances. As a result the Californian judge recalled and quashed the warrant, reinstated the wife’s probation and stated that no further action would be taken until the issues relating to the children had been resolved. Thereafter the High Court judge also spoke to a Californian family judge who indicated that he would do what he could to ensure that any child custody proceedings were given high priority. During the course of the proceedings the judge invited the Official Solicitor to carry out investigations into the domestic situation of the family in England, and in his report the Official Solicitor suggested that were the children to return to the United Kingdom as wards of court he would act as their legal representative and monitor their placement and secure their welfare. The judge adjourned the English proceedings to enable the parties to consider their and the children’s position in the light of that very considerable simplification and clarification. At the resumption of the proceedings, the parents unreservedly agreed to withdraw their opposition to an order for both children’s return, but A and B now wished both children to be returned to A’s physical custody immediately they reached California. The proceedings were again adjourned. In the presence of B and both parties’ attorneys the Californian family judge negotiated agreed undertakings and stipulations to be offered and agreed, not only by the wife and B but also by A. Accordingly, on 30 July the judge made a consent order for both children’s return.
Held – By embarking on the process of judicial collaboration and co-operation with the judges in California, the advantages for the whole family, and particularly for the children, significantly outweighed the likely consequences of a peremptory order imposed at the beginning of the proceedings, given the uncertainties and disagreements and potential for conflict then rife. The initiatives used in the present case were within the scope and intention of art 7 of the Hague Convention. It was however essential if a process of judicial co-operation was to be successful that the court should as far as possible carry the parties consensually into the discussions. It was also important that so far as practicable full information relating to the communications between the judges be made available promptly to all participants. It was clear, as was demonstrated by the present case, that real advantages could be reaped when judges in different jurisdictions communicated and collaborated with each other. The procedures adopted in the present case had enabled the mother to accept her and the children’s voluntary return to America with far less resentment than might otherwise have affected the children; had dispelled uncertainty and anxiety as to the children’s immediate circumstances upon arrival; had put in place
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a Article 7, so far as relevant, provides: ‘Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures— . . . (b) to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; [and] (c) to secure the voluntary return of the child or to bring about an amicable resolution of the issues; [and] (d) to exchange, where desirable, information relating to the social background of the child . . .’
___________________ in advance of their arrival a framework for judicial resolution of the welfare dispute; and had, as a result of the imaginative and constructive originality of the Official Solicitor, provided the prospect of appropriate support for the children in the event that that decision resulted in their return to the United Kingdom.
Cases referred to in judgmentC (abduction) (grave risk of psychological harm), Re[1999] 2 FCR 507, CA.
C(B) (child abduction: risk of harm), Re[1999] 3 FCR 510, CA.
HB (abduction: children’s objections to return), Re[1998] 1 FCR 398, CA.
L (abduction: pending criminal proceedings), Re[1999] 2 FCR 604, CA.
ApplicationThe great-grandmother, from whose care in California two children were removed by the mother and brought to England, applied under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) (The Hague, 25 October 1980; TS 66 (1986); Cm 33) for their summary return, which was opposed by the mother, who was in breach of her probation conditions following her release from prison. The case was heard in chambers and judgment was given in open court. The facts are set out in the judgment of Singer J.
Richard Harrison (instructed by Hodge Jones & Allen) for the great-grandmother.
Marcus Scott-Manderson (instructed by Morgan Cole, Oxford) for the mother.
Cur adv vult
16 August 1999. The following judgment was delivered.
SINGER J.The issue in this case has been whether I should order the return to the United States of America (and in practice to California) of two children whom I will call M and J. The course which the proceedings have taken has been unusual but constructive, and indeed I hope instructive. It is for that reason that I am after the conclusion of these proceedings handing down this judgment in open court, upon the basis that any publication of it shall preserve the anonymity of the parties and of their respective addresses.
M will be eight in October, and J will be two in September, and both are boys. Their parents (whom I will call H and W) are both aged 28, and are the two defendants to the originating summons. The boys have lived with them in England since 2 January 1999 when W brought them here from the home of their maternal great-grandmother (GGM) in California. GGM is 77, and she is the plaintiff in these proceedings. As the action for the children’s return is primarily brought in reliance upon the Convention on the Civil Aspects of International Child...
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Re M (Child Abduction: Existence of Undertakings)
...1145, CA. E v E (child abduction: intolerable situation) [1998] 2 FLR 980. M and J (abduction) (international judicial collaboration), Re[1999] 3 FCR 721, [2000] 1 FLR S (a minor) (abduction), Re[1999] 2 FCR 541; sub nom Re S (abduction: return into care) [1999] 1 FLR 843. ApplicationThe fa......