Re P (a child) (mirror orders)
| Jurisdiction | England & Wales |
| Judgment Date | 19 October 1999 |
| Court | Family Division |
Contact – Mirror orders – Foreign court making provision for contact to take place in England – Mirror order to be made by Family Division prior to child’s arrival in country – Whether Family Division had jurisdiction to make mirror order – Circumstances in which mirror orders should be granted.
Jurisdiction – Family Division – Foreign court making provision for contact to take place in England – Mirror order to be made by Family Division prior to child’s arrival in country – Jurisdiction of Family Division to make mirror order.
The mother took the child from England to the United States of America, where the Iranian father had no right of entry, and instituted divorce proceedings. Thereafter the father commenced proceedings under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention) via the Central Authority seeking the return of the child. The American judge concluded that he should not order the child’s return and made an order to regulate rights of contact in England by the child to the father. The order, which expressly stated that it was to be entered as a mirror order in the Family Division, set up a framework of contact whereby the mother would bring the child to England each October for one week commencing with October 1999, and was made by consent. The order further required, inter alia, the father’s English lawyers to provide the mother’s representatives and the court in California with copies of the mirror order made by the English court prior to the transportation of the child to England. Accordingly, on 18 October 1999 the father applied to the High Court seeking to comply with that requirement. An issue arose as to whether the English court had the jurisdiction to grant the order under s 1(1) of the Family Law Act 1986, as ss 2(2) and 2(3)(a) of the 1986 Act limited the court’s jurisdiction to the circumstances laid down as a condition in s 3(1), namely that on the relevant date, as defined in s 7(c), the child concerned was habitually resident in England and Wales, or was present in England and Wales and was not habitually resident in any part of the United Kingdom. As the child could not possibly be said to reside habitually in England in October 1999 and was not present in England and Wales at the time of the hearing, the judge invited through the Official Solicitor the instruction of counsel as amicus curiae.
__________________
a Section 1 of the 1986 Act, so far as material, is set out at p 354e–354f, post
b Section 7 of the 1986 Act, so far as material, is set out at p 355d–335e, post
___________________
Held – For many years English judges had customarily invited undertakings to govern in Hague Convention cases the particular arrangements for children and parents returning after a wrongful removal or retention to the place of the children’s habitual residence, and had invited the use of mirror orders in foreign courts both in respect of non-Convention countries and on applications for leave to remove permanently from England to live abroad. Where a foreign court was making provision for contact to take place in another jurisdiction, in the present case England, it was important that there should be the possibility for the orders to be made in advance of and against the arrival of the child so that the parties and the foreign court could have confidence that if either of them sought to take advantage of the presence of the child in the contact jurisdiction, the court there would not lend itself to any attempt. Therefore as a matter of common sense, of comity and of public policy, the High Court should have the ability to make orders of the sort which the English judges had frequently in past years invited other courts to make. As a mirror order was intended only to have effect while the child was present in the jurisdiction and, even without the mirror order, the inherent jurisdiction of the court to make an order that would be otherwise prohibited under s 1(1)(d) of the 1986 Act was retained if, in the words of s 2(3)(b) ‘the child concerned is present in England and Wales on the relevant date and the court considers that the immediate exercise of its powers is necessary for his protection’, the court had the jurisdiction to make an order which expressly by its terms only had currency as far as the English courts were concerned while the child was present in this jurisdiction for the purposes of contact for which the mirror order provided. However the jurisdiction to grant such orders was to be invoked economically and after appropriate investigation had demonstrated the need for a mirror order. As a matter of practice that investigation should be reserved to judges of the Family Division. The essence of the order in the present case was that it was only to take effect each time the child came to this jurisdiction for the purposes of the contact thereby regulated, and would cease to have effect each time the child left the jurisdiction as provided for by that contact order.
Cases referred to in judgmentE (child abduction: non-Convention country), Re[1999] 3 FCR 497, [1999] 2 FLR 642, CA.
HB (abduction: children’s objections to return), Re[1998] 1 FCR 398, [1998] 1 FLR 422, CA.
K (removal from jurisdiction: practice), Re[1999] 3 FCR 673, CA.
M (leave to remove child from jurisdiction), Re[1999] 3 FCR 708, [1999] 2 FLR 334.
N (child abduction: jurisdiction), Re[1995] 2 FCR 605, [1995] Fam 96, [1995] 2 All ER 417, [1995] 2 WLR 233; sub nom A v A (abduction: jurisdiction) [1995] 1 FLR 341.
S (a minor) (contact: jurisdiction), Re[1995] 2 FCR 162; sub nom Re S (residence order: forum conveniens) [1995] 1 FLR 314.
S (removal from jurisdiction), Re [1999] 1 FLR 850.
T (a minor) (contact: non-Convention country), Re[1998] 3 FCR 574n, [1999] 1 FLR 262.
ApplicationThe father applied to the High Court for an order to reflect an order made by a Californian court setting up a framework of contact whereby the mother would bring their child to England for a week every October as, under the terms of the order, the father’s English lawyers had to provide copies of the mirror order made in the Family Division to the mother’s representatives and the Californian court before the child came to England. The case was heard and judgment was given in chambers. The case is reported with the permission of Singer J. The facts are set out in the judgment.
Marcus Scott-Manderson (instructed by Bindman & Partners) for the father.
Henry Setright (instructed by the Official Solicitor) as amicus curiae.
SINGER J.As Family Division application judge for the week I have had cause yesterday and this afternoon to...
To continue reading
Request your trial
-
SW v CW
...or the presence of the child within the jurisdiction (see [46]–[50], [63]–[65], [68]–[73], below); Re P (a child) (mirror orders)[2000] 1 FCR 350 Cases referred to in judgmentsF v F (Minors) (Custody: Foreign Order) [1989] FCR 232, [1989] Fam 1, [1988] 3 WLR 959, [1989] 1 FLR 335. HB (abduc......