S (A Child) (Hague Convention 1980: Return to Third State)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Baker,Lord Justice Longmore |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWCA Civ 352 |
| Date | 07 March 2019 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/0153 |
[2019] EWCA Civ 352
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE COBB
FD18P00719
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Moylan
and
Lord Justice Baker
Case No: B4/2019/0153
Mr E Devereux QC and Miss N Scarano (instructed by Charles Strachan Solicitors) for the Appellant
Miss P Bhari (instructed by Birmingham Legal Ltd) for the Respondent
Mr Setright QC and Ms Chaudhury instructed by Dawson Cornwell for the Intervener, The International Centre for Family Law, Policy and Practice
Hearing date: 19 th February 2019
Approved Judgment
Introduction:
On 15 th January 2019 Cobb J determined the father's application under the Hague Child Abduction Convention 1980 (“the 1980 Convention”) and ordered that the child, A, be “summarily returned” to Hungary. An Annex to the order contained 14 undertakings given by the father but for which Cobb J would have decided that the mother had established the grave risk exception under Article 13(b) of the 1980 Convention.
What makes this case unusual is that Hungary was not the state of the child's habitual residence prior to his wrongful removal. He, with his parents, was habitually resident in Germany.
The grounds of appeal did not seek to challenge the court's power under the 1980 Convention to make an order requiring a child to be taken to a third state but contended that the judge had failed to give any “adequate consideration to the implications and/or appropriateness of” such an order and was wrong to have made this order in this case. It was also argued that the “robustness” of the specific protective measures relied on by the judge, namely the father's undertakings, had not been properly analysed by the judge and that they did not ameliorate the grave risk as established by the mother.
I gave permission to appeal on 28 th January 2019 because I was satisfied that the appeal had a real prospect of success both in respect of the challenge to the judge's decision to order that the child be “returned” to Hungary and of the challenge to the “robustness” of the protective measures.
The use of the word return is clearly inapt when referring to an order requiring a child to be taken to, what for convenience can be called, a third state (i.e. a state other than the requested state and the state in which the child was habitually resident prior to the wrongful removal or retention). However, I propose to use it for this purpose for ease of reference.
Public funding for leading counsel for the mother was granted at the end of the week before the appeal was listed. In response to a request from Mr Devereux QC on 15 th February 2019 I gave permission for a short additional skeleton to be filed by 10.00 am on Monday 18 th February 2019, the day before the hearing of the appeal. Unexpectedly, this skeleton provided the first notice to the father that the mother would be seeking to argue (a) that there is no jurisdiction under the 1980 Convention to order that a child be returned to a third state; and (b) that the undertakings provided by the father were not within the scope of Article 11 of the Hague Child Protection Convention 1996 (“the 1996 Convention”) and, further, that the 1996 Convention did not in any event apply in this case because of Article 61 of BIIa ( Council Regulation (EC) No 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility).
At the commencement of the appeal Ms Bhari understandably submitted that she was not in a position to deal with these new points, if the mother was given permission to raise them.
This was, to put it mildly, not a satisfactory position when the new points went to issues of jurisdiction. In those circumstances, we informed the parties that we would initially hear submissions confined to the existing grounds of appeal. At the conclusion of those submissions we were able to inform the parties that the appeal would be allowed and the application under the 1980 Convention dismissed, with reasons to follow. We did not, therefore, need to hear submissions on or address the new points.
Additionally by way of introduction, also on 15 th February 2019, The International Centre for Family Law, Policy and Practice had applied for and, with the agreement of the parties, was given permission to intervene by way of written submissions. These submissions were in support of the court having power under the 1980 Convention to make a return order to a third state. As referred to above, it has not been necessary to determine this issue of principle in this case.
I set out below my reasons for agreeing in the outcome to this appeal as referred to above.
Background
Cobb J's decision is reported: [2019] EWHC 56 (Fam). I propose, therefore, to set out only a brief summary of the background.
The parties are both Hungarian nationals. At the date of the judgment the father was aged 53 and the mother 40. They met in Hungary in about 2009/2010 and started living together. They married in 2017. They have one child, A, now aged 4.
In September 2016 the father moved to live and work in Germany. The mother and A joined him there in January 2017. The father had lived and worked there many years previously but it appears that this was the first time the mother had lived outside Hungary. The parties both have children by previous relationships and other family members who live in Hungary. The mother has a sister who lives in England.
In March 2018 the family travelled to Hungary for a holiday. After a few days the father returned to Germany. Shortly after that the mother and A travelled to England since when they have been living with the mother's sister.
The father travelled to England in early April 2018. As set out in Cobb J's judgment, the mother told the father that she wanted to end their relationship and “apparently in response to this news … the father made an attempt on his own life” on 15 th April 2018. He was admitted to hospital. The mother visited him in hospital with A. During that visit, as described in the judgment:
“the father seriously assaulted the mother on the ward; he attempted to strangle her. The mother had been holding A at the time of the assault and dropped him to the floor. Both the mother and A were medically checked and were found not to have sustained any serious or long-lasting injuries, but both were plainly shaken and understandably distressed by the events. The mother deposes to the fact that “A was very upset by the incident in the hospital”. While in hospital after this incident, the father again made attempts on his own life …”.
On 17 th April 2018 the father pleaded guilty to assaulting the mother and was given a suspended sentence of six months. A restraining order was also made prohibiting the father from contacting the mother.
The father left Germany and moved to Hungary at some point between the end of April and August 2018. He then initiated the process under the 1980 Convention by contacting the Hungarian Central Authority.
The Proceedings
The father's application under the 1980 Convention was issued on 24 th October 2018. The application, and the statement from his solicitor filed with the application, sought an order for A's return to Germany.
The letter sent by the Hungarian Central Authority to the English Central Authority, ICACU, with the request under the 1980 Convention noted that, “Although (the father) turned to our office in Hungary, according to the application made by the father the family lived in Germany, therefore the child's habitual residence is in Germany”. This letter stated that the father was seeking the child's return to Germany as the State of the child's habitual residence.
The first substantive order made in the proceedings, dated 6 th November 2018, required the father, among other matters, (i) to give a full account of the circumstances in which he came to England and subsequently assaulted the mother; (ii) to state the jurisdiction to which he sought the child's return; (iii) if he sought the child's return to Germany, to set out his proposals as to the child's maintenance, accommodation and education there; and (iii) to serve a statement which included the “protective undertakings he offers in the event that the child is summarily returned”.
In his statement dated 15 th November 2018 the father said that he would prefer A to be returned to Hungary but would leave it to the court to decide whether the order should provide for a return to Germany rather than Hungary. As to the assault, the father explained that the mother had responded to his trying to talk about “a return to Germany or Hungary … in a highly negative manner and because of her behaviour I acted headlong which I deeply regret”. The father also said that he was “prepared to give all of the usual and any undertakings” as required by the mother or the court to protect the mother and A on their return.
The mother opposed the application on a number of grounds including Article 13(b). She alleged that her relationship with the father had been characterised by domestic abuse and relied on what she had told her doctor in Germany in February 2018 and on the incident in the hospital. She also alleged that the father had mental health problems which impacted on the way he behaved. She objected to a return order either to Hungary or Germany.
In his statement in response, the father disputed the mother's account of their relationship. He said that the mother had “taunted” him when she came to see him in the hospital. This led him to act “completely out of character” for which he expressed “deep...
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