SP (Father) v EB (Mother) (1st Respondent) KP (Through her guardian Mr John Power) (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 26 November 2014 |
| Neutral Citation | [2014] EWHC 3964 (Fam) |
| Docket Number | Case No: FD13P01412 |
| Court | Family Division |
| Date | 26 November 2014 |
[2014] EWHC 3964 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD13P01412
and
Mark Jarman (instructed by Creighton & Partners Solicitors) for the Applicant
Edward Devereux (instructed by Bindmans LLP) for the 1 st Respondent
Teertha Gupta QC (instructed by Freemans Solicitors) for the 2 nd Respondent
Hearing dates: 24–26 November 2014
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court. For avoidance of doubt in any report of this judgment the child may be referred to as Kate.
This is my judgment on the applicant father's application for an order that his daughter Kate, who is now aged 14 1/4, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as incorporated domestically by the Child Abduction and Custody Act 1985.
Kate is a party to the proceeding. She and her mother strenuously oppose the application relying on Article 13(2) (Kate's objection to return); Article 13(b) (harm or intolerability likely to be suffered by Kate in the event of return); and Article 20 (violation of Kate's human rights in the event of return). Article 20 is in fact not incorporated by the 1985 Act as that was enacted before the enactment of the Human Rights Act 1998. However, there is no doubt that Article 20 is available by operation of the 1998 Act (see Re D [2006] UKHL 51 at para 65 and X v Latvia [2014] 1 FLR 1135 at paras 106 and 107). The human right which is invoked is the right to a family life in Article 8 of the European Convention on Human Rights 1950 (and the identical right in Article 7 of the European Charter of Fundamental Rights of 7 December 2000, which is in play because the 1980 Convention here operates under the aegis of the European Union Regulation No. 2201/2003, known as B2R, as I will explain).
Before I deal with the facts I set out some of the relevant legal principles, so far as they are relevant to this case.
This is the third judgment which I have recently delivered where I have had to emphasise the very limited purposes and objectives of orders made under the 1980 Convention. In my decision of B v B [2014] EWHC 1804 (Fam) I said this:
"2. The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone's rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.
3. There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child's homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.
4. Where exceptions come into play, such as for example the exception mentioned in Article 13 of the Convention, which is that the child objects to being returned and has attained a degree of maturity at which it is appropriate to take into account her views, the type and nature of the exception has to be examined in the context of the limited objectives of the Convention. It must be a sound, reasoned and mature objection to being returned to her homeland for the sole limited purpose of enabling the court of that country to determine her long-term future. Equally, if the exception that is relied on is that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation, that again has to be seen through the lens of the objective of the Convention. We are not talking here about long-term risks. We are not talking here about long-term harm. We are talking about risks and harm that would eventuate only in the period that it takes for the court of the child's homeland to determine her long-term future and to impose the necessary safeguards, if necessary, in the interim."
It is implicit in the terms of the 1980 Convention that an application ought to be made very shortly after the wrongful removal or retention and that it should be heard very quickly. Indeed Article 11.3 of B2R requires the case to be concluded in six weeks. In such a short time frame it may not be possible for the left-behind parent to commence full welfare proceedings about the child's future in the home court. However, if any kind of delay creeps into the case it must be obvious that the left behind parent must actually start the welfare case in the home court which the away court is being asked to make the order that the child should return for. As will be seen, Kate has now been here for nearly 18 months. In that period the father has done nothing at all to commence the welfare case for which he seeks Kate's return. I was told that this was on the advice of his Maltese lawyers, which is scarcely believable. If true it was very strange advice. Had he commenced such a case the Maltese Court could by now have (1) decided whether Kate actually needed to return in the interim for the purpose of the proceedings; (2) concluded the case finally; and (3) disposed of any appeal. As it is the father has done precisely nothing and even now his counsel was not really able to tell me what he would be seeking in any welfare proceedings. A joint residence order was mentioned but Mr Jarman was not able to give me any details of how the father intended that to operate.
If a final order, or, for that matter, even an interim order had by now been made which required Kate to return to Malta either permanently or temporarily then that order would be almost automatically enforceable without recourse to any of the defences available under the Hague Convention of 1980. This is by virtue of the provisions of Chapter III of B2R which provides the rules for the mutual recognition and enforcement of (inter alia) judgments concerning parental responsibility and rights of access.
It is clear that B2R is modelled on the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, although so far as this country is concerned B2R was incorporated into the law first and the 1996 Convention came a distant second. It is also clear that at least some of the framers of B2R would have preferred to have done away altogether with the 1980 Convention and just have had a regime of mutual recognition and enforcement of orders. Thus in a case of abduction the left behind parent would seek a return order from his home court. If granted that would be transmitted to the away court and be automatically enforced there. Protracted arguments in the away court about Articles 3, 12, 13 and 20 would not happen. The away court would have only limited powers to make an interim provisional order declining a return 1. One can see the merit of such an
approach. In the usual way a compromise was reached. The compromise is reflected in the terms of Recital 17 and Articles 11.6 – 11.8. Recital 17 states:"In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained."
Article 11.6–11.8, however, only permits this overreaching or trumping procedure to be available where a defence has been established under Article 13 of the 1980 Convention. The procedure is not available if the Hague application is successfully defended under Article 3 (no breach of rights of custody, or child not habitually resident in home country), Article 12 (settlement), or Article 20 (violation of human rights). It is not completely clear why this overreaching or trumping procedure should be capable of invocation for some, but not all, of...
To continue reading
Request your trial
-
E (D) v B (E)
...[2007] UKHL 55, [2008] 1 AC 1288; IP v TP (Child abduction) [2012] IEHC 31, [2012] 1 IR 666; Re KP (Child: objection to return) [2014] EWHC 3964 (Fam), (Unrep, Mostyn J, 26/11/2014); EH v SH (Child abduction) [2004] IEHC 193, [2004] 2 IR 564; TB v JB [2001] 2 FLR 515; PN v TD (47/2008, SC,......
-
Re F (Children)
...The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), [2016] 1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the eviden......
- A v B
-
Re C (a child)
...Royal Bank of Scotland v Carlyle[2015] UKSC 13, 2015 SC (UKSC) 93, [2015] SLT 206, [2015] 3 WLUK 307, 2015 GWD 10-175. SP v EB and KP[2014] EWHC 3964 (Fam), [2016] 1 FLR Thomas v Thomas [1947] AC 484, [1947] 1 All ER 582, [1947] SC (HL) 45, [1948] SLT 2, (1947) 63 TLR 314, [1948] LJR 515. Y......