X, Y and Z (children) (Retrospective Leave to Remove from the Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Judge Meston |
| Judgment Date | 31 August 2016 |
| Neutral Citation | [2016] EWHC 2439 (Fam) |
| Date | 31 August 2016 |
| Court | Family Division |
[2016] EWHC 2439 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
SITTING IN BOURNEMOUTH
His Honour Judge Meston QC
sitting as a Deputy Judge of the High Court
Miss Katherine Dunseath (instructed by Ellis Jones solicitors) for the applicant mother
The respondent father was in person
Hearing date: 16 September 2016
Approved Judgment
Judge Meston QC:
Introduction.
These proceedings concern three children, X (aged 10), Y (aged 8) and Z (aged 6).
This judgment follows a hearing to determine whether or not the court should exercise jurisdiction under the Children Act 1989 in respect of an application by the mother for retrospective leave to remove the children temporarily to Spain and also for permission to relocate the children permanently in Spain. In effect, the mother seeks approval of the court to retain the children in Spain where they have lived since about March 2013. The father has remained in England without any contact with the children. If it is decided that the court should exercise jurisdiction, important questions arise as to the manner in which it should be exercised and the practical steps required to effect a proper hearing.
Background .
Although both parents have been legally represented in these proceedings and in earlier proceedings, there have been changes of solicitors and their most recent representatives may have been hampered by incomplete knowledge of the earlier proceedings. I have gathered some background information from the relevant previous court files.
The mother and the father were married in January 2006 and the father has parental responsibility for each of the 3 children. The mother has an older child, A, who is now 13 years old. There is said to be a dispute as to whether or not the father is actually the father of A. As far as I am aware, the parents are UK citizens and the children were born and brought up in England. According to the mother, the father was violent towards her and the children during the marriage, and the parents' relationship ended in early 2013.
By an application issued in June 2011 on behalf of the mother she sought a residence order and a prohibited steps order under the Children Act 1989. The mother also applied for an order or orders under Part IV of the Family Law Act 1996. The mother's statement in support dated 10th June 2011 did not suggest that the father was not, or might not be, the father of A. In that statement she alleged that the father was violent and threatening towards her. The mother said that the father had also lost his temper and assaulted X on 31st May 2011 as a result of which she (the mother) had locked him out of the house and called the police. It was also said in her application that the children were known to social services and were subject to a child protection plan. On 10th June 2011 the court made a non-molestation order without notice to the father, but on the return hearing date on 16th June 2011 the father appeared and it was recorded that the mother wished to withdraw the proceedings. The non-molestation order was then discharged. In the concurrent Children Act proceedings the court made a prohibited steps order on 10th June 2011 preventing the father from removing the children from the care of the mother and listed the case for another hearing on 1st July 2011. A subsequent letter to the court from CAFCASS of 23rd June 2011 confirmed the involvement of the local authority since 2008. The letter from CAFCASS also said that the mother wished to withdraw her application but suggested that the court might wish to gain further information before allowing the application to be withdrawn. Accordingly, on 1st July 2011 the court directed an investigation and report by the local authority under section 37 of the Children Act 1989. The report of 25th August 2011 showed the parents to have reconciled. The local authority proposed continuation of the child protection plans. No further court orders were then made.
In March 2013, when the parents' relationship finally ended, the mother took the children to Spain without the father's knowledge or agreement. They have remained in Spain since then.
The father apparently suspected that the children had been taken, or were about to be taken, to the maternal grandparents' property in Spain for the Easter holidays (as was usual); but he did not then know whether they had actually gone or that they had been retained there. On 9th May 2013 he contacted the police because he believed that the mother was planning to leave the country with the children. He also instructed solicitors and by an application issued on his behalf on 10th May 2013 he sought a prohibited steps order to prevent the removal of the children. In a supporting statement of 9th May 2013 he said that he and the mother had separated on 18th March 2013 since when he had not seen her or the children. His solicitor had written to the mother on 2nd April 2013 about contact and learned that the mother opposed contact and refused mediation. His solicitor had written to her again on 15th April 2013 and she had telephoned the solicitor on 16th April 2013 when she said that they were not in Spain and that the children had started school again. However, the school then informed the father's solicitors that they were not there.
On 10th May 2013, at a hearing without notice to the mother, the court ordered the mother to surrender the children's passports and prohibited her from removing the children from England and Wales. On 20th May 2013 the process server went to the home of the mother's mother and was told by the mother's mother that the mother and children had moved to another (named) county. The mother's mother thereupon contacted the mother by telephone which she then passed to the process server. The process server told the mother of the orders which had been made and of the return hearing date. The process server asked the mother for her address which she refused to give, and so he then left the documents with her mother.
At the next hearing on 24th May 2013 the mother did not attend and was not represented. The court ordered the Department of Social Security (sic) to disclose the children's address and directed CAFCASS to carry out their safeguarding checks. The Department of Work and Pensions responded with a list of addresses, the most recent was that of the maternal grandmother. None were in the county which had been named by the grandmother.
CAFCASS provided a 'schedule 2' letter to the court dated 4th June 2013. This recorded the information about the family obtained from the local authorities and police.
At the next hearing on 21st June 2013, which again the mother did not attend, the district judge adjourned the case until 2nd August 2013. The note of the district judge on the court file recorded that the father believed that the mother was in Spain but was returning soon. The mother did not attend the next hearing listed on 2nd August 2013.
The father's solicitor completed and submitted an application on behalf of the father to the International Child Abduction & Contact Unit (ICACU) who acknowledged it by letter dated 11th September 2013. In that letter ICACU told the father's solicitor that an application had been submitted to the Central Authority in Spain. ICACU also wrote in that letter:
"The speed and manner in which your case is conducted from this point is entirely dependent upon the internal procedures in Spain."
There was no further progress in the father's application to the English Court.
On 10th February 2014 an application to the court in Spain made on behalf of the father under the Hague Convention was issued. It is not clear why it had taken until February 2014 for that application to be made, the application by ICACU to the Spanish authority having been made in September 2013.
The mother had proper notice of that application and she participated in the Spanish proceedings in which she was legally represented. She unsuccessfully raised an Article 13 (b) 'defence'.
On 25th April 2014 the Court of First Instance in Spain ordered the return of the 3 children to the father, the judge holding that:
"… this is a clear case of unlawful removal, a typical example of "fleeing jurisdiction" in which the mother removes the children to Spain without the consent of the father, refusing to appear before the English court on numerous occasions, when it is before this very judicial authority that the respondent should assert her allegations concerning the suitability of the father to fulfil parental functions. The path followed, which consists in converting this procedure for return into a child custody procedure, is clearly improper as such an approach compromises the substance and purpose of the Hague Convention of 1980 and Council Regulation (EC) 2201/2003, which is precisely to decide upon the return of the child to the jurisdiction of the Court from which he or she has been removed, in order to allow that Court to decide upon the basic issue of the acrimonious and conflictive dispute between the parents over the custody of the child, something which the Spanish courts are not empowered to do."
The court ordered the Spanish Central Authority to send a transcript of the ruling to the English County Court in case it was "deemed necessary to adopt protective measures for the children" in view of the mother's allegations. It does not appear that the transcript was in fact received.
The mother was ordered by the Spanish Court to pay the travel costs of the father in respect of the return unless the mother returned voluntarily to Great Britain to hand them over there.
In June 2014 a divorce petition was issued by, or on behalf of, the...
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