Teertha Gupta QC, 4PB London and Door Tenant at Unit Chambers recently talked at the Liverpool Law Society Private Child Law Conference on the topic of international law and Hague and non-Hague Convention cases, this article is a transcript from his recent talk.
The 1988 Hague Convention is a fast-track return to the country of the child’s habitual residence so that the left behind country can get on with what should happen next and make the welfare-based decision about whether there should be a relocation or not. The classic scenario is, a mother coming back to England to live with her parents because she’s fallen out with her French husband, only to discover that there is a treaty, the 1988 Hague Convention, which basically says the child has got to go back unless there are certain defences that are made out such as consent or that the child was never a habitual resident in France in the first place.
Those situations have produced a sad amount of case law over the years. A lot of people say this case law has been over-reported because it’s the musings of High Court judges, first instance cases are always in front of the High Court closely guarded by judges of the division. So their musings are always reported especially now that we have Bailey, the question is, all the other cases, the interesting cases that counter-court judges and district judges do up and down the country arguably they should be reported a bit more and these Hague cases, a little bit less. To try and cherry pick the case law is quite difficult because you could just simply produce all the judgments from High Court judges.
But, what we have as a first case (Re B 2020) is a case about set aside applications and it’s something that is new in Hague cases. This case is about setting aside a decision in the Hague arena. Historically, you weren’t allowed to do that, there was no procedure in place because Hague applications are not a domestic-based application and so this sets out the way that the new procedure should be adopted. The setting aside of Hague orders, for example for the return of a child. This case was about psychiatric issues concerning a mother, the fact that she had gone to hospital and ended up in residential care and she was not in any fit state to return with the child and the child was too young to return without her. So, the order was set aside after a certain amount of argument in the Court of Appeal.
Moving onto another example of how things are developing in the Hague arena, we have here the case of Re A 2021. This is again an order for a return of a child with the mother back to America and the mother had mental health issues and it ended up going to the Court of Appeal. I represented the mother on repeal and what we had was a one-page letter from her GP saying that she had started harming herself and that she was acting out her suicidal ideation which she had mentioned before. That letter caused the Court of Appeal to be very concerned. It was fresh evidence but it didn’t come under the Lad v Marshall principle because it was a new piece of information, a new piece of evidence. Even in the Court of Appeal, if you have something that is new, you can but apply to try and put it in. Previously in the Supreme Court, all they were concerned with is how many copies of that document do you have, do you have the requisite number of copies? Rather than getting caught up with ‘this is fresh evidence, should we really try and put it in?’ the approach really should be ‘let’s try and see if they actually read it.’ In this scenario, Lord Justice Jackson read it, would have dismissed my appeal, but in the final paragraph of his judgment said this ‘So if matters rested there, I would dismiss the appeal and uphold the Judge’s decision. However, the appeal must be determined in the light of the further evidence concerning the mother’s mental health and family support. That evidence appears to show an escalation in self-harming behaviour to the point where she cannot currently live alone with J in England, let alone elsewhere.’ That got sent back down, there was a retrial and by the time of the retrial we had up to date psychiatric evidence concerning the mother and the father gave up his application.
The Judge’s approach to these cases would be (in reference to the 1980 Child Abduction Convention, The Guide to good practice Article 13 (1)(b)):
‘Once this evaluation is made:
– where the court is not satisfied that the evidence presented/information gathered including in respect of protective measures, establishes a grave risk it orders the return of the child
So in other words, if you’re for the applicant, let’s say the father, and you know that the mother’s going to run Article 13, you’ve got to come up with all your protective measures such as you’ll pay for accommodation for her, you’ll pay for lawyers to attend the first hearing, you’ll go to the airport etc and if you have those protective measures in place, then grave risk of harm is not established.
-where the court is satisfied that the evidence presented information gathered including in respect of protective measures, establishes a grave risk, it is not bound to order the return of the child, which means that it is within the court’s discretion to order return of the child nonetheless’
That’s slightly different to English Law because in Re D, an old UK House of Lords case, they said that is 13 (b) is made out, there’s no discretion. But of course you’ve got to remember what the providence of this Guide to Good Practice Article 13 (1) (b) written by the Hague Conference, is that they want this treaty to work, they want to still say that there is a discretion to order a return even if grave risk is established.
This is something that you should bear in mind in a 13 (b) Hague case either side, for the applicant or the respondent, you’ve just got to figure out, having looked at that guidance, how you can try and get your case either within it or negotiate the case that is coming in.
Talking about cases that are coming in, non-Hague cases. That’s to say cases that don’t come into the 1988 Hague Club, India for example. How do you get a child back to India without starting full blown leave to remove proceedings? The answer is that you say you want a welfare-based summary return, summary as if it was a Hague. That is what happened in Re J (A Child) (Child Returned Abroad: Convention Rights) [2005] UKHL 40 there was a whole raft of decisions from Lord Justice Thorpe who was trying to say, in the Court of Appeal, ‘Hague/Non-Hague, let’s not get too excited about it, let’s just treat them all as summary of return cases’. But that is not what Baroness Hale said, she said that ‘if it’s not Hague country, then really it is best interest and it’s only in certain cases where you say it’s in the best interest of the child to have a summary determination’. By summary we mean a short, High Court CAFCASS report, we mean a short two-day hearing for a summary return to be considered. That is what Hale meant when she said ‘There is no warrant, either in statue or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it’. However it goes on to say that ‘The court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits. Ina. series of cases during the 1960s, these came to be known as ‘kidnapping’ cases’. Baroness Hale talks there about how you make the decision about whether its a swift return or whether it falls into a full welfare-based enquiry.
Citing Mr Justice Cobb’s summary of what Baroness Hale is saying, he summaries the recent Supreme Court authority of Re NY (A Child) [2019] UKSC 49. NY was a Hague case where the court decided that on the inherent jurisdiction the children should still be returned to summarily to the jurisdiction of Israel. In that case, Lord Wilson said effectively that you’ve got to be very careful about welfare-based summary returns and so what that has meant, on the ground in the High Court, is if you have a non-Hague case and you go to court and you say you’d like a summary of return procedure, if you are in front of somebody like Mr Justice Mostyn, he will say no and will send you to the family courts in the area of which the child is located and you can go on the slow train and have a full welfare-based enquiry and effectively a leave to remove back to the country the child you say is from. However, this is not what Lord Wilson actually said, he said ‘the court needs to consider whether the evidence before it is sufficiently up to date to enable it then to make the summary order’ and he also talks about the summary process being considered as early as possible when you are looking at the procedure, should it be slow train or actually can we look at doing the usual Re J (as it used to be called) summary of return application.
The reason why this is all cited by Mr Justice Cobb is because of the recent case of J v J [2021] EWHC 2412 (Fam) Cobb J which is an Indian case. Mr Justice Cobb, despite what is said in Re NY and what was being said regarding Justice Mostyn’s approach to it, still ordered a summary return of that child to India. There was a report (not CAFCASS), there was an Indian expert’s report (needed in a non-Hague case to highlight that best interests are paramount) and so this recent decision has shown us that it is still alive and kicking; the non-Hague, welfare-based summary approach.
You can try summary approaches in your normal domestic cases, you can try and go for a summary strike out. It is possible to import this kind of approach in other welfare-based applications and considerations.
Outgoing cases to non-Hague countries
Algeria, for example, what kind of orders can you make for a child that is in Algeria with both the parents’ permission, where there are no pre-existing proceedings in this country? Well you can try and go for parens patriae which is based on the child’s British passport, you can go on the Senior Courts Act, effectively on inherent jurisdiction. This is an interesting case (M ( A Child) [2020] EWCA Civ 922 (17 July 2020)) it was effectively Lord Justice Moylan setting out, as far as he could see, what the statutory limitations are to the inherent jurisdiction and how there are certain things you can’t do such as order for the child to be returned to living in certain environments. Therefore, it is quite difficult now, because of this decision, which didn’t go any further to say that the inherent jurisdiction in outgoing Hague cases is unlimited the way it used to be for example in forced marriage cases prior to the Forced Marriages Civil Protection Acts coming in. This was really Lord Justice Moylan setting out the law with me being a bystander and nodding on occasions in a very learned fashion.
The other Hague Convention of 1996
This replaces Brussels II revised in many scenarios now. This is the recognition and registration of orders from other countries that have signed up to the 1996 Hague Convention. This is set out by Lord Justice Moylan as was in Re P (recognition and registration of orders under the 1966 Hague Child Protection Convention [2014] EWHC 2845 (Fam), [2014] All ER (D) 77 (Aug)) but we’ve then got this really complicated case called Re X (Children) (Article 61 Biia) [2021] EWCA Civ 1305 which is not being appealed further as far as I am aware. This case talks about what happens when you’ve got a B2 R country making decisions when the other country is a 96 Hague country and not a B2 R country. In this example it was Russia and England, the proceedings started last year before the UK left the EU. The decision was that under Article 61 of BIIa if the children are habitual residents in England then it’s a B2 R case and the 96 doesn’t bite. What you’ve got there effectively is the Court of Appeal Judges’ saying, for future reference, as England is now in the same position as Russia, that actually if there is an argument about children being habitually resident in France for example, even if the English Court has made a decision that they habitually resident in England, then the French court’s take precedence. This comes after what was said by the learned judges in this case of Re X. They cited this case [UD v XB CJEU (Case C-393/18 PPU) [2019] 1 WLR 3083 which is known as being the one that summarises the fact that you can’t be habitually resident in the country that you’ve never physically been in.
In Re X, ‘The appeal was allowed, and the judge’s determination set aside. If the children were habitually resident in England and Wales when the English proceedings commenced, BIIa applies to them, including the jurisdiction provisions and article 13 of the 1996 Hague Convention does not apply’ the problem is in that case is that the Russian court had already decided that the habitual residence of the children was in Russia. Article 25 of the 1966 Hague says ‘the authority of the requested State is bound by the findings of fact on which the authority of the State where the measure was taken based its jurisdiction’. There is a Russian order that is now being made on this case and arguably it is fully enforceable because of Article 25 of the 1966 Hague Convention.
So in short, that’s what has been going on under Hague Convention, non-Hague Convention, 1996 Hague Convention and the Guide to Good Practice and I hope you found this whirlwind tour useful.
Transcript from Teertha Gupta QC, 4PB London and Door Tenant at Unit Chambers (talking recently at the Liverpool Law Society Private Child Law Conference)