Best v Hesketh

J U D G M E N T

1. LORD JUSTICE THORPE: On 15 July 2005 Singer J gave judgment explaining his reasons for striking out an originating summons under the 1980 Hague Convention without further consideration of the arguments by the parent, following a hearing which had commenced on 1 July and concluded on 12 July.

2. The case is a highly unusual one on its facts, and it is fortunate that stories such as this are rare because those who suffer most are the children involuntarily involved in the unrelenting battle between their misguided parents. The judgment commences with a short recital of the history. He begins with the meeting of the parents in about 1992 in Spain where they made their home and where their three children (who are now respectively 12, 11 and 6) were born. The whole family are British but they were undoubtedly habitually resident in Spain in September 2003.

3. On 19 September the mother unilaterally removed the children, returning to the home of her parents in this jurisdiction. Ten days later an originating summons was issued seeking a return under the Hague Convention on the Civil Aspects of International Child Abduction 1980. That Convention was of course incorporated into English law by the Child Abduction and Custody Act 1985.

4. The case in this jurisdiction proceeded regrettably slowly. One factor that contributed to slow progress was that on 4 November 2003 Sumner J made a request under Article 15 of the Convention for a declaration from the relevant Spanish judicial authority. The precise nature of the declaration is not clear from the order, but implicitly it must have been for a declaration that the removal was in breach of the father's rights of custody and therefore an unlawful removal within the terms of Articles 3 and 5 of the Convention.

5. That request was answered with commendable speed when the Assistant Director General of the Directorate of Legislative Policy and International Judicial Cooperation certified on 11 December that "the removal of the children to the United Kingdom in September 2003 by their mother without the consent of the father or judicial authorisation is deemed to be unlawful under Article 3(a) of the Hague Convention."

That declaration was founded on Articles 1, 5, 4 and 6 of the Spanish Civil Code, by virtue of which both parents had joint parental authority and under the terms of which the consent of the other or judicial authorisation was required for one of the parents to perform acts outside the normal exercise of parental authority, such as removal of the child to another country.

6. In my judgment that certificate effectively removed the mother's first limb of defence to the originating summons, the defence that denied that the father was exercising rights of custody at the date of removal. So that left only her second line of defence under Article 13(b) of the Convention. That may be an overbold statement on my part because Mr Spon-Smith for the mother has said that, despite the seeming absolute character of the certificate, it was the mother's intention to call expert evidence at the eventual trial to demonstrate that the Assistant Director General had the Spanish law all wrong.

7. The trial was fixed for 24 May 2004 with a two-day time estimate. However, on 15 May 2004 the father himself re-abducted the children, taking them back to Andalucia. That was a wrongful act, not only in that it replicated the very wrong that his English proceedings sought to right, but also it was direct defiance of an injunction made in this jurisdiction on 16 October 2003 to secure the presence of the children in the jurisdiction until the determination of the originating summons.

8. The response of the court in London was swift. On the very day of removal Charles J made an order restraining publication of any detail of the children or the case. The father at that hearing was represented by leading counsel. He was also represented by leading counsel three days later when the same judge made an order headed "In the matter of the Child Abduction and Custody Act 1985" that the father return the children to the care of the mother and to the jurisdiction of England and Wales. Immediately thereafter the father's solicitors came off the record and continuing proceedings in this jurisdiction were without any representation or contribution from the father until the return of the children on 20 June 2005. As soon as the children returned the father was swift to apply in this jurisdiction for orders pursuant to section 5 of the Child Abduction and Custody Act 1985 to secure the welfare of the children. That summons was of course issued during the pendency of the argument before Singer J. I would only draw attention to two orders made during the father's abstention. The first the order of Singer J of 26 July 2004, an order which in its declarations asserts primary jurisdiction and emphasises that the court had already ordered the children's return and that their removal had been at a time when the court was actively engaged in considering matters concerning their welfare. Following the declarations the judge directed what should happen to the children on their return. His later order of 17 November 2004 is of significance for another reason. That order had as its second recital a record of judicial communications between Singer J and Don Alejandro Rodriguez, a judge of the court of Estepona. Those communications were conducted with a view to resolving practical aspects of returning the children to England and Wales in accordance with orders made in both jurisdictions.

9. Following that sensible exchange, it can clearly be seen that the judges in London and the judges in the court of Malaga were collaborating to achieve the return of the children, albeit that that was not finally achieved until some six months later.

10. Although the husband had been worsted by this judicial collaboration and forced to return the children back to this jurisdiction, as soon as he arrived he sought to invoke the aid of the London courts. I have already pointed to his summons of 7 July and at the hearing before Singer J on his behalf Mr Michael Nicholls and Miss Ramsahoye strenuously argued that he was entitled to a swift determination of his outstanding Hague application and a consequence of that determination would be the return of the children to the jurisdiction from which they had been unlawfully removed, thus allowing any welfare issues to be determined in the Estepona court.

11. Mr Spon-Smith for the mother not surprisingly characterised that submission as ignoring all the realities. He essentially invited the court to rule that the father's wrongful removal of the children effectively neutralised the mother's initial flight and thus by his wrongful unilateral act he had effectively rendered his relevant legal application redundant. The children were within this jurisdiction as a result of the supervening event, namely the orders of the Spanish court, rather than as a consequence of the mother's original abduction.

12. Mr Nicholls mounted an ingenious argument to the effect that all the intervening orders of the London judges, and most particularly their orders for the return of the children from Spain, were ultra vires since there was nothing within the Convention other than Articles 12 and 16 to empower the court, and nothing in the statute other than section 5, which Mr Nicholls submitted could not as a matter of principle be read to extend the scope of the Convention itself.

13. The judge strongly preferred the submissions of Mr Spon-Smith. He said:

"46. The effects of Mr M's removal of the children to this country are spent in the sense that they have been overtaken by events imposed by F which have had the effect, in my judgment, of rendering his Hague application unviable. The children have ceased to be here in consequence, in any real or immediate sense, and what may have been M's (in Hague terms) wrongful removal of them from Spain. They are currently here pursuant to orders made by a court of competent jurisdiction in Spain.

47. The English court has jurisdiction to entertain M's Children Act application by virtue of the fact that they were physically present here when those proceedings were instituted. Indeed there may be arguments (although understandably none were canvassed before me) which could lead to the conclusion that by the time M issued those proceedings she, the only person with parental responsibility, had become habitually resident in England. In that event arguably so too were the children, notwithstanding the pendency of the Hague proceedings whereby F sought to secure their return to the country where undoubtedly they had been habitually resident at the time of their removal. The fact that their continued residence here might be precarious and could prove short-term would not necessarily preclude a factual finding of habitual residence by that stage. If so the children would still have been habitually resident here when their father re-abducted them. The 'lawfulness' of the 'wrongfulness' of the circumstances whereby they came to reside here would not necessarily impact on the issue whether they had ceased by then to be habitually resident in Spain and had acquired that attribute here. See, in this connection, the speech of Baroness Hale in Mark v Mark[2005] UKHL 42, [2005] 2 FCR 467.

48. It would in all these circumstances appear little short of grotesque for F to be allowed simply to pick up the reins of his abandoned Hague proceedings the driving-seat of whose carriage he so deliberately abandoned. It is an abuse of the court's process for him now to seek to take his application forward. I dismiss it."

14. Mr Michael Nicholls had hoped to be in a position to advance this application to the court himself but he has been diverted to another professional engagement in Newcastle and Miss Ramsahoye has appeared before us today to argue from the base of a skeleton which he sent in yesterday.

15. Before coming to consider the submissions of counsel today, there are two points that I need to record. First is that the court was very helpfully given early notice of the father's intention to seek permission to appeal. That indication was given to the court on 15 July and on the 18th Deputy Master Mrs di Mambro indicated to Mr Nicholls that the case would be listed today as an application for permission with appeal to follow if permission granted. That is a reflection of the very high priority that this court gives to any appeal brought under the Hague Convention, and obviously effective listing could only be achieved over the course of the short remaining weeks of the current legal year. So the appellant's notice in due form was filed and sealed on 21 July and the whole process was then thus compressed within a period of about six days.

16. Mrs di Mambro has received a letter from Mr Duncan Ranton of Kingsley Napley, who is the solicitor who has had the burden of preparing the father's application. His letter sets out in detail the extraordinary difficulties that he has encountered in obtaining authorisation from the Legal Services Commission to present the father's case, notwithstanding the fact that the order for an oral hearing on notice with appeal to follow was the clearest indication of this court's assessment of the existence of an argument that merited the consideration of the court. Once such an order has gone, I really question what is the need for the Legal Services Commission to undertake a separate merit assessment? In such a situation the authorisation should in my view, but only in my view, be almost automatic, subject of course to considerations of financial assessment. But as Mr Ranton has detailed in his letter, his approach on 21 July to the proper department (the Special Cases and Multiparty Actions Unit) resulted only in an answerphone message that the unit was closed on Friday 22 and Monday 25 July with a promise of a return to work on the 26th. Obviously Mr Ranton made strenuous efforts to find another route. He called the main switchboard on a number of occasions without being able to identify anybody who was in a position to consider his application and grant the authorisation that was absolutely necessary in order for him to undertake the essential preparations. He was put in the position of having to undertake work which was not covered by a certificate and of having to ask a member of the Bar to embark on preparation on the same basis. It does seem to me that there is a lesson to be drawn from this brief history. If this court can work giving the highest priority to Hague Convention cases then it is absolutely necessary for the Legal Services Commission to give the same priority to ensure that this court is not handicapped and, perhaps even more important, that an individual parent is not in danger of injustice in the appellate process.

17. Returning then to the submissions, Miss Ramsahoye has made a spirited attack on the series of orders made in the father's absence and in particular those that I have already identified. Her submission is attractively simple. She says that Article 16 is a clear warning to the courts of the requested state. After receiving notice of a wrongful removal of a child in the sense of Article 3, the judicial authorities of the contracting state to which the child has been removed shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of a notice. She then moves to Article 12 which she says expressly defines and limits the extent of the court's powers in circumstances such as those with which we are confronted. The final paragraph of article 12 reads:

"Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child."

18. Miss Ramsahoye's submission is that the court's powers are not an inch wider than that. They have two options. Either to stay or to dismiss. It would have been open to Charles J to stay or to dismiss. But it was not open to him and, certainly not to Singer J subsequently, to make the raft of orders that they purported to make. Then she says, in relation to section 5, that that statutory power only enables a judge to give such interim directions as he thinks fit for the purpose of securing the welfare of the child or of preventing changes in the relevant circumstances before the application is determined. That cannot be read to extend the scope or scheme of the Convention and once the children were removed, then the court had no business to be giving directions or making orders for the purpose of securing the welfare of the child, particularly since at the relevant date they were within the state of their habitual residence.

19. Mr Spon-Smith says that this is simply an aerial shot at an irrelevant target. None of these orders were challenged or appealed. The only question for this court is the validity of the order of 15 July. The submission for the appellant is a simple avoidance of the only debate which is before the court. Mr Spon-Smith says that the judge was plainly right to reach the conclusions that he did and that he was equally plainly right in his reasoning.

20. I would unhesitatingly accept Mr Spon-Smith's approach. Miss Ramsahoye's argument on the confines on the court's jurisdiction is an interesting argument and may have some validity. But it is in reality irrelevant to what we have to weigh today. It is not surprising that the contentions are all directed to peripheral orders since the pragmatic sense of Singer J's conclusions is self-evident. It is shocking that these children have been subjected to restless unsettled lives over the course of the last two years. Nothing is more obvious than their urgent need for a welfare determination of the home that they should live in, the parent with whom they should live, the school that they should attend and the time that they should spend with the other parent. These are the ordinary imperatives once a family disintegrates, and these children have effectively been denied effective judicial welfare determinations by the strategic warfare that their parents have indulged in.

21. To submit that a father who not only abducts children, but who does so directly flouting an order to prevent their removal, thereby renders the judge powerless is quite unreal. In my judgment, faced with contumacious breach of that sort, the judge has wide powers to limit and control the default of the contemnor, including the power to order him to purge his contempt by undoing the wrongful act, or alternatively taking the rightful acts that he has omitted to take. So I have no doubt at all that Singer J was entirely right to dismiss this summons and for the reasons which he did. Only in deference to the very hard work that has been done by Mr Nicholls and Miss Ramsahoye in endeavouring to present the counter-argument would I grant permission, but say that the resulting appeal is dismissed.

22. LORD JUSTICE WALL: I agree. I would like before briefly going to the merits of the appeal to associate myself with Thorpe LJ's remarks in relation to the father's public funding.

23. I have been only a limited amount of time in this court but it is self-evident that a number of applications, notably those involving the liberty of a subject and those relating to children, including of course cases with an international dimension, have to be heard swiftly. It both hampers the work of this court and makes the task of those advising and preparing for applications and appeals extremely difficult if they are unable to obtain public funding in time. This is particularly the case where the court has ordered an oral hearing of the application for permission.

24. We have this afternoon listened to a skilful and carefully presented argument from Miss Ramsahoye on behalf of the father, rendered all the more so by the fact that it was not one of her devising. A number of the issues she raises are profound and go to the root of the court's jurisdiction to make orders in international cases involving children. However, in my judgment, it is unnecessary to us to grapple with those arguments on the facts of this case. My reason for taking this view is very simple. The children are currently in England, pursuant to an order of the Spanish court in Estepona made on 15 June 2005. The children thus being in England, the English court plainly has jurisdiction over them, firstly, if necessary, to hear the father's Hague application initiated as long ago as 29 September 2003; and secondly, if that application is dismissed, to conduct a welfare inquiry under the Children Act 1989 to decide where and with whom the children in due course should live.

25. Singer J struck out the originating summons under the Hague Convention. He did so in robust language which my Lord has incorporated into the terms of his judgment and which I will not repeat. In my judgment, given the father's conduct and the delay, the judge was plainly right to do so. It was a discretionary decision, one manifestly warranted and, as I say, plainly correct.

26. As the judge himself acutely recognised, there needs now to be a proper welfare inquiry within the jurisdiction under the Children Act 1989. If the welfare of the children requires that they should live with their father in Spain, that is what the court will order. If on the other hand their welfare requires they remain in England with their mother that, likewise, will be the decision of the English court. Neither party is deprived of his or her proper remedy or access to the court and that, in my judgment, is the correct solution in this case.

27. I would accordingly, like my Lord, grant permission but dismiss the appeal.

28. MRS JUSTICE BLACK: I agree.

(Application granted; appeal dismissed; detailed assessment of the parties' publicly-funded costs; no reporting restrictions).