This judgment is being handed down in private. It consists of 27 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person (other than persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
The Hon Mr Justice Charles
Between :
B | Applicant |
- and - | |
A | Respondent |
Hearing dates: 10 September and 12 October 2012
Judgment
Charles J :
Introduction
This case has been before five judges in the urgent applications list of the Family Division of the High Court. In general, this list is before a different judge each week. On the first four occasions it was heard without notice to the Respondent. The proceedings were brought by the Applicant in reliance upon the Child Abduction and Custody Act 1985 (the 1985 Act) and the Hague Convention. The Applicant was seeking an order for the return of the child of the parties to the United States.
First, and before the proceedings were issued, the application came before an experienced circuit judge sitting as a High Court Judge who made a location order. Since then I am the fifth judge of the Division who has dealt with the case. When the matter first came on before me, the Applicant was still seeking to pursue his application under the Hague Convention and the 1985 Act for an order for the return of the parties’ child to the United States. However, after the short adjournment, his counsel informed me that he was instructed to withdraw or seek a dismissal of that application, with the result that the only live issues relate to costs. At that stage, no application for a wasted costs order had been made against the Applicant’s solicitors, but the possibility of one being made had been raised in correspondence, and in submission. Such an application was made over the adjournment of the hearing with the result that I now have to deal with applications made by the Respondent for costs against the Applicant and for a wasted costs order against the Applicant’s solicitors. These applications are resisted.
As will appear later, significant parts of the grounds relied on to support such applications for costs reflect endemic failures by practitioners and judges in the Family Division to apply the principles and procedures relating to without notice applications.
I would like to record that:
in my experience, the counsel and solicitors in this case are among the better practitioners who hold themselves out as specializing in cases of this type, and I recognise that
the endemic nature of the failures in this case to comply with the relevant principles and procedures has the consequence that it can be said that it would be harsh to pick on particular practitioners for criticism or to penalise them or their clients in costs as the Respondent, through her advisers, asks me to do, and
“Pot and kettle” spring to mind and this is confirmed by the failure of the Respondent’s solicitors to have proper regard to the relevant authorities and rules in the preparation of their application for a wasted costs order.
For these reasons I have decided not to identify the solicitors and barristers in this judgment.
A location order
A location order was granted and continued in this case. It is one of a number of orders directed to the Tipstaff, the Respondents and other people served with them. Other such orders are Collection orders and Passport orders. Standard forms of such orders exist but they can be tailored to meet individual cases. They are served by the Tipstaff or, at his request and instruction, by the police. They can result in service by the police at residential addresses at any time of day or night, or by police at ports. They confer a power of arrest if a person served does not, in the view of the Tipstaff or the police, obey the order (e.g. as to handing over travel documents or providing information concerning the whereabouts of a child). They also provide for a port alert to be entered at the instance of the Tipstaff. As the names indicate, a location order is primarily directed to finding a child and then keeping that child in the jurisdiction, a passport order is primarily directed to obtaining travel documents and keeping children in the jurisdiction, and a collection order is primarily directed to finding and handing over a child. As is common, the location order in this case contained (a) an order that all passports of the child and the Respondent were to be handed over, (b) injunctive relief preventing an application being made for a passport for the child or the Respondent and (c) injunctive relief preventing the removal of the child from England and Wales and a change being made to the place where the child was living at the time the order is served. The location order did not include an injunction preventing the Respondent from leaving England and Wales (which can sometimes be included) but the practical effect of her having to hand over her passport (and, probably the injunction relating to the child, if she was with her) meant that the location order provided that the Respondent could not leave England and Wales.
Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that:
the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival,
the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and
these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.
The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example Young v Young[2012] 2 FLR 470 at paragraph 26 (ii) to (v). That case related to a passport order in a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).
Without notice relief
Recent guidance on this can be found in KY v DD (Injunctions)[2011] EWHC Fam 1277, [2012] 2 FLR 200. In that case, Theis J refers to and cites from two decisions of Munby J (as he then was) and one decision of mine. The case related to a child and involved the making of a passport order. It confirms the need for caution, care, rigour and close scrutiny in respect of applications for and the grant of Tipstaff orders on a without notice basis. Theis J sets out the principles and procedures at paragraphs 13 to 16 of her judgment. I cite them in full because in my view they should be considered and applied by every applicant for, and every judge dealing with, an application for without notice relief in the Family Division and this is particularly so if that relief involves the grant of a Tipstaff order. Theis J states:
“Without notice applications
13. The correct procedure applicable to without notice applications has been set out in cases many times before but seems, on many occasions, to be observed more in the breach than the observance. The manner in which Mr Rosenblatt's application was made vividly demonstrates what can happen when proper procedures are ignored.
14. Mr Justice Munby (as he then was) in both Re W (Ex Parte Orders) [2000] 2 FLR 927 and Re S (Ex Parte Orders) [2001] 1 FLR 308 set out the procedure which can be summarised as follows:
(i) Those who sought relief ex parte were under a duty to make the fullest disclosure of all the relevant circumstances known to them, including all relevant matters, whether of fact or law.
(ii) Those who obtained ex parte injunctive relief were also under an obligation to bring to the attention of the respondent, at the earliest practicable opportunity, the evidential and other persuasive materials on the basis of which the injunction had been granted.
(iii) Generally, when granting ex parte injunctive relief in the Family Division the court would require the applicant and, where appropriate the applicant's solicitors, to give the following undertakings:
(a) Where proceedings have not yet been issued, to issue and serve proceedings on the respondent, either by some specified time or as soon as practicable, in the form of the draft produced to the court or otherwise as might be appropriate;
(b) Where the application had been made otherwise than on sworn evidence, to cause to be sworn, filed and served on the respondent as soon as practicable an affidavit or affidavits substantially in the terms of the draft affidavit(s) produced to the court or, as the case might be, confirming the substance of what was said to the court by the applicant's counsel or solicitors; and
(c) Subject to (a) and (b) above to serve on the respondent as soon as practicable (i) the proceedings, (ii) a sealed copy of the order, (iii) copies of the affidavit(s) and exhibit(s) containing the evidence relied on by the applicant and
(d) notice of the return date including details of the application to be made on the return date.
(iv) A person who found himself unable to comply timeously with his undertaking should either (i) apply for an extension of time before the time for compliance has expired or (ii) pass the task to someone who had available time in which to do it.
(v) Any ex parte order containing injunctions should set out on its face, either by way of recital or in a schedule, a list of all affidavits, witness statements and other evidential material read by the judge.
15. Mr Justice Charles in B Borough Council v S & Anor [2006] EWHC 2584 (Fam) stated as follows:
General comment on without notice applications
37. There is a natural temptation for applicants to seek, and courts to grant, relief to protect vulnerable persons whether they are children or vulnerable adults. In my view this can lead (and experience as the applications judge confirms that it does lead) to practitioners making without notice applications which are not necessary or appropriate, or which are not properly supported by appropriate evidence. Also there is in my view a general practice of asking the court to grant without notice orders over a fairly extended period with express permission to apply to vary or discharge on an inappropriately long period of notice (often 48 hours). It seems to me that on occasions this practice pays insufficient regard to the interests of both the persons in respect of whom and against whom the orders are made, and that therefore on every occasion without notice relief is sought and granted the choice of the return date and the provisions as to permission to apply should be addressed with care by both the applicants and the court. Factors in that consideration will be an estimation of the effect on the person against whom the order is made of service of the order and how that is to be carried out.
38. Inevitably on a without notice application the court hears from only the applicant. Good practice, fairness and indeed common sense demand that on any such application the applicant should provide the court with:
i) a balanced, fair and particularised account of the events leading up to the application and thus of the matters upon which it is based. In many cases this should include a brief account of what the applicant thinks the respondent's case is, or is likely to be,
ii) where available and appropriate, independent evidence,
iii) a clear and particularised explanation of the reasons why the application is made without notice and the reasons why the permission to apply to vary or discharge the injunction granted should be on notice (rather than immediately or forthwith as in the standard collection and location orders) and why the return date should not be within a short period of time. As to that I accept and acknowledge that a reference to notice being given if practicable, or for a short period of notice (say 2 working hours or just two hours if a week end or holiday period is imminent), may often provide an appropriate balance to avoid a sequence of effectively without notice applications, and that in some cases a longer period of notice may be appropriate, and
iv) in many cases an account of the steps the applicant proposes concerning service, the giving of an explanation of the order and the implementation of an order. This is likely to be of particular importance in cases such as this one where emotional issues are involved and family members of a person who lacks capacity are the subject of the injunctions and orders. In such cases, as here, information as to those intentions are likely to inform issues as to the need for, and the proportionality of, the relief sought and granted
39. As to point (ii) I pause to mention that in my view it is surprising and disappointing how many times a without notice application for relief is made in the Family Division based only on largely unparticularised assertions by one side of serious allegations without any third party material to support them, or more generally the basis for the relief sought. I appreciate that in many instances there is a very real urgency and there will not be third party evidence of allegations of abusive behaviour that are readily available but in others there will be. A classic example, which occurs regularly, is that an applicant who seeks a return of children to his or her care fails to provide any third party evidence (e.g. from a school, a GP or records in their possession) to confirm that he or she is indeed the primary carer of the relevant children.
40. Guidance has often been given on the information to be provided and the procedure to be followed in seeking without notice relief (see at first instance Re S (a child) (ex parte orders) [2001] 1 WLR 211, [2000] 3 FCR 706, W v H (ex parte injunctions) [2000] 3 FCR 481 (by analogy X Council v B (Emergency Protection Orders) [2005] 1 FLR 341 and Re X (Emergency Protection Orders)[2006] EWHC 510 (Fam)) and in the Court of Appeal Moat Housing v Harris [2005] 2 FLR 551 in particular at paragraphs 63 to 69, and see also the notes to CPR Part 25 and the practice note now reported at [2006] 2 FLR 354).
41. Naturally I endorse that guidance and do not seek to add to it save to emphasise the points made above and to record my own observations that practitioners (a) too regularly do not follow and implement that guidance, and (b) by such failure show an insufficient appreciation of the exceptional nature of without notice relief and the impact it has (or potentially has) on the rights, life and emotions of the persons against whom it is granted.
42. As to this I acknowledge that the courts must take part of the blame for such failures by granting relief without notice in cases when (a) the guidance has not been followed, and (b) the impact on the person against whom the relief is granted could be considerable.
43. I add that additionally there is a need (a) to comply strictly with undertakings given at the time the order is made, and (b) to keep full and proper records of what is put before the court and said to the court. This should include a record of the times of the hearing so that a transcript can be more easily obtained. The availability of a transcript does not however reduce the duty of those applying for without notice relief to keep a full record of what the court was shown and was told.
16. As well as endorsing the guidance set out above, there are three additional comments I would make:
(1) If information is put before the court to substantiate a without notice order, it should be the subject of the closest scrutiny and, if the applicant is not present in person to verify it, be substantiated by production of a contemporaneous note of the instructions. If that is not available, there may need to be a short adjournment to enable steps to be taken to verify the information relied upon.
(2) If additional information is put before the court orally, there must be a direction for the filing of sworn evidence to confirm the information within a very short period of time. If that direction had not been made in this case, the passport order would have been executed when the grounds for obtaining it were simply not there. That would have involved a gross breach of the defendant's rights, quite apart from the court having been given misleading information.
(3) Lastly, leaving the scrutiny that the court should give to without notice applications to one side, it is incumbent on those advising whether such an application is justified to consider rigorously whether an application is justified and be clear as to the evidential basis for it.”
Judgment in that case was reserved and was delivered in May 2011. It was therefore available when the without notice orders were made in this case and, in any event, the earlier cases to which Theis J refers were then available and should have been well known. In turn, they reflect much earlier authority, for example, R v The General Commissioners for Income Tax[1917] 1 KB 486. These make it clear that an applicant, and those acting for him, have a high duty to act candidly and fairly when making a without notice application and the principles and procedures set out by Theis J reflect this and set out how it is to be performed.
I add that a useful summary of the principles to be observed on making a without application (which refers to other cases; and also deals with the approach to be taken to giving notice of the application and so explaining why it has not been given) can be found at paragraphs 20.38 to 20.40 of Financial Remedies under the FPR (Class Legal: 2012-13 edition) and from that it appears that regular non-observance of those principles is not confined to the Family Division.
The common and flawed approach in the Family Division that was replicated in this case
Both Theis J and I (in B Borough Councilv S)point out in restrained terms that the principles and procedures in respect of without notice applications that are clearly established by authority are regularly not followed in the Family Division.
This case provides an example of this. To my mind, this regular and flagrant failure by many practitioners and judges is contrary to the public interest. I, and some of the other judges of the Division, try to bring about necessary and much needed changes when dealing with without notice applications (particularly in the Applications Court). But sadly, this case is a clear demonstration that we have not succeeded and that a number of our colleagues do not take the same approach. So the serious failings are endemic amongst many family practitioners and judges who have been family practitioners.
As mentioned in B Borough Council v S, I recognise that there is a natural temptation for applicants to seek, and for courts to grant, relief to protect the vulnerable, and, I add, to find children who it is alleged have been abducted. But this temptation, and the strong public interest in granting such relief, does not provide an excuse for failures to apply the correct approach in law to such applications. Indeed, if anything, the strong public interest in providing such relief and its impact on the subjects of the relief and their families mean that the correct approach in law should be followed and so the sound reasons for it, based on fairness, should be observed. Naturally this applies to all without notice applications, but it can be said to have particular importance when Tipstaff orders are sought and granted because they can found a deprivation of liberty without further court involvement, and they do restrict freedom of movement.
In my view, a practice of granting and continuing Tipstaff orders in Hague Convention cases as a matter of course and without insisting on properly prepared, particularised and updating evidence is to be deprecated.
Background
I shall refer to the Applicant as the father and the Respondent as the mother. They were both born in Pakistan. They met in Pakistan and were married there in 2006. After their marriage, they lived in the United States but separated before the birth of their child in August 2007. Their divorce was finalised in the United States on 15 September 2008. Orders were made by the American court that gave "legal and physical custody" of the child to the mother and permitted "visitation" to the father as set out in the order. The order also provided that the parties were to: "provide the other with forty five (45) written days notice to the other party of their intent to removethe minor child from the United States; without providing such notice neither party may remove the minor child from the United States”.
The father asserts that the child left the United States in November 2008 in the company of a sister of the mother and that the mother remained in the United States and did not travel to Pakistan until April 2009. These dates were not agreed before me but, as I understood it, it was common ground that the child left the United States before the mother.
The mother asserts that after the divorce the father essentially told her that she was no longer entitled to stay in the United States as his dependent and that therefore she should leave. She also asserts that, in September 2008, she gave the father written notice that the child was to leave the United States to travel to Pakistan for the purpose of schooling. She also asserts that this had been discussed between them and that before the child left the United States she had advice from a lawyer who told her that he could see nothing that would prevent her from removing the child from the country. There is some correspondence relating to this between the parties; in it the father asks a number of questions. If the Hague Convention application had been pursued, the import and impact of this correspondence and the rival contentions of the parties relating to the removal of the child might well have been a relevant consideration.
Also, following him receiving information that the mother had applied for a Pakistani passport for the child the father applied to the American court for orders preventing the removal of the child. He did this on 13 November 2008 and asserts that he told the mother about this on 15 November 2008. He asserts that he found out that the child had been taken to Pakistan on 19 November 2008 because his sister happened by chance to be on the same flight. He asserts that he made repeated attempts to contact the mother and that she did not get back to him until January 2009 and, at that stage, he asserts she would not provide him with information regarding the whereabouts of the child other than that she was not in the United States and that the mother was living with her uncle in Washington DC.
In February 2009, the father filed a petition for Contempt and a Complaint for modification of the custody order made by the American court in 2008. He asserts that attempts were made to serve the mother (and has produced an affidavit from a process server to this effect). He then sought and obtained leave for alternative service from the American court and served his application pursuant to that order by post to an address in Pakistan in September 2009. On 5 October 2009, the American court ordered that the original contact order was to be "modified" so as to award custody to the father and found the mother to be in contempt. Also, it revoked the father's financial obligations to the mother and the mother was ordered to pay US$5000 towards the father's legal fees. On a date which is unclear from the papers, the mother sought to have this order set aside: this application was rejected in September 2010. Also at some point (again the date is unclear on the papers) the mother was indicted by a Grand Jury for "felony parental abduction" and assistance was then sought from the Department of Justice for the extradition of the mother to the United States to stand trial.
Since sometime in 2009, the mother has been living with the child in Pakistan at an address known to the father. Welfare visits have been carried out by US consular staff to the mother and child in Pakistan in October 2009, December 2010 and July 2011.
Since his child left the USA, as a small baby, the father has not seen her.
The English proceedings
The father’s American attorney contacted his English solicitors on 24 October 2011 and the International Child Abduction and Contact Unit referred the case to the father’s English solicitors by letter dated 27 October 2011.
The father applied without notice to an experienced circuit judge sitting as a deputy High Court Judge on 31 October 2011. He sought and was granted a location order. The evidence relied on in support of that application is important and comprised a statement by a partner of the father’s English solicitors, with an exhibit containing a number of documents. He stated that he made the statement "believing it to be true and realising it would be placed before the Court and used as evidence”. He also stated that: “This Statement is true to the best of my knowledge, information and belief and is on the basis ofthe information that has been provided to me by the proposed Applicant Father.” After exhibiting the letter to his firm from the Central Authority (with its attachments) and setting out some background information his statement continued as follows:
“5. Immediately after the birth the proposed Applicant Father received information that the proposed Respondent Mother had applied to the Pakistani Embassy for a Pakistani passport for [ the child ] and that she had plans to take [ the child ] out of the United States to go to Pakistan. The proposed Applicant Father therefore went to the Circuit Court of Prince George’s County, Maryland for Orders prohibiting the removal.
6. The parties were divorced in September 2008 in Maryland. On the 19 November 2008 the proposed Respondent gave the child of the family [ -- ] to her sister [ ---- ] who took [the child] out of the United States. Since that time the proposed Applicant Father has not had any direct face to face contact with [the child]. On the 5 October 2009 an Order was made out of the Circuit Court of Prince George’s County, Maryland modifying a previous Custody Order in the proposed Respondent Mother's favour. The Custody Order made in favour of the proposed Applicant Father.
7. In December 2010 and July 2011 there were welfare checks carried out by the US Embassy in Islamabad. The child was deemed to be safe and well but no pictures were allowed to be taken by the officials.
8. In October 2011 the proposed Applicant Father received credible information from an associate that the proposed Respondent Mother and her family had travelled to England. He has good reason to believe that the proposed Respondent Mother and her family were eating in a restaurant in Coventry on or around 23 October 2011. The proposed Applicant Father does not know whether the trip to England is a temporary one or on a permanent basis.
9. The proposed Applicant Father indicates that the removal of [the child] from America on 19 November 2008 was wrongful and that he believes that the proposed Respondent Mother is wrongfully retaining [the child] in the jurisdiction of England and Wales at the present time. It is for this reason that the proposed Applicant Father wishes the return of [the child] to the jurisdiction of America. In the circumstances I seek a Location Order and various Disclosure Orders.
10. I believe that the facts stated in the witness statement are true. ”
As appears from that statement the application was based on an assertion of a belief that the mother and the child were in this country.
The judge made a location order and some disclosure orders on 31 October 2011, upon an undertaking being given by the mother's solicitors “ to issue forthwith the application herein and to serve the same, together with a statement in support and a copy of this order, upon the Respondent as soon as practicable thereafter”. The judge also adjourned and relisted the matter for consideration on 9 November 2011, ordered that the mother should attend that hearing together with her solicitor and counsel, if so instructed, and gave permission to serve the order by fax and e-mail.
It is therefore clear that the matter was presented and pursued on the basis that it was hoped that the mother would be located quickly and served. However, I should record that in exchanges in court it is clear that the judge did not expect the proceedings to be served on the mother until after the location order had been served by or on behalf of the Tipstaff. Indeed, a location order is normally (if not inevitably) made on the basis of there being a risk of flight if the Respondent is notified of court proceedings. It is this that generally justifies it being made without notice.
The case returned to court on 9 November 2011. No further evidence was put in by or on the behalf of the father. It came before a High Court Judge of the Family Division. The mother had not been located in this country and had not been served by fax or email. On that occasion, two further disclosure orders were sought and counsel for the father, through a position statement and submission, informed the court that:
“ The abduction was to Pakistan, but my client had information, he says through military sources in Pakistan, that the mother had come to this country.
Frankly, my instructing solicitors’ fear, indeed the father’s fear, is that she may well have gone back by now, which is why we thought we would get orders from the Border Agency, and indeed the Pakistan International Airways.
We have decided to take a risk - I would invite the enquiry agent to serve the papers at this restaurant that my Lord may have seen reference to. That, it transpires, is not a formal restaurant but a far more informal restaurant. My Lord, the information about that came from a Facebook entry that my client managed to obtain indicating that the mother was at this address. So what we propose to do is take a chance and just ask the Tipstaff to send the police to that address. If the mother is there then fine. It may well be that there will be third-party individuals there who will give sufficient answers to the police to avoid arrest and who will then tip the mother off. But on obtaining instructions, we propose to take that risk. ”
The judge indicated that he had read the papers and made the orders sought. He did not require the father or his solicitors to put in evidence confirming what he had been told or explaining how that information fitted with unidentified sources of information set out in the only sworn statement before the court.
He made further disclosure orders and a further order that recorded that the location order had not been executed and adjourned the matter to 21 November 2011 and ordered the mother to attend on that day.
On 21 November 2011, the matter was heard by another High Court Judge of the Family Division. On that hearing, counsel for the father, through a position statement and submission, informed the court that:
“ My Lady, the position is that the mother has not been located, and the father accepts that there is no further information that he can give us which would enable us to seek further disclosure orders or provide any further address to the Tipstaff. My Lady, may have seen historically, or may not have seen, that what happened was that he got wind from a friend who saw a Facebook entry that the mother had travelled from Pakistan to England and was attending at a restaurant and at an address in Coventry. He had two potential addresses. The Tipstaff attended both addresses and could not find the mother. They made various enquiries but no arrests were made, and so they were satisfied that no one was hiding or concealing information about the mother or the child's whereabouts.
My Lady the only outstanding information we await is from the Border Agency, who may or may not confirm that the child, firstly, arrived in this jurisdiction, or potentially, secondly, has gone home to Pakistan. It is our suspicion that the mother came here for a brief visit and may well have gone back to Pakistan. ”
So it is unclear whether the step referred to in the citation set out in paragraph 27 of service by an enquiry agent of the papers at the informal restaurant took place. But it is common ground that if it did the mother did not get them. Also, the potential addresses visited by the Tipstaff were not identified, but it seems that one of them may have been the informal restaurant. In those circumstances, Counsel sought and was granted a three-week adjournment, that being the maximum time permitted under the rules, and indicated that it may very well be that in three weeks time the father would have no alternative but to invite the court to dismiss his application. This echoed the father's position, through counsel, at the hearing on 9 November 2011.
On 12 December 2011, the matter was heard by another High Court Judge of the Family Division. No further evidence was put in on behalf of the father and the mother and child had not been located. By a position statement the court was informed that:
“---- the Border Agency has indicated that they have no information that can assist.
The Pakistani International Airlines have been unable to unearth further information.
The mother's sister uploaded a picture on Facebook which looks like it is from an English university.
However no further lead has been obtained.
The father believes the mother and the family had gone to a restaurant in Coventry and a visit by the police provided no further evidence.
There are Facebook cuisine pages with mobile telephone numbers. These have been tested and produced no new information ”
That hearing was plainly a very short one. The transcript shows the following exchanges:
“ Judge: --- you have not managed to find her
Counsel: no
Judge: All right. And you have a draft order asking me to adjourn generally with liberty to your solicitors to restore for directions if the location order is executed and to continue the location order.
Counsel: If that is satisfactory
Judge: Yes. I do not see any other alternative
Counsel: We had considered simply asking you to withdraw, but we are aware that there is a sister in the jurisdiction, because of a photograph that we have seen of the mother outside what looks like either a public school or a university
Judge: Yes
Counsel: Which was posted on Facebook. So it may be that the mother will visit the sister
Judge: Yes
Counsel: In which case, hopefully, she will be picked up by the Port Alert
Judge: Yes, all right ”
So, rather than seek the withdrawal of the proceedings, as indicated at hearings when the case had previously been adjourned to fixed dates (at which the continuation of the location order, expressed to be until further order of the court, could and should have been reviewed) the father sought and was granted a continuation of the location order on an open-ended basis. This was done:
without any evidence being sworn and filed setting out the basis for the order,
on the assertion that there was a Facebook entry which indicated that the mother has a sister in the jurisdiction who she may visit,
without it seems any consideration of the likelihood of the mother being accompanied by the child on any such visit,
on the basis that neither the mother nor the child were then in England and Wales or habitually resident here,
without any consideration of the court’s jurisdiction, and
without any consideration of whether it was appropriate to make an order that can result in a person being deprived of his or her liberty, and which does restrict freedom of movement.
For reasons which I will develop, in my view this approach was a flagrant and serious breach of the principles and procedures that should have been applied on this without notice application, and so was extremely unsatisfactory.
As a consequence of that open ended continuation of the location order the mother's passport was taken from her when she visited this country on 7 June 2012. She did not have the child with her. This execution of the location order brought the matter back to the Applications court on 18 June 2012 when it was heard by another High Court Judge of the Family Division. The first time the mother knew anything about the proceedings was when the location order was executed. She had filed an affidavit shortly before the hearing. The judge adjourned the application to a date to be fixed and ordered that:
“2. The issues to be determined at the hearing are:
(i) whether Article 12 of the Hague Convention read with Article 7-10 of the Convention is capable of applying in circumstances where neither parent or the child is habitually resident in England and Wales, where the person against whom an order of the summary return is sought is present here and where the child is not present here and, it is asserted, has never been here,
(ii) whether there is jurisdiction, under the inherent jurisdiction or otherwise, to prevent the Respondent’s exit from England and Wales, whether by surety or otherwise in circumstances where the Applicant is seeking the extradition of the Respondent to USA but no warrant of execution has been issued by the relevant US authorities
3. Subject to paragraph 4 of this order, the location order, including the port alert shall continue until further order.
4. If the Respondent’s solicitors, --------- confirm to the Applicant’s solicitors and the Tipstaff receipt of a surety of £25,000from the Respondent, the location order, including the port alert, shall be discharged and the Tipstaff shall return to [ the mother's solicitors] the passport and all other travel documentation he holds in the name of the Respondent. ”
The judge also made an order for contact pursuant to section 5 of the 1985 Act. This was for Skype contact and for direct face-to-face contact at a public and neutral location in Islamabad, Pakistan. He also ordered that a photograph of the child was to be sent by the mother to the father by not later than 30 June 2012. He also gave directions for the filing of further evidence.
As that order indicates, the mother's evidence was to the effect that neither she nor the child had been in this jurisdiction in October 2011 and that the last time she had travelled to the UK was in 2005. She produced copies of her passport, and that of the child, which confirmed that neither of them had been in this country in 2011. She denied that she had abducted the child and asserted that the applications in England had been made to unnecessarily harass her and that the father had knowingly concealed various relevant facts from the English court.
The father’s evidence in response deals with the history and issues relating to contact but does not deal with the sources and/or the detail of the information upon which he reached the asserted beliefs upon which he sought and was granted a location order and its continuation.
Having examined the passports, the father accepted that neither the mother nor the child were in England in 2011. But he has given no explanation as to why he now believes the information upon which he based his earlier asserted belief that they were here was inaccurate.
As the order made in June 2012 indicates, and as is hardly surprising, as soon as the mother took an active part in the proceedings arguments were raised on the jurisdiction of this court in respect of the application made under the Hague Convention and the 1985 Act, and as to the power of this court to restrain, or effectively restrain by depriving her of her passport, the mother from leaving this jurisdiction having regard to her possible extradition to the United States.
In contrast to his position when the effectively time limited, and then the open ended, location orders were sought, at the hearing in June 2012 the father was not seeking to prevent the mother leaving the jurisdiction of England and Wales for the purposes of his application under the Hague Convention and the 1985 Act. Rather, on his behalf it was asserted that he was only seeking to do so by reference to her possible extradition.
In September 2012, the father’s English advisers were informed by the father that the American authorities were not in a position to execute an extradition warrant. As a result, his solicitors wrote to the mother's solicitors setting out that they had instructions to seek to withdraw the proceedings on the basis that there was no order for costs. The mother was not prepared to accept that the proceedings should be withdrawn on those terms.
The matter came before me on 10 September 2012. As I have already indicated, in opening the case Counsel for the father indicated that, as the mother was not prepared to consent to a withdrawal on the basis of there being no order as to costs, he was pursuing his application and so his argument that I had jurisdiction under the Hague Convention and the 1985 Act to order a return of the child to the United States. He accepted however that he was not seeking to argue that any relief should be granted by reference to the possibility that the mother might be extradited to the United States and was not resisting a return of the surety monies.
The jurisdiction arguments
Now, these only have relevance to the issues relating to costs.
The focus of the argument before me was on the jurisdiction of the court when:
the mother was now in England and Wales (or had promised to return), but
the child was not habitually resident in, or present in, England and Wales, now or when the proceedings were issued
to order a return of the child to the United States. This was because the father accepted that the mother and child had not been here in 2011, when the proceedings were commenced.
Argument was not directed to the jurisdiction of the court, in those circumstances:
to make orders to obtain information from the mother and thereby assist in the return of the chid to the United States, or otherwise to co-operate to secure the return of the child (see Articles 7, 8 and 11 of the Hague Convention), or
to make orders for contact (see s. 5 of the 1985 Act).
The first type of order never had any likely relevance or impact in this case because the father has known for a long time where the mother and child were living in Pakistan. And, no further contact orders were sought.
It needs to be remembered that at the outset relief was sought on the basis of an allegation that the father believed that the child was in this country, albeit that he did not know whether the visit was a temporary or a permanent one. And, until December 2011, it seems that the location order was continued on that basis.
But, the open ended location order granted in December 2011 was sought and granted (absent any evidence being put before the court) on the basis that neither the mother nor the child were here and that the mother might visit her sister in this country. And, although it does not seem that the likelihood that she would bring the child with her was addressed, this basis for the application means that the jurisdiction arguments advanced to me were relevant at that stage.
To my mind, as I no doubt made clear to Counsel, his argument that this court could make an order for return of the child in Pakistan to the United States was doomed to failure. This is firstly because it flies in the face of the wording of Article 12, namely with my emphasis:
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the Contracting State where the child is-------- the authority concerned shall order the return of the child forthwith.”
Also, to my mind:
the jurisdiction argument advanced on behalf of the father flies in the face of the concept underlying the Hague Convention that any order for return is to be made by the court of the country where the child is because that court has jurisdiction over the child by reason of his or her presence within its jurisdiction, and can enforce its own order,
the Hague Convention does not purport to, and cannot confer jurisdiction on the English court over adults or children in respect of whom it does not otherwise have jurisdiction,
jurisdiction is not conferred by the 1985 Act over, or in respect of, a child who is not present or habitually resident in England and Wales, and
no “back-up” or alternative jurisdiction based on the court’s inherent or wardship jurisdiction exists because the child is not habitually resident or present in England and Wales.
The relevance of jurisdiction at earlier stages
Initially the location order was based on an asserted belief that both the mother and the child were in this jurisdiction and it was continued over short adjournments until 12 December 2011 on that basis, or on the basis that they may still be or had recently been in this jurisdiction. This assertion of presence meant that jurisdiction was not an issue that needed to be raised.
Equally, if it had been asserted that it was believed that the child was coming to this jurisdiction it would have been covered by authority (A v A (Abduction: Jurisdiction)[1995] 1 FLR 341), but then care would have been needed to ensure that the orders made only operated when the child was here: which would have provoked a consideration of jurisdiction.
But, although if the asserted belief that the child was here was correct the court would have jurisdiction, issues still arose on the facts of this case as to whether it was appropriate to make and then to continue a location order. This is because:
the alleged abduction was in late 2008 (when the child was a baby),
it was followed by the child, who was 4 years old when the orders were sought, living at (and on the basis of the consular visits was being well cared for at) an address known to her father in Pakistan, indeed it was the mother’s home before her marriage, at first with her mother’s family and then with her, and so
it follows that the assistance or co-operation of this court was not needed to, for example, find information; and it was not suggested by the father that it was.
Rather what he was seeking was the return under the Hague Convention of his child to the United States, and to that end an order directed to finding the child and keeping her in this jurisdiction, and so it seems highly likely that if and when the application for an order for return fell to be considered, the settlement provisions in the Hague Convention would apply. And, if they did, this would raise cogent arguments against this court ordering a return on both welfare grounds and forum conveniens grounds.
These points relating to the prospects of success and the exercise of discretion in granting interim relief emerge from the father’s application form and the evidence filed in support of it, but they were not raised expressly with the court. In my view, they should have been as an aspect of the high duty of candour (see for example paragraph 38(i) in B Borough Council cited by Theis Jin KY – see paragraph 8 above) and by so doing they would have candidly and fairly brought to the attention of the court strengths and weaknesses of the father’s claim that the English court should order a return of his child to the United States approximately three years after the alleged abduction to Pakistan where she had been living with her mother.
But over the period between October and December 2011 the mother knew nothing about the proceedings, or the orders, because she was not told of them and so she did not incur any costs in respect of them. It follows that the failures prior to December 2011 to comply with principles and procedures relating to the obtaining of orders without notice are now only relevant as part of the background to the continuation in December 2011 of the location order on an open ended basis. That order did result in the mother incurring costs.
The failures to comply with the principles and procedures relating to without notice applications
Practice direction 32 in the FPR supplements CPR Part 32 and provides that (as with an affidavit) a witness statement must indicate the source of any matter of information and belief (see paragraph 18.2(2)). This is well established and trite law and practice in respect of hearsay evidence.
The only evidence put in to support the application for without notice relief is the witness statement of the father’s solicitor and its exhibit. The witness statement can be summarised as an assertion that on the basis of undisclosed (and thus anonymous so far as the court is concerned) but credible information the father believed that the mother and her family (the members of which were not identified) were eating in a restaurant in Coventry, and this lead the father to believe that the 4 year old child (and so, possibly, by inference that she was one of the family eating in the restaurant) was in England.
This approach falls a very long way short of what is required to comply with the relevant principles and procedures. Of course, the evidence had to be prepared with some haste, but the solicitors were first approached a few days before the application. The “associate” is not identified, it is not clear whether the solicitor is saying that he or the father (or both of them) is asserting that the information that the mother and her family had travelled to England is “credible”. Also, it does not say what, if any, other information is relied on to found the assertion that the father has good reason to believe that the mother and her family were eating in a restaurant in Coventry, or expressly to support the asserted belief that the child was here.
No further evidence was filed or directed. This is a further failure to comply with the relevant principles and procedures, although I accept that some updating on instructions about searches that have been made for a child and his or her carer, provided that it is noted and recorded and made available to a Respondent at the appropriate time, often is permissible and proportionate.
But here the additional information provided concerning the asserted belief that the mother and child are in England is not obviously or easily linked to the only witness statement. This applies to (a) the reference to “military sources” and an unidentified Facebook entry concerning the restaurant – which the court was told was not a formal restaurant, and later to (b) the assertion that the father had been told by an unidentified friend of the Facebook entry and that he had two potential addresses – which were not identified, but one may be the informal restaurant. It is also the case, that this trail of confusing information would only have been available in part to the succession of judges because some of it was imparted by oral submission, rather than the updating position statements (which I will assume were in the court bundle). The updating should have been set out in evidence with an explanation of its impact on the beliefs set out in the witness statement of the father’s solicitor.
Further, in correspondence the mother’s solicitors have pointed out that in the form submitted to the Central Authority, which forms part of the exhibit to the witness statement, the sources of the relevant information are not identified and it is stated that the “child is assumed to be with aunt, grandmother and/or mother in Coventry UK” and “the child is now believed to be in the UK with her mother grandmother and/or aunt”. This falls short of the description of the belief asserted in the witness statement and does not accord with the possible inference therein that the child was one of the family eating in the restaurant. So, it provides another reason why in this case updating investigation and evidence was warranted to put the position as it was known and believed to be from time to time, together with relevant sources of information, fully and frankly before the court.
So, the approach adopted by the Applicant’s advisers, and permitted by a succession of judges, falls a very long way short of the approach that should be taken.
Also, and I hope without the benefit of too much hindsight, it seems surprising that no-one on the father’s side, or any of the judges, thought that it might be sensible to check in Pakistan to see whether the mother and/or the child were there. The father knew where they had been living and it seems that friends or family, and failing them the American consulate, could easily have checked this. In my view, particularly having regard to the vagueness and uncertainty of the position relating to the whereabouts of the child such a check should have been made.
To my mind, the failures to comply with the principles and procedures in respect of the application for, and the grant of, the order made on 12 December 2011 are even worse.
No evidence was put in. By way of improvement the source of the relevant Facebook entry was given (i.e. the mother’s sister) but the picture was not shown to the court and the court was not told whether the father or his solicitors had seen it or been shown it. Also, there is no additional information about the relevant sister and where she is studying. In this context, the father would know how many sisters the mother has and, as the marriage was arranged, there is surely a real prospect that his family might know where that sister was studying. Indeed, in his statement prepared for this application the father’s solicitor says that he had been informed by his client that the wife’s sister was at Warwick University (which was correct) but I have found no mention of this earlier. (That university is close to Coventry).
By this stage, the application was on the basis that the mother and child were in Pakistan so in one sense the defects in the previous evidence concerning his asserted belief that they were in England were “water under the bridge”. But, in another sense they remained live because presence of the child at the time the proceedings were issued remains relevant to the jurisdiction of the court to continue the location order on the changed basis that it was now believed that neither mother nor child was in England, or habitually resident in England.
This change gave rise to a need to:
consider jurisdictional issues that are not the same as those argued before me because at that stage the assertion was still that it was believed that the child had been in England at the time the proceedings were issued,
re-assess the prospects of success in the proceedings on the basis that the change (i.e. it was believed that the mother and child had left the UK) , and the basis for the relief sought (i.e. a possible return to the UK to visit the mother’s sister) makes it very difficult to see why any earlier visit here would not have been a temporary (rather than a longer term) visit,
assess the likely practical consequences of the continued existence of a location order on an open ended basis, one of which is what happened namely the mother came here on her own and was detained here, and
gave rise to a need re-assess the exercise of the discretion to grant interim relief.
Those matters needed to be assessed and raised with the court against the background referred to in paragraph 53 hereof and so the impact of the settlement provisions of the Hague Convention when the relevant child had been living in Pakistan for a number of years and was only on, or likely to be on, a temporary visit to the UK.
None of these matters were drawn to the attention of the judge in evidence, position statement or submission. As appears above (see paragraph 54 hereof) in my view they should have been. If they had been I am confident that she would not have said that “I do not see any other alternative” and granted, effectively “on the nod” the open ended continuation of the location order.
I acknowledge that, in some cases, the grant of a location or passport order to effectively “catch” a Respondent or a child on arrival in this country is appropriate and proportionate. But, in my judgment, this should only be done on the basis of clear evidence and for defined periods.
In my view, in this case the judge should not have continued the location order on 12 December 2011 at all, let alone on an open ended basis, without further evidence and without hearing any argument about or considering the matters referred to in paragraphs 67 and 68 hereof.
The application was made on the basis that the mother may return, not that she and the child might do so. Or at least it was made without any express reference being made to the prospects that the child might accompany her mother and/or the relevance in jurisdictional terms of the child so doing or having been here when the proceedings were commenced.
So, neither:
the jurisdictional problems that arise and were argued before me, if the child was not here when the proceedings were commenced or when the location order was served on her mother, nor
the jurisdictional and other problems that arise if the child was not in England and Wales when the location order was served but had been here when the proceedings were commenced
were raised with or by the court and it seems that they were not thought through by the father’s legal advisers, because if they had been I am confident that they would have raised them with the court.
To my mind a proper application of the duty to act with candour and fairly on, and so in accordance with the principles and practices relating to, a without notice application would have alerted the father’s legal advisers and the court to visit the matters mentioned in paragraphs 67, 68 and 73 and so, amongst other things, to examine the strength of the evidence founding the asserted belief that the child was in England when the proceedings were commenced, and, if it was asserted, the belief that she would be likely to return here with her mother.
Even if there had been evidence before the court that founded a reasonable belief that the child might come to this jurisdiction with her mother, which there was not, I have the gravest doubt that it would have been appropriate to grant any continuation of the location order and it seems to me that an open ended continuation is very hard to justify.
Any such evidence would necessarily have provided more detail as to why it was believed that, although neither the child nor her mother had been found in England, the child had recently been in England and so might return. So it would have provided (a) proper details of the relevant sources of the information that founded the asserted belief that she had been here, and (b) a properly particularised account of the reasons for a belief that the child would be likely to return with her mother having regard to updating information, and any contact there had been with, or information that had been obtained about, the mother, the child and the maternal family in Pakistan and here. Accordingly, it would have corrected earlier failings and may have strengthened or weakened the belief that the child and her mother had visited the UK.
The failures to properly apply the principles and practices relating to the without notice application in December 2011 are in many respects a continuum of the earlier failures to do so. This provides a link with the earlier failures because although they did not cause the mother to incur costs, if the earlier failures had not occurred, and so the original evidence had provided proper details of the sources of the asserted belief and there had been proper updating evidence, it is highly likely that this would have led to the further continuation of the location order in December 2011 being considered on a proper (and changed) evidential basis and with proper argument on jurisdiction, prospects of success and discretion.
The position, in respect of the continuation of the location order in December 2011, is made worse when it is remembered that the basis asserted for keeping the mother here after the location order had been executed (i.e. her possible extradition) was not the basis upon which it was sought (i.e. in support of an application under the Hague Convention). This is because this change is an effective confirmation of the point that the original basis upon which it was sought and granted, namely that the mother may return here without any expressed consideration of whether the child would be with her, was flawed.
To my mind, the points made under this heading identify a number of serious and inexcusable failures by (a) the father and his legal advisers, and (b) the court to comply with the principles and procedures relating to the making and granting of without notice relief. Namely:
The initial (and as it turned out) only evidence put in did not properly set out sources of and reasons for the asserted beliefs.
This evidence was not updated after appropriate investigation when the indications were that it may well be incorrect because the mother had not been found and the updating information provided to the court by position statement and submissions did not link obviously or easily with the original evidence.
No argument on jurisdiction, prospects of success of obtaining an order that the child do return to the United States (and thus on the impact of the settlement provisions in the Hague Convention) or discretion (and thus on the potential consequences of the order sought) was put before the court to support the application for the continuation of the location order on an open ended basis.
The overall consequence was that the court was not presented with as candid or fair account of the position from time to time, or of the strengths and weaknesses of the father’s case, as was reasonably and proportionately practicable in accordance with the principles and practices relating to making without notice applications.
The application for costs against the father
I was referred to EC-L v DM (Child Abduction Costs)[2005] 2 FLR 772 on the approach to be taken to ordering a party to pay costs in a Hague Convention case. I have applied it and in particular paragraphs 16 to 19, 35, 51, 56 to 69 (especially 60 and 65), 75 and 76 of the judgment of Ryder J. Paragraph 2 of his judgment sets out the factual findings that underpin his order for costs applying the approach in Sutton namely that the conduct of the party has been reprehensible or the party’s stance has been beyond the band of what is reasonable.
The father’s case is that the mother abducted his daughter when she was a small baby and that she has prevented him having contact with her since then and, in doing so, has not complied with the orders of (a) the American court, which has found her to be in contempt, or (b) this court as to contact.
As indicated earlier, the mother denies abducting the child and does not accept that the American court orders, relied on by the father, were properly made. But she has failed to have them set aside. I am not in a position to determine this dispute between the parties. But, on the papers the father has a good arguable case that there was an abduction and it is common ground that after his child was taken to Pakistan, as a baby, he has not seen her. So, again on the papers, the father has a good arguable case that the mother has deliberately and without good reason set out to ensure that the father’s relationship with the child is minimised and damaged. It is also the case, that the American court has found the mother to be in contempt and she has been indicted by a Grand Jury.
Also, I accept that the fact that the father has been parted from his child has caused and is causing the father distress and that the court should make it clear that it does not approve of abduction.
Further, I accept that in addition to the general reasons that support an approach that no order for costs in children cases should be made, the points made in the last two paragraphs provide strong policy and merits reasons why the mother should not be awarded her costs.
Tit for tat conduct allegations. It was submitted on behalf of the father that he has not behaved unreasonably and has not knowingly misled the court or withheld relevant information. I am not in a position to assess the validity of those submissions because the father has not given any evidence or explanation as to why the bases of his asserted belief were valid and reasonable albeit that it has been shown to be incorrect.
This failure is a continuum of the earlier failures to provide proper details of the sources of the father’s information, the bases of his asserted belief and the differences in the expression of his position concerning the presence of the child in England between, for example, the witness statement of his solicitor and the application form to the Central Authority.
In part, these evidentially unsupported assertions on behalf of the father were to counter the general assertion made by the mother that the English proceedings were designed to harass her. This is a serious allegation, but it was not properly supported by evidence. Rather it was supported by:
a bare assertion that at the times of the hearings on 31 October, 9 November and 21 November 2011 the father was fully aware that the mother was residing in Islamabad. I do not dispute that he knew that this had been the case but the mother has not provided any evidence to indicate that at the times of those hearings the father was aware that the belief he asserted that the mother and child were in England, and he did not know whether this trip was temporary or permanent was false, or disingenuous, and
an assertion that the father knew that the mother and child were in Islamabad when he made his application on 12 December 2011. But, on that occasion, as I have recounted, the application was made on the basis that they were no longer here.
So, these serious and potentially relevant factual assertions on conduct and dishonesty advanced on behalf of the mother, and which formed a main part of her arguments for costs in correspondence, are not properly particularised and supported by evidence. So, I am not in a position to make findings on them.
Further, in my view, it would not be right for me to found such findings on the continuing failure of the father to provide evidence as to the information on which it was asserted on his behalf that he believed the child was in England, even though I acknowledge that this silence and the inconsistencies in the information he has provided is very unsatisfactory.
As I cannot make the findings that underlie the ground for costs advanced by the mother that the child was never reasonably believed to here, that ground falls away and the essential thrust of the mother’s submissions that the father should be ordered to pay her costs relates to the way in which his proceedings were presented and dealt with by his English legal advisers. So, there is at least the prospect that he (or the Legal Aid Fund if the procedures referred to in paragraphs 72 to 74 of EC-L were to be followed and led to an order against it) could recover from those advisers.
On the face of it therefore, the basis upon which costs are sought from the father is that he must bear responsibility for the manner in which the proceedings were conducted by and on the advice of his legal advisers.
Generally, a litigant has to take the consequences of such behaviour and look to his advisers for recompense but I have concluded that the application for costs against him should be refused, because:
the point that the shortcomings in the presentation of his case by his advisers is a reflection of endemic failures of family practitioners and courts means that his conduct should not be categorised and reprehensible or beyond the band of what is reasonable (see paragraph 80 hereof), and
the policy and merits arguments referred to in paragraphs 82 to 84 support no such order being made.
The application for a wasted costs order
A leading authority on such an application based on s. 51(6) SCA 1981 is Ridehalgh v Horsefield [1994] 2 FLR 194, it and the relevant rules and notes thereto in the CPR (CPR Part 48.7 and CPR PDCosts para 53) set out and record the principles and procedures to be followed. These include that, as a matter of fairness, the respondent lawyer should be very clearly told what he is said to have done wrong and what is claimed, and thus (a) whether it is alleged that he has acted improperly, unreasonably or negligently and why it is so alleged, (b) how such conduct caused the Applicant to incur unnecessary or wasted costs and (c) why, in all the circumstances, it is just to order the legal representative to compensate the Applicant for the whole or any part of the relevant costs.
As I have already mentioned, the application and supporting statement fails to do this and it was also filed after the date I set for it (17 September) if such an application was to be pursued. However, the argument before and after the adjournment, and the statement put in by the father’s solicitors, show that those solicitors have been able to address the issues and, to my mind correctly and responsibly, they did not seek an adjournment to enable them to do so.
The mother relies on acts of negligence and does not assert that the father’s solicitors acted improperly or unreasonably as those terms are defined in Ridelagh at page 204. As explained at page 205 “negligence” in this context should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. But this does mean that the Applicant has to prove anything less than that the matters complained of were advice, acts or omissions in the course of their professional work which no member of the profession, who was reasonably well-informed and competent, would have given or done or omitted to do.
In my view, it is not a prerequisite of a wasted costs order that an order for costs has been made against the party for whom the relevant legal adviser acted, or indeed any party. It follows that the application for a wasted costs order is not affected by the limitations on the making of an order for costs against a party set out by Ryder J in EC-L and can be based on the “negligence ground” referred to in Ridehalgh; and the contrary was not argued.
One complaint or ground was that the mother was not served with the proceedings in accordance with the undertaking as to service included in the order made on 31 October 2011, or at any time before the execution of the location order. I reject that ground. To obtain without notice relief, an applicant should explain why it is necessary and a location order should not be granted unless the court is satisfied that such without notice relief is warranted. Indeed, as I have indicated earlier, the underlying premise of a without notice Tipstaff order is that his assistance, and so often that of the police, is warranted to locate and serve the Respondent with the intention of preventing further unknown moves of a child and this purpose would be likely to be destroyed if the Respondent was served before the location order was executed. The common and appropriate practice is therefore not to serve the proceedings or other orders before the Tipstaff order is executed. To my mind, the undertaking in the order made on 31 October 2011 could and should have been better expressed but should be read as referring to service as soon as practicable after execution or discharge of the location order.
Another ground advanced was that the father’s arguments before me that the court had jurisdiction to order the return of the child to the United States were hopeless. It was countered that Ryder J did not think that this was obviously the case and had indicated that he thought the issues were interesting. It is also to be noted that in Ridehalgh (at page 205H and following)it is pointed out that it is not improper, unreasonable or negligent to act for a party who pursues a hopeless case. So, but subject to the duty of an applicant for without notice relief and his advisers to act candidly and so draw strengths and weaknesses of the applicant’s case to the attention of the court, I accept that my view that the jurisdiction argument that was advanced before me was doomed to failure does not of itself found the making of a wasted costs order.
Further, the jurisdiction argument advanced before me proceeded on the basis that the child was not here when the proceedings were commenced and, as the earlier discussion on jurisdiction indicates, at earlier stages it might have been argued that jurisdiction was based on a belief that the child was or would come her, or an assertion that it was more likely or not that this was the case.
So, in my view, in respect of the applications for costs, the issues relating to jurisdiction are not free standing issues. Rather, they are relevant as an aspect of the failures to comply with the principles and procedures relating to without notice applications.
Also, in my view neither a costs order or a wasted costs order should be made simply on the basis that the father or his advisers took the risk that his asserted belief that the child was here (or would come here) may be proved to be incorrect. Rather, in my view, in that context, it is the reasonableness of the belief (which I have dealt with above) and the compliance with the principles and procedures relating to a without notice application in respect of the establishment for the jurisdictional base relied on that are relevant in the circumstances of this case.
So, that leaves as a basis for a wasted costs order the failures to comply with the principles and procedures governing the making of a without notice application.
The father’s solicitors assert that in making the application on 12 December 2011, that the judge granted, they were acting on the express instructions of their client to try and keep the proceedings alive so that, if the mother returned to England, the location order would be executed. I have no doubt that this was the case but this does not mean that in so acting, the father’s solicitors do not have to act in accordance with the duties imposed on them in respect of, and thus in accordance with by the principles and procedures that govern, the making of without notice applications.
Understandably, the father’s solicitors also point out that each of the judges (and in particular the judge on 12 December 2011) made the orders sought on the basis of the information provided and did not raise points or make any complaint about any non-compliance with the principles and procedures relating to without notice applications. This leads to the point (not raised by the father’s solicitors, but by me during argument) whether such a failure can be said to be negligent if it accords with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications.
I have dealt with the serious and in my view inexcusable failures to comply with the principles and procedures relating to without notice applications in this case in paragraphs 56 to 79 hereof.
Although, as I have mentioned I have sympathy with the father’s solicitors, in my view, those serious failures to comply with those principles and practices are negligent in the Ridehalgh sense, and cannot be justified or excused by endemic failures to apply them by practitioners and judges in the Family Division.
As I have explained, the failures to comply with the principles and procedures prior to 12 December 2011 did not of themselves cause the mother to incur any costs. But, I repeat that in my view, if those earlier failures had not occurred it is highly likely that the application on 12 December 2011 would not have been made and granted in the manner that it was (see paragraph 77 hereof).
The making of the order on 12 December 2011 continuing the location order on an open ended basis led to its enforcement and the mother incurring costs.
In my view, even if taken in isolation, the failures in respect of the application for that continuation constitute negligence in the Ridehalgh sense.
It seems to me that if such failures are to be avoided in the future there is a need for judges:
to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this), and
to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order.
Sadly, the first course alone has not resulted in general improvement and it is to be hoped that when the second course is added it will. But, I acknowledge and confirm that this promotional effect is not a ground for making the order rather it is a potential product of making such an order applying the approach set out in Ridehalgh.
The mother changed solicitors in July 2011 and her new solicitors obtained legal aid for her. It was asserted on behalf of the father that the mother was always entitled to legal aid. I was not taken to the relevant regulations or rules to establish this, but on the assumption that it is correct, I do not see why, and argument was not advanced as to why, this should as a matter of principle, or as a consideration of the third stage of the test confirmed in Ridehalgh (whether it is just to make a wasted costs order), lead to an order not being made, or its amount being reduced.
However, I agree that the mark ups included in the costs estimate provided are too high and that the costs claimed for preparation generally and for the hearing on 10 September 2012 should be discounted because:
it is difficult to justify the hours spent in respect of that preparation, and
significant parts of the work done and so the hours claimed must have related to the claim for costs against the father (that has failed), and some of the arguments for a wasted costs order (flagged up at that hearing and in correspondence) that have failed.
Also, in my view:
the merits and policy arguments referred to in paragraphs 82 to 84 above, and
the point that the father’s solicitors are unfortunate to be singled out when their failures to comply with the principles and procedures relating to without notice applications are widespread in the Family Division and were not picked up by a number of judges,
warrant reductions in the costs to be awarded as wasted costs.
Taking the above into account, in respect of the costs schedule up to the hearing on 10 September 2012, I make a wasted costs order against the father’s solicitors in the sum of £18,000 (to include VAT).
I have not found a costs schedule updated to the hearing on 12 October 2012 and I will deal with any additional costs after 10 September 2012 when this judgment is handed down.