R v R

These are proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter "the Convention"). In this matter I am concerned with SR, now aged eight, and MR, now aged five. The applicant father, GR, seeks an order for the immediate return of the children to Canada following their removal by their mother, NR, from that jurisdiction on 11 September 2015.

The mother makes the following concessions with respect to the issues that the court is required to consider and determine when disposing of the application made by the father:

Within this context, at the outset of the hearing the mother relied on three defences to summary return, namely, that the father has acquiesced to the children remaining in this jurisdiction, the objections of the children, and harm. Very sensibly, in light of the evidence before the court and a report from the CAFCASS High Court team as to the children's wishes and feelings, the mother does not now pursue the objection defence or the harm defence. Rather, she rests her case squarely on acquiescence. For reasons I shall come to, I am not satisfied that that defence is made out.

This case once again highlights the need for legal practitioners to pay proper regard to the question of jurisdiction when issuing private law proceedings under the Children Act 1989 in any case that has, or appears to have, an international element, particularly in cases where a parent has recently arrived in the jurisdiction with the children.

The background to this matter can be set out briefly. The father was born in January 1977, and is now aged 39. The mother was born in May 1970, and is now aged 45. Both are British nationals. The parties married in January 2003. SR was born in December 2007 and MR was born in September 2010.

The family emigrated to Canada in July 2014. This was an agreed move and followed a difficult period during which the mother had suffered from a serious illness and from difficulties with her mental health. It is apparent that following the family move to Canada matters did not go smoothly. In light of the mother's concession that she is not able to make out the defence of harm under Art 13(b) of the 1980 Convention, it is not necessary for me to descend into detail with respect to the problems that emerged within the marriage following the family's arrival in Canada.

On 11 September 2015 the mother removed the children from the jurisdiction of Canada and brought them to England. As I have already set out, the mother accepts that at the time she removed the children, they were habitually resident in Canada and that the removal of the children was wrongful as being in breach of the father's rights of custody.

It is important to note that following the mother removing the children from the jurisdiction of Canada, and prior to the mother pursuing proceedings under the Children Act 1989 in England, to which I shall come shortly, the father states he tried to speak with the mother and negotiate the return of the children to Canada. The mother did not seek to dispute this.

On 22 September 2015 the mother issued a without notice application in the Family Court for a child arrangements order. The application form completed by the mother's solicitors repays close reading. The Form C100 that a party is required to complete when applying for a child arrangements order contains at Section 6 a series of questions designed to alert the court to the fact that the case may have an international element.

In response to the question, "Do you have any reason to believe that any child, parent or potentially significant adult in the child's life may be habitually resident in another State?" the solicitor ticked, "Yes" and stated that, "The respondent father is habitually resident in Canada". The answer given failed, however, to make clear that the children, who had moved to Canada at the same time as the mother and father, were also likely to be habitually resident in Canada.

In response to the question, "Do you have any reason to believe that there may be an issue as to jurisdiction in this case (for example, under Brussels II Revised)?" the solicitor had ticked, "No". This was plainly incorrect. The jurisdiction of the court to make a child arrangements order derives from Council Regulation (EC) No 2201/2003 (hereafter Brussels IIA) pursuant to the Family Law Act 1986, s.2(1)(a). Under Art 8 of Brussels IIA the English court only has substantive jurisdiction where the child is habitually resident in England and Wales. In circumstances where the application form indicated at Section 3(b) that the children had moved to Canada 14 months previously and had only been back in this jurisdiction for 10 days, it was self-evident that there was, "Reason to believe that there may be an issue as to jurisdiction in this case". In the circumstances, I am at a loss to understand why the solicitor for the mother replied, "No" to this question.

Finally, Section 6 of Form C100 asks, "Has a request been made, or should a request be made, to a central authority or other competent authority in a foreign State or a consular authority in England and Wales?" Once again, the solicitor ticked, "No".

In the circumstances, the Form C100 issued by the mother was materially deficient in that it failed to make clear to the Court Office that this was a case that plainly had an international element and raised issues of jurisdiction. It also gave the district judge, before whom the matter first came without notice to the father, less assistance than should have been the case within the context of a no doubt busy list of other short matters. I have not had the opportunity to investigate in detail why the solicitor acting for the mother failed to complete the Form C100 accurately. However, on the face of it, the matters I have set out above constitute a highly regrettable omission on the part of that solicitor.

Within the Form C100 the mother made certain allegations that the father had been controlling of her and psychologically abusive. The mother further alleged that the father owned guns and had taken the children to the rifle range to practice shooting. The mother, however, made clear that the father had never been violent towards her or the children. Within this context the mother is described in the Form C100 as "Seeking the comfort of a residence order" (sic). The basis of the mother's without notice application for a child arrangements order is summarised in the Form C100 as follows:

On 22 September 2015 the matter came before the district judge without notice to the father, whereupon the district judge, having noted the terms of s.9(5)(a) of the Children Act 1989 made prohibited steps orders preventing the father from removing the children from the care of their mother, from their schools or from the jurisdiction. The mother was represented by counsel.

It is not clear on the face of the order on what basis the district judge decided that this was an appropriate case in which to proceed without notice to the father, having regard to the principles set out in Re S (Ex Parte Orders) [2001] 1 FLR 308, KY v DD [2012] 2 FLR 200, and Re C (A Child) [2013] EWCA Civ at 1412. On 22 September 2015, beyond the mother's say-so, there was no evidence at all that the father (who was resident in Canada and was not the parent who had wrongfully removed the children from the jurisdiction) was at that point on his way to England to take back the children. There was no evidence beyond the mother's say-so that he presented a risk of harm to the children and there was no evidence beyond the mother's say-so that the father could not look after them properly.

As set out above, the jurisdiction of the Family Court to make child arrangements orders derives from Brussels IIA, pursuant to s.2(1)(a) of the Family Law Act 1986. Under Art 8 of Brussels IIA the English court only has substantive jurisdiction where the child is habitually resident in England and Wales. Within this context, the authorities make clear that the starting point in any case where there is a foreign dimension is an enquiry by the court as to where the children are habitually resident. That issue must be addressed at the outset of the proceedings and good practice requires that in every case the court sets out explicitly, both in its judgment and in its order, the basis upon which it has either accepted or rejected jurisdiction under Brussels IIA (see Re F (A Child) [2014] EWCA Civ 789 and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] 2 FLR 361). The President has made clear that where the parties do not raise the issue of jurisdiction in a case that has a foreign dimension, the court itself should raise the issue of jurisdiction (see Re F (A Child) [2014] EWCA Civ 789).

Having regard to the terms of the order of 22 September 2015, the district judge appears to have been satisfied that the English court had substantive jurisdiction under the Children Act 1989 to make prohibited steps orders in relation to the children prohibiting the father from removing the children from the care of their mother, from their school or from the jurisdiction without the permission of the court. The basis for the district judge's decision that the English court had jurisdiction appears to have been that: (a) the children were within the jurisdiction of England and Wales; (b) the children had by that time been enrolled in school in England and Wales; (c) it was the intention of the mother to remain in England and Wales; (d) the father was aware the children were living in England and Wales with their mother; (e) the father had not yet commenced proceedings in England and Wales; and (f) the mother was not aware of any proceedings having been commenced in Canada.

It is unclear whether counsel appearing on behalf of the mother at the hearing on 22 September 2015 drew the attention of the district judge to the cases of Re F (A Child) [2014] EWCA Civ 789, and Re E (Brussels II Revised: Vienna Convention: Reporting Restrictions) [2014] 2 FLR 361, and to the need to address at the outset of proceedings the issue of jurisdiction and to record the basis upon which the court had either accepted or rejected jurisdiction under Brussels IIA. Within this context, it is also not clear whether the district judge considered that the factors that I have recited led to the children being habitually resident in England and Wales, or whether the district judge considered that these were grounds for claiming substantive jurisdiction to make orders under the Children Act 1989 in any event.

On either analysis, however (and whilst the district judge likely had jurisdiction to make provisional protective orders, provided the same were required as a matter of urgency), it is, in my judgment, doubtful that the court had substantive jurisdiction under s.8 of the Children Act 1989 to make the orders it did on 22 September 2014.

However, and importantly, from the father's perspective, the English court had made an order and had made an order which prevented him from removing the children from the care of their mother and from the jurisdiction of England and Wales.

Within this context, I accept Mr. Anderson's submission that the father's subsequent statements regarding his intentions in respect of the children must be viewed through the prism of the proceedings that had been issued and the order that had been made, albeit without apparent jurisdiction, on 22 September 2015.

On 9 October 2015 the former solicitor for the father completed, and the father signed, a Form C1A. It is unclear whether the father received any advice from his former solicitor prior to signing this form on the question of whether the English court had substantive jurisdiction in respect of the children or on the potential legal consequences of being seen at that stage to engage in the proceedings issued in England. Within Section 4 of the Form C1A the following statement appears (emphasis added):

The matter returned to court before a second district judge on 12 October 2015. On that date the district judge extended the prohibited steps orders for a further period and listed the Children Act proceedings for further directions. Whilst the father was not present at the hearing, he was represented by his former solicitor, to whom he had the opportunity to speak on the telephone and give instructions. As noted, immediately before the mother issued her application in the Family Court in England the father's evidence is that he had tried to speak with the mother and negotiate the return of the children to the jurisdiction of Canada.

Within the context of an order having been granted against the father on 22 September 2015, notwithstanding an apparent want of jurisdiction, preventing him removing the children from the jurisdiction of England and Wales, the order of 12 October 2015 contains a series of recitals pertinent to the question of acquiescence in this case. The relevant recitals read first, “The respondent in principle is agreeable to the children remaining in the jurisdiction of Wales until further order” [emphasis added]. Then, following a series of recitals setting out the father's proposals for contact between himself and the children, and the details of the same, there is a further recital, which reads, “If the proposals above were agreed to, then the respondent would consent to a child arrangements order setting out the children would remain in the jurisdiction of England and Wales” [emphasis added]. Finally for present purposes, the next recital reads, “Unless the proposals are agreed to, the respondent will not agree to a child arrangements order” [emphasis added].

Notwithstanding that it evidences the court's intention to continue the proceedings under the Children Act 1989, and the fact that the hearing was the first at which the father was represented, the order of 12 October 2015 is silent on the questions of jurisdiction. For the reasons I have already set out, it is again, in my judgment, doubtful that the court had jurisdiction to entertain the mother's application under the Children Act 1989 and to make the orders that it did on 12 October 2015. It is once again not clear whether either counsel for the mother or the former solicitor for the father drew the court's attention to the issue of the habitual residence of the children and the issue of jurisdiction generally. Again, it is unclear whether the father received any advice from his former solicitor as to the question of whether the court had jurisdiction to make the orders it did on 12 October 2015 or as to the potential legal consequences of recordings the solicitor advised the father to agree suggesting that, expressly subject to the resolution of the issues of contact, he was content for the children to remain in the jurisdiction of England and Wales.

On 3 November 2015 the former solicitor for the father wrote to the solicitor for the mother within the context of the recitals set out in the order of 12 October 2015, having made clear that the father's agreement to the children remaining in the jurisdiction of England and Wales was expressly subject to the issue of contact being agreed. The letter of 3 November 2015 indicates that the contact proposals being advanced by the mother were not agreed by the father, who put forward counter proposals. A letter from the solicitors for the mother dated the 12 November 2015 shows that the father's counter proposals were not agreed by the mother, who advanced further counter proposals of her own. It is therefore clear that as at 12 November 2015 there was no agreement between the parents as to the issue of contact.

On 30 November 2015 the father issued proceedings in the Supreme Court of British Columbia for divorce, financial relief and sole custody of the children in Canada. On 10 December 2015 the mother issued divorce proceedings in England. On 6 January 2016 the Supreme Court of British Columbia granted the father an order declaring him to be Guardian of both children, and the proceedings were adjourned generally. The father's statement in support of his application before the Supreme Court of British Columbia exhibits to it the order of 12 October 2015 made by the Family Court setting out the father's contingent positon on the issue of whether the children should remain in the jurisdiction of England and Wales. Having instructed new solicitors, who presently act for him, on 2 February 2016 the father issued his application under the 1980 Hague Convention.

That the father's position that the children could remain in the jurisdiction of England and Wales was an agreement in principle and expressly subject to the resolution of issues of contact is expressly recognised by the mother in her statement dated the 26 February 2016, filed and served in response to the father's application under the 1980 Hague Convention. In that statement the mother makes clear that (emphasis added),

“I had understood that the applicant's agreement to allow the girls to stay in the UK and not to pursue a Hague Convention application was contingent on my cooperation in facilitating contact, which included regular telephone contact and extended visits during the year”.

The mother now seeks to defend the father's application for the summary return of the children to their country of habitual residence on the ground that the father has acquiesced to the children remaining in this jurisdiction.

The law in relation to acquiescence is well settled. In Re H (Minors) (Abduction: Acquiescence) [1998] AC 72 Lord Browne-Wilkinson stated as follows:

“To bring these strands together, in my view the applicable principles are as follows:

(1)

For the purposes of Art 13 of the Convention, the question whether the wronged parent has ‘acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) ‘the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact'.

(2)

The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3)

The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.

(4)

There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”

In the circumstances, the court is required to ask itself whether, in all the circumstances of the case, the subjective intention of the father was that the children should remain in the jurisdiction of England and Wales following their abduction. This is a question of fact to be determined on the evidence before the court, including the contemporaneous words and actions of the father. Unless the mother is able, in this manner, to prove as a matter of fact that the father acquiesced, the defence of acquiesce cannot succeed. The only exception to this is if the case is one that falls within the ‘exceptional’ category. The case will fall into this category only where, although the father has not in fact acquiesced, the words and actions of the father clearly and unequivocally show, and have led the mother to believe, that the father was not asserting, or going to assert, his right to summary return of the children and were inconsistent with such a return, such that justice requires that the father be held to have acquiesced to the children remaining in the jurisdiction of England and Wales.

A parent cannot be said to have acquiesced in the unlawful removal or retention of a child unless he or she is aware of the act of removal or retention, is aware that it is unlawful and is aware, at least in general terms, of his or her rights against the other parent (see Re A (Minors) (Abduction: Custody Rights) [1992] Fam 106, sub-nom Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 14). It is not a prerequisite for the establishment of the defence of acquiescence that a parent has correct advice or detailed knowledge of his or her Convention rights provided it is shown that he or she knew in general terms that he or she could bring proceedings (see D v S [2008] 2 FLR 293).

It is clearly established that when considering written evidence of the parties' intentions, the written statements in question must be in clear and unambiguous terms in order to establish acquiescence (see Re S (Child Abduction and Acquiescence) [1998] 2 FLR 893).

It is important to note that merely seeking to compromise matters by permitting the abducting parent to remain in the country to which he or she has taken the children provided that the wronged parent is satisfied as to other matters and issues between them has not been regarded as acquiescence for the purposes of the 1980 Hague Convention (see P v P (Abduction: Acquiescence) [1998] 2 FLR 835). Similarly, a parent who enters into a conditional agreement that the children remain in the jurisdiction whilst discussions continue may not be held to have acquiesced for the purposes of a Convention (see Re W (Acquiescence: Children's Objections) [2010] 2 FLR 1150). In P v P (Abduction: Acquiescence) Ward LJ agreed with the observation of Hale J (as she then was) at first instance that:

“…it would be most unfortunate if parents were deterred from seeking to make sensible arrangements, in consequence of what is usually an acknowledged breakdown in the relationship between them, for fear that the mere fact that they are able to contemplate that the child should remain where he has been taken will count against them in these proceedings. Such negotiations are, if anything, to be encouraged”.

Within this context, in Re H (Minors) (Abduction: Acquiescence) Lord Browne-Wilkinson noted that the Convention itself, by Arts 7(c) and 10, places weight on the desirability of a negotiated or voluntary return or the amicable resolution of the issues.

Delay, and in particular unexplained delay, in taking action can be indicative of acquiescence (see W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211 and Re D (Abduction: Acquiescence) [1999] 1 FLR 36). The fact that an applicant has applied for custody in the child's State of habitual residence may, however, be strong evidence of a lack of acquiescence (see Re A (Minors) [1991] 2 FLR 241). A parent who allows substantial delay to accrue as a result of erroneous legal advice before issuing proceedings may not be said, depending on the facts of the case, to have acquiesced in a wrongful removal (see Re S (Minors) (Abduction) [1994] 1 FLR 819).

Finally, in cases where a parent who has removed children from their jurisdiction of habitual residence and is facing the summary return of children to that jurisdiction forthwith, it is important to recall the observations of Mostyn J in B v B [2014] EWHC 1804 that the objective of the Convention is to ensure that a child who has been removed unilaterally from the country of his or her habitual residence, in breach of rights of custody, is returned forthwith in order that the courts in that country can decide his or her long term future and that a decision by the English court to return a child under the terms of a Convention is no more and no less a decision to return the child for a specific purpose for a limited period of time pending the court of his or her habitual residence deciding the long term position.