BL v TC & Anor

I am concerned today with a young woman, OD who is 14 years old. Her mother is BL, who is represented by Mr Setright QC and Ms Ridley. Her father, the respondent to this application, is TC, who is represented by Ms Eaton QC and Mr Khan. O herself was joined to these proceedings and has a guardian, Peggy Ray, and is represented by Michael Gration.

The application which was listed before me for three days was, principally, the mother’s application pursuant to the 1980 Hague Convention for the return of O to the United States of America. In tandem with that was an application issued by the father under the inherent jurisdiction which essentially sought orders to secure O living in England. As a result of what have obviously been extensive and detailed negotiations over the last 48 hours or so, I have not been called upon to determine either of those applications, but have been presented with comprehensive orders dealing with the issues which have arisen, the parties having agreed that O should now make her life in London with her father.

The principal order involves the withdrawal of the Hague Convention application, together with a set of orders to finalise matters in relation to the Hague application. That is presented in tandem with a more extensive set of proposals which deals with the future of O, in particular recognising that this court now has jurisdiction over her to make welfare orders and making a series of welfare orders to reflect the future living and contact arrangements for O with her father and mother. The order also, as might be expected, given the representation involved, includes a comprehensive set of recitals and undertakings designed to deal with the jurisdiction of this court over O, but also designed to address the absence of a jurisdiction in this court to deal with O’s brothers, R and W, who are still living with the mother in America. In conjunction with that order, I am also asked to approve a variation to a financial order that was made in the Principal Registry in November 2011. That simply makes adjustments to the financial provision incorporated within that 2011 order to reflect the fact that O will, hereafter, be living with her father in London.

In terms of the withdrawal of the Hague application, the court has to apply the test set out by MacDonald J in Ciccone v Ritchie (No. 2) [2016] EWHC 616 [2017] 1 FLR 812, which mandates the application of the overriding objective set out in FPR 2010 r.1.1 and r.1.2. In respect of the components of the main order which deal with the living arrangements for O, the court’s paramount welfare jurisdiction is engaged, and even though it is a completely agreed order, the court has an independent obligation to consider the terms of the agreement and the nature of the order. As was recognised by the Court of Appeal in Re H (A Child) (International Abduction: Asylum and Welfare) [2016] EWCA Civ 988 [2017] 2 FLR 527 , the extent to which the court needs to descend into the merits of the agreement will depend very much on the circumstances of the case.

In relation to the financial order, I am told that the test that I should apply, and I accept it from the experienced counsel in front of me, is, essentially, that set out in s.25 of the Matrimonial Causes Act 1973 and to determine whether the variation sought is appropriate and just having regard to that.

Taking matters in reverse, I am satisfied that the variation of the financial remedy order is just and appropriate. I am also satisfied that it is appropriate, applying the overriding objective, to permit the mother to withdraw her application under the 1980 Hague Convention, and I am also satisfied, in relation to the child arrangements orders for O, that they will best promote her welfare, although, in a sense this outcome in these proceedings is, in my view, the least worst rather than the very best that could have been achieved for O. It is by default that the order is in her best interests. It seems, having read the material, that this order does reflect the best that can be salvaged from the situation that has been created by events in the summer.

I would also wish make some observations on the issue of the confidentiality of the mediation process given the arguments deployed in the written arguments that the cloak could be withdrawn even where there is an express term of confidentiality in the mediation agreement. The mediators surprise at that suggestion is evident in their communications. The availability of mediation in the intense crucible of post-abduction family relations is a vital part of the first aid kit that can be used to heal the damage created by abductions. The fact that two highly regarded mediators were given the impression that expressly confidential mediation might be subject to disclosure to the court alarms me. If experienced mediators become unwilling to mediate because, even when within a written agreement, they might be called to give evidence, they may cease to mediate. That would be a huge loss.

I have not been called upon to determine the legal issues surrounding the withdrawing of the veil of confidentiality. I would say that I consider there is a strong argument for holding that mediation in the context of 1980 Hague Convention proceedings, with the international dimension that it contains, with the peculiar intensity of the post-abduction environment, and where the cloak of confidentiality arises not simply from inference but from express terms, will not necessarily attract the Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 exceptions but rather would be immune from disclosure in all circumstances, save for those identified in Re D(Minors) (Conciliation: Privilege) [1993] 1 FLR 932, CA and accepted within the mediation framework itself, namely disclosure might be justified where there was a risk of significant harm to a child. Insofar as I can, in this limited context, I would want to reassure mediators that the cloak of confidentiality remains as securely fastened as ever it was.

So, returning to the issue of the future and trust, given that the parties have three children, including W who is only twelve, and given that they live in different countries, the re-establishment of trust will be central to the welfare of the children over coming years. The mother has made a brave decision in agreeing to what she has today. So, I endorse these orders and wish the family well for the future.