R v M (Hague Convention; Withdrawal of Application and Art. 16 (Parental Responsibility))

I have been hearing applications brought within Hague Convention proceedings concerning two children known as, D (who is 14) and K (who is 9). The matter was listed before me for three days. The parties very sensibly engaged in collaborative and ultimately successful negotiations for much of the first day resulting in the compromise of many issues. The compromise reached was manifestly in the best interests of the children. However there were outstanding issues of (a) leave for the applicant to withdraw his application and (b) an application by the applicant for recognition of rights of parental responsibility which he says were gifted to him by a competent Court of jurisdiction in New Zealand. He prayed in aid the provisions of Article 16 of the 1996 Hague Convention. After hearing legal submissions, I gave my decision at the end of the third day. First, I gave permission to withdraw the application. Second, I dismissed the application under Article 16. I reserved Judgment. This is my Judgment giving the reasons for my decisions.

The parties are:

I have been more than usually assisted by counsel whose expertise has shone through in both the written and oral advocacy. Similarly the preparation by all the solicitors has been exemplary. This is all the more impressive as the key Article 16 issue was not trailed in advance of R’s Skeleton Argument. As such it has had to be responded to on relatively short notice. (I make no criticism of R’s legal team for this – the case has been constantly evolving and the Article 16 application was the consequence of a late concession by R as to the need to withdraw his application).

I am especially grateful to those leading, junior counsel and solicitors who have appeared pro bono. Michael Gration KC, Frankie Sharma, Mehvish Chaudhry, Mavis Amonoo-Acquah, Messrs Dawson Cornwell and Messrs Goodman Ray have all given their time freely and generously. The Court is grateful for both their assistance and their generosity. Indeed, although described as “pro bono,” the reality is that this representation will have been provided at personal cost in time and money for those representatives. There may come a time where such helpful representation falls foul of the exigencies of those lawyers’ personal economies. If or when it does, the Courts will need to look again at how the legal representation of these parties is to be funded. I merely note in passing that the ordinary consequence of a civil litigant withdrawing a claim is that the withdrawing partner (and potentially their financial backers; here the Legal Aid fund) usually bear the other parties’ costs (Footnote: ¹). That time has not yet come. Happily for me, no such application has been made here.

There may come a time when the State may have to reconsider the availability of non-means tested legal aid (as it provides, for example, to the Central Authority in 1980 Hague Convention cases) rather than just relying on the generosity of individual lawyers. The provision of such public funding would be so much better than the Court having to consider applications for costs of the sort which regularly used to be made by the Official Solicitor in litigation involving a public authority. Other remedies and costs orders are available to the Court. It is a pressing matter of fairness, equality of arms and access to justice but happily not an issue for today. But the time may come when it is an issue. That is, unless legal aid is extended in cases such as these; thereby avoiding the unwelcome need for these Courts to consider costs’ orders against public authorities.

M and the father of D, DF met in 2008. They began to cohabit in late 2009. D was born in London on the 18 February 2010. Ealing Children Services became involved following a complaint by M of domestic abuse. They undertook an initial assessment and then no further action. In late 2011, DF and M separated.

There were court proceedings between M (the mother) and DF which commenced on 28 February 2012. He sought residence, contact and a prohibited steps order. An interim order was made in those proceedings that D should not be removed to Tanzania. A final order was made on 10 February 2014 which provided for D to live with M. D was to have contact with DF on alternate weekends and during the week. Social services were involved with these parties from 2010 until 2014. In particular on the 12 May 2014, there was a Child Protection Conference in respect of D at which concerns were expressed about possible neglect and M’s mental health. I have read the local authority child and family assessment and also the Cafcass report. Save for two video calls in 2020, DF did not see D after M removed him to New Zealand in October 2016 until after D returned to England in October 2023 (save for two video calls with him in 2020).

In 2013 M began a relationship with KF. They were in a relationship for between 7 and 9 months. They separated due to pressures arising from KF’s previous relationship with a woman who is the mother of his two previous children. However, during their relationship, M had become pregnant with K. KF accepts, with hindsight, that he was wrong to abandon a relationship with his daughter, K.

M went on to give birth to K on 5 June 2014. The only contact that KF had with the mother and K was via his own mother. That contact was sporadic and deteriorated on M meeting R, the applicant in these proceedings.

KF was not named on K’s birth certificate. He does not have parental responsibility and did not have any contact with K from 2014 to 2023.

In July 2014, M moved from the London Borough of Ealing to Barking and Dagenham. On the 4^th July 2014, the London Borough of Barking & Dagenham held a Child Protection Conference in respect of both D and K. There were fears about neglect and a Child Protection Plan was put in place. This was followed by the compilation of another plan on 10 October 2014. By 26 March 2015, this had been stepped down to a Child in Need plan.

In 2015 or 2016, R and M met through online gaming. R was in New Zealand and M in England. At that time, DF was still spending time with D on a regular fortnightly basis.

Between June and July 2016, R came to England and spent time with M, D and K.

In November 2016, M relocated to New Zealand with D and K. This removal was without the knowledge or consent of DF. He says he did not know of the plan to move until he turned up at M’s home and was told that she no longer lived there.

R and M married in Auckland, New Zealand on 10 March 2017. M obtained a partnership visa whilst D and K were given student visas.

On 24 April 2018, M gave birth to S. R is the biological father of S.

M then applied for her husband, R, to be made the guardian of D. DF became aware of this in July 2018. He says that this was the first time that he became aware that his son, D was living in New Zealand. DF enlisted the support of his local Member of Parliament, the charity, Reunite and the Bar Pro Bono Unit for assistance.

On 5 September 2018, DF indicated to D’s appointed lawyers that he opposed the guardianship application. Further, that D had been abducted.

On 7 November 2018, R was appointed as an additional guardian in New Zealand. DF says he was unaware of this.

During 2020, M asked DF to agree for D to live in New Zealand. DF refused.

In May 2021, there was the “Whangari incident”. M was irate with the children; so much so that the local police became involved. M was arrested. She was charged with assault. She was subsequently acquitted after a 2-day trial. I have not seen the detail of that trial.

On 17 July 2022, M travelled to Canada, leaving D, K and S with R. I am told that M wished to visit her new partner. M and R separated.

In August 2022, M returned to the family home in New Zealand. She sought a reconciliation. R agreed. M then revealed that she was pregnant with her and the Canadian boyfriend’s child. She says she had decided to abort the unborn child. R ended the reconciliation. M had an abortion.

On 6 July 2023, there was an incident when M locked the children in her room and told them not to associate with R (who had been spending time in the neighboring property which was occupied by R’s mother). DF says during this incident, he was telephoned by M who told him that her marriage had broken down and she wanted D and K (but not S) to return to England and be cared for by DF. She alleged that R had been abusive. DF said he can care for D but not D and K.

On 16 August 2023, M disappeared from the family home. R therefore applied to the North Shore Family Court for an order preventing the removal of S from New Zealand. The order was granted on short notice. That same day D, K and S were removed from their schools by M.

In the meantime, M had introduced, via a telephone call, K to her father, KF. This also took place in August 2023. In September, M, claiming concerns about D and K’s safety in New Zealand, discussed plans to move D and K to England.

On 12 September 2023, the North Shore Family Court granted a shared parenting order for D, K and S. They made provision for the children to spend time with R during the week and with M at weekends. Judge S J Maude sitting in the North Shore Family Court held that:

On 13 October 2023, M put D and K on a flight from New Zealand to England. They travelled as unaccompanied minors. This move was unknown to R. D told the Guardian that “he was only told of the plan to leave when he was collected from school and K was told once they were on the way to the airport. He described being rushed onto the airplane and an attendant being assigned to them.” The children were removed from New Zealand, R says, without his consent. M has advanced a case that there was some form of consent. It is not controversial that DF’s consent, KF’s consent or the approval of the New Zealand court was not obtained. That said, all parties accept that for the purposes of the Hague Convention 1980 (which New Zealand is a signatory to) this was an unlawful removal by M.

On arrival at Gatwick airport, the children were met by their maternal aunt, MA.

On 18 October 2023, the North Shore Family Court varied the interim parenting arrangement such that now R was to have “full day to day care” of S.

DF had his first contact with D in seven years on the 28 October 2023. KF met K for the first time on 18 November 2023 in the maternal aunt (MA’s) home. Since then, KF has spent time with K on occasions including on 18 November 2023; 16 December 2023, and 30 December 2023. With the assistance of Ms Demery from Cafcass, this developed into an overnight stay on the 19 to 20 February 2024.

On 16 November 2023, the New Zealand Central Authority formally requested assistance from the Central Authority in England and Wales to obtain the return of D and K.

The applicant issued these 1980 Hague proceedings without notice on 1 December 2023. On 4 December 2023, HHJ Moradifar, sitting as a Deputy High Court Judge, made a location order, various other directions, and listed an on notice hearing for 13 December 2023.

At the return date on the 13 December 2013, Poole J gave comprehensive directions to prepare the matter for trial. He directed DNA testing in relation to KF and a wishes & feelings report in respect of the children.

On 7 February 2024, Ms. Demery filed and served her wishes and feelings report. She said, § 48, that “what struck me about both children, was that they found it difficult to articulate their actual feelings, for example when they suddenly [were] placed on [an] airplane and travelling for 29 hours without a parent to a country of which K would have no memory and D scant recollection of to stay with albeit their aunt but not someone that either child knew well before [they] arrived”.

The PTR was before Sir Jonathan Cohen on 9 February 2024. Cafcass had written to the court indicating that it was its view that the children should be separately represented. All parties agreed to this course. The children were joined and Ms Demery was appointed as their guardian. The DNA testing report showed a 99.9% chance of KF being K’s father. The conclusions in that report were not challenged by any party. The court also granted R’s application for expert evidence as to New Zealand immigration law. That was ordered by consent. Importantly, it did not deal specifically with whether R had parental responsibility in New Zealand.

Since the PTR, the New Zealand Immigration Law Expert has lodged his report, and answers to further questions. The essence of that report is that:

I am grateful to the Guardian for her input including an updating position statement setting out her conversations with the adult respondents (save for M whom she had not been able to contact but whom she spoke to on 23 February 2024 and thereafter circulated her note of their conversation).

All adult respondents sought to defend these proceedings in reliance upon Article 13(b) (grave risk/intolerability) and Article 13 (Child’s Objections). M, in addition, relies on Article 13(a) (Consent). None seek to argue that M’s conduct amounts to anything other than an unlawful removal of the children from the state of their habitual residence for the purposes of Article 3 and Article 12. On the facts, it would have been unrealistic for any such contention to be advanced.

The Family Court at North Shore, New Zealand, was seised of private law proceedings concerning all three children, D, K and S. A final hearing in New Zealand is currently listed for July 2024, but may be brought forwards to a date in May 2024, subject to an unrelated case coming out the court list. Pursuant to orders of that court, R has guardianship of both D and K and sole residence of S. R concedes that since late February 2024 the habitual residence of D and K is in England and Wales. I do not know but assume that in the current circumstances the New Zealand court will decline to make any orders in respect of D and K. (On the same basis and in accordance with principles of comity, this Court will not make any orders in respect of S, who is habitually resident in New Zealand).

R now seeks permission from this court to withdraw his application for the summary return to New Zealand of D and K. Ordinarily such applications are made in writing but as all parties are present, this application has been made orally by leading counsel in court.

This Court does not act as a rubber stamp for applications to withdraw even when all the parties consent to this. The position is found in FPR r 29.4 which provides in respect of permission to withdraw an application:

It is now settled law that FPR r 29.4 applies to applications in proceedings under the 1980 and 1996 Hague Conventions. Earlier authorities which appeared to suggest that permission to withdraw was not required were not cases where the Court was asked for permission to withdraw as mandated in FPR 29.4. (See AA v TT (Recognition and Enforcement) [2015] 2 FLR 1 and In re G (Children) (Abduction: Withdrawal of Proceedings, Acquiescence and Habitual Residence) [2008] 2 FLR 351 at para 16).

The procedural requirement of permission for the withdrawal of proceedings is not limited to cases involving children. FPR r 29.4(1)(a) applies rule 29.4 to applications in proceedings under FPR Pt 7, (applications in matrimonial and civil partnership proceedings). It is not qualified as only applying where the application concerns the welfare or upbringing of a child.

When should the Court exercise its permissive powers? This leaves the question of what test is to be applied on an application to withdraw proceedings. Where an application to which FPR r 29.4 applies concerns the welfare of a child, the application for permission to withdraw will itself be an application concerning the welfare or upbringing of a child and the test will be the welfare principle set out in section 1(1) of the Children Act 1989: see Southwark London Borough Council v B [1993] 2 FLR 559, 572. Since an application in proceedings under the 1980 Hague Convention is not one concerning the welfare or upbringing of a child, the test for deciding whether to give permission to withdraw such an application is not the section 1 (1) test. Instead, in such a case the test will centre on those matters set out in the overriding objective at FPR r 1.1(2), including the need:

In Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam). MacDonald J held,

To the above sage words, I would add the observation that ordinarily parties should not be compelled to bring or continue litigation which they do not wish to continue with. Parties are entitled to bring proceedings against such persons and under such causes of actions as they choose but they cannot usually be compelled to bring or continue those proceedings (Pawley v Whitecross Dental Care Ltd [2021] EWCA 1827 CA at [32]). There might be costs consequences of discontinuance or withdrawal but that is different from insisting that parties continue with litigation which they are all agreed should be withdrawn.

Where all the parties are agreed that the application should be withdrawn and there is every good reason under the overriding objective to accede to this request, it seems to me that I should and I must accede to the application to withdraw.

R also invites this court to consider his proposed application under Article 21 of the Hague Convention for organising and securing the effective exercise of rights of both himself to his step-children and for S to her half-siblings. These arrangements have been agreed between the parties. They are manifestly in the best interests of the children. Whether those orders are made under Article 21 or pursuant to the Children Act (once the Hague Convention proceedings are withdrawn) is an arid point which counsel have entirely rightly chosen not to trouble me with. I am happy to approve them as orders properly made in respect of children who are now habitually resident in England and Wales.

As already indicated R accepts (as he must) that D and K are now no longer to be subject to New Zealand court jurisdiction. He accepted that by late February (at the latest) the children have acquired a habitual residence in England and Wales. No party has sought to argue that this court has anything other than a full welfare jurisdiction over D and K.

R’s case is that his parental responsibility for D and K should be recognised either by (a) by operation of Article 16 and Article 20 of the 1996 Hague Child Protection Convention which applies as between Contracting States (the UK) and Non-Contracting States (New Zealand). He prays in aid the decision of Re M (a child: adoption proceedings) [2014] EWHC 1128 (Fam) §27 per Theis J (Footnote: ²) or (b) as a fall-back position, under section 4A of the Children Act 1989. I have already indicated that the s. 4A application needs to be brought properly on notice and should be the subject of those separate proceedings.

It is by no means clear that the New Zealand court has given R parental responsibility over the children, D and K. (If he has no such Parental Responsibility then he has nothing that can be recognised under Article 16). Foreign law has to be proved. This Court cannot simply adopt English law and assume it is applied in New Zealand. Neither can the Court take judicial notice of matters of foreign law; even where the same terminology is used (and the words “parental responsibility” are not used in any of the New Zealand orders). There are many reasons for this including that the local law could be nuanced to the extent that there would be a risk of this Court going into error.

R relies on what is said by the expert on New Zealand law but the expert has not specifically turned his head to this issue. That is unsurprising as he is an Immigration law expert instructed for the sole purpose of advising on immigration law. Whilst it is correct that he was asked questions and one of these contained a reference to parental responsibility, I do not think that that helps me on finding that there was parental responsibility. The question was:

That does not ask if there was parental responsibility for these particular children and does not ask the expert to deal with that issue. The answer to the question does not confirm parental responsibility. The answer was:

The Court orders in New Zealand do not refer to parental responsibility. I have been given a copy of the New Zealand Care of Children Act 2004. It also does not refer to the term “parental responsibility.” But even if it had done so, I would have been loath, without expert evidence, to embark on an assessment and appreciation of New Zealand law without expert assistance. In this regard, I note in passing that the definition of parental responsibility used in the Hague Convention 1996 Article 1 (2) (Footnote: ³) is similar but not identical to the English definition. Parental responsibility in the Hague Convention 1996 is meant to have an autonomous wide international meaning (see the Lagarde Report, para 14). It does not therefore necessarily have the same meaning as that which applies under Children Act 1989; see SM (Algeria) v Entry Clearance Officer [2018] 1 WLR 1035.

I cannot and do not find that R has been given parental responsibility by the New Zealand courts. However there is a measure of similarity of rights which he has been given (especially in respect of D (Footnote: ⁴)). Therefore if I am wrong about him having parental responsibility I will consider whether I am required to recognise those rights as if he has been given Parental Responsibility for both D and K by the New Zealand court. But I do emphasise that I am proceeding on the basis (and without the benefit of further expert evidence of New Zealand law), that (a) unlike, say, a married parent, R does not have parental responsibility as of right but (b) he has been awarded it by the New Zealand court.

In England, section 4 of the Children Act 1989 provides with respect to the power of the court to make an order that a person shall cease to have parental responsibility:

No parental responsibility agreement shall have effect for the purposes of this Act unless—

The court may make an order under subsection (2A) on the application—

of any person who has parental responsibility for the child; or

with the leave of the court, of the child himself, subject, in the case of parental responsibility acquired under subsection (1)(c), to section 12(4).

The court may only grant leave under subsection (3)(b) if it is satisfied that the child has sufficient understanding to make the proposed application.

The enactments referred to in s.4(1)(a) and s.4(1A) do not include the 1996 Convention. (New Zealand is not a signatory of the 1996 Convention but is a signatory of the 1980 Convention; therefore Article 16 of the 1996 Convention would apply to New Zealand as a non-convention country). Article 16 of the 1996 Convention is addressed in the Family Procedure Rules 2010, Rule 12.71. The rule deals with the question of whether a person has or does not have parental responsibility, and the question of the extent of that parental responsibility, by virtue of the application of the 1996 Convention:

I pause here to say that R ought to have brought an application under FPR 12.71. It should have been supported by expert evidence. The other parties should have had a proper opportunity to respond to the evidence of New Zealand law. Mr Jarman KC is right when he says that depriving the other parties of those opportunities should only be justified in a case of urgency; there was not that urgency here. Had the application been on proper notice and supported by evidence, it would have then been possible to take a view of whether there was parental responsibility and / or the extent of that parental responsibility. It would then have been possible to make the necessary declarations.

Chapter III of the 1996 Hague Convention is concerned with Applicable Law. The first Article in that part is Article 15. It provides that in exercising their jurisdiction under the provisions of Chapter II of the Convention, the competent authorities of the Contracting States shall apply their own law (lex fori) subject, in exceptional circumstances, to applying or taking into account the law of another State:

Article 16 of the 1996 Hague Convention represents a qualification on applicable law. It makes a distinction between parental responsibility which is acquired by way of birthright and that which is acquired by the intervention of judicial or administrative authorities (and by agreement).

The competing contentions of the parties may be summarised briefly. Mr Hames KC says on behalf of R that each sub-paragraph is a stand-alone provision allowing him to select sub-paragraph (3) without reference to the other paragraphs. The other parties maintain that Article 16 must be read holistically and progressively. They say that R’s case at its highest is that parental responsibility was acquired by the intervention of a judicial authority. (They do not accept that parental responsibility was awarded at all but at its highest it was by court order). Applying (1), they say that Court ordered parental responsibility is simply outside of Article 16. Therefore, we simply do not come to (3).

Whilst not of force of law, I am assisted by both the accompanying Lagarde Report (Footnote: ⁵), The Practical Handbook on the Operation of the 1996 Hague Child Protection Convention (Footnote: ⁶) and the 1996 Hague Convention Practice Guide (Footnote: ⁷). I have found each of these guides to be helpful and set out here the more relevant parts with my emphasis supplied:

(1) The Lagarde Report:

It will be noted that in every case, the example is of parental responsibility arising by operation of law and not by administrative or judicial intervention. (Footnote: ⁸)

(2) The Practical Handbook on the Operation of the 1996 Hague Child Protection Convention (Footnote: ⁹)

Thus, taking example 9g if the parental responsibility had arisen following the intervention of a judicial authority (as R contends here) then his Parental responsibility would not follow him to England such that it would have to be recognised as of right in England.

(3) 1996 Hague Convention Practice Guide (Footnote: ¹⁰).

Again, the lodestar is that of the passive conferring of parental responsibility rather than its attainment through a judicial process.

I have also been helpfully referred by Mr Gration KC to the decision of B v C (No. 2) [2023] EWHC 2524 in which MacDonald J provided a comprehensive overview of the operation of Chapter 3 of the 1996 Hague Convention. He also deals with the law governing where public policy might intervene to prevent an Article 16 recognition. I have already indicated in my decision that that does not arise in this case as I have decided I should not be affording recognition to the claimed parental responsibility.

However MacDonald J does also deal with Article 16 at paragraph [77] (again the emphasis is supplied by me):

Article 16 of the 1996 Convention represented a compromise between (a) mutability, whereby each change of habitual residence would result in a change in the law applicable to the attribution by operation of law of parental responsibility and (b) continuity of protection, where the law applicable would remain the law that originally attributed or extinguished parental responsibility.

The eventual compromise was that Article 16 was to be read progressively as contended for by all the Respondents in this case. If parental responsibility was created by judicial or administrative intervention (see Art 16 (1)) then the subsequent paragraph 16 (3) was not engaged. Under Article 16(3) the parental responsibility had to be attributed by operation of law without the intervention of a judicial or administrative authority in the child’s State of habitual residence.

I am fortified in that view by the position being one regulated by the normal principles of private international law. If what Mr Hames KC says is correct then New Zealand will have acquired the right to declare the parental responsibility for D and K. By contrast, England (where the children are now habitually resident) would have the exclusive right to determine issues such as living with orders but not parental responsibility. It would result in some decisions being in the exclusive jurisdiction of England and another important welfare issue exclusively decided in New Zealand (which would probably not be able to exercise that power as the children would no longer be habitually resident there). This gives rise to a situation of dépeçage. That is not unlawful in itself (indeed the Rome Convention on the Law Applicable to Contractual Obligations Art 3(1) expressly permits this in a contractual setting). But it is supremely undesirable when it comes to welfare considerations of a child.

If I am right and New Zealand would decline future jurisdiction on the basis that the children are not habitually resident there, then it is hard to see how the New Zealand order could be discharged. If an application could be made to discharge it in England (say, as a Children Act matter) then that would sit uncomfortably with the Article 22 provision that recognition should only be refused on the basis of public policy (Footnote: ¹²). It would easily undermine the intention of Chapter 3 of the 1996 Convention if recognition were afforded as of right under Article 16 (3) to a decision of the New Zealand court only for that to be extinguished the next day by a Children Act application. That is not the law.

Ms Renton asked me to consider this application as four questions. I will conclude this judgment by summarising my decision on each point.

For the reasons above, I dismiss R’s application for recognition of what he says is an award of parental recognition in New Zealand. I make it clear that this does not act as an issue estoppel preventing him from applying for parental responsibility in the usual way pursuant to the Children Act 1989.

Finally, I would wish to pay tribute again to all the legal representatives; for the excellent presentation of the papers, for the helpful and collaborative attitude and for the excellent advocacy; both written and oral.