England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(MR JUSTICE SINGER)

		Royal Courts of Justice Strand London WC2 Thursday, 20th December 2001

1. LORD JUSTICE THORPE: The parties to this appeal, whom I will call respectively the father and the mother, married in Tennessee on 14th March 1997 and there is one child, CM, who was born in Illinois on the 23rd March 2000. There the family lived until the 24th November 2000, when the mother returned with CM to the United Kingdom and particularly to the north, where the mother was born. At the time, the father had gone alone for the Thanksgiving holiday to his family in Tennessee, and when he discovered the mother's departure, he at first sought her voluntary return but hopes of that evaporated in January 2001 when the mother announced her intention to stay in the United Kingdom.
2. The father's reaction was not to invoke the assistance of the American Central Authority, but rather to petition for dissolution of marriage in the Circuit Court of Cook County in the State of Illinois. The mother's response was to file a petition in the Oldham County Court and to commence proceedings under the Children Act 1989 for a residence order. So competing proceedings continued in both jurisdictions, the mother obtaining interim custody orders in the north, and the father obtaining orders, including a divorce, in the Cook County Circuit Court.
3. However, it seems that as his proceedings in America reached their conclusion, he initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. A request was received from the American Central Authority which, duly processed, led to the issue of his originating summons on the 26th September 2001. That issue, of course, had the effect of staying the mother's proceedings in this jurisdiction under the Children Act 1989.
4. The interlocutory stages saw the mother's defence to the father's application dwindle to the point that, when the case came before Mr Justice Wilson on the 2nd November 2001, it was plain that she was relying only on an Article 13 B defence, which in turn rested upon the practical difficulties that would confront her on her return to the United States as a United Kingdom citizen and only the ex-wife of a US citizen. During the marriage, she had been the principal breadwinner. She had, of course, lost employment on her departure and beyond that she had sacrificed her right to work in the United States without special permission.
5. Accordingly, Mr Justice Wilson made some clear directions to ensure that the husband's case was clearly articulated, particularly as to what arrangements and securities he proposed to facilitate the mother's re-entry into the local community. This, of course, was not a case in which it was ever contemplated that CM could return to the United States without her mother's presence and continuing care.
6. It seems that the directions given by Mr Justice Wilson were not complied with and a further order was made by Mr Justice Kirkwood on the 9th November in preparation for a fixture on the 19th. Even by the 19th November, it seems that the father's compliance with the opportunity given by the Court was imperfect and Mr Justice Singer adjourned the case over again to 21st November. On that day, his patience expired, he refused an application brought by Ms Ramsahoye for a further 24 hours, and dismissed the summons for want of response, holding that the father's failure to respond to the various opportunities given to him created a situation in which the mother was entitled to succeed on her Article 13 B defence. The application for permission to appeal was initially refused by Mr Justice Singer but granted by me on the 13th December and arrangements were made for an expedited hearing of the appeal on this, the 20th December.
7. Now, the judge's judgment is relatively brief. He was highly critical of the father's lax conduct of his application, and particularly criticised him for having failed to do anything between the hearing before Mr Justice Kirkwood and the hearing on the 19th November and then again for his failure to do anything between the 19th and the 21st. It is unnecessary to go into any of the detail, but it is necessary to read what seems to be the statement of something approaching a principle, to be found at page 25 of the judgment, where the judge said:

"I was minded to the view that the robust application of the Hague Convention, which has been, I think, a signal achievement of the English legal system over the years, cuts both ways. Now, in so far as it is always the case that applicants are entitled to have their cases under this international convention jump the queue and be progressed by the courts and those who serve the court with priority and utmost dispatch, so too it is incumbent on those who seek relief to demonstrate their commitment to securing a just, in terms of the convention, and speedy resolution."

8. Well, I have some real misgivings at seeing such a principle or approach make its appearance in the jurisprudence. It must be remembered that plaintiffs from afar litigate in this jurisdiction under considerable disadvantages. Their proceedings are initiated by the Central Authority in the requesting State, they are communicated to the Central Authority in this jurisdiction, and it is the practice of our Central Authority to contract out the conduct of the proceedings to one of a number of select specialist London firms. That constitutes a client relationship between the specialist London firm and the foreign plaintiff, but it is a pretty tenuous relationship, since solicitor and client will seldom meet and their communication is necessarily hampered by substantial practical difficulties, such as those created by being in a different time zone. As this case illustrates, the judge was rather critical of the father for not having responded to a telephone call from this jurisdiction, made during the course of office hours but which would have been 3 am for him, Illinois time. Of course, there are cases in which a foreign plaintiff will actually come to the jurisdiction to litigate, allowing the creation of a more normal solicitor/client relationship, but this is not such an exceptional case.
9. A reading of the judgment suggests that the father had really put little or nothing before the Court on the 19th or the 21st November. But within our bundle, we have what is headed "Plaintiff's Schedule of Undertakings", which were certainly put before the judge by Ms Ramsahoye on the 19th November. Now, they are nine in number and can broadly be described as pretty conventional endeavours to facilitate the defendant's return by overcoming ordinary practical problems, such as where mother and baby will live and how they will finance their living during the relatively brief period between arrival and the commencement of control by the state of habitual residence.
10. Thus, paragraph 1 provided that the father would not seek to enforce any return prior to the 3rd December; and paragraph 2 provided that he would secure an appointment before the court of competent jurisdiction during the week commencing the 17th December. There was then provision for him to meet the cost of travel and to provide $400 in cash to cover expenses between the 3rd and 17th December. Finally, there was a provision for the accommodation of mother and child over that same limited period. I say finally, but there were indeed other undertakings proffered of a conventional kind, including not to institute any proceedings for the punishment of the mother, and not to seek to separate CM from her mother's physical care. So conventionally, if the judge had misgivings about the detail of any of this, he would have specified the areas in which more should be done.
11. There was also the spectre raised by the defendant's team that she might not be able to re-enter or if, having re-entered, she might not be able to remain sufficiently to pursue to conclusion an application for permission to relocate to the United Kingdom. The evidence in relation to that was proffered by the mother's solicitor, who had made enquiries of the USA Consul in London, who had responded to that enquiry by pointing out that the mother was entitled to take advantage of the visa waiver programme as a United Kingdom citizen. Only if she intended to remain more than 90 days would she require a visa.
12. Similarly, the father's solicitors had obtained evidence from the Central Authority in London, specifically from Mr Paul King who currently runs the Central Authority, to the effect that in any event there has been a formal agreement between the United States Department of State to admit to the United States, under what is known as the Public Benefit Parole, any parent whose return has been ordered by another jurisdiction under the terms of the Hague convention.
13. The judge dealt with this evidence in a way that causes me some surprise, since there is a long-standing history of excellent co-operation between the two jurisdictions in the operation of the convention, and never in my experience has there been any immigration difficulty confronting a returning parent on arrival in the United States. The judge seems to suggest that her entitlement under the visa waiver programme was fragile, since she did not have sufficient means of support, despite the terms of the husband's proffered undertaking.
14. Equally, it seems to me that the judge's dismissal of the Public Benefit Parole programme was inadequately founded on the statement by Mr King that he had not used the programme for about two years, because the US Embassy has seemed willingly to issue visas in Hague cases. Rather than that statement causing anxiety, it seems to me to be reassuring since the Public Benefit Parole programme is only a fall-back if the visa system fails. So on that evidence, I do not think the judge was entitled to find as he did at page 27:

"I cannot therefore be satisfied that were this child to be returned to America pursuant to a conventional Hague order, the mother would in fact be able to accompany her."

15. So I reach the conclusion that the judge fell into error on the 21st November in dismissing this application, even on the evidence that was then before him. Indeed Mr Kirk QC has hardly argued to the contrary. However we are in a stronger position because in the interim, the undertakings proffered on behalf of the father have been strengthened in two respects. First of all, he has included an undertaking that he will support such application as the mother may make to the Illinois Court for spousal maintenance, and will not seek to rely on the finding made in the divorce judgment to the effect that the mother has no entitlement in her own right. Secondly, the father has tightened his undertaking in regard to accommodation, so that it now reads that he will secure for the mother at his own expense reasonable accommodation for the exclusive use of her and RM for the period between her arrival in the United States and the hearing in the Illinois Court. The undertakings have also been updated to show that no return will be sought before the 14th January and that a hearing will be sought for the week commencing the 28th January.
16. In relation to that hearing, we have also been shown a summons issued and stamped by the Cook County Court. The applicant is the father in person and he has secured a return on the 28th January at 9.30 in the morning before Judge Caplan for the consideration of issues relating to CM's custody. Obviously, it is open to the mother to issue cross application to at least commence the process whereby she will seek her order for relocation.
17. I only add that although a situation such as this does not appear to have occurred previously in our jurisprudence, a very similar situation emerged in a case in the Supreme Court in Ireland. Its title is In the matter of R (A Minor) P v B, and it is reported in 1995, 1 ILRM at 201. In that case, the judge at trial had refused an application for return, upholding an Article 13.1 B defence on the very similar basis, that he was dissatisfied with the father's promptitude in putting forward undertakings. By the time the case came to the Supreme Court, such deficiencies as the judge perceived had been partially remedied by further offers from the father, and additionally the Supreme Court held that it was important that the scope and scale of such undertakings should be confined to the brief period between the child's return and the resumption of control by the court of habitual jurisdiction. I am grateful to Miss Marion Eely who runs the Incadat case base at the permanent bureau of the conference in the Hague, who has researched this point of practice and found this relevant authority.
18. But for all those reasons, I would allow this appeal and make the order sought to take effect not before the 14th January but subject to the undertakings that are now proffered.
19. LORD JUSTICE BUXTON: I agree, there is nothing that I wish to add.
20. LORD JUSTICE LONGMORE: I agree also.
21. LORD JUSTICE THORPE: Anything else from you, Mr Horrowitz?

MR HORROWITZ: My Lord, the undertakings will be put into an agreed draft form.

LORD JUSTICE THORPE: Good. Mr Kirk?

MR KIRK: My Lord, just two matters.

MR HORROWITZ:I was going to make the conventional application for costs but nothing more than that.

LORD JUSTICE THORPE: Of course, you both need a direction for assessment.

MR HORROWITZ: My Lord, yes.

LORD JUSTICE THORPE: Yes.

MR KIRK: Yes. My Lord, the mother's passport, it has now expired and it will need to be renewed as a matter of urgency. May there be included in the order a direction to the tipstaff that it be released to her Oldham solicitors to be held to the order of the Court so that she can make her application to the office.

LORD JUSTICE THORPE: Of course. Is it with the Court now?

MR KIRK: It is with the tipstaff.

LORD JUSTICE THORPE: We will direct that.

MR KIRK: If your Lordships would kindly do that, and would your Lordships also say that there be leave to the parties to disclose the papers in this case and on appeal to their legal advisors as such in the United States and to any Court there that may be seized of issues that concern the future welfare of CM.

LORD JUSTICE THORPE: Certainly, yes. Thank you both very much.