England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE MOSTYN
FD15P00490

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/06/2016

Lady Justice Black:

1. These two linked appeals concern A, who is a boy of nearly 4 years old. The appellant is A's father and the respondent is his mother. The appeals are against (1) a collection order made in relation to A by Mr Justice Macdonald on 9 October 2015 at a hearing without notice to the father and (2) an order made by Mr Justice Mostyn on 16 October 2015 requiring the return of A to Sweden the following day "unless … a court in Sweden makes an order that the child can remain in the ….father's care until the conclusion of the case". The collection order was executed on 13 October 2015 and A was put into the care of the local authority, which is where he was at the time of Mostyn J's order on 16 October 2015, and at the time of the appeal hearing before us. The return order was stayed pending the appeal.
2. At the conclusion of the appeal hearing, in order that A's immediate future could be settled as quickly as possible in the Family Division, we announced our decision dismissing the appeal against Macdonald J's order and allowing the appeal against Mostyn J's order, for reasons which would be given in writing later. This judgment sets out my reasons for concluding that the appeal against Mostyn J's order should be allowed. As to the appeal against Macdonald J's order, I agree with the President's reasoning for dismissing it.
3. A, and his younger sister H, were born in Sweden. Mostyn J proceeded upon the basis that the parents fled from Sweden in March 2014 with the children following the involvement of Swedish social services. The mother said that the family then wandered around the world, ending up in Germany. From there, the father and A came to England. The mother and H returned to Sweden where the mother sought a divorce. She also began proceedings in Sweden in relation to custody of the children. It seems that a hearing had taken place in those proceedings. According to the mother, it was anticipated at the time of the hearing before Mostyn J that the Swedish court would make an order about the children imminently whereas the father's expectation was that there would be a further hearing in November.
4. In August 2015, the mother took steps to secure the return of A to Sweden under the 1980 Hague Convention^[1] through the Swedish Central Authority and the Swedish Central Authority contacted the Central Authority for England and Wales in the normal way. Proceedings were commenced here in the Family Division of the High Court on 9 October 2015 on Form C67 which is headed "Application under the Child Abduction and Custody Act 1985 or Article 11 of Council Regulation (EC) 2201/2003". The mother asserted that A had been abducted forcibly from the place in Germany where the family had been staying, and sought collection and return orders.

The return order made by Mostyn J on 16 October 2015

Before the hearing

5. The hearing before Mostyn J on 16 October was set up by Macdonald J on 9 October 2015. Macdonald J's order recited, amongst other things, that the mother was seeking an order for the return of the child "under the Hague Convention", and directed the father to file and serve a concise Statement of Defence "setting out upon which defences (if any) under the Hague Convention he relies" by 14 October. The order directed that the matter be considered further by a Family Division judge on 16 October with a time estimate of 1 hour.
6. It seems that the proceedings first came to the father's notice on 13 October. That morning, A was removed from his care into the local authority's care by police officers. The proceedings were then served on him at 6.50 p.m. by an enquiry agent putting the relevant documents through his letter box. On 14 October, the father instructed solicitors. A statement was drafted for him, dated 15 October, and provided to the court on 16 October. It commenced with an explanation that because he was served on 13 October and was able to consult solicitors only very briefly on 14 October, it was "only a concise statement setting out the reasons why I oppose the return of my son to Sweden and contesting that I have wrongly removed him from the jurisdiction." In it, the father joined issue with a number of aspects of the mother's case, set out his own account of some of the history, and said that the mother had agreed to A travelling to England and Wales. He denied wrongful removal of A and contended that A was habitually resident in England and Wales.
7. On the morning of 16 October, the father first met Mr Devereux, who was instructed to represent him in front of Mostyn J and also represented him on the appeal. Sometime after 10 a.m., Mr Hosford-Tanner, counsel for the mother, provided Mr Devereux with a copy of his position statement and a paginated trial bundle, neither of which had been made available to the father or Mr Devereux prior to this. In his position statement, under the heading "Order sought", Mr Hosford-Tanner said that it was "difficult to envisage a sensible defence being advanced", commented on the separation of the two children, and asked the court to make "an urgent return order" either on 16 October or at an early final hearing, to be fixed no later than the week commencing 26 October. This was the first time that it had been proposed that the court should make an immediate order for the return of A to Sweden.
8. Mr Hosford-Tanner also provided Mr Devereux with a copy of an email from a social work team manager from the local authority accommodating A pursuant to the collection order. The email had been sent at 11.38 a.m. on 15 October to the clerk to Macdonald J, copying in the mother's solicitor but not the father or his representatives, so this was the first sight the father or Mr Devereux had of it. It said that contact had been made with the Swedish authorities who were "keen to plan the child's return to his mother in Sweden". It continued:

"A has been separated from his birth family and it is in his best interests to be reunified with his mother as soon as possible. The Swedish Authorities will make arrangement to collect him from the UK, and with your permission, this can be achieved as early as Friday 16 October 2015."

9. Mr Hosford-Tanner had prepared an addendum position statement in the light of this communication and of the father's statement. In it, he approached the case as an application under the 1980 Hague Convention, although suggesting that the fact that the Swedish court was seised of the matter was a very important factor. He invited attention to what the father conceded and/or what was common ground between the parties factually, and commented briefly on what the father was/may be asserting by way of an answer to the application.
10. Mr Devereux had also prepared a position statement for the hearing. In it, he said that the father had had very little time to prepare for the hearing and had not yet received any note of the reasons why Macdonald J had made a collection order, but that it was clear that there were factual issues between the parties, at least as to whether the mother consented to A being removed from Germany and as to A's habitual residence. He sought the opportunity for the father to file and serve a more comprehensive statement and an answer, and invited the court to make the usual directions leading to a contested final hearing. He also sought the immediate discharge of the collection order.

The hearing itself

11. The hearing commenced shortly before 11 a.m. It was very short, lasting (on Mr Devereux's estimate) just over 15 minutes, or (on Mr Hosford-Tanner's estimate) 30 minutes. The transcript of what occurred prior to judgment extends to just over 9 pages. Mr Devereux sought to follow the line he had taken in his position statement. He emphasised that the proceedings were under the 1980 Hague Convention and tried to persuade the judge that they should follow the ordinary path of such proceedings, referring the judge to what he described as the "route map" set out in the Family Procedure Rules 2010 for such cases (see FPR 2010 Part 12, Chapter 6, Section 1). He made it clear that the father wished to contest the mother's case, including challenging the evidence of the social worker and the mother. He asked that the child be returned to the father's care until the court could resolve the issues in the usual way.

Mostyn J's judgment

12. Instead, the judge proceeded immediately to give a short judgment, determining the mother's application in her favour. After reciting the facts, at paragraph 8 he embarked on his consideration of the substance of the case with these words:

"Whilst it is correct that the proceedings which have been brought before this court are under the 1980 Hague Convention, they are also brought under the Brussels II Regulation. Under the Brussels II Regulation, Article 60, it is stated that the Regulation takes precedence over the Hague Convention 1980."

13. After a short diversion to consider the Hague Convention of 1996^[2] and Article 61 of Council Regulation (EC) No 2201/2003 (hereafter "Brussels IIA"), the judge cited Article 19(2) of Brussels IIA which provides:

"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established."

14. At paragraph 11 of his judgment, he continued:

"This means that this court must stay in favour of the Swedish court any private law dispute between the mother and the father concerning the interim residence of A."

15. The judge then considered Article 20 of Brussels IIA which permits the court to take "provisional, including protective, measures" in respect of a child in urgent cases even if the court of another Member State has jurisdiction as to the substance of the matter. At paragraph 14 he said:

"I therefore have limited protective powers in relation to A to decide what should happen to him in the immediate future. It is plain to me that, in circumstances where the Swedish court is the court of the welfare jurisdiction (or at least claims to be) and will be so treated until it declines jurisdiction, that is the court, subject to it being satisfied as to jurisdiction, that must make the ultimate welfare decision in respect of A."

16. Mostyn J considered that it was in A's best interests that he should be returned to live with his mother and sister in Sweden pending the Swedish court making its ultimate welfare decision, unless the Swedish court decided he should stay where he was in the meanwhile. He therefore concluded his judgment with an order, made as a protective measure pursuant to Article 20, that A be returned to Sweden the following day, unless by the close of business on 16 October an order was received from the Swedish court saying that he may remain in his father's care pending the determination of the Swedish proceedings (see paragraphs15 and 16 of the judgment).
17. In order to assist with the father's urgent application to the Court of Appeal for a stay of this order pending appeal, a note of the judge's judgment was prepared by the parties and approved by the court. Mostyn J revised the note on 21 October 2015, adding to his reasoning by inserting a further paragraph referring to Article 18 of the 1980 Hague Convention and the decision of the Supreme Court in Re L (A child) (Custody: Habitual Residence) (Reunite International Child Abduction Centre intervening) [2013] UKSC 75, [2013] 3 WLR 1597. The paragraph concluded:

"My vehicle is Article 20, but it could as easily have been the inherent jurisdiction."

18. I do not think anything is to be gained by considering this extra paragraph further. Article 18 of the 1980 Hague Convention was not, in fact, the basis for the judge's decision as the concluding sentence of the added paragraph makes clear.

The grounds of appeal against Mostyn J's order

19. The grounds of appeal against Mostyn J's order can be summarised very briefly. The main complaint is that the hearing on 16 October was far too summary. Mr Devereux pointed to a number of aspects of the procedure which contributed to this. They included:

i) The hearing on 16 October was not set up as the final hearing but as a directions hearing; there was no reference in Macdonald J's order to any possibility that the mother's application might be summarily determined on 16 October or that an immediate return of A might be ordered on that day.

ii) The father had not been ordered to file anything other than a Statement of Defence, he had had insufficient opportunity to consult with his legal advisors and he had not had an opportunity to file a full statement.

iii) The mother's position statement which first mooted an immediate return to Sweden was only provided to the father on the morning of the hearing, as was the social worker's email.

iv) There was no documentary evidence or detail about the proceedings in Sweden.

v) There was no opportunity to challenge the "evidence" of the social worker or the mother.

vi) There was insufficient consideration of what was in A's best interests, especially as the father had been caring for him in this country since May 2015.

vii) There was no consideration at all of the father's application for the discharge of the collection order and a return of A to his care pending further consideration of the mother's application in the Family Division.

viii) It was inappropriate to despatch the entire application in such short order. The proper course would have been to have adjourned for the father to have an opportunity to resist the application and for the court to explore his "defences" under the 1980 Hague Convention. Rules 12.43 to 12.52 of the Family Procedure Rules 2010 and Practice Direction 12F should have been followed.

The mother's response to the appeal and discussion

20. The mother filed a respondent's notice in which she sought to appeal against the judge's failure to make a final order for the return of A to Sweden under the 1980 Hague Convention. Her argument was that the judge should have found, on the evidence before him, and in particular on the basis of the father's statement of 15 October 2015, that the father had no arguable defence to such an order.
21. The judge did not see the issue before him as whether the father had an arguable defence to the mother's Hague application. As Mr Hosford-Tanner observed in his skeleton argument for the appeal, he appears to have side-stepped the Hague application altogether and turned exclusively to Brussels IIA, making the return order as a protective measure under Article 20, without determining the Hague application at all. The father was not given the opportunity to address him on any aspect of the Hague application and it would, in my view, have been wholly unfair for the judge summarily to have made a Hague return order without at least listening to argument on the father's part as to whether he could realistically resist the mother's application. As this process was not gone through at first instance, and given the nature of the dispute between the parties, in my view it would not be appropriate for this court to grant a final order for return under the 1980 Hague Convention on the basis that the father has no arguable defence. I would therefore decline to grant the relief sought in the respondent's notice.
22. I turn therefore to consider the father's appeal against the return order made by the judge under Article 20.
23. Whether or not the judge was on firm ground in side-stepping the Hague application (which is a question to which I will come shortly), in my view the process by which he concluded that there should be a return order was significantly flawed. It was, quite simply, robust to the point of unfairness. That procedural irregularity, on its own, is in my view sufficient to necessitate the allowing of the father's appeal. I sympathise entirely with the judge's wish to get A back to his family without delay. A is used to being cared for by his parents and his sudden removal to local authority care will not have been easy for him. However, the judge also had to ensure that the father had a proper hearing in respect of the mother's application for a return order. The father had only just been served with the proceedings. There was nothing in Macdonald J's order of 9 October to alert him to the possibility of the hearing on 16 October being used summarily to determine the application; on the contrary, it is not at all surprising that he and his lawyers interpreted it as setting up a directions hearing on that date. The only allusion to the possibility of a return order being made on 16 October came in Mr Hosford-Tanner's position statement of 15 October and the addendum to it, but those documents were only received by the father's team at court on the morning of the hearing, very shortly before the case was called on. This gave them no opportunity to prepare to deal with the matter, let alone to challenge the factual premise upon which the judge must have proceeded, namely that A had been wrongly separated from his mother and that, notwithstanding that he had been in the sole care of the father for some months, it would be in his interests to be reunified with his mother in Sweden as soon as possible. The problem was compounded, in my view, by the judge's untraditional concentration on Article 20 of Brussels IIA, to the exclusion of the provisions of the Hague Convention; I will come to this shortly.
24. In his skeleton argument for the appeal, Mr Hosford-Tanner reviewed various provisions of the 1980 and 1996 Hague Conventions and other provisions associated with them before submitting that there is nothing which precludes the court from promptly making an order for the return of a child to another country as Mostyn J did, if that is urgently needed for the child's protection. As part of this review, Mr Hosford-Tanner invited attention to the provisions of section 5 of the Child Abduction and Custody Act 1985 which is headed "Interim powers" and provides that where a 1980 Hague Convention application has been made, the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purpose of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application. He also invited attention to Article 18 of the Hague Convention, alluded to by Mostyn J in the added paragraph of his judgment to which I referred earlier, which provides that nothing in the chapter of the Convention dealing with the return of children limits the power of a judicial or administrative authority to order the return of the child at any time. He particularly referred to passages in the 1980 Convention that make clear that one of its objects is to protect children from the harmful effects of wrongful removal or retention and to secure their prompt return, and to the duty of the Central Authorities (Article 7) to prevent further harm to the child by taking provisional measures or causing them to be taken. He categorised the making of a protective order for return of the child as an exercise of discretion and conceded that it could be reviewed, but submitted that Mostyn J was justified here in making the order that he made on the facts before him. However, whatever Mostyn J's theoretical powers to make a speedy order for return, as I have set out in the preceding paragraph, the procedure adopted here was in my judgment materially flawed and the resulting order cannot be supported for that reason.
25. I turn now to Mr Devereux's criticism of the judge's use of Article 20 in this case as unprincipled. He argued that Mostyn J had not approached the relationship between Brussels IIA and the 1980 Hague Convention correctly.
26. The starting point for a consideration of this argument is Chapter V of Brussels IIA which is headed "Relations with other instruments". Articles 60 and 62 deal with the relationship between the Regulation and the 1980 Convention. So far as material, these Articles read as follows:

"Article 60

Relations with certain multilateral conventions

In relations between Member States, this Regulation shall take precedence over the following Conventions in so far as they concern matters governed by this Regulation:

….

(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction."

"Article 62

Scope of effects

1. The agreements and conventions referred to in Articles 59(1), 60 and 61 shall continue to have effect in relation to matters not governed by this Regulation.

2. The conventions mentioned in Article 60, in particular the 1980 Hague Convention, continue to produce effects between the Member States which are party thereto, in compliance with Article 60."

27. Recital 17 is also relevant, providing:

"(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained."

28. Article 11 deals specifically with aspects of 1980 Hague applications, providing:

"Article 11

Return of the child

1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."

29. Section 4 of the Regulation deals with the enforceability of a subsequent judgment of the type contemplated by Article 11(8), requiring the return of the child, see Article 40(1)(b). Article 42(1) provides for recognition and enforceability without the need for a declaration of enforceability and without any possibility of opposing the recognition if the judgment has been certified in accordance with Article 42(2). However, it may be worth noting that a certificate can only be issued in relation to the judgment if three conditions are satisfied, one of which (Article 42(2)(c)) is that:

"The court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention."

30. The picture that emerges from a reading of the Regulation as a whole is of respect for the 1980 Hague Convention, which it is anticipated will continue to have a role in relations between Member States. Where a matter is not governed by the Regulation, the Convention continues to have effect (Article 62(1)). Where a matter is governed by the Regulation, the Regulation takes precedence (Article 60(1)). But if there were any doubt as to the intention to preserve a role for the Convention, Article 62(2) removes it, expressly saying that it will "continue to produce effects between the Member States which are party thereto, in compliance with Article 60".
31. Article 11 revolves around the 1980 Hague Convention. Its provisions operate in the context of an application for return under the Hague Convention, notwithstanding that its focus is a case involving two Member States in which the child was habitually resident in one Member State and has been "wrongfully removed or retained in" another Member State (see Article 11(1)). Article 11 does not divert attention from the provisions of the Hague Convention to the jurisdictional and other provisions of the Regulation such as Article 20. The provisions of Article 11(6) – (8) are concerned with the role of the courts in the Member State where the child was habitually resident, which are likely to have welfare jurisdiction under the Regulation. But they do not proceed on the premise that the process by which the return of the child is sought will be an application under Article 20 for an order returning the child. On the contrary, the application in contemplation is an application under the Hague Convention. If a "non-return order" pursuant to the Article 13 of the Hague Convention results, the court in the habitual residence state must be notified of it (Article 11(6)) and can make its own enforceable order requiring return (Article 11(8)). Even then, Article 42(2)(c) ensures that the Hague Convention retains its importance, because the return order will not be enforceable under Article 42 unless the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the Convention.
32. So, although the Regulation could have sought to do away with the 1980 Hague Convention, that was not the path taken. As Dr Hans van Loon explained in his recent paper The Brussels IIA Regulation: towards a review? (at paragraph 2.2), it was at one stage proposed that the Convention should be replaced by a specific intra-EU automatic return mechanism and this led to intense negotiations until, in November 2002, a compromise was reached and embodied in the current Brussels IIA Regulation. As he put it, "The 1980 Convention remained applicable, but was supplemented by provisions for intra-EU cases to reinforce the return mechanism".
33. Lord Justice Thorpe described it in this way in Vigreux v Michel [2006] EWCA Civ 630, [2006] 2 FLR 1180 at paragraph 37:

"…there can be little doubt as to the intention of the member states that opted for the Regulation. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of the Regulation. The resolution of the resulting impasse was the retention of the operation of the Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly twenty years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: the emphasis on protective measures to nullify an Article 13(b) defence; the return of the case to the requesting state in the event of a refusal by the requested state and automatic enforcement of return orders throughout the region. The policy that underlies these provisions is clear and it is important that states bound by the Regulation do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated."

34. The symbiosis of the Convention and the Regulation is reflected in the jurisprudence of the Court of Justice of the European Union. In Opinion 1/13 (14 October 2014), the CJEU determined that the exclusive competence of the EU encompassed the acceptance of the accession of a third State to the 1980 Hague Convention. The court observed (paragraph 77) that, in particular in Article 11, Brussels IIA "complements and clarifies" Articles 8 – 13 and Article 20 of the Convention. Having referred to Article 11 and Article 42 of Brussels IIA, the court continued, in paragraph 78:

"It is clear from the content of all the provisions of Brussels IIA referred to in the preceding paragraph that those provisions either: (i) are based on the rules of the Hague Convention 1980; or (ii) establish the consequences that are to follow when those rules are applied. Those two categories of provisions thus form a unitary body of rules which applies to the procedures for returning children who have been wrongfully removed within the EU."

35. A similar approach can be seen in the earlier decision of JMcB v LE C400/10 [2011] 1 FLR 518 where, at paragraph 36, the court observed that "abductions of children from one Member State to another are now subject to a body of rules consisting of the provisions of the 1980 Hague Convention as complemented by those of Regulation No 2201/2003, though the latter take precedence on matters within the scope of that regulation".
36. The Practice Guide for the application of the Brussels IIA Regulation also reflects the continuing importance of the 1980 Hague Convention. Chapter 4 of the guide is concerned with international child abduction within the EU. The passage under the heading "General description of the functioning of the Regulation as regards child abduction", includes the following:

"Once an application for the return of the child is lodged before a court in the requested Member State, this court applies the 1980 Hague Convention as complemented by the Regulation."

37. The theme is taken up in paragraph 4.3.1 of the guide which is headed "The court applies the 1980 Hague Convention as complemented by Article 11(1) to (5)". Paragraph 4.3.6 contains a table comparing the rules of the 1980 Convention and the Regulation, preceded by a reminder that the rules of Articles 11(2) to (5) of the Regulation prevail over the relevant rules of the Convention. In paragraph 4.4.9, there is flow chart of the procedure in child abduction cases. Although this is particularly concerned with Articles 11(6) and (7) of the Regulation, the whole process following abduction from Member State A to Member State B begins with the following step:

"The court in Member State B receives a request for return of the child. It applies the 1980 Hague Convention and the Regulation (Article 11(1) to (5))."

38. Given all these indicators that the return of a child who has been abducted from one Member State to another is expected to be dealt with under the 1980 Hague Convention and Article 11 of Brussels IIA, it seems to me that there would have to be a particularly compelling reason even to think of circumventing a properly constituted 1980 Hague Convention application for the return of a child, by proceeding instead under Article 20 of Brussels IIA. In so doing, the court would be falling out of step with the other Member States of the EU and abandoning the detailed provisions of the Convention and the Regulation, which have been carefully calibrated to safeguard the interests of parents and children (see, for example, commentary on the Convention by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144 at paragraphs 14 to 18). Article 20, useful though it is in appropriate cases, contains no guidance as to the circumstances in which the court will act, save that the case will be urgent and the measures taken "provisional, including protective". There is no route map of the kind provided by the Convention and Article 11, which focusses the minds of the parties and the court upon the issues which are likely to bear upon whether a return order should or should not be granted.
39. Although the judge was rightly concerned to act quickly in the interests of the child, there was no reason in the present case to abandon the Hague Convention proceedings in favour of Article 20 and it was, in my view, wholly inappropriate to do so.

Sir Stephen Richards:

40. I have read in draft the judgments of Black LJ and of the President of the Family Division.  I agree with them both.

Sir James Munby, President of the Family Division:

41. I agree with my Lady's judgment and, so far as concerns the appeal against the order by Mostyn J, have nothing to add. I turn to the appeal against the previous order made by MacDonald J on 9 October 2015.
42. What was before MacDonald J was a without notice application for a collection order. The application, as is common in Hague applications, was supported by a statement by the mother's solicitor. The relevant paragraphs (5-12) read as follows:

"I have spoken to the mother who speaks French (although mainly Arabic) and she has told me that there have. [sic] She tells me that the violence started early on in the relationship and continues. She said that every aspect of her life was controlled by the Respondent and she was not allowed to have any friends. The mother would say that although she suffered at the hands of the respondent she did not herself call the police as the father would threaten her if she did so. She says that the police have been called by neighbours to the property on 4 occasions when hearing crying and screams coming from the home. The last two were violent incidents in 2014 which resulted in the Swedish Social Services being involved and the father facing arrest.

Following this intervention the father forced the mother to bring the children and run with him [sic]. For the [delete: the] [sic] reasons set out above the mother is frightened of the father who threatened her physically and also told her that the children would be removed from her, therefore she reluctantly went with him. The mother had been isolated by the father from the outset as she did not speak Swedish and was kept away from other people. This continued to an even greater extent whilst the family were travelling. The father not only assaulted the mother but on occasions the children also.

The father took the family to Malaysia, Britain, Morocco, Egypt and Germany to avoid facing the police and social services in Sweden. The father's sister lived in Germany and the family were staying there. The father demanded that the mother give him the boy to take to England but she refused. Nevertheless the father forcibly removed the boy from Germany and his mother's care on the 5 May 2015.

After the father left the mother did not know what to do. She contacted family in Sweden and returned with her daughter to Sweden where she has been assisted by the Swedish Social Services.

It is not at that time clear exactly what happened but in July the child managed to get his father's phone which located his position as Birmingham and sent it to his mother. The last time that the mother spoke to her son was on the 15 June 2015. The father phoned and passed the child to the mother. A told his mum that he was scared and the phone was immediately taken from him and disconnected.

The mother and the Swedish Authorities are very concerned about the father and his abuse of the child and want the child to be protected. There is also a real fear that if this father learns of the proceedings he will take the boy and run as he has proven that he can find means of travel, which the mother says is seldom by air and nearly always by rail to avoid being located.

Clearly there has been no consent from the mother for the child to be in England and in the light of the fact that the father has been on the run from Sweden. The children were born in Sweden, and the parties lived there until the father forced the mother and children to run with him to a succession of countries since March 2014. This has not caused a change of habitual residence and the child A remains habitual resident in Sweden, where the mother has returned to live with their daughter. The Swedish social services are again involved with the family and assisting the mother in bringing these proceedings to get A home.

The court is asked to make location and disclosure orders and to consider making a collection order to cause the child A to be collected by social services, where the child is located, and requesting that he be placed with social services pending the outcome of these proceedings. The mother would be prepared to come to England to care for A pending the conclusion of her application for a return order, but would need protection orders and financial assistance if she were to do so. The social service have also indicated a willingness to assist with the return of the child to Sweden if that is the decision of this Honourable Court."

43. Mr Devereux observes that much of the statement is unspecific and uncorroborated. He points to what he suggests are a number of egregious, though in my judgment they are largely insignificant, errors on matters of fact, indicative, he says, of a statement that was very hurriedly put together.
44. As is characteristic of such applications, the hearing before MacDonald J was brief. The transcript runs to a fraction over 7 pages. Mr Hosford-Tanner opened the application on the basis that "having taken the child out of Sweden in March 2014 … the father has since taken the whole family round Morocco, Egypt, Malaysia and Germany and is quite adept at avoiding authorities." He explained why he was seeking a collection order: "that is really on the basis that we really think that if someone simply went to the address, located the father, took his passport, he is sufficiently adept at moving around and that he would be gone in no time. Of course the fact that he is able and has been to countries such as Morocco and Egypt means that … he may go to a country where it is more difficult to obtain the return of the child." The court, he said, was dealing with "high flight risk." The judge commented that there appeared to be "an extreme flight risk given that this father seemingly has managed to move through so many jurisdictions with a child with the Swedish authorities hot on his tail." Mr Hosford-Tanner repeated his submission that a location order and a passport order, as one would "normally" seek, did not offer adequate protection. The judge said "We are dealing with a very clever chap, it seems to me."
45. MacDonald J did not give a formal judgment but the transcript records his reasoning as follows:

"Mr Hosford-Tanner, I think, in light of the fact that this father has proved himself so adept at evading the authorities through a number of jurisdictions, that, in light of that fact, he is clearly a person who is seeking to evade the authorities and constitutes, on the basis of the evidence before the court, an extreme flight risk. I think this is a case in which it is justified to go straight to the issuing of a collection order to maximise the chances that, if he is found, steps can be taken to remove the child from his care; firstly, to address the issue of harm that is evidenced on the front of the papers from the father to the child, and also to eliminate, as far as possible, the risk of the child being further abducted through a whole series of additional jurisdictions."

The judge accordingly made the collection order, providing for A's immediate removal from his father and his placing, albeit temporarily, in the care of the local authority.

46. At no stage did either counsel or the judge refer to any authorities, and apart from in the passages already quoted no particular legal submissions appear to have been made.
47. In relation to MacDonald J's order, the father's ground of appeal is that the evidence in support was insufficient to justify the making of a collection order and that the judge "appears not to have considered other less draconian steps that could be taken to preserve the position."
48. Before proceeding further, it is convenient to consider the relevant principles.
49. There is a long line of authorities in the Family Division setting out the information to be provided and the procedure to be followed when seeking without notice relief: see, for example, Re W (Ex Parte Orders) [2000] 2 FLR 927, Re S (Ex Parte Orders) [2001] 1 WLR 211, [2001] 1 FLR 308, X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, Re X (Emergency Protection Orders) [2006] EWHC 510 (Fam), [2006] 2 FLR 701, B Borough Council v S (By the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600, KY v DD (Injunctions) [2011] EWHC 1277 (Fam), [2012] 2 FLR 200, and B v A (Wasted Costs Order) [2012] EWHC 3127 (Fam), [2013] 2 FLR 958.
50. It is a matter of great concern, as Charles J observed in B v A (para 11), that these "clearly established" principles "are regularly not followed in the Family Division." He referred (paras 3-4, 11) to "endemic" and "flagrant" failures. Things have improved during the three years since he said that, but, I fear, there is still some way to go.
51. At the risk of stating the obvious, I emphasise that precisely the same principles apply in the Family Court and the Family Division as in the County Court and the other Divisions of the High Court (albeit, of course, the application of these principles will reflect the forensic context and the circumstances of the particular case). I also draw attention, as Charles J did in B v A (para 9), to the fact that these principles reflect much earlier authority: see, for example, R v The General Commissioners for the Purposes of the Income Tax Acts for the District of Kensington ex parte Princess Edmond de Polignac [1917] 1 KB 486. Coming closer to the facts of the present case, I make clear that these principles plainly apply, as illustrated by KY v DD and B v A, in relation to without notice applications for location and collection orders.
52. In the present case we are concerned with one particular aspect of these principles: when, and in what circumstances, is it appropriate to apply without notice for a location order or a collection order in a Hague Convention case?
53. It is convenient to start with what I said in X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, para 57(viii), to which Mr Devereux directed our attention:

"Where the application for an EPO is made ex parte the local authority must make out a compelling case for applying without first giving the parents notice. An ex parte application will normally be appropriate only if the case is genuinely one of emergency or other great urgency – and even then it should normally be possible to give some kind of albeit informal notice to the parents – or if there are compelling reasons to believe that the child's welfare will be compromised if the parents are alerted in advance to what is going on."

I would emphatically disagree with any suggestion that this is applicable only in cases of applications for EPO's. The principle there set out is of general, indeed universal, application, including in cases of child abduction: see, for example, Re HM (Vulnerable Adult: Abduction) [2010] EWHC 870 (Fam), [2010] 2 FLR 1057, para 37, and Re M (Children) [2015] EWHC 1433, para 36.

54. In B v A, paras 13-14, Charles J said this:

"13 … 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 meant 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.

14 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."

I agree with every word of that.

55. The need for particularised evidence to make good the argument that the relief claimed should be granted without notice had, as Mr Devereux pointed out, previously been stressed both in X Council v B (Emergency Protection Orders) [2004] EWHC 2015 (Fam), [2005] 1 FLR 341, and in B Borough Council v S (By the Official Solicitor) [2006] EWHC 2584 (Fam), [2007] 1 FLR 1600. In the first case I said this (para 57(vi)):

"The evidence in support of the application … must be full, detailed, precise and compelling. Unparticularised generalities will not suffice. The sources of hearsay evidence must be identified. Expressions of opinion must be supported by detailed evidence and properly articulated reasoning."

In the later case, Charles J (para 38) made clear that good practice, fairness and indeed common sense demand that the applicant provide the court with: a balanced, fair and particularised account of the events leading up to the application, including a brief account of what the applicant thinks the respondent's case is, or is likely to be; where available and appropriate, independent evidence; and a clear and particularised explanation of the reasons why the application is made without notice. I agree with all of that.

56. Returning to B v A, Charles J continued (para 70):

"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."

He ended with this warning (para 110):

"It seems to me that if such failures are to be avoided in the future there is a need for judges:

(i) to refuse to make without notice orders if the established principles and procedures are not applied (I and some other judges do this); and

(ii) to treat such failures as negligent and thus as a foundation for the exercise of discretion to make a wasted costs order."

Again, I agree.

57. I now turn to consider, in a little more detail, the circumstances in which a without notice application for a location or collection order can be justified.
58. One of the frequent reasons for an application for a without notice location order, and specific to such an application, is the applicant's assertion that he does not know where the respondent and the child(ren) are. That assertion, if true, will in the nature of things justify a without notice application, though the court will no doubt wish to see evidence indicating the steps which have been taken to find them. However, if this is put forward as the basis for seeking a location order, the court will also no doubt want an explanation as to why the relevant information cannot be obtained expeditiously in some other and less intrusive way, for example by means of disclosure orders directed to the usual agencies.
59. That situation apart, and as appears from X Council, a without notice application will normally be appropriate only if there is an emergency or other great urgency or if there are compelling reasons to believe that the child's welfare will be compromised if notice is given.
60. In these days when so many different forms of virtually instantaneous communication are available, it will be an unusual case where it is impossible to give any notice, however informal. So cases in which great urgency justifies proceeding without any notice at all will be comparatively rare. Some notice, however informal, is better than none, even if formal notice in accordance with the court's rules is not possible.
61. It is the other potential justification – compelling reasons to believe that the child's welfare will be compromised if notice is given – that, typically, is central to without notice applications. The principle is very simple and is, I stress, of universal application. What requires to be shown, and this will usually require a proper evidential foundation, is a real risk that, if he is alerted to what is proposed, if he is 'tipped off', the respondent will take steps in advance of the hearing to thwart the court's order or otherwise to defeat the ends of justice. That, after all, is the justification for the grant of freezing (Mareva) or search (Anton Pillar) orders without notice. It is the justification, in an appropriate case, for the grant of a non-molestation injunction without notice, lest the respondent, having been served with an application, further molests his (or her) victim or exerts pressure on her (him) to abandon the proceedings. It was the justification in X Council, where (see paras 76-77) an ex parte order was required in order to prevent the parents preventing or sabotaging the medical examinations of their children which had necessarily to be undertaken, if they were to be of any forensic benefit, without the parents having any prior warning of what was proposed. Exactly the same principle applies in the case of without notice applications for location or collection orders.
62. At present it is common practice in Hague cases to commence the proceedings with a without notice application for either a location or sometimes, as here, a collection order. These orders, of course, usually contain 'passport' orders directed to one or more named individuals: see In re B (A Child) (Wrongful Removal: Orders against Non-Parties) [2014] EWCA Civ 843, [2015] Fam 209, [2015] 1 FLR 871, and Re L (A Child), Re Oddin [2016] EWCA Civ 173. This practice needs to be reviewed because I have a strong sense that, too often, the outcomes have not been sufficiently justified by the evidence. To repeat, in every Hague case there must be particularised evidence sufficient to make good the argument that the relief claimed should be granted without notice. Any other approach is unprincipled and inappropriate.
63. What is required, in every Hague case, is a careful analysis, based on solid evidence, of exactly what the risks are in the particular case; and what level of protection is required in order to manage those risks – Why is a location order needed? Why is a collection order needed? Why is a passport order needed? Why are any of these orders needed against anyone other than the abducting parent? The evidence in every Hague case must also explain, in particular, why the identified risks are such as to require a without notice application.
64. If a location order is sought evidence must be produced to demonstrate that the applicant does not know and is unlikely to be able expeditiously to establish the whereabouts of the respondent or the children. If a passport order is sought the applicant must produce evidence demonstrating the existence of sufficient flight risk (see below) to warrant such an order. A collection order will only be justified if the applicant produces clear evidence that unless an order for the children's collection is made they will face real peril such that not to remove them would expose them to greater harm than making the order.
65. All that said, there will, of course, be Hague cases where the making of a without notice location or even a without notice collection order is justified. Mr Hosford-Tanner points, for example, to G v L [2010] EWHC 1006 (Fam) as an example of the latter.
66. I recognise, of course, that when applying these principles and assessing the evidence the court will always need to take into account, in addition to the circumstances of the particular case, the forensic context. In Hague cases this will include the manner by which applications are typically made. The information will have been supplied to our domestic Central Authority (ICACU) by another Central Authority using standardised forms which have been developed over the years. This information will then be supplied by ICACU to the solicitors instructed on behalf of the applicant and will form the basis of the evidence put before the court. The context in Hague cases also includes the need for expedition.
67. I mention another point, though acknowledging that I have deliberately not sought to address it in this judgment. One consequence of the current practice is that, at the without notice hearing, directions are typically given, as in the present case, for the filing of evidence and defence, and the listing of a hearing in as little as seven or ten days. By the date of the next hearing the respondent will often have legal representatives, having been pointed in the right direction by the applicant's solicitors. As a result, real progress can be made at this first inter-partes hearing. If no without notice hearing takes place, how are we to deal with this aspect of the progress of the case without losing the time between issue and the first hearing? This is something which would benefit from consultation with the professions, whose expertise and skill in Hague cases will no doubt suggest appropriate solutions.
68. I add a final point.
69. In the typical Hague case the identified risks mostly fall under the heading of 'flight risk', the fear that, if alerted to the proceedings before a without notice order has been made, the abducting parent will flee with the child, either going to ground in this country or re-abducting the child to some foreign jurisdiction.
70. In this context, the evidence needs to address and the court needs to consider the three questions which arise as a matter of substantive law in every case of asserted flight risk: see Re X (Children), Re Y (Children) [2015] EWHC 2265 (Fam), para 46, adopting the analysis of Patten LJ in Re A (Prohibited Steps Order) [2013] EWCA Civ 1115, [2014] 1 FLR 643, para 25:

"… the central focus … is on three factors: first, the magnitude of the risk that the parents will … be minded to remove [the children] …; second, the magnitude of the risk that, if they do, they will be able to evade the protective measures put in place by the court and designed to prevent their departure from this country; and, third, the magnitude of the consequences for the children if, in the event of their parents attempting to remove them …, they are able to evade those protective measures."

I added (para 86):

"… the mere fact that there is … some risk that the parents will, if so minded, be able to flee with the children, the fact that it is no doubt possible to construct hypothetical scenarios of how they might achieve this, is not determinative of the question … That question, in the final analysis comes down … to two linked inquiries: how great is the risk that the parents will, if so minded, be able to flee with the children, and is that a degree of risk which the court is, in all the circumstances, prepared to accept as tolerable?"

71. In the light of these principles, Mr Devereux makes four key submissions:

i) The evidence relied upon was simply insufficient to justify the grant of a collection order. The solicitor's statement made un-particularised allegations unsupported by independent evidence; it was not "full, detailed, precise and compelling."

ii) In particular, it was not open to the judge on the evidence to conclude that there was "extreme flight risk." There was no more flight risk here than in most Hague cases.

iii) The judge failed to evaluate the risk of harm resulting to A from being separated from his father and placed, albeit temporarily, in the care of the local authority, and failed to balance it against the risk of harm from further abduction.

iv) Immediate removal of A from his father was not necessary in order to secure his safety. A location order would have sufficed, and the judge should have adopted the least interventionist approach.

72. The evidence put before him was very thin but, in my judgment, MacDonald J was entitled to find that there was, as he put it, an "extreme flight risk" which justified the making of a without notice collection order, rather than the more usual location order. The key information supporting the assertion was set out in the statement, albeit in relatively short form and without much detail though confirmed by the statement supplied, in the usual way, by the Swedish Central Authority. Moreover, although he did not address the point explicitly, the judge must have had in mind and weighed in the balance the fact that his order would inevitably involve, even if only for a short period, the separation of A from his father. He was, in my judgment, entitled to conclude that the risk of harm resulting from that was outweighed by the risk of the harm to A which would result from a further abduction.
73. Accordingly, in my judgment, the appeal against MacDonald J's order should be dismissed.
74. My Lady has referred to the fact that, although the order made by MacDonald J (that is, the separate directions order he made at the same time as making the collection order) had directed that the father was, by 4pm on 14 October 2015, to file and serve a statement of defence, in anticipation for the hearing which he directed was to take place on 16 October 2015, the father was not served with that order until the evening of 13 October 2015, and even then only by having the papers put through his letter box. I appreciate that the collection order was not executed until 13 October 2015, but, viewed from the perspective of the father, this can only be regarded as an extremely unsatisfactory state of affairs. Prompt execution of the location or collection order and service as soon as possible thereafter of the separate directions order is vital if the timetable provided by the court is not to be frustrated and the respondent exposed to serious injustice.  It may be necessary to consider how, having regard to practical realities, practice might be changed and whether the standard forms of location and collection orders need to be adapted.

Note 1   Convention on the Civil Aspects of International Child Abduction    [Back]

Note 2   Convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children    [Back]