ON APPEAL FROM
Mrs JUSTICE GWYNNETH KNOWLES
HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOYLAN
LORD JUSTICE PETER JACKSON
|Re: S (Abduction: Hague Convention or BIIa)|
Mr Richard Harrison QC and Ms Jennifer Perrins (instructed by Anthony Louca Solicitors Limited) for the Respondent
Hearing date : 8th March 2018
Crown Copyright ©
Lord Justice Moylan :
"(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."
"(a) that "the child was given the opportunity to be heard" unless this was considered inappropriate because of the child's age or degree of maturity;
(b) that the parties were given an opportunity to be heard; and
(c) 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".
"28.2 In contrast to the original Brussels II Regulation, which did not affect the operation of the Hague Abduction Convention, Art 60(e) of the revised Regulation provides that in relations between Member States of the European Union the Regulation takes precedence over the Hague Abduction Convention 'insofar as they concern matters governed by this Regulation'.
28.3 The background to this radical change is as follows. It began with a French proposal aimed at facilitating the exercise of cross-border rights of access which was followed by the European Commission's proposal designed to improve the original Brussels II Regulation but which controversially addressed the problem of child abduction through provisions on jurisdiction and on the return of the child. Eventually, the two proposals were amalgamated into a new Commission proposal. This proposal would have effectively disapplied the Hague Abduction Convention within the Community in favour of allowing courts of the State to which the child had been abducted at best only to make provisional holding orders and even then only provided the exceptions akin to those set out in Art 13 of the Hague Abduction Convention applied, with the courts of the child's habitual residence free to make custody orders according to the merits.https://www.lexisnexis.com/uk/legal/ - link0
28.4 The proposal attracted passionate and protracted debate and Member States were split. However, just when the Commission appeared to be giving up on getting an agreement the Danes (who ironically are not party to the Regulation) brokered a compromise. That compromise was broadly that applications for return of children wrongfully removed or retained would continue to be dealt with under the Hague Abduction Convention but in the event of a refusal to return the court then had to notify the court of the requesting State which in turn had to notify the parties giving them the opportunity to pursue the custody claim which would be decided upon the merits. If that court then required the child's return, that order would be enforceable without further question.
28.5 This compromise seemed to satisfy all parties and negotiations were eventually completed in November 2003. In fact, however, the impact of the Regulation on the operation of the Hague Abduction Convention is, as will now be seen, rather more intrusive than might have been contemplated at the time of the compromise.
The basic scheme under the Regulation
The basic scheme of the Regulation is to:
(a) preserve the pre-eminence of the Hague Abduction Convention for dealing with applications for the return of abducted children but nevertheless to give some direction on how that Convention should be applied as between Member States; and
(b) govern the position in cases where a court refuses to make a return order under the Convention.
The crucial provision is Art 11."
"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 In re E (Children) (Abduction: Custody Appeal)  UKSC 27;  1 AC 144, paras 14–18). 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 focuses 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."
As I have said, Black LJ was dealing with what the court should do when a child had been abducted to England and Wales. However, her observations about how the return of a child is "expected to be dealt with" also apply to the situation as existed in the present case.
"Child abduction is well-recognised as being harmful to children. As was noted in Re E, the "first object of the Convention is to deter either parent … from taking the law into their own hands and pre-empting the results of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any disputes can be determined there".
"Parental responsibility is given a wide definition in article 2(7) and must include deciding where the child shall be for the time being. The order to bring the children to this jurisdiction related to the exercise of that power. Furthermore, the order made the children wards of court, which places them in the guardianship of the High Court, and is thus one of the examples expressly referred to in article 1(2)(b)."
The breadth of the matters within the scope of parental responsibility is also confirmed by the CJEU's decision in Gogova v Iliev  1 FLR 158 (paras 26 to 29), to which Mr Harrison referred.
Lord Justice Peter Jackson:
Lord Justice Patten: