England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		7th February 2014

MRS. JUSTICE HOGG:

1. This is a short judgment relating to two children, E and D, who were dealt with under the Hague Convention in December of last year. On 23^rd December it was indicated to me, despite my efforts to avoid this application, that the father did not accept the jurisdiction of this court to deal with welfare issues. It was only late last night that he indicated through his former solicitors he no longer contested the jurisdiction of this court in the matters dealing with the children. He has not made a concession about the jurisdiction with regard to the financial matters and the divorce.
2. The mother is wishing for this court to make it clear that it accepts the jurisdiction. I do so. I am satisfied that this court has jurisdiction. The children have been in this country since August 2012. I declined to return them to America at the end of the Hague Convention because I had found that they were settled in this country; felt safer here; and they themselves had a strong preference not to return to America where there are unhappy memories. They have made allegations against their father. They have let it be known that they are not wishing to go back to America, partly because of their past experiences there. I did not accept that they had objections as under the Hague Convention but they certainly had strong preferences. I accepted that they were settled here psychologically, educationally, and physically. So, I declined to send them back.
3. The children have been here now for eighteen months. They have lived with their mother. They are settled here. They are present here, which fulfils one of the requirements of s.3 of the Family Law Act 1986. I am absolutely clear that this court which is best able to deal now with any welfare issues which may be raised by the parents. It is in their best interests that the children should remain in this jurisdiction so that any dispute between the parents may be dealt with by the courts here rather than those in America. The evidence as to their current welfare is here. It is the most appropriate jurisdiction. This court is the most appropriate forum to hear any matters relating to their welfare. I am hoping to be available to hear any such applications.
4. A draft Order has been prepared. I accept its terms as being appropriate.

1. It is in the interests of the children that they both remain here;

2. These courts in England and Wales are the appropriate jurisdiction to determine the children's welfare or in connection with parental responsibility.

I have considered whether they are habitually resident in England and Wales. There has been a certain amount of integration. I have to look at that as well, as set out by the Supreme Court in a recent case. In my view they are habitually resident now in England and Wales. I make that declaration.

5. I have already talked through the draft order with Mr. Pressdee, who prepared it. We have made a number of amendments to his draft, but fundamentally I have indicated that any application by the father in respect of the jurisdiction of this court with regard to the children is stayed; that until further order they shall reside with their mother; and that there will be contact as set out in the draft as the parents may agree, via Skype, and as I prescribed in my order. I have made various protective orders under para. 4. Under para. 5 I have made it clear to the father that if he wishes to make an application in respect of the children under the Children Act, he should do so by 4.00 p.m. on 28^th February, three weeks from today. If that be the case then I have made various directions under para. 7 of the draft, and added my own amendments to that, which would enable the case to be progressed without having to come back immediately to court, which would help the position financially for both parents. Paragraph 6 relates to some protective orders I have provided for in para. 4. That will take effect if there is no application on 28^th February. I have provided for disclosure of this order to the American courts, and attorneys if need be, and to the English Administrative Court in the matter that the mother bringing.
6. This brings me to the knotty question of costs. In December I urged upon the father to consider his position when he raised the issue of jurisdiction in terms of welfare. I gave him the opportunity to speak to his leading counsel, Mr. Setright. However, he remained of the view that he wished to challenge jurisdiction. It was put into the order that he should have a little longer to think about it and that he should indicate by 10^th January whether he wished to proceed or not. He did not say by 10^th January that he did not wish to proceed. I am told that even up until the end of last week the mother's solicitors were contacting his solicitors to find out whether this hearing was in fact necessary. There was no further reply. So, a brief was delivered; a skeleton argument was prepared; and all the appropriate fees were negotiated. On 5^th February the skeleton argument was sent. As a result, the father sought an adjournment without giving a reason. He had not provided his former solicitors with funds. He said he could not travel. There was no documentation. I declined the adjournment and indicated through my clerk that he was very welcome to come to this court, either by videolink or personally. I had ascertained that the weather conditions in New York from where he would have flown, although difficult, were not precluding flights leaving and that travel was possible. However, I indicated that I would be happy to receive any documents from him; that he could attend via videolink if that would help. Late yesterday evening, at a quarter to six or so, his former solicitors, wrote their letter indicating that he did not wish to pursue the jurisdictional point with regard to the children today.
7. Of course, the costs had been run up. On 5^th February the father had been sent the skeleton, which contained an application for costs, a schedule of the costs which had already been run up. There are additional costs which have since been incurred, but the major cost had been incurred by then. He has not come. He has been invited to telephone the court this morning and make representations. It is now twenty to one and he has not communicated today directly with the court. He is fully aware of this application. The application for costs is one which is justified. The father was challenging the jurisdiction of the court until late last night. Mr. Pressdee had to prepare his skeleton argument. The solicitors had to prepare the brief. The jurisdiction, to me, was always clear. I had tried to help the father reach a decision not to challenge the jurisdiction with regard to the children in December. The father declined to take heed of what I was saying. I do not know what was discussed between the father and Mr. Setright because I am not privy to that. But, he declined to take on board what I was saying. As a result nearly £10,000 has been spent by the mother, who can ill-afford it, to attend court and present her case.
8. In my view the application in respect of jurisdiction was wholly and completely unnecessary. This court is the obvious court and has always been the obvious court to deal with issues of welfare once I made the decision that the children would not return for the reasons which I gave in my previous judgment. The father was given an opportunity by me not only in December, but an extended opportunity to reflect. It was only late last night that he decided to give instructions that he would not challenge the jurisdiction. The mother can ill-afford the fees which she has had to incur. She is only seeking £9,283 but there have been additional fees. She can ill-afford the additional fees. Having said that, she is seeking £9,283 and wants me to make that order against the father. We know he is employed. We know he can travel to this country relatively easily and inexpensively because of the nature of his employment. The reality is that this was a wholly unnecessary application. It has caused the mother not only a lot of anxiety, but no doubt difficulties in raising the money. I think it is right and appropriate that I should make the order against the father. I do so in the sum of £9,283, to be paid by 4.00 p.m. on 7^th March, 2014, twenty-eight days from now. I think that is utterly appropriate.
9. I make that order. I make it quite clear that if the father wishes to make any application under the Children Act, he is entirely free to do so if so advised. I stress that. I do not want him to think that because I have made an order today that he cannot in any way seek further applications under the Children Act. He can, if so advised.