England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		29th April 2016

MR JUSTICE HOLMAN:

1. This is an application by a father of a child, made effectively without any notice to the respondents. The essential factual situation appears to be as follows.
2. The father is Spanish. The mother is of Portuguese and Angolan nationality. They were never married to each other but, allegedly, had some relationship as a result of which a child, L, was born in mid September 2012. Within the papers there is a photocopy birth certificate of that child which describes the applicant as being his father and the second respondent as being his mother, and the place of birth as being at a specified hospital in London. So it appears that the child was born here, and the father states that for a period after the birth of the child the mother and child remained here.
3. I am told in the position statement prepared for today by Miss Seema Kansal, who appears on behalf of the father today, that on 11 June 2014 the child travelled to Portugal. At that time he was aged about 1 year and 9 months old. As I understand it, there is no evidence, and frankly no suggestion, that since then the child has ever returned to England. In other words, he has now been outside England and Wales for nearly 2 years (today being 29 April 2016) and, indeed, for over half his life to date.
4. The position statement further says that, at any rate by January 2015, the father had information tending to indicate that by then the child was in Angola with his mother. Even if it was only in January 2015 that the mother and child first travelled from Portugal to Angola (which may well be doubtful), that would mean that he has now been in Angola for about 15 months or thereabouts, which is, of course, a very significant period of time in the life of a child who is even now only about 3 years and 9 months old.
5. It is, frankly, deeply regrettable, if the father considered that his child had been in some way wrongfully removed from England, that he did not start up proceedings very promptly at a time when he understood the child still to be in Portugal. Portugal is a reciprocating state under the Hague Convention on the Civil Aspects of International Child Abduction. However, the first time that the father in fact started any proceedings was on 6 August 2015, when he issued an application to this court. By then, of course, it was comfortably over a year since the child had left England, and many months since the father had the information tending to show that the child was already in Angola.
6. Counsel appeared on 19 August 2015 before Mrs. Justice Roberts. Her order of that date recites that the application was not at that time supported by relevant evidence. The order was that the father had permission to file and serve evidence in support of his application and that the application was stayed until that evidence had been filed and served. A curious aspect of the case is that it was only very shortly after 19 August 2015, namely on 21 August 2015, that the father actually did sign his witness statement with attached documents in support of his application. Pursuant to the order of Mrs. Justice Roberts, that would have opened the door to removing the stay and proceeding with his application. For reasons which are completely unclear to me, it was not until 7 April 2016 that solicitors on his behalf asked for the stay to be lifted and the application listed for hearing. However these difficulties may have arisen, the result is that there has simply been no speedy or urgent response at all in this case to the alleged wrongful removal of this child, now almost 2 years ago.
7. On behalf of the father, Miss Kansal, whose submissions have been extremely cogent, has asked that I should make an order for the immediate return of this child to England now, with various ancillary orders. She submits that, on the basis of the father's evidence and account, this child was at any rate still habitually resident in England and Wales when he issued his application on 6 August 2015. Frankly, that proposition is itself highly doubtful. That was over a year since the mother and child had left England and Wales, and it may very well be that by then the child had already become habitually resident in Angola, and certainly ceased to be habitually resident here. So, frankly, I am extremely doubtful in this case whether this court has any jurisdiction at all. But even assuming provisionally that it has jurisdiction, I could not possibly exercise a discretion to order the immediate return of this child to England and Wales now.
8. Miss Kansal has drawn my attention to an authority of Mrs. Justice Pauffley in a case called A v B, Re S (Wardship: Summary Return: Non-Convention Country) [2015] EWHC 176 (Fam). The situation in that case was, in fact, diametrically the opposite to the situation in this case. In that case, the child concerned was here in England at the time of the hearing, and the application was for his summary return to the United Arab Emirates. Both parents were represented at the hearing. Mrs. Justice Pauffley decided, on the facts and in the circumstances of that case, that the child concerned should be rapidly returned to the United Arab Emirates. At paragraph 39 of her judgment she set out, in bullet point form, what she described as "the key themes" when a court is considering applications for summary return in non-Convention cases. I quite accept that a number of those "key themes" apply equally whether one is considering return from another country to this country, or from this country to another country; but the overall forensic and factual context is, even so, very different. If a child is actually in this country, as the child was in that case, then of course the court is able to be in possession of good, up-to-date information as to the circumstances of the child. That is in marked contrast to the present case in which I, frankly, know absolutely nothing whatsoever as to the whereabouts, or living, social or educational circumstances of the child. I respectfully agree with every single one of the "key themes" identified by Mrs. Justice Pauffley in that case, but one only has to apply some of them to the facts and circumstances of this case to see how it is that I could not possibly make an order today for the summary return of this child from Angola to England. First, and overarchingly, the welfare of the child concerned is paramount. Mrs. Justice Pauffley says:

"If a decision is made to return the child it must be because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration."

I ask rhetorically, how I can possibly form a judgment today that it is in the best interests of this child to order his return forthwith from Angola, when he has not been in England now for virtually two years, over half his life, and I know nothing whatsoever with regard to his circumstances there? Moving down, in her fourth "key theme" she refers to the importance of a "swift … assessment of the best interests of the child …". One could scarcely use the word "swift" in relation to this case, in which the child has already been abroad for almost two years. She goes on to say, and I agree, that:

"There is no presumption that it is likely to accord with the child's welfare needs to be returned. The most one can say… is that the judge may find it convenient to start from the proposition that it is likely to be better for the child to return to his home country for disputes about his future to be decided there. …".

In a case such as the present, however, that now clearly begs a question of what is "his home country". Is it England, in which he was born but left for the last time at the age of 1 year and 9 months; or may it be Angola, where he may well have lived for at least that length of time and is currently living now? In her sixth "key theme" Mrs. Justice Pauffley says:

"One important variable is the degree of connection of the child with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion … will all come into this. Another closely related factor will be the length of time he has spent in each country."

So far as the length of time is concerned, this child may well have spent as long in Angola as he ever spent here. So far as nationality is concerned, none of the people involved in this case is British. The father, as I have said, is Spanish; the child and the mother are of joint Portuguese and Angolan nationality.

9. So it seems to me that on an application of the very authority which Miss Kansal has helpfully drawn to my attention, the factors all strongly point away from, rather than towards, any order for summary return.
10. I am, of course, very sympathetic indeed to the situation of the father in this case. He has not now seen his son for almost two years. He does not in fact know where his son is, other than that he is somewhere in Angola. He does not know anything about the living circumstances of his son. He must have a great sense of desperation. I do not know anything about his means, but it may well be that it would be extremely difficult, if not impossible, for him to pursue proceedings in Angola. That has to be balanced by the consideration that it may be no less difficult for the mother to defend proceedings here.
11. All I am prepared to do today, and this frankly is stretching the limits of my power and jurisdiction to the utmost, is require the mother, within six weeks of service of an order upon her by email, to serve upon the father's solicitors, by email, a statement signed by herself which describes the current living, social and educational circumstances of the child, and answers the case and evidence of the father in the documents that he has filed and which I have been told have already been sent to the most recent known email address for the mother. Whether, indeed, that email address is still a functioning address is unclear to me, since it is an email address at "… live.co.uk" and the mother appears to have severed all connections with the UK. But at all events, I am prepared to make an order to that effect. The father's solicitors can serve it upon the mother at that email address and see what happens. The matter may then be restored, in the light of whatever statement the mother does make and serve in answer, or if there is no response at all. But, quite frankly, if there is no response by the mother, then it seems to me that the father has reached the end of the road in this jurisdiction.
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