England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2016

Mr Justice Hayden :

1. This case has been listed before me today to deal with 3 issues: -

(i). The status of the Hague Convention Proceedings issued by the mother;

(ii) Whether the court has jurisdiction to make further Orders relevant to SJ, who is 9 years old, either under the Inherent Jurisdiction of the High Court to enforce its own Order, or under the Parens Patriae jurisdiction;

(iii) Whether the Court should make Orders for the return of SJ to Poland.

2. The Applicant Mother JB, is represented by Mr Christopher Hames QC of Counsel. The Respondent Father D, is unrepresented. The Father has however been provided with a full bundle of documents. He has also received the Mother's Position Statement which I can see he has annotated extensively. Bearing in mind that the Father appears in person, I have afforded him every chance to put forward any arguments that he considers relevant. I have given him a much wider license than I would have extended to a lawyer because as a lay person he has inevitably struggled to identify the key points in an area of law which is not without its complexity. I should also add that he struck me as a very excitable and at times rather overwrought personality who needed to say what he considered to be relevant whether it was or not.
3. Because some of the background is not entirely clear, I have asked the Father to go into the witness box to give evidence. He appeared happy to do so. The position, about which I am now satisfied, is that SJ is very likely to be in Algeria with her Paternal Family.
4. The Father told me that SJ was being looked after by his mother and father and various uncles. The Father also told me that he has a rented property here in the UK, in Reading. He works as a "Remote Political Analyst" and he told me that in the course of that employment he provides monthly reports to a London firm with branches elsewhere in the UK, for example in Surrey. His home is in Reading and this has been his home since August 2008. I note that Reading is a town with which the Father has long established connections. He gained his PHD there in July 1990. The Property in which he lives in Reading is rented, through an agency, and he pays £850.00 per month.
5. I pause to say that all this clearly establishes that the father lives permanently here in the UK. In his evidence, the father told me that he was the one who cares for SJ, by which I first understood him to say she lived with him and he was responsible for her day to day needs. I pressed him so that I was sure that he understood what I was asking him i.e. who has day to day care of SJ? Although he persisted that it was his task, it was quickly clear that it was not. Self evidently it could not be, given the child lives in Algeria. I consider these exchanges revealed a rather distorted thought process on the father's part as well as signalling to me that he appears to have lost his bearings in this litigation i.e. the responsibility of both parents to promote the welfare of their child.
6. What has become clear therefore is that SJ is no longer cared for by either of her parents. I stress this to emphasise to the Father that SJ's right to be brought up by either her Mother or her Father and with knowledge of both is a fundamental right of hers. The Father is denying her this.
7. It is asserted by the Mother that she is desperately worried about SJ's well-being. In earlier proceedings, the Court found that SJ was well looked after in the Mother's care. The Court has also declared by 'no later than 12 March 2015' SJ had become habitually resident in Poland. The reasoning is found within the detailed Judgment of Mrs Justice Roberts (Neutral citation number [2015] EWHC 1926 (Fam)). It is clear that in the past the Mother took SJ to Poland without the Father's consent and contrary to the principals of the Hague Convention 1980. It was for this reason that Mrs Justice Roberts conducted a welfare enquiry to see where SJ's best interests lay. She did this with the benefit of a CAFCASS Report and concluded that the child should remain in the custody of her Mother. She sets this out in Paragraph 10 of her Order of 12 March 2015 in these terms:

"The court intends this order to:

(i) close the case pursuant to Article 11(7) of the Council Regulation for the purposes of Article 10(b)(iii) of that Regulation; and

(ii) (ii) be a judgment on custody that does not entail the return of the child to England and Wales pursuant to Article 10(b)(iv) of that Regulation."

8. For the avoidance of doubt, Roberts J is there (at (ii)) referring to the Council Regulation. It is illuminating to consider the Judge's assessment of the father's attitude to that litigation, which accords entirely with my own impression of him here:

"48. Mr Power's conclusion, which I share, is that the father's case has been considerably weakened by his current "all or nothing" stance in relation to the relief which he seeks from this court. His case remains that SJ must return to this jurisdiction with or without her mother.

49. Mr Power concludes his report with these paragraphs :-

"23. From father's initial position of not wanting to see SJ in Poland 'on principle', not following up the opportunity of an observed session, and upon only one of the three proposed visits taking place since between now and the last hearing it would appear that Father is either not able or is not willing to commit himself to regular direct contact in Poland. Should the Mother's above allegations about SJ's emotional welfare be accurate, this would also compound Cafcass' concerns about any substantial increase in contact.

24. I remain of the view that there should not be a return order and further take the view that these proceedings may have run their course. In the absence of any movement in the father's position and save for a reduction in Skype contact, I do not have an evidential basis to make recommendations about access/contact/time spent with and I am not sanguine about how arrangements can be developed given father's failure to engage with the current arrangements and his all or nothing stance on SJ's return to this jurisdiction."

50. In my view that last phrase of the report is not only extremely apt; it underpins everything about this case from D's perspective. When I pressed D on his understanding of the issues flowing from a return order from SJ's perspective, he said to me, "She will readjust very quickly. She can visit her mother at any time". He then went on to liken his daughter's predicament to that of Madeleine McCann. He said that his case was similar to that of someone who had stolen a large amount of money and given it away to charity, by which he meant that the mother had done something wrong but was now trying to make it look right. He told me that there were "thousands of Poles flocking into this country" and SJ's welfare needs would be met here. I gained the impression throughout the course of his submissions to me that he was intent above all else to establish his rights vis à vis SJ and to punish the mother for her wrongful abduction of the child. That impression was reinforced by his final remark to me that if there was any restriction whatsoever on his contact with SJ, he would not want to have any contact with her at all. I have to say that I found that an astonishing statement from him, particularly in circumstances where he had previously assured me that, if SJ remained in Poland, he would make whatever arrangements were necessary to travel to see her.

9. With, as it transpired, prescience, Roberts J made a direct plea to the father in these terms:

a. I hope that his final position was in fact born out of exasperation and not a reflection of his actual future intentions. This little girl loves her father and needs a relationship with him. For him to simply walk away from her because he has not succeeded in his ambition to secure her return only reinforces my concerns about his insight into her welfare.

Sadly, as circumstances have evolved, it is clear that Roberts J was entirely right to have 'concerns about his insight about her welfare'. He has revealed himself, before me, to have very little insight into his daughter's needs.

10. The Father asserts that he had, with the Mother's consent, arranged to take SJ on a holiday to Algeria. The Mother contests this. She said that she agreed, in accordance with the welfare arrangements approved by both the Polish Court and English Court (i.e. that the Father was to have contact with SJ in Poland but was not to take her abroad), that SJ could go for a holiday with her father. It is extremely unlikely, on the history of this case alone that the mother would have agreed to SJ being taken to Algeria. I find the father's assertion entirely unconvincing.
11. Certainly by 29 January 2016 the Mother had applied to the Polish Court in Plock, where the Court found that it was 'conclusively proved' that SJ had been 'abducted by her Father' outside of Poland, and the search for her continued. The Father said that he decided that having taken SJ to Algeria that he would not return her to the Mother. He contends that SJ told him a variety of allegations about her home life in Poland which led him to conclude that it would be unsafe to return her. Having listened to him, I find him to be an entirely unreliable chronicler of the history of this case.
12. In April 2016 there was produced a document dated 7 April 2016 which is signed by the Mother purporting to be in agreement between her and the Father, the objective of which is to secure the return of SJ to her Mother in Poland. There are a number of terms identified as 'pre-requisites'. I find it difficult to follow the Father's explanation as to how this document came into existence. I am bound to say that I first understood him to be suggesting that it was a fabrication of the Mother's alone. However, during his evidence, he said that a number of those 'pre-requisites' had been suggested by him. He remained insistent that the Mother stole 63,000 Euros from him (recorded at paragraph 8 of the document). He told me that the University fees that she had borrowed should be repaid to him and indeed that is in the agreement too. He told me that he suggested a provision that he was not to be required to leave any travel documents concerning him with the Mother and that he had also suggested that all of SJ's travel documents should remain with him and that he would bring them to the Mother should the Mother request them in Poland. Finally, he said that the term at paragraph 7 about SJ moving to the UK (not Algeria) upon completion of her primary education he says was suggested by the Mother's sister. Also included was the specific provision that "it is not up to the child or the Mother, as SJ's removal was wrongful and should not be done again".
13. Having listened to the Father and having looked at the specifics of these provisions, I am entirely satisfied that this document has been drafted by him. Every paragraph relates exactly to his pre-occupations within this litigation. The highly emotional content of the material also resonates with his presentation before me. The significance is that as of April 2016, he appeared to be contemplating returning the child to the Mother.
14. I note that on 25 May 2016, when the case was last before Mrs Justice Roberts, there is a Recital agreed by the Father in these terms:

"[the Father] agreed that in principle the child should be living with her Mother in Poland".

15. The phrase 'in principle' is one that has been used by the Father extensively throughout this litigation. I have no doubt that he agreed to this recital and that it is accurate. Accordingly, only a matter of 10 weeks ago the Father was certainly contemplating the return of the child and in May 2016, I am satisfied, acknowledged in principle that she should be with her Mother. That is nothing like the position I hear today. The Father has been extremely critical of the Mother and of what he now regards as her un-Islamic lifestyle, which he has described as "debauched". He has been dismissive of her care of their daughter and of her choice of partner. He plainly does not consider it appropriate for SJ to be brought up where her Mother lives with a Christian man. I should perhaps add here that the Mother converted to Islam to marry the Father. As I am delivering this judgment the Father interjects that SJ accused the Mother's partner of abuse. Whether on the Father's own account, i.e. having wrongly retained SJ in Algeria or on the Mother's account that he abducted his daughter, it is plain that the Father is in breach of both the Orders of the Polish and of the English Courts. Indeed, just as the Mother conceded that the way in which took SJ to Poland was wrong, the Father, in his evidence, made a similar concession that his retention of SJ in Algeria was in defiance of the Order.
16. It needs to be stated that the Order of 12 March 2015 contained specific provision that: "The child shall continue to live with the Mother in Poland until further order of the Polish court"; and: "Until further of the Polish court, the father shall not: remove the child from Poland and remove the child from the care of the Mother save for contact which is previously agreed in writing between the father and the mother." On the Father's own case he has breached the second part of the second order above and on the Mother's case he has breached the first part of the second order too. The Mother urges me to exercise the jurisdiction of this Court in effect to secure the enforcement of its own Order by directing that the Father cause the return of SJ to Poland either by his family or by her travelling alone as an unaccompanied minor. To make this realistically achievable, it is further contended that it would be absolutely essential to prevent the Father from leaving England. This would achieve leverage to ensure compliance.
17. The Mother advances alternative approaches to the question of this Court's jurisdiction. Through her Father, SJ is a UK citizen, and also a citizen of Poland, through the Mother. I can therefore, it is argued, deploy not only the inherent jurisdiction to achieve enforcement but also the Parens Patriae on the basis of nationality. The scope and ambit of the jurisdiction has recently been examined by the UKSC in 2 decisions: Re A (Jurisdiction: Return of Child) [2013] UKSC 60 [2014] 1 FLR 111 and Re B (A Child) (Habitual Residence: Inherent Jurisdiction) [2016] UKSC 4 [2016] 1 FLR 561. In Re B, the observations of Lady Hale and Lord Tolson (with whom Lord Wilson agreed) require emphasis:

"[59] It is, however, one thing to approach the use of the jurisdiction with great caution or circumspection. It is another thing to conclude that the circumstances justifying its use must always be 'dire and exceptional' or 'at the very extreme end of the spectrum'. There are three main reasons for caution when deciding whether to exercise the jurisdiction: first, that to do so may conflict with the jurisdictional scheme applicable between the countries in question; second, that it may result in conflicting decisions in those two countries; and third, that it may result in unenforceable orders. It is, to say the least, arguable that none of those objections has much force in this case: there is no applicable treaty between the UK and Pakistan; it is highly unlikely that the courts in Pakistan would entertain an application from the appellant; and it is possible that there are steps which an English court could take to persuade the respondent to obey the order.

[60]   The basis of the jurisdiction, as was pointed out by Pearson LJ in Re P (GE) (An Infant) [1965] Ch 568, at 587, is that 'an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection'. The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to 'cases which are at the extreme end of the spectrum', per McFarlane LJ in Re N (Abduction: Appeal) [2012] EWCA Civ 1086, [2013] 1 FLR 457, at [29]. The judgment was ex tempore and it was not necessary to lay down a rule of general application, if indeed that was intended. It may be that McFarlane LJ did not so intend, because he did not attempt to define what he meant or to explain why an inherent jurisdiction to protect a child's welfare should be confined to extreme cases. The judge observed that 'niceties as to quite where the existing extremity of the jurisdiction under the inherent jurisdiction may be do not come into the equation in this case' (para [31]).

[61]   There is strong reason to approach the exercise of the jurisdiction with great caution, because the very nature of the subject involves international problems for which there is an international legal framework (or frameworks) to which this country has subscribed. Exercising a nationality based inherent jurisdiction may run counter to the concept of comity, using that expression in the sense described by US Supreme Court Justice Breyer in his book The Court and the World (Knopf, 2015), at pp 91–92:

'… the court must increasingly consider foreign and domestic law together, as if they constituted parts of a broadly interconnected legal web. In this sense, the old legal concept of "comity" has assumed an expansive meaning. "Comity" once referred simply to the need to ensure that domestic and foreign laws did not impose contradictory duties upon the same individual; it used to prevent the laws of different nations from stepping on one another's toes. Today it means something more. In applying it, our court has increasingly sought interpretations of domestic law that would allow it to work in harmony with related foreign laws, so that together they can more effectively achieve common objectives.'"

18. Mr Hames submits that none of the 3 reasons for caution identified above are present in this case. I agree.
19. The jurisdiction was recently exercised by Mr Justice Peter Jackson in the matter of HH v SH [2016] EWHC 1252 (Fam), 26 May 2016. There the Court made a staged order compelling the Father to give information concerning the whereabouts of a British child who had never been on British soil. Having considered the authorities I have referred to above Peter Jackson J concluded thus:

"(1) The order is necessary for Z's welfare and protection. He is a British citizen whose whereabouts and circumstances are unknown to the court and to his mother. Until that information is available, a high level of concern must exist about his welfare, if only because he has been separated from his mother against her will for almost the whole of his life. The fact that there is no actual evidence of serious harm gives no reassurance as it is no more than the result of there being no evidence at all. Even if it was a requirement that the jurisdiction can only be exercised in extreme circumstances (and in my view there is no such requirement), these circumstances are extreme.

(2) The court must approach matters in stages. I do not accept that by making any order the court must make every order that the mother seeks. The matter must be assessed as it develops. The considerations that might apply to an application for an order that Z should be brought to this country may be entirely different to those that apply to the present application…

(5) The solution to this deeply troubling situation lies in this country because it is here that the father resides. It is only by this court exercising its powers that a remedy is likely to be available."

20. I am satisfied, in light of the history of this case, which includes two chaotic changes to this child's care i.e. wrongful removal both by the Mother to Poland and then by the Father to Algiers, that the child is in particular need of the protection of this Court. The Court charged with the responsibility to resolve the present parental dispute must clearly be the Polish Court, where the child is habitually resident (as this court has found it to be). However, the child can only be protected at present by this Court in effect as a conduit to return the child to Poland. The solution really lies only in the hands of this Court, both because the child has British citizenship and because the Father is in breach of the Order of this Court. This seems to me to be precisely the kind of situation, rare that it will inevitably be where the child's interests require the powers to be invoked.
21. Mr Hames also submits:

"Further, the court should strive to exercise its jurisdiction to assist and respect the orders of the Polish court. It would be wholly consistent with the principles and aims of BIIa for this court to make orders which have the effect of enforcing orders of the Polish court, notwithstanding that SJ is not presently in England. "

22. That point is developed thus:

"Article 20 of BIIa does not prevent the English court exercising its inherent jurisdiction to make "such provisional, including protective, measures in respect of persons" in England where Poland has jurisdiction as to the substance of the matter. "Persons" must include parents as well as children. "

23. These are supplementary points, though attractively formulated I have no need to incorporate them within my own analysis because I am satisfied that jurisdiction is established, for the reasons I have already stated.
24. Either pursuant to the powers of the Parens Patriae or alternatively the inherent jurisdictional powers of this Court which exist independently of the Parens Patriae, I am satisfied that the Court has jurisdiction and that it should exercise it in order to protect the child. For these reasons, I propose to order that the child be returned to Poland and that the Order is given effect.
25. For these reasons, I propose to order that the child be returned to Poland. In addition I am prepared to continue the injunctive provisions, granted by Roberts J, to ensure the Father's passport remains with the Tipstaff. The power of the English Court to retain passports was considered by the Court of Appeal in Re B (A Child: Evidence: Passport Order) [2014] EWCA Civ 843 [2015] 1 FLR 871 per Sir James Munby (P):

"16. The reference there to passport orders will be noted. There is no doubt that there are circumstances in which the High Court, in exercise of its inherent jurisdiction, can properly make an order (what for shorthand I shall refer to as a passport order) requiring someone to lodge their passport with the court or with some suitable custodian, for example the Tipstaff or a solicitor who has given the court an appropriate undertaking: see, for example, Re S (Financial Provision: Non-Resident) [1996] 1 FCR 148, B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, Young v Young [2012] EWHC 138 (Fam), [2012] 2 FLR 470, and Bhura v Bhura [2012] EWHC 3633 (Fam), [2013] 2 FLR 44. The question is as to the ambit of this power, in particular where, as here, the power is sought to be exercised against a non-party."

26. The President also identified the classic use of these provisions, articulated by Wilson J, as he then was. This I find to be apt in these circumstances contemplated here, thus:

"19. There are two well recognised situations where the court may, and frequently does, make a passport order. One is aptly described in the words of Wilson J, as he then was, in B v B (Injunction: Restraint on Leaving Jurisdiction) [1997] 2 FLR 148, 153: "

"In the Family Division use is often made of a power to restrain a party from leaving the jurisdiction and to require the surrender of passports. Thus when, for example, a foreign plaintiff complains that the defendant has wrongfully abducted a child to England and Wales and seeks an order for the child's peremptory return under the Child Abduction and Custody Act 1985, it is normal to order at the outset that until the hearing the defendant do not leave England and Wales and do surrender his or her passport. Such an order is made either under s 5 of the 1985 Act or pursuant to the court's inherent jurisdiction. Another example is where a foreign parent who might be disposed to misuse a period of contact in England in order to remove a child overseas is ordered in the exercise of the inherent jurisdiction to surrender his passport".

27. It would be in my judgment a wholly appropriate use of this power to prevent the Father returning to a country which is not a contracting state of the Hague Convention and which is also not an EU member state because were he to return there he would effectively prevent the enforcement of the order of this court and the order of the Polish Court. As Mr Hames suggests, it would allow him both to escape the consequences of the abduction (or wrongful retention) as well as to escape any punishment for contempt of the Orders of this Court. From his perspective as the matter lies entirely in the father's hands, it may only be a limited inhibition of his freedom as it would immediately fall away on SJ's return. Looking at the wider picture the Father has UK citizenship, he is habitually resident here, living in his own well settled accommodation.
28. There was no penal notice attached to the earlier order. I propose to attach one to the Order I make today and will now explain to D the consequences of any breach.