England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		10th June 2016

MR JUSTICE HOLMAN:

1. These are proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction commenced by a father who resides in Portugal, which is a contracting state to the Convention. It appears that he has been in a relationship with a lady by whom they have four children. The eldest two are in care. This application concerns the youngest two who are currently aged about twenty months and five months.
2. As I understand it, this family is underlyingly an English family; but, at some point, the parents effectively fled the United Kingdom with the youngest children to avoid the intervention of the local authority. As I understand it, they passed for a period through Greece, but eventually came to rest in Portugal.
3. The father says that they were all living together there until early April 2016, when the mother disappeared with the children, having removed money and essential documents from their home. At that stage, he believed that, being English, the mother had, or may have, returned to England, and probably to the neighbourhood of Liverpool, within which the mother's own family live.
4. These proceedings were then commenced on 17th May 2016. On that date, the father's solicitor, Gillian Noury, who is a renowned expert in the field of international child abduction, made a statement in which she said that she had been informed by the relevant local authority that they knew where the mother was, but she did not have the children with her "and it was thought that they must be with the maternal grandmother..." As I understand it, the intended inference was that they were with the maternal grandmother at her home or locality in the Liverpool area of England.
5. On that basis, Mr Justice Moor, on an application made without notice, made a standard form location order, and directed that the case be listed for further directions on 25th May 2016. The expectation was that if the children were indeed in England and Wales, they would by then have been located.
6. This matter returns to me today on 10th June 2016. The children have not been located. Further, I have been informed by counsel on behalf of the father, Miss Charlotte Proudman, that she spoke to the Tipstaff of this court immediately before this case was called on, when indeed the Tipstaff had just left this courtroom after the previous case. The Tipstaff has informed Miss Proudman that, pursuant to the location order which has already been made and which remains subsisting, he has been monitoring, and continues to monitor, recorded movements in and out of the United Kingdom. The information from the Tipstaff via Miss Proudman is that there is no record of either of the children or the maternal grandmother entering any part of the United Kingdom at any time since the children first disappeared in early April 2016. There is a record of the mother herself having entered the United Kingdom on 13th May, but she has since left, although I do not know the date upon which she left.
7. In these circumstances, Miss Proudman has asked me today to make an order requiring the maternal grandmother and the maternal grandfather, and possibly other maternal relatives, to attend before this court, under the sanction of a penal notice, in order to give evidence as to the whereabouts of the children or the mother.
8. Miss Proudman reinforces her application by relying upon paragraph 5 of the order made by Mr Justice Moor on 17th May 2016 which provides as follows: "The maternal grandmother, ………, shall be joined as a party to these proceedings and shall attend the hearing listed on 25th May 2016 at the Royal Courts of Justice..." So Miss Proudman says the grandmother is already a party to these proceedings, as indeed she is. However, as the grandmother has not been located any more than the mother, that order has not been served upon the grandmother and of course she is not currently, therefore, in breach of it.
9. It seems to me, however, that the juridical position that provisionally presents itself to the court today is markedly different from that which provisionally presented itself when Mr Justice Moor made his order on 17th May 2016. As I have said, the evidence before him was that statement (of course made in the utmost good faith) by Miss Noury, which indicated that "it was thought" that the children must be with the maternal grandmother, inferentially in England. So the state of the evidence on 17th May 2016 was to the effect, at least provisionally, that these children were present in the England and Wales. Mere presence is, of course, an ample basis to trigger proceedings here under the Hague Convention. The essence of the operation of the Hague Convention is to achieve the return to the state of their habitual residence of abducted children who are meantime temporarily present in another contracting state.
10. Today, however, it inevitably appears to me, on a balance of probability, that neither of these children are present anywhere in the United Kingdom, nor have they been present at any time since the alleged removal from Portugal in early April. I say that because of the information from the Tipstaff which I have described above.
11. It is fundamental to the father's application under the Hague Convention that these children were, at the time they disappeared in early April, habitually resident in Portugal. Indeed, it does seem highly unlikely that they were at that time habitually resident anywhere in the United Kingdom, since the underlying story is that the parents deliberately removed the children and fled, ultimately to Portugal, in order to escape the reach of the English authorities.
12. I do not know where these children are at the moment. There is a faint suggestion that they may be in Greece, which is a country through which the parents passed on their flight from England and from which the father's solicitors received a missed call, apparently from the mother. But, as I have said, it actually seem improbable that these children are in England and Wales at the moment, and clear that they are not habitually resident in England and Wales. It follows from that that, although Mr Justice Moor very justifiably made the orders which he did on 17th May (and which I do not today vary or displace), the factual reality as it appears today is such that this court simply has no jurisdiction at all in relation to these children.
13. There are, realistically, only two possible bases for jurisdiction. The first is habitual residence, the second is actual presence, and both of those are negative. It may be that the children are British citizens, but that is an extremely slender and very residual basis for any orders to be made by this court.
14. It is, of course, the case that very frequently, when children who are habitually resident in England and Wales are abducted and believed to be at some unknown address or even some unknown country abroad, family members here, such as grandparents, are required to attend court to give evidence on oath of such information as they may have as to the whereabouts of the children. That is, indeed, often an effective remedy, which ultimately leads to the return of abducted children, since conscientious and law-abiding grandparents realise that "the game is up" and do reveal the whereabouts of the children. But that is in a situation in which the starting point is that the children were living here and habitually resident here, and the court unquestionably has a continuing jurisdiction to make orders in relation to them.
15. As I have now painstakingly described, that is not the situation in the present case. To my mind, I simply do not have any jurisdiction which entitles me, or justifies me, in saying that various people, who all reside in the area of Liverpool, must attend court, probably here in London, under compulsion of a penal notice, in order to give evidence as to the whereabouts of the children or their mother.
16. I, therefore, decline to make any of those orders sought by Miss Proudman, which, in my view, would amount to an exorbitant exercise of jurisdiction by the court.
17. There is, however, a separate matter and line of inquiry. I am informed by counsel's written position statement, and also by her orally today, as follows: "Instructing solicitors were contacted by a solicitor on behalf of mother although they claimed they were not 'on the record' as acting for her. They requested that instructing solicitors e-mail mother the papers. Instructing solicitors confirmed that they needed to serve her in person." I have been informed of the name of that firm of solicitors and, indeed, the name of the individual who actually contacted the solicitors for the father.
18. Again, very careful consideration will later have to be given to whether or not this court can properly exercise any power or jurisdiction to require those solicitors to reveal any information at all. In the first place, there is always a difficult question of legal professional privilege and defining the scope of any information which solicitors in that situation must reveal. In the second place, the same question as to jurisdiction arises as arose in relation to summoning the grandparents to court.
19. But I do consider that the position of solicitors is different from that of grandparents. Solicitors are, by definition, officers of the court. The practice and profession of being a solicitor carries onerous professional burdens, and one of them, in the family law field, is that they may from time to time have to attend court to help with difficult situations such as this without remuneration. Since the solicitors concerned are themselves located in Liverpool, I have managed to arrange a short hearing in just over two weeks' time before a High Court judge actually sitting in Liverpool, so, at any rate, the travelling burden upon the solicitors should be a slight one.
20. For those reasons, I will make a very carefully drafted order requiring the named person, or another fully informed and authorised solicitor who is a partner of, or employed, by the firm in question, to attend before the High Court in Liverpool on a specified time and date. The order will say that the purpose is "to give such evidence, if any, as, after hearing representations from her, the court considers she should be required to disclose as to the present or recent whereabouts of the mother or the children." The order will go on to forbid the named solicitor and the named firm from disclosing to the mother, or any person connected with her, the terms or existence of this order.
21. I wish to stress and make clear, however, that the extent and scope of my order today is to require the attendance at court on the specified time and date of the named person, or a fully informed and authorised alternative solicitor. I am not in any way whatsoever ruling today that those solicitors are required to make any disclosure at all; rather, I am requiring them to attend court so that, after hearing proper representations from them, the court can consider and rule upon the extent, if any, to which they should be required to disclose information.
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[Note At the further hearing (before another judge) the proceedings were dismissed on the grounds that there is no evidence that either child was in England and Wales when these proceedings were commenced or at any time thereafter.]