England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		9 May 2018

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MR JUSTICE HOLMAN:

1. Aside from inflicted child abuse or the ravages of war, it would be hard to devise a more emotionally damaging set of facts than those which currently surround the children with whom I am concerned.
2. The essential factual background is, in summary, as follows. Both parents are British. They lived together in a relationship here in England. They met in about 2009. From their relationship they have two daughters, the elder will be eight next month, the younger will be seven next month. Sadly, their relationship broke down in early 2012 when, indeed, the younger daughter was only about six months old. There appears to have been considerable litigation between the parents following that.
3. The children remained living with their mother here in England. She then met and formed a relationship with an American man who lives, and is in settled employment, in Alaska, USA. In Autumn 2014, the mother became pregnant by that man and she and the man married.
4. The mother then made an application to the family court for permission permanently to remove the two children to live at the specified settled home of her new husband in Alaska, USA. That application was contested by the father, and in May 2015 a circuit judge refused permission to the mother to relocate the two children to Alaska. I have not seen his judgment, but I am told that he expressed the view that the application was "premature".
5. Also, in May 2015, the mother gave birth to her son by her husband. That child is, accordingly, now almost three.
6. In October 2015, the mother appears to have travelled with the two children to Alaska. As I understand it, she did not have the permission of the father to do so; nor, of course, did she have the permission of the court, for that had been refused some months earlier by the circuit judge. As I understand it, the father had no prior warning or intimation that the mother was going to do that.
7. If the facts are as I have just described them, then the actions of the mother would have been a plain case of "wrongful removal" of the children from England and Wales within the meaning of the Hague Convention on the civil aspects of international child abduction.
8. I am told today on behalf of the mother that, once in Alaska, she settled with the two children, as well as her baby son, with her husband at the same address at which he was already living and which had been given as her proposed address in the context of her earlier relocation application. In other words, although it appears that she wrongfully removed the children, she did not, as it were, go to ground with them but, rather, lived openly with them at an address in Alaska known to the father.
9. The initial response of the father to these events was very prompt. On 8 October 2015, he applied in person to a judge of the High Court sitting here at the Royal Courts of Justice. That judge made the two daughters wards of this court and ordered the mother to cause or permit them to be returned to England and Wales forthwith. That order was substantially repeated by another judge about three weeks later on 29 October 2015.
10. It is said on behalf of the mother that she was never served with those orders and knew absolutely nothing about them. The father apparently claims to have served them to an email address which it is said was not the actual email address of the mother. These matters may require to be later investigated.
11. The father also clearly had engagement and communication with the International Child Abduction and Contact Unit (ICACU) of the Official Solicitor, for he has shown me this morning two letters from ICACU to him dated 22 October 2015 and 5 November 2015. The second of the two letters states, amongst other matters:

"Using the information you have provided in your questionnaire, I have submitted the application to the Central Authority in America who will process your request regarding [the two daughters]."

12. As a matter of fact, and record, no application appears ever to have been made to the courts in Alaska or anywhere else in America for the return of the children pursuant to the Hague Convention. Indeed, the father has never at any time between the removal in October 2015 and today issued any proceedings of any kind in any court in America. He says today that he was informed by a lawyer in America that they would not act for him pro bono but that he would have to produce upfront funding of the equivalent of about £20,000, which he says he did not have.
13. This is curious, because under the Hague Convention legal services are required to be provided free of charge to an applicant in the country in which the application requires to be made. Further, the same letter from ICACU dated 5 November 2015 includes the following:

"I am aware that the cost of an application is often a matter of concern to parents. It may help you to know that the ICACU does not charge for processing your application. The Central Authority in America will not charge for the work that they carry out either."

The letter does, however, say that "Travel expenses incurred when returning a child are not covered by the Convention and might have to be paid by the [father]."

14. Again, the whole issue as to why the father did not in the end promptly pursue an application under the Hague Convention in late 2015 may require to be further investigated. At all events, there the matter rested for an appreciable period of time within these English family law proceedings.
15. However, the father notified the police of the alleged abduction of his children, and in due course steps were taken by the authorities here for the extradition of the mother to England to face criminal proceedings under the Child Abduction Act, 1984 and also, apparently, criminal proceedings in relation to some alleged fraud in obtaining a passport for the younger daughter whose passport was held by the father.
16. In September 2016, the father learnt that the mother might be arrested and extradited back to England which, of course, raised the question of who would then be caring for the children. He again applied on a without notice application to a High Court judge sitting here at the Royal Courts of Justice, who made an order dated 23 September 2016 that:

"If and when the respondent mother is arrested and detained, and if this involves her separation from the children, the interim care and control of the two children…be granted to the father…and he be at liberty to fetch them from the USA back to this jurisdiction."

17. That, as I say, was in September 2016. The mother was not, in fact, at that time arrested or separated from the children, although I am told that there was a brief period of about ten days in April 2017 when (probably unknown to the father at the time) she was detained in custody in the context of extradition proceedings, but she was then granted bail and resumed living with her husband and the children in Alaska. She was required to surrender to the US authorities in January 2018 and did so. The result has been that the mother has been held continuously in custody, first in America, and more recently in England, since 8 January 2018. She was actually extradited to England on 10 April 2018, now a month ago. Magistrates refused bail and she has been committed for trial to a Crown Court.
18. As I understand it, the plea and directions hearing in that court was originally, and coincidentally, fixed for the same date as this hearing and it is, indeed, regrettable that as a result of the clash of dates, the PDH in the criminal proceedings has not yet taken place. So the mother has not yet pleaded to whatever are the precise charges made against her and, of course, it is unknown whether or not, or when, any trial may take place.
19. In the meantime, at some point solicitors instructed by the mother here in England learnt of the order to which I have referred dated 23 September 2016. They were obviously very concerned that, now eighteen months after that order was made, the father might travel to Alaska equipped with that order and abruptly recover the children and bring them to England. On 13 April 2018 they applied to another High Court judge here at the Royal Courts of Justice who "suspended" the order of 23 September 2016 until the end of this week and fixed this hearing today.
20. The upshot is that, as I speak, there sit in the court room in front of me the mother, who has been brought here in custody pursuant to a production order, and the father, who continues to act in person. I believe that this is the first time that they have been in the presence of each other since September, or very early October 2015.
21. Both parents are here before me in London, but where are their children? The answer is that the children continue to live at the address in Alaska, which is their settled address, with the mother's husband and with their almost three-year-old half-brother. I am told in a position statement on behalf of the mother and accept, purely for the purposes of this hearing today, that the children are essentially very settled where they live. They obviously know their stepfather very well. They have inter-related with their half-brother from the day he was born. They are settled in schools in Alaska. The qualification to that is that I am also told that the stepfather reports, unsurprisingly, that the children are very unsettled by the absence and incarceration of their mother, and that the elder child, in particular, has been much affected.
22. As I said at the outset of this judgment, it would be hard to devise a more emotionally damaging set of facts for two young children. They have had no contact whatsoever, even by telephone, with their father for over two-and-a-half years. They were able to see their mother when she was in custody in America, but they have not lived at home with their mother since January of this year and, of course, have not seen her at all since she was extradited to England on 10 April, now a month ago.
23. Further, I have been told today that, because the alleged offence involves the children, the prison authorities here in England do not permit the mother to have any communication whatsoever with the children. These children therefore find themselves far away from here, completely cut off from both their parents, and they cannot have the least reassurance as to when they may see their mother again. I have no idea when any trial may take place. I have no idea what the outcome of that trial may be, and I have absolutely no idea, if she is convicted of any offence or pleads guilty to any offence, what sentence the mother might receive. Child abduction is a serious offence. Fraud in obtaining a passport is a serious offence.
24. As I have explained during the hearing this morning, this court, of course, has absolutely no power or influence whatsoever in the criminal proceedings, which must take their course entirely independently of this court and these proceedings. Frankly, the outlook for an appreciable period of time is bleak for this mother, and very bleak indeed for these children.
25. It is, frankly, a matter of the utmost regret that, for whatever reason, the father did not press on with his contemplated application under the Hague Convention in late 2015. I cannot say what the outcome of any such application in America would have been. The mother claims that there is a long history here of violence and aggression towards her by the father, and she might well have raised defences under the Hague Convention. There is, at any rate, the possibility that the children would, indeed, have been ordered to be returned to England within perhaps three months of their wrongful removal in early October 2015. The mother would have to have made a very difficult decision whether or not to accompany them, or whether to remain in Alaska with her new husband to whom, of course, she is now also tied by their joint parentage of their son.
26. The fact is, the father did not pursue an application, and as I have described, these children have now lived in an apparently settled way in Alaska for over two-and-a-half years. It is theoretically still possible for the father to make an application in Alaska under the Hague Convention, but I anticipate that any such application would be very unlikely to succeed because the children would be shown to be settled in their new environment in Alaska within the meaning of Article 12 of the Convention.
27. It is, of course, open to either of these parents to issue any appropriate application for what we would call a "child arrangements order" in Alaska. It seems highly likely that these children are now habitually resident, not here in England but in Alaska, where they have lived for over two-and-a-half years and are said to be settled. Quite frankly, it is very difficult now to conceive long-distance litigation taking place here in London concerning two children who have now lived for so long in Alaska. It would, for instance, be very difficult, if not impossible, for Cafcass to carry out effective investigation in Alaska into the current circumstances of the children. But for one factor, the obvious place in my view for any further litigation in relation to these children has to be Alaska where they currently are and where, as I assume, they are now habitually resident.
28. The one countervailing factor is that the mother is in custody here. So if the father were now to commence proceedings in Alaska, those proceedings might be up against the difficulty that the defendant mother was far away in custody here. It would not be easy for the mother herself currently to commence proceedings in Alaska whilst she is in custody here.
29. There is much to sort out in relation to these children. As far as today is concerned, I am of the clear view that I should, first, discharge the order which made them wards of court. It is, frankly, absurd that two children, who have now been living openly in Alaska for over two-and-a-half years, should remain as wards of this court which, indeed, has no effective means of exercising the wardship jurisdiction over them. Further, in my view, the orders for the immediate return of the children to England and Wales and, indeed, any other earlier orders of a continuing nature should now be discharged or set aside. They have, frankly, all been overtaken by events and the lapse of time.
30. If the mother was not in custody but was currently able to return to Alaska and live there, then I would today have dismissed these English proceedings in their entirety, on the basis that, however difficult for him, the father now has to take his applications in relation to his children to Alaska. However, as the mother herself is compulsorily here, I propose to leave these proceedings in being, at any rate for a further period of time.
31. I will make directions for each parent sequentially to file and serve narrative statements, stressing, in the case of the mother, that that does not override her right and privilege not to incriminate herself. But subject to that, she must make a statement setting out her account of events, including any allegations she makes against the father. He, then, must have an opportunity to respond to that statement, and also to explain in statement form why he never pursued any application in America, either under the Hague Convention or any other

application.

32. The father, very justifiably, has raised the question of at least being able to have Skype-type or telephone contact with his children. The mother's husband has already been made an intervener in these proceedings, and I will require him, within a relatively short period of time, to file and serve a statement in which he addresses whether there is any reason why the father should not have Skype or similar, or telephone contact with his children, and any proposals as to the times, frequency and duration of any such contact. The reality is that the current carer of these children is not their mother, but her husband, and it seems to me that he must address whether there is any reason why the father should not now resume at least indirect contact with his children.
33. So as to regularise the position, I propose, further, to order that, until further order, the children shall continue actually to live in the care of their stepfather, who must not cause or permit them ordinarily to reside at any other address than the specified address in Alaska, and must not cause or permit them to leave the United States of America. Once all that has happened, this matter must be restored for a further directions hearing before myself, if available, but otherwise before another judge in about the middle of July.
34. I direct that an official transcript be made of this judgment at the expense of public funds. There are a number of purposes for that. They include so that the stepfather in America is clear as to what I have done today and why I have done it; and so that there is a narrative explanation for the order I make today for any future court, whether here or in Alaska.