England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		21 June 2018

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MR JUSTICE HOLMAN:

1. This case was first substantively before me on 13 December 2017, now over six months ago. On that occasion I gave a short judgment which I described as: "a brief summary of the position provisionally reached in this case, to serve as an aide memoire at the next hearing." That judgment was later officially transcribed and indeed is publicly available on the BAILII website under Neutral Citation No. [2017] EWHC 3654 (Fam) and the name ROL v HML. I will not repeat again today the substance of what I said in that judgment. Rather, the present short judgment should be treated and read as in continuation of it.
2. These are proceedings under the Hague Convention for the summary return of two children to America. By their nature, proceedings under the Convention are intended to be swift and summary. For the reasons explained on 13 December 2017 it was not possible fully and finally to resolve this case that day. It was first necessary to establish whether or not the mother could obtain a right or permission lawfully to re-enter America and lawfully remain there: "... and come and go as she pleases ... for an appreciable period of time ..."

(See paragraph 16 of that judgment.)

3. At the hearing last December it was hoped and expected that the mother would be able, relatively swiftly, to resolve her immigration status into America through applications made to the American authorities here in London. Indeed, on 13 December 2017 I first adjourned this case to 16 January 2018, about one month later. Since then there have in fact been several further interim hearings and adjournments of this matter, whilst the mother has attempted both here and in America to obtain an appropriate permission so that she can freely enter, leave and re-enter America. Recently, in late May 2018, she personally travelled for several days to New York and, frankly, came back empty-handed. It is said that if she had made an application to an office in New York rather than in New Jersey, just across the Hudson River, she might have successfully obtained a I-551 stamp, such that she could freely enter, leave and re-enter America.
4. However, at paragraph 10 of his helpful position statement for today, Mr Alex Laing, who appears today for the first time on behalf of the mother, has questioned, by reference to various documents, whether even a I-551 stamp would be sufficient to enable the mother freely to enter, leave and re-enter America. He questions that because there is material which suggests that even such a stamp "does not guarantee" re-entry into America, and that the officer at the port of entry can, in his discretion, refuse entry.
5. The upshot is, frankly, that very little progress has been made in this case in the six months that have now elapsed since I first heard it on 13 December 2017. As these are proceedings under the Hague Convention, which are intended to be swift and summary in nature, it seems to me that the time has come when I must bring them to a head. They simply cannot drag on and on as they have done in the last six months.
6. Further, in my judgment of 13 December 2017 I expressed certain views, which I repeatedly described in that judgment as "provisional", on the basis of the evidence at that stage from the CAFCASS officer, Miss Jacqueline Roddy, as to the wishes and feelings of, and state of objection of, the elder child, Z. Even then the evidence of Miss Roddy was that that child did object to a return forthwith to America. But I expressed a provisional view at paragraph 18 of my earlier judgment that the reported objection of the child, at that stage, was not "at the hard or extreme end of the spectrum." I considered at that stage that it was "a relatively borderline objection." I expressed the view at that stage that:

"It therefore does not seem to me, on the facts and in the circumstances of this case, that the court would be being particularly defiant of an entrenched objection if it were to order return."

7. But six months have now elapsed, and by the time of the further hearing date, to which I will refer, of 25 July 2018 it will be over seven months since the elder child saw Miss Roddy. That child is now aged about 13 and a half. Six months is an appreciable period of time for a young teenager of that age. I simply do not know her current state of wishes or feelings, or of any objection to return to America; and it would, in my view, now be wrong, and indeed unconscionable, for a court to make any final decision or order in this case without being freshly informed after a further meeting with Miss Roddy as to the current state of mind and feelings of that child. I mention that I have been informed today, although this will need now to be the subject of further evidence, that over the last few months the anxieties of this child about return have increased to the point that she is now receiving counselling and specialist support.
8. The mother has now made a visit in good faith to America to try to resolve her immigration status. It was submitted today by Miss Indu Kumar, who continues to appear on behalf of the father, that before any further significant hearing in this matter, the mother should make a yet further trip to America and this time visit the appropriate authorities in New York rather than New Jersey. In my view, however, I should not further protract this matter and I cannot reasonably expect the mother to keep going to and fro to America like a yo-yo. Of course at the further hearing, which I propose to direct, it will be open to Miss Kumar and the father to submit to the judge on that occasion that there should in fact be a yet further adjournment whilst yet further immigration enquiries are made. But it seems to me that that should now be a decision for the court at a much fuller hearing than today's one hour interim hearing, and that in any event this case now requires to be illuminated by the further and fresh enquiries of Miss Roddy to which I have referred.
9. So for all these reasons I propose now to fix this case for a one clear day hearing, which I contemplate will be a final hearing of this matter. Clearly this needs to be resolved as soon as reasonably possible, being proceedings under the Hague Convention. I have personally spoken to the Clerk of the Rules office this morning and have been informed that between now and the end of July there is only one free day with a High Court judge available who can hear this matter, although I appreciate that the state of the lists is always fluctuating. As it stands, there is only one available day before the end of this term, namely Wednesday, 25 July 2018. I have personally spoken this morning with the Diary Officer of the CAFCASS High Court Team and confirmed that Miss Roddy is available on that date, which is clearly extremely important.
10. I personally cannot, as the lists stand, hear this case on that date or indeed on any day apparently between now and the end of term, after which I personally will not be sitting here again until mid-September. So for that reason I propose to direct that this case is heard on that date by a full High Court judge, but released from myself if not available. I currently anticipate that I will not be available and that another judge will hear it.
11. There is, of course, an advantage and importance of judicial continuity in situations like this. But the reality is that the hearing which took place before me last December is now no more than part of the history of this case and part of the narrative. The whole matter will have to be considered afresh on 25 July on the state of the evidence as it then is. That evidence will include evidence as to the various attempts that the mother has made between last December and that hearing to regularise her immigration position in America, and will include the effectively fresh evidence of Miss Roddy as to the wishes and feelings of, and any objection of, the elder child, Z.
12. I stress again that in my judgment of 13 December 2017 I went out of my way to describe my views then as "provisional". Of course another judge hearing this case on 25 July should, and I am sure will, read that judgment as well as the present judgment as part of the narrative. But, frankly, the whole discretion requires to be considered and exercised completely afresh at the end of July on the state of the evidence as it then is. For that reason it does not seem to me problematic that I personally cannot hear this in late July. Another judge can get to grips with it just as well as I can.