S (Abduction: Hague Convention Or BIIa), Court of Appeal - Civil Division, May 25, 2018, [2018] EWCA Civ 1226

Resolution Date:May 25, 2018
Issuing Organization:Civil Division
Actores:S (Abduction: Hague Convention Or BIIa)
 
FREE EXCERPT

Neutral Citation Number: [2018] EWCA Civ 1226

Case No: B4/2017/2982

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Mrs JUSTICE GWYNNETH KNOWLES

HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25 May 2018

Before :

LORD JUSTICE PATTEN

LORD JUSTICE MOYLAN

and

LORD JUSTICE PETER JACKSON

- - - - - - - - - - - - - - - - - - - - -

Between :

Re: S (Abduction: Hague Convention or BIIa)

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Ms Jacqueline Renton and Ms Charlotte Baker (instructed by Brethertons LLP) for the Appellant

Mr Richard Harrison QC and Ms Jennifer Perrins (instructed by Anthony Louca Solicitors Limited) for the Respondent

Hearing date : 8th March 2018

- - - - - - - - - - - - - - - - - - - - -

Lord Justice Moylan :

Introduction

  1. The broad context for the issue raised by this appeal is the relationship between Council Regulation 2201/2003 (``BIIa'') and the 1980 Hague Child Abduction Convention (``the 1980 Convention'') in circumstances when a child, habitually resident in England and Wales, is alleged to have been wrongfully removed to or retained in another EU Member State. The specific issues are whether the court has the power to make a return order summarily at the outset of proceedings in England and, if it has, whether it should do so or should wait before exercising its substantive jurisdiction under BIIa until the determination of proceedings under the 1980 Convention in the other Member State.

  2. The appeal in this case was by a father from a return order made summarily at the outset of proceedings. I have said ``was'' because, following some observations from the court, the appeal was resolved by consent at the outset of the hearing of the appeal. The mother sensibly agreed to the discharge of the summary return order which had been made on 13th October 2017 by Gwynneth Knowles J. She still sought the return of her son (aged 13 at the date of the hearing before the judge) from the Netherlands but accepted that this should, at least initially, be progressed through an application she had made under the 1980 Convention.

  3. Although the appeal had been resolved, the court requested counsel to make submissions on the issue referred to above. We did this because it appeared to us appropriate to address this issue by way of a judgment, given its broader significance. I am grateful to counsel for their respective submissions which, in my view, sufficiently covered the relevant considerations.

    Background

  4. It is necessary to set out only a very brief summary of the background. The parties have two children. Since 2010 they had been living with the mother in England pursuant to an order made by the English court in November 2010. In 2017 the parties agreed that the elder child (who I will call ``M'') would spend the summer holidays with the father in the Netherlands. M was due to return to England early in September 2017 in time for the new school term.

  5. The father did not return M on the agreed date. The circumstances leading to this are disputed by the parties.

    Proceedings

  6. On 26th September 2017 the English Central Authority (ICACU) received an application on behalf of the mother for the enforcement of the November 2010 order. ICACU replied on 11th October 2017 making a number of observations, including that any enforcement application would require the relevant Annex Certificate (under BIIa) to be completed and that another option would be for the mother to make an application under the 1980 Convention.

  7. On 10th October 2017 the mother commenced proceedings in England seeking, among other things, an order for M's summary return to England. These were supported by a statement from the mother.

  8. On 13th October the hearing took place before Gwynneth Knowles J. The mother was represented by counsel. The father was not represented but attended the hearing by telephone. He had provided a position statement prepared for him by English solicitors but he had not by then filed any evidence. The position statement submitted that an application under the 1980 Convention was ``the correct means of resolving'' the issues including because this would provide an opportunity for M's voice to be heard.

  9. The hearing was short. The judge heard submissions from counsel for the mother and from the father. The judge decided that she had substantive jurisdiction and that it was in M's best interests for him to be returned immediately to England. She acknowledged that he ``appears to have expressed the wish to remain living with his father'' but considered that evaluating M's wishes was not a straightforward matter because of his particular circumstances.

  10. On 16th October the mother's solicitors informed ICACU of the order made by the court on 13th October. They then sent a draft copy of the order and a draft Annex II Certificate to ICACU on 18th October 2017.

  11. On 18th October ICACU informed the Dutch Central Authority of the mother's prospective enforcement application. The Dutch Central Authority replied on the same day providing information about how an order could be enforced in the Netherlands. This information was provided to the mother's solicitors. In simple terms, the mother would have to appoint her own lawyers to act for her in the Netherlands because the Central Authority could not itself provide any assistance.

  12. The mother telephoned ICACU on 25th October 2017. The mother asked what she should do. ICACU told her that they could not give her advice but reminded her that, as set out in the letter to her dated 11th October 2017, she could make an application under the 1980 Convention.

  13. The mother then made an application under the 1980 Convention which was sent by ICACU to the Netherlands Central Authority on 27th October 2017. It was re-sent by email on 8th November 2017. On 20th November 2017 the Netherlands Central Authority formally responded, stating that the father had been notified of the request and explaining the procedure in the Netherlands for progressing the application. This included that, in the absence of a voluntary return, legal proceedings would need to be commenced by the mother acting through a lawyer authorised to litigate in the Netherlands. Details were also given of the International Child Abduction Centre which would be able to assist the mother in finding a specialist lawyer and to deal with the availability of legal aid.

  14. On 30th November 2017 the Netherlands Central Authority notified ICACU that the father would not agree a voluntary return and asking whether the mother wanted to participate in mediation or to commence court proceedings...

To continue reading

REQUEST YOUR TRIAL