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AS v CPW: The Court retrospectively grants a time limited relocation of a child wrongly removed to, and retained in Sierra Leone

May 22, 2020, 16:05 PM
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Date : May 22, 2020, 16:04 PM
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In short, the case concerns three children but the judgement largely deals with the eldest child, B, a 14-year-old boy who was wrongly removed and retained by the mother in Sierra Leone. The younger two children remain in England with the mother. The father applied in wardship for a summary inward return order for B. Ten months ago, the mother took B to Sierra Leone and left him there with her mother (who is highlighted in the case, to be a police officer in Sierra Leone). The father also applied for Child Arrangement Order for contact with the children. The mother then cross-applied for an order permitting her retrospectively relocating B to Sierra Leone until the summer of 2022 to enable him to conclude his GCSEs at a school in Sierra Leone.

Interestingly, Mostyn J states at the time that the High Court proceedings were commenced by the father on 6 February 2020, B had become habitually resident in Sierra Leone but his removal and retention were plainly wrongful, so he accepts the court has jurisdiction in respect of B under Article 10 of council regulation. The mother did not dispute jurisdiction which is likely to have assisted Mostyn J’s decision.

The facts of the case involve parents who are separated and existing private law proceedings in the Family Court at Bromley in respect of disputes concerning the children. The mother gave evidence that B was outside of parental control. He had been permanently excluded from school and the mother alleged he was getting involved with gangs. The mother sent an email to the father on 5 July 2019 announcing her intention to leave with B two days later to Sierra Leone. Although she sought his agreement she did not wait for his response and left anyway. In the private law proceedings which were listed for Final Hearing on 20 December 2019, an interim order was made with a recital that the mother agreed to return B to England as soon as possible, a Prohibited Steps Order preventing the mother from removing the younger 2 children from the UK without the consent of the father or the court and a Final Hearing was listed, but the mother did not return B as agreed. 

The father sought B’s summary return and issued these proceedings. The mother sought for B to remain in Sierra Leone until summary of 2022 when he will have completed his GCSEs. Cafcass spoke to B who stated categorically that he wished to remain in Sierra Leone until the summer of 2022 to complete his GCSEs.

Gillick-competent

In his judgement Mostyn J explores whether B is Gillick-competent for his wishes and feelings to be taken into account given he objected to returning to England until summer 2022. He states the decision of a Gillick-competent child about a particular issue is not decisive if that issue is the subject of proceedings in wardship or under the Children Act 1989. For example, the High Court has the power to override the decision of a child, if it is in their best interests, if he/she refuses necessary medical treatment and the Court has the power to place such a child in secure accommodation under s.25 Children Act 1989. Mostyn J states that the wishes of a Gillick competent child should be given effect where it is not objectively foolish or unreasonable. He states he found no cases where the wishes of a Gillick-competent child opposing an inward return order has been overridden.

He highlights a case where an outward return order pursuant to the inherent jurisdiction was made in respect of an opposing Gillick-competent child - MR v JN (Re: Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return)) [2019] EWHC 490, where Williams J ordered the return of a 12-year-old child pursuant to the 1980 Hague Convention and a 17-year-old child pursuant to the inherent jurisdiction to Poland. Both children objected to the return. In that case Williams J decided it was in the children’s best interests to return to their father in Poland but he explored whether to make an order in respect of the 17 year old who objected to return and so may not comply with a return order. Williams J highlighted in that case there was a lot of parental conflict. There was also some evidence that the 17 year old may have had an underlying and genuine desire to have a relationship with his father and so Williams J felt that he will comply if a return order was made, and it would free the child of the pressure of choosing which parent to live with. Mostyn J states he thinks it would have been unlikely that Williams J would have made the same order if he was only concerned with the 17-year-old.

Mostyn J rejects the father’s claims that the quality of B’s education in Sierra Leone is unsatisfactory and having looked at the curriculum, Mostyn J notes the school curriculum includes learning Chinese. Mostyn J also denies having any serious concerns as to the quality of B’s accommodation, or the general care, being provided by the maternal family. The father also raised concerned about the currently political situation in Sierra Leone and Mostyn J acknowledges not exploring this. Mostyn accepts that being separated from his mother and his siblings is a disadvantage, but that is probably no worse than that experienced by many children who attend boarding schools.

Mostyn states that he is not satisfied that B's wishes are objectively foolish or unreasonable and that it is in his best interests that they should not be overridden. He therefore dismissed the father's application for a summary inward return order and granted the mother's application to keep B in Sierra Leone until the summer of 2022. He also concluded there was no reason for any of the children to remain wards of court.

Contact during Covid-19 restrictions

In the private law proceedings, the court had made findings of fact against the father in respect of domestic abuse. In short, the mother sought supervised contact. Mostyn states due to the Coronavirus, contact will have to be virtual, for the time being. He directed that it takes place by Zoom once each week for at least 40 minutes. Each session should be recorded. The mother will be at liberty to stop a session if the children are becoming distressed. The recording will reveal, if the mother does stop a session, whether she had justification to do so. This regime is to continue until the contact centres reopen when direct supervised contact will take place fortnightly with each session lasting at least one hour. This will be in addition to the Zoom contact ordered. After four months of direct supervised contact, when at least eight sessions will have taken place, the matter is to be reviewed in the Family Court at Bromley to see how father's relationship with his children can be taken further forward and an updating report from Cafcass officer will be needed.

Mostyn states the mother can take the younger two children to Sierra Leone for holidays to visit B and so passports will be released to her for the purposes of those trips but will need to be returned to the current place of safety upon her return. Mostyn states that these holidays are only to commence once the mother registered this judgment in Sierra Leone to neutralise the risk of any retention by the mother of the two younger children in Sierra Leone as the Cafcass officer recorded that the mother had stated that she planned to relocate to Sierra Leone in April 2020 with the two younger children. Although in these proceedings the mother denied this was her true intention.

Procedural points for return orders

Mostyn J refers to Re N (A child) [2020] EWFC 35 in which he states he explained that following the Supreme Court decision of Re NY (A Child) [2019] UKSC 49, [2019] 3 WLR 962, an application for a return order, whether outward or inward, should, except in exceptional circumstances, should be in the form of an application for a specific issue order in the Family Court.

He states he disagreed with the view of the District Judge in this case to make an interim order recording the mother’s agreement to return B to the UK as soon as possible, to grant a Prohibited Steps Order prohibiting the mother from removing the younger 2 children from the UK without permission of the father or the court and to list a Final Hearing. He states the grant of a specific issue and prohibited steps orders is part of the routine diet of the Family Court and that “it would not have been much of a further step for the court to have gone on to have made an order requiring the mother to return B to the jurisdiction in circumstances where she was agreeing, at that time, to do so”.

Mostyn J summarises that where an inward or outward return order is sought, other than pursuant to the Hague Convention 1980, the application should seek a specific issue and/or a prohibited steps order and be issued in the Family Court. If it is considered that special expertise is required, a request for allocation within the Family Court to High Court judge level can be sought. If a tipstaff order is needed, then such an application must be made in the High Court, but it should be strictly confined to that specific relief and therefore transferred back to the Family court.

B’s separate representation

In his judgement Mostyn J also explores the question of whether B should have been given separate representation in these proceedings. Cafcass did not propose B should be separately represented and stated B’s wishes, and feelings were recorded in the Cafcass report and re-enforced in his conversation with his father. Mostyn J states that FPR PD 16A para 7.2(e) cites the situation where an older child is opposing a proposed course of action as one circumstance justifying the making of an award of party status to the child. He states Lord Wilson referred to this paragraph in Re LC (Children) [2014] UKSC 1, [2014] 1 AC 1038 when cautioning against the routine grant of party status to older children objecting to an outward return order under the Hague Convention. However, Mostyn J states that where an older child is settled in another place, and strongly and consistently objects to a proposed inward return order under the inherent powers of the High Court, then that situation is markedly different and B should have been awarded party status.

Penal notices

In his judgement, Mostyn J explores the use of penal notices on four of the case management orders by the court. He accepts in this case, each of these orders correctly has a penal notice prominently endorsed on the front page. He states the order cannot be enforced by committal unless the penal notice is displayed according to FPR rule 37.9(1). He refers to Re Dad [2015] EWHC 2655 (Fam) where Holman J stated this rule exists so that it is prominently clear the moment a lengthy order is served on a respondent, “what the gravity of the situation is and that he is at risk not merely being arrested at the time, but of being committed to prison as a punishment for contempt of court." Mostyn states that despite this simple scheme, in this case, numerous paragraphs of each case management order on subsequent pages have endorsed next to them: "Penal notice attached". He states orders should explain in clear English what the obligation of the person being served with the order is and these additional words attached to certain paragraphs of the order only serve to confuse so “it is time for this practice now to receive its quietus”.

Concluding remarks

This is certainly an interesting case whereby a time limited order for a child’s relocation is granted retrospectively despite it being accepted that the Respondent wrongfully removed and retained a child outside his state of habitual residence. It raises the question of whether this case could open a back door for parents seeking to relocate where the left behind parent does not consent. It remains to be seen whether the court would have reached the same decision had the child not objected to returning. 

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  • Sierra Leone
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