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Hayley Trim's Analysis:The race to litigate or leg it

Date:12 MAY 2011

Updated: 11:52, 13 May 2011

Hayley Trim, Family Law PSLOne of the recommendations of the (interim) Family Justice Review is that parents be given a leaflet when they register the birth of their child providing an introduction to the meaning and practical implications of parental responsibility. Good idea, but that will not help those fathers who are not involved in the registration process for whatever reason. Take for example Mr Chaffe.

I have to keep reminding myself when reading judgments - particularly appeals - that there are so many things we are not told, so many facts and nuances that simply do not come across to the reader. Nonetheless, I couldn't help feeling a sense of injustice on behalf of the father in the case of Mercredi v Chaffe [2011] EWCA Civ 272. I previously commented on the European Court's preliminary ruling in this case and the Court of Appeal has since given judgment on the substantive appeal.

The mother had removed the two month old baby to La Reunion - an island in the Indian Ocean and a French Department - without the father's knowledge. The parents had lived together until just after the child's birth and the father was having contact, but, despite his requests, he was not on the child's birth certificate and did not have parental responsibility. So when the mother took the child abroad, she did not need his consent and was acting lawfully (irrespective of the moral position); she was exercising her right to freedom of movement (JMcB v LE [2011] 1 FLR 518).

On learning of the mother's disappearance in October 2009, the father immediately applied to the out-of-hours judge by telephone and got a location order. He filed an application for parental responsibility and residence etc a couple of days later, and the English judge made a return order. The father also applied to the French court under the Hague Convention for the child's return. The mother applied to the French court for exclusive parental responsibility and a declaration that the child's habitual residence was in France.

In January 2010 the father applied in England for the child to be made a ward of court and for declarations as to unlawful retention, habitual residence etc; a further return order was made. His Hague application in France (La Reunion) was unsuccessful (he did not have rights of custody) and he did not appeal in time [although I now understand from counsel for the father that he had sought to appeal with the support of the English Central Authority, but the French Central Authority failed to action it in time]. In April 2010 McFarlane J gave judgment in the terms sought by the father, requiring the return of the child, making her a ward of court and granting the father parental responsibility. In May 2010 the French court made the orders the mother sought and rejected the English order. The mother appealed the English order and the Court of Appeal obtained a preliminary ruling from the Court of Justice as previously discussed.

On the substantive appeal, Thorpe LJ concluded that when the father made his initial application, the child had not lost her English habitual residence (and nor had she acquired a French habitual residence). He further agreed with McFarlane J that a lawful removal could become an unlawful retention if a return order made by the court of the child's habitual residence is not complied with.  So far so good. However, Thorpe LJ considered that the three separate High Court judges had erred in approaching the case as an abduction case - this had been a lawful removal and had the judge who made the first return order so contemplated, he would not have made a peremptory order, or at least the order would have been qualified by an express liberty to apply to vary or discharge without notice.

There were issues about service - the mother said she had not been served with the first return order, and if that was the case then she was not knowingly wrongfully retaining the child; but that was not the basis of the Court of Appeal's decision. She had in any event received the orders and filed evidence for the hearing in April 2010.

Thorpe LJ also took the view that the wardship application before McFarlane J in May was separate from the father's initial October application.  This second application had been made after the mother's application to the French court and by the time it was made, the child's habitual residence was balanced in favour of France.   I don't really understand his argument here (and neither apparently did Elias LJ who dissented on this point); I do not think that the issue of further connected applications while an initial application is live should impact on the court's jurisdiction. Both Court of Appeal judges however thought that the court should of its own initiative have transferred the proceedings to France under Art 15 as it was more appropriate to the child's welfare to be dealt with there.

Thorpe LJ said the English court should have respected the French Court's principled decision not to return the child. But the English court was seised with welfare related matters (the father's application for PR and residence), and perhaps there is an argument that the French court should have extended to the English court the same comity Thorpe LJ says the English court should have extended to the French... I note that the Court of Appeal left in place the father's PR order, although the French court had awarded the mother exclusive PR.

It seems the father did not seek to enforce his return order in France. Perhaps if there had been no question as to service and the father had pursued his original line, sought to enforce the return order and appealed the French non-return order on the basis of a wrongful retention, the outcome would have been different, but I do not think the Court of Appeal's judgment is particularly helpful in advising fathers in this position what they should do. [Indeed since writing this article I have been corrected by the father's counsel - the father was in the process of seeking to enforce the return orders but, since the mother had appealed, seeking to enforce was pointless due to Art 27 BIIR - the French court would almost certainly stay the enforcement application. Further, enforcement of the original ex parte return orders would have been doomed to failure since they were made in default of appearance (see Art 23). On this basis it is hard to see just what the father could have done differently]. 

The father had been seeking PR by agreement with the mother and wanted to be on the child's birth certificate; she had rebutted him. If he had succeeded, or indeed if he had applied to the court before the mother left, it would have been a very different story. The Hague Convention would have kicked in and in the absence of any defence, the child should have been summarily returned by the French court. Those few days made all the difference. The father had been proposing mediation. If he had just gone ahead and issued proceedings, he would have been in a much stronger position. I hesitate to write this as litigation for the sake of it is against all my instincts and I fully support mediation in appropriate cases, but where there is an international element and the potential for abduction, it must be better to issue first and then seek a mediated outcome. Just as for mothers the advice (moral judgment aside), would be "if you want to move abroad, be obstructive re requests for PR and registration on the birth certificate, and leg it - quick!" Does our system encourage women who are pregnant or have just given birth to move abroad while it is still lawful and before the father has a chance to do anything about it?

I don't consider myself to be a fathers' rights campaigner especially, but I believe in fairness and in a child having significant involvement with both of his parents provided it is in his interests. While it may be that a mother with sole parental responsibility should not be restricted as to where she lives, doing a runner without putting in place arrangements for the child to have a relationship with a committed father cannot be right. For now, the advice to unmarried dads must be, get on the birth certificate or get a PR agreement, and if that's not forthcoming straightaway and there's even a possibility of abduction, make an application quick. This is an area where good early independent legal advice is essential.

I am grateful to Counsel for the father David Williams for his insights and clarifications on matters which were not immediately clear from the judgment.

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

She works on the Family Law online major works providing updating notes on cases and other relevant developments as they happen for The Family Court Practice, Children Law and Practice and Matrimonial Property and Finance online.