(Family Division; Bodey J; 30 September 2008)
The unmarried British father had been living with the French mother and the child in England for a number of years, in a home the couple owned together. When the child was 6, the father returned from a business trip to find that the mother had left the family home; he discovered that the mother had booked tickets to fly to France. He consulted solicitors, who, on the father's advice, contacted the taxi driver used by the mother to advise him that the father was going to seek a court order to prevent the child from being removed from the country. The taxi driver duly informed the mother who, instead of flying as planned, drove down to the coast and caught a ferry to France. Before the mother left England, the father obtained both a parental responsibility order and an order prohibiting the mother from leaving the jurisdiction, without notice. However, these orders were not served on the mother until some days after she had reached France. When the mother failed to attend the return day hearing, the English court also granted the father a residence order and an order requiring the mother to return the child to the family home. The father applied for the child's summary return under the Hague Convention; the French court, which had available to it an opinion from English counsel on the question of rights of custody, dismissed the father's Hague proceedings on the basis that, as the mother had not been served with the parental responsibility order until after she left England, the father had not had rights of custody when the mother left England. The father sought a declaration from the English court as to his rights of custody at the time the mother left England.
Although, generally speaking, service of the application was the point at which the court's jurisdiction was first invoked, in the case of interim notices made without notice, the court, at least, obtained rights of custody once there had been some judicial determination. It therefore did not matter that the actual order had not been served before the mother removed the child from the jurisdiction. The order took immediate effect, although the mother's lack of knowledge of the order meant that she was not in contempt of court for failure to comply with the order. A party forbidden without notice from leaving the jurisdiction could not be heard to say at the airport 'I am entitled to leave the jurisdiction because there has not yet been service of the order'; otherwise without notice orders would often be pointless. If an order could have effect without needing to be enforced against the individual who was the subject, then it had immediate practical and theoretical effect and validity. Rights of custody had therefore been vested in both the English court and the father at the time when the mother removed the child from the jurisdiction. The opinion before the French court, which had been both inaccurate and incomplete, had given deficient advice as to whether rights of custody might have vested in the English court. The declaration sought was not an impermissible attempt to bypass the French proceedings, and would assist the French court. The French court needed to know that service was not necessary under English law. The residence order in the father's favour, and the order requiring that the child be returned to the family home, would be discharged, as a practical measure to make the mother's summary return easier to arrange.