(Family Court, Mostyn J, 1 May 2020)
The Greek couple married in 2008, N was born in 2009 and they separated in 2017. Within uncompleted divorce proceedings it was agreed that N would live with his mother. The father came to London in 2017 and the mother and N followed in 2018. The couple lived under the same roof but without resuming an emotional relationship. N became fully integrated into London life, attending school and becoming socially assimilated. On 20 March 2020 the mother unilaterally removed N to her mother’s house on the Greek island of Paros, in the belief that N would be much safer from Covid-19 there. The father promptly made an application to the Greek court for N’s return to England under the Hague Convention on the Civil Aspects of International Child Abduction 1980. On 9 April 2020 during the Easter vacation the father made an urgent application, without notice to the mother, to the High Court vacation judge seeking a range of orders under s 8 of the Children Act 1989, including an immediate inward return order. The application and accompanying documents comprised 82 pages. Mostyn J directed that the application be heard on notice within the Family Court at High Court judge level on the first available date in the next legal term. A one hour directions hearing was fixed for 28 April 2020, to be conducted by Zoom. The mother attended in person from Paros, assisted by a Greek interpreter in London who also attended. Notwithstanding that the hearing was explicitly for directions, the father sought a range of substantive orders, including a declaration as to N’s habitual residence and orders for N’s return and that he should live with his father until the conclusion of proceedings. On the morning of the hearing the father produced a statement from his Greek lawyer indicating inter alia that a declaration by the English court that N was habitually resident here on the date of his removal would be helpful in the Greek proceedings and that an application for a temporary protection order was to be made there preventing the mother’s movement except to England. Such application was duly made and a hearing fixed in Greece for 28 May 2020.
At the hearing on 28 April, the mother had not instructed lawyers nor prepared a formal response to the father’ s substantial witness statement. On 24 April she had sent an email to the father’s solicitors in which she set out her position, stating that she did not intend to stay in Greece permanently, that she did not wish to return to England immediately because being in Greece gave N a much better chance in the pandemic and that in any event current travel restrictions made a return impossible.
Held – declaring that N was habitually resident in England and Wales and adjourning the remainder of the father’s application until the conclusion of the Hague Proceedings in Greece –
- It was clear that N was habitually resident in England and Wales on the date of his removal and it was appropriate to make the declaration.
- The court has power to make an outward or inward summary return order either pursuant to the Children Act 1989 or under its inherent jurisdiction. The two kinds of order are subject to the same substantive and procedural law. The principle set out by Lord Wilson in Re NY (A Child) (1980 Hague Abduction Convention)(Inherent Jurisdiction)  2 FLR 1266 in the context of an outward return order are equally applicable to an inward return order. Notwithstanding that the application is for a summary order, the court must conduct a proper welfare enquiry pursuant to s 1 of the Children Act 1989. The ability of the court in the other country to reach a swift resolution must be considered. In Re S (Abduction: Hague Convention or BIIa)  2 FLR 1405 Moylan LJ at  –  made an important statement about the practical advantages the Hague Convention procedure in relation to inward return orders where the child has been taken to another EU Member State. Accordingly, there is a burden on an applicant for an inward return order to justify why the better course of deferring the application until the conclusion of the Hague proceedings in the other country should not apply. In addition to the practical reasons identified in Re S, there are powerful reasons of principle why the left-behind parent should be expected to make an election as to which form of relief and in which forum he or she wishes to litigate. It cannot be right for such a parent to be free to litigate in multiple forums seeking different forms of specific relief: the parent must choose. An unfettered freedom to litigate gives rise to the risk of tensions between, and inconsistent judgments from, the two jurisdictions. Under the 1980 Hague Convention the best interests of the child are not the court's paramount consideration, although highly relevant. If the removal or retention has been wrongful there will be an order for return unless the guilty parent can establish one of the specified defences. In contrast, an application for a summary return order will be judged from first to last by reference to the paramount consideration of the best interests of the child - a markedly different forensic process. If the High Court’s inherent powers are invoked, Re NY indicates that there is a need to establish exceptionality and is hard to conceive of circumstances where this would be justified. Therefore, whether the application is for an inward or outward return order it will be framed as an application for a specific issue order pursuant to 8 of the Children Act 1989. Such applications are the subject of clear procedural requirements under the Family Procedure Rules, designed to ensure equal justice between the parties and to promote a reasonable and proportionate use of the court's resources. It would be unfortunate if there were one procedural scheme for domestic s 8 applications and a completely different scheme for international ones. Urgency may dictate that the timescales in the Child Arrangements Programme should be abridged for an application for a return order, but this should not be regarded as an invariable or automatic step. The father’s proposal that at a one-hour directions hearing the court should not only have ordered the summary return of N to this jurisdiction but also that he should live with his father was extraordinary.
- In light of the mother’s email the Greek court was very likely to conclude in the Hague proceedings that that the mother should in principle return N to England. However, it would however want to be satisfied, when fixing a date for return, that it was completely safe for mother and N to travel and that they would be safe on arrival here. Clearly, this court should adopt the better course mandated in Re S and defer its decision until the conclusion of the Greek proceedings under the Hague Convention, rather than itself pre-empting the Greek Courts decision. Even in this time of crisis, the Greek court was functioning relatively efficiently. There was no good reason to depart from the guidance given by the Court of Appeal in Re S.
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The court was obviously critical of the procedure adopted by the father in England – an urgent without notice application in vacation for a range of Children Act orders when Hague proceedings were already on foot in Greece, and a disregard of the FPR requirements. The judgment of Mostyn J adds to the reasons given in Re S why the Hague process is to be preferred for an inward return order. His Lordship identifies issues of principle and emphasises that the left-behind parent should be put to an election of forum. Moreover, the requirements of the Child Arrangements programme do not sit easily with the nature of inward return applications.
It may be observed that the judgment in Re S was in fact principally concerned with the comparative merits of the Hague Convention and Brussels IIa procedures, rather than Hague and domestic remedies. It is unclear why the father in the present case had no resort to Brusssels IIa.