Earlier this month, Mr Justice Holman in the Royal Courts of Justice, heard a without notice application by a father for the summary return of his 3-year-old son who has been living with his mother in Angola for almost two years.
The father, who is a Spanish national, had a relationship with the child’s mother, a Portuguese-Angolan national, four years ago. The child ‘L’ was born in the UK in September 2012, and travelled with his mother to Portugal on 11 June 2014 when he was 21 months-old, before moving to Angola in January 2015. The child has not returned to the UK since, and so has been out of the UK for over half his life.
Although the father suspected that his son had been removed to Angola, he did not start court proceedings until 6 August 2015. This was over a year after the child left England, and more than eight months since the father suspected that the child was travelling to Angola with his mother.
On 19 August 2015, the father’s application was heard by Mrs Justice Roberts, requesting an order for the immediate return of the child to England. It was ordered that the father had permission to proceed with his application but that it needed to be supported by relevant evidence. The application was therefore stayed until such a time as evidence could be presented.
However, although the applicant father submitted a signed witness statement and supporting evidence on 21 August 2015, his solicitors did not ask for the stay to be lifted, and for the application to be listed, until 7 April 2016. Mr Justice Holman stated that: “however these difficulties may have arisen; the result is that there has simply been no speedy or urgent response at all in this case to the alleged wrongful removal of this child, now almost 2 years ago.”
Asking for the court to order the child’s return, the father’s legal team claimed that, at the time of the original application on 6 August 2015, the child was still technically habitually resident in England and Wales. Mr Justice Holman considered that this was “highly doubtful” as it had been “over a year since the mother and child had left England and Wales, and it may very well be that by then the child had already become habitually resident in Angola, and certainly ceased to be habitually resident here.”
Therefore, Mr Justice Holman had clear doubts as to the jurisdiction of the English courts, asserting that: “even assuming provisionally that it has jurisdiction, I could not possibly exercise a discretion to order the immediate return of this child to England and Wales now”, given the length of time the child has not been resident in the UK, and that it is suspected that the child is no longer located in a Hague Convention country. If the application had been brought while it was believed that the child was resident in Portugal, a member to the Hague Convention, there would have been a clear judicial resource available to the father. As Mr Justice Holman stated in his judgment “it is, frankly, deeply regrettable, if the father considered that his child had been in some way wrongfully removed from England, that he did not start up proceedings very promptly at a time when he understood the child to be in Portugal.”
Mr Justice Holman reviewed the case of A v B, Re S (Wardship: Summary Return: Non-Convention County) strategically in his judgment to determine the jurisdiction of the court. This case was factually dissimilar to the present case in that the child was resident in the UK at the time of the application and an order was made for the child’s summary return to the UAE. However, ‘if a child is actually in this country…the court is able to be in possession of good, up-to-date information as to the circumstances of the child,’ and therefore the court is able to reach a suitable decision in the circumstances based on the child’s welfare. By contrast, Mr Justice Holman stated that in the present case “I, frankly, know absolutely nothing whatsoever as to the whereabouts, or living, social or educational circumstances of the child,” as the father had no information as to the child’s current situation, or in fact the child’s living arrangements of the last several years.
Case themes
The key legal themes that Mr Justice Holman was applying in this case to decide whether a summary order was a suitable option were those isolated by Mrs Justice Pauffley in the above mentioned case:
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“The welfare of the children is paramount. If a decision is made to return the child it must be because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration."
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"The specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non Convention case."
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"The court has the power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits."
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"‘Kidnapping’ or abduction is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading in proper cases to the return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law."
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"There is no presumption that it is likely to accord with the child’s welfare needs to be returned."
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"One important variable is the degree of connection of the child with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion, culture and education thus far will all come into this. Another closely related factor will be the length of time he has spent in each country."
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"The extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case… In a world which values difference, one culture is not necessarily inevitably to be preferred to another."
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"If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned… bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight."
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"These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country even if that country is very different from our own…Our concept of child welfare is quite capable of taking religious and cultural factors into account in deciding how a child should be brought up.”
Conclusions
Given the lack of information the father and the court have as to the child’s present location and well-being, Mr Justice Holman agreed with the themes set out by Mrs Justice Pauffley “one only has to apply some of them to the facts and circumstances of this case to see how it is that I could not possibly make an order today for the summary return of this child from Angola to England.” The court would not be able to objectively analyse which country or lifestyle would be in the best interest of the child when the child has spent over half his life in Portugal and Angola, and the circumstances of his current life are still unknown.
Mrs Justice Pauffley clearly leans on the need for speedy resolution, and a ‘swift’ approach to proceedings with regards to wrongful removal of a child or international abduction. But Mr Justice Holman states, “one could scarcely use the word ‘swift’ in relation to this case, in which the child has already been abroad for almost two years,” spending almost the same amount of time abroad as he was resident in the UK. “So it seems to me that…the factors all strongly point away from, rather than towards, any order for summary return.”
It is a sad set of circumstances that means a father hasn’t seen his son in over two years, and has limited judicial routes to follow to be able to see his son. The judge stated that “he must have a great sense of desperation. I do not know anything about his means, but it may well be that it would be extremely difficult, if not impossible, for him to pursue proceedings in Angola. That has to be balanced by the consideration that it may be no less difficult for the mother to defend proceedings here.”
Mr Justice Holman concluded that “all I am prepared to do today, and this frankly is stretching the limits of my power and jurisdiction to the utmost, is require the mother, within six weeks of service of an order upon her by email, to serve upon the father’s solicitors, by email, a statement signed by herself which describes the current living, social and educational circumstances of the child.” The order is to be emailed to the mother in Angola, but there is no guarantee that she will comply with it, and equally no suitable judicial means to enforce it.
