C (Children)

The Supreme Court has given a decision in the case of C (Children).  It is a decision concerned with habitual residence and wrongful retention under the Hague Convention.  There is an article about the decision in the Law Society Gazette and the full judgment can be read here.  I reproduce below the press summary issued by the Court:

PRESS SUMMARY
In the matter of C (Children) [2018] UKSC 8
On appeal from [2017] EWCA Civ 980
JUSTICES: Lady Hale (President), Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
BACKGROUND TO THE APPEAL
This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight-week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eightweek visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England.  In September 2015, the mother enrolled the older child at a local pre-school. Without telling the father, on 2
November 2015, she applied for British citizenship for both children who had entered England on six-month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse.
In continuing correspondence, the father pressed the mother on the children’s expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK.
The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Abduction Convention”). The issue of when the mother had decided not to return to Australia was in contention. The mother’s own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mother’s evidence that she did not have the intention, in November
2015, or before April 2016, not to return to Australia.
The mother now appeals against the Court of Appeal’s decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from
their home state by agreement with the left-behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so-called “repudiatory retention”)? The father cross-appeals on the issue of habitual residence.
JUDGMENT
The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts.
REASONS FOR THE JUDGMENT
Issue 1
When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation
of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19]
The Abduction Convention is designed to provide a summary remedy which negates the pre-emptive force of wrongful removal or retention and to defeat forum-shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the child’s habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to
somewhere else, without a merits-based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Coperation in respect of Parental Responsibility and Measures for the Protection
of Children. [23]
The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the child’s habitual residence, and there is no room
for a mandatory summary decision. [34]
Issue 2
Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the child’s interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary.

The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement,
this lessens the danger of speculative applications. [46-48]
Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need
not be communicated to the left-behind parent nor does an exact date need to be identifiable. [50-51]
On the present facts there could not have been a wrongful retention in April 2016 as the mother’s internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe
the mother’s evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judge’s decision as to habitual residence. [57]
Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judge’s finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judge’s conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72]
Lord Wilson also dissents on the outcome of this case on its facts. The solicitor’s letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judge’s finding as to the mother’s intention in November
2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91-92]
References in square brackets are to paragraphs in the judgment
NOTE: This summary is provided to assist in understanding the Court’s decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document.
Judgments are public documents and are available at: http://supremecourt.uk/decided-cases/index.html

 

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New international family law convention proposed

New international family law convention proposed

Hague Convention
If created, the new international treaty would join the three existing Hague Conventions on family law matters – the 1980 Convention on the Civil Aspects of International Child Abduction; the 1996 Convention on Parental Responsibility and Protection of Children; and the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.

Hague Conventions derive their name from the Dutch city of Den Haag (The Hague), where the first was signed as long ago as 1899. Since 1951 38 Conventions on different aspects of “private international law” have been created.

An expert’s group had been drawn together to explore issues surrounding the enforcement in participating countries of legal orders and agreements concerning children made in other participating states. Following their investigations they proposed the creation of the brand new Convention to facilitate this process and add value to the three earlier family law Hague Conventions.

A situation in which a family order made in one country is generally recognised and enforced in other nations was in the best interests of children they declared.

The three existing family law Conventions do not address longer term family arrangements – for example, child maintenance or contact, or other financial issues, including property. If created, the new Convention would provide an efficient and simple method for cross-border enforcement of such matters.

Stowe Family Law Web Team

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Source:  “New international family law convention proposed”, Stowe Family Law Blog, 16 July 2017

The Neustadt v. Neustadt case

The 1996 Hague Convention

The case of Neustadt v. Newstadt, judgment in which was handed down on 19 December 2014, concerned the 1996 Hague Convention; the earlier stages of the case generated a lot of publicity in the UK – you can read Daily Mail articles here (11 March 2014) and here (23 August 2014) and a BBC News article (20 November 2013) here.  The full title of the 1996 Hague Convention (the most commonly referred to one in the context of child abduction is the one drawn up in 1980) is the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.  The full text of it can be read here and a permanent link to it will be placed on the Materials page of this site.  It is a wide Convention and covers matters such as parental responsibility orders, contact, child protection, the taking of children into care and more miscellaneous subjects such as legal representation and protection of property; it is not specifically concerned with child abduction.  It was signed by Russia on 1 June 2013.  The first use of the Convention in the Russian context is believed to have been in the Neustadt case.

In cases between member states of the European Union, the 1996 Convention is of less significance because the Brussels II Revised Regulations, about which I have written recently, are designed to encompass all of the provisions within the 1996 Hague Convention, and more.

Russia is a not a signatory to the 1980 Hague Convention so bringing proceedings through that mechanism to secure the return of the children in this case was a non starter. The return was brought about by the England and Wales High Court (in earlier proceedings) ordering the return of the children and the Moscow City Court, by operation of the 1996 Hague Convention, recognising and enforcing that overseas order in a decision in September 2013, upheld on appeal in November 2013.  Without that recognition, the children would not have returned as the England and Wales High Court had no means to enforce its orders abroad.

Factual background

The factual background needs only be set out briefly. The Russian/German father abducted to Russia his two boys on Christmas Day 2012.  They were returned to the care of their UK-based American mother on 24 June 2014; the delay in this happening after the father exhausted the legal avenues in Russia was because he hid the children (described by the High Court as ‘an abduction within an abduction’) after the first court ruled against him and shortly before the second court also did so.

The children having been returned to the UK, the father sought contact with them. Before deciding on whether and, if so, where and how often such contact should take place, the High Court conducted a fact-finding hearing.  This was in part concerned with whether the father’s expressions of regret were genuine.  You can read more about the circumstances leading up to the abduction and the process by which the two boys were eventually returned in the judgment. All abductions of a child are unconscionable in nature but the Court recognised that the abducting father’s conduct in this case was particularly shocking: see the judgment at paragraphs 21, 24, 46, 52, 58, 72, 82-84, 90-91 and 93-96 in particular.

What the court said

The High Court summarised the evidence presented to it as follows:

110.  During his evidence, the father expressed regret for his actions, attributing them in part to incorrect advice from his Russian lawyers. He said that he had learned a very serious lesson and he offered an apology to the court and, for the first time, to the mother.

111.  I asked the mother for her reaction to the father’s actions and to his expression of apology. In a single uninterrupted answer, given without bitterness, she replied:

“I believe the abduction of the children was masterminded by Mr Neustadt in order to demonstrate power and ego, and to torment, punish and hurt me. It was about control and his perception of winning, and not about anything else, including about the children.

If we backtrack two years ago, we were at a pretty good place: divorcing, working through things, organising finances, sharing time with the children. I was interested in promoting a most fulfilling childhood for them. Mr Neustadt did not share these motives. Instead of a lovely family vacation, the children and I have had a horrible, traumatising experience and the children will be affected for the rest of their lives. Mr Neustadt tends to blame others rather than to take responsibility. He may be remorseful for the negative ramifications of his actions, not for the actions themselves. I believe he is not capable of putting the children’s interests above his own. I believe he is perhaps unstable. This has been a very unfortunate experience for everyone involved.”

The Court wholeheartedly rejected the father’s expressions of regret and the various excuses advanced for his conduct:

114.  These three children have been habitually resident in England and Wales since January 2011. After their parents’ separation, the arrangements for them to live with their mother and spend time with their father were carefully negotiated by the parents and approved by the court.

115.  The father’s removal of the children was an abduction, not a retention. I reject his evidence that he only decided to keep them after they arrived in Russia. When he took the children from London, he had no intention of returning them. He had planned it for months, lulling the mother into a false sense of security so that she would agree to the holiday he proposed.

116.  The father’s characterisation of Daniel Jakob and Jonathan as Russian children is a self-indulgent delusion. Of course they have a Russian parent, albeit he himself has lived most of his adult life elsewhere. But until December 2012, when they were aged 6½ and 4½, the boys had always lived in Switzerland and England. They had never even visited Russia. Their Russian heritage is important, but it has been played upon by the father because it is the one thing that he can offer that the mother cannot.

117.  Having successfully got hold of the children, the father set about strengthening his position by engaging in a series of cynical manoeuvres, delaying tactics and deceptions that he knew the mother would be powerless to oppose. He was only willing to accommodate her in the children’s lives if she came to live in Russia, where she would be under his control. When she would not agree, her access to the children was strictly limited, and then stopped altogether. In doing this, the father counted on his legal position in Russia being secure. I find that he intended to keep the children indefinitely, and was only frustrated by the determined actions of the Russian authorities.

118.  The father claims that his actions were influenced by Russian legal advice. I do not accept that he ever genuinely considered his position to be legitimate. He is a man who relies on advice that suits him and ignores advice that does not. He flouted every order of this court and when faced with orders of the Russian courts, he went underground. His excuse for this (danger from unidentified persons) is a bogus invention, but the children were not to know that. They were brainwashed into believing that they were being pursued by dangerous bandits, including their mother. The seriousness of this is not only measured by the length of the separation created by the father, but also by his willingness to root the mother out of the children’s lives. This was not just child abduction, it was child abuse.

119.  One of the father’s strategies has been to politicise the children’s situation for his own ends. He took to the Russian media in an attempt to whip up domestic political sentiment by means of deliberate lies, and he delayed the children’s return by obtaining a travel ban. He pursued his goal of keeping control of the children in every legal and illegal way he could devise.

120.  The children and their mother have been profoundly affected by these events. For a year and a half, their lives were turned upside down. The boys were separated from their mother and brother. They were forced to live a bizarre clandestine life, surrounded by lies and cut off from normal existence. It will take a long time for them to come to terms with these experiences.

121.  At this hearing, the father had the opportunity to show regret and insight. Unfortunately, by his written and oral evidence, his questioning of the mother, his submissions, and his decision not to attend the hearing in person, he showed that he has little appreciation of the impact of his actions on anyone else, including the children. The only person he seemed to be really sorry for was his mother. Throughout his evidence he was pedantic, unreliable and untruthful. When confronted methodically with the clearest evidence, his reaction was to misrepresent, prevaricate, minimise, extenuate and contest. There was no sign of any real remorse. So far, his apologies are no more than a means to an end, motivated by disadvantage and the failure of his grand plan. The mother’s perception of him, recorded above at paragraph 112, is in my view justified.

122.  Anyone meeting these parents without knowing the family history is liable to be misled – misled into underestimating past events by the mother’s extraordinary serenity and dignity, and misled into underestimating future risks by the father’s outward appearance of intelligence and courtesy. Given the sustained ruthlessness of his conduct, the risk of further alienation or abduction is high.

123.  The collusion by the father’s family increases those risks. The children’s uncle could have used his influence for good, but instead has chosen to support the father throughout. The grandmother’s conduct can only be described as unworthy of a grandparent.

It concluded with the words (emphasis added by me):

124.  The next stage of these proceedings concerns the children’s future welfare. However harmful their father’s behaviour has been, he is an important figure for them. Unfortunately, he set about teaching them that they do not need two parents. It will take them time to unlearn that lesson.

The actual decision about those matters will be made at a subsequent hearing, unless the parties can reach an agreement in the meantime. It is normal for the High Court to firstly make findings about facts that are in dispute in a case and then decide what needs to be decided (based on those findings) at a later date, if it is still necessary to do so.

Why the case is significant

The case is of interest for three reasons.

First, it involved the return to two abducted children from a country that was not a signatory to the 1980 Hague Convention. For those familiar with the situation in Japan, that is startling.  It is important to note that this would not have happened but for the willingness of the domestic court in Russia to recognise, through the 1996 Convention, the England and Wales High Court’s order that the children should be returned.  The case shows that attitudes on the part of local (country of abduction) judiciary are critical in abduction cases, whether covered by the 1980 Hague Convention or not.

Secondly, and as noted at the start, this was the first case involving Russia and the use of the 1996 Hague Convention as the legal basis for returning abducted children.

Thirdly, the case was fully reported i.e. the parents and children were named in the judgment. In most family cases, including cases involving abduction, parties and children are not named so as to protect the identity of the children; nor indeed is any information (e.g. dates of birth, names of schools etc.) that could give rise to the identification of the parties/children involved in the case placed in the public domain. As to the question of full publication, the Court stated as follows in a postscript (emphasis added by me):

127.  [T]here is a public interest in the true circumstances of this case being known, for these reasons:

(i) The parties’ accounts of events have already been widely published in England and in Russia. The true facts should be known, particularly where misinformation has been published by one party.

(ii) This is apparently the first case under the 1996 Hague Convention. It shows the importance of the Convention, the willingness and ability of the courts of the Russian Federation to apply it, and the results that can be achieved when lawyers work together across jurisdictions.

(iii) Knowledge of the outcome in this case may encourage the adult victims of other child abductions and deter potential child abductors, especially if the latter know that they might be publicly named.

Further Information:

Bring Back My Boys – website set up by/on behalf of the boys’ mother (although it has not been updated for some months)