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Family Law

The leading authority on all aspects of family law

02 JUN 2014

SC v BH [2014] EWHC 1584 (Fam)

SC v BH [2014] EWHC 1584 (Fam)

(Family Division, Eleanor King J, 3 March 2014)

Abduction – Habitual residence – Return order refused – Orders in US court granting father custody – Mother’s application for passport order

The full judgment is available below.

The mother’s application for a passport order for the father and child’s passports would be seized upon entry to the UK was granted in circumstances where the US court had granted residence to the father despite the English court having dismissed his application for a return order.

The, now 5-year-old, child was born in the USA to a British mother and American father. They lived briefly in the USA following the child’s birth before relocating to the UK. The child subsequently became the subject of an application by the father for a return order pursuant to the Hague Convention. The judge in those proceedings found that the child was habitually resident in the UK and the father’s application was refused.

During the proceedings a number of findings were made against the father as to his trustworthiness and whether he would uphold undertakings offered. Following the conclusion of the proceedings the mother applied without notice for a residence order and a prohibited steps order preventing the father from removing the child from her care, the jurisdiction, her home or school. The orders were granted and remained in force but the mother had had no contact with the father.

In the USA the father petitioned for a declaration that the child was habitually resident in Texas and requested that the court decline to recognise the UK order. The mother, acting on legal advice, did not engage with those proceedings but despite the findings of the English court, the Texan court made an order in the father’s favour granting him sole residence, stripping the mother of parental responsibility and permitting the father to obtain a passport for the child without the mother’s consent or knowledge. The court thereafter issued a warrant seeking physical custody of the child and for her to be returned to the USA. Throughout his life the child had so far lived with his mother.

The mother applied to the English court for a passport order whereby if the father entered this jurisdiction, his passport together with any passport in the child’s name would be seized. The father had been served in paper and electronic form. His application for an adjournment was refused but the provision of video-link was offered in order for the father to participate.

It was inimical to the child’s welfare for her to be removed from her mother’s care by her father, who was a total stranger to her and for her to be taken from all she knows to a foreign country. The father was urged to establish contact and build up a relationship with his child, working with the court. Until he did that or the child was of an age that she could not be effectively abducted, there remained a real risk that the father would abduct her. The passport order was granted.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law. __________________________________________________________________

No. FD13P02401
Neutral Citation Number: [2014] EWHC 1584 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice

Monday, 3rd March 2014

Before:

MRS. JUSTICE ELEANOR KING

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B E T W E E N :

SC
Applicant

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BH
Respondent

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Transcribed by BEVERLEY F. NUNNERY & CO. Official Court Reporters and Audio Transcribers One Quality Court, Chancery Lane, London WC2A 1HR Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com

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MISS S. RIDLEY appeared on behalf of the Applicant
The respondent did not appear and was not represented.

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J U D G M E N T

MRS. JUSTICE ELEANOR KING:

[1] The applicant and the respondent in this matter are the parents of ACH, who was born on 13th November 2008 and therefore is five years of age. The application before the court today, dated 19th December 2013, is made by the applicant mother for a passport order whereby, in the event that the respondent father enters this jurisdiction from the United States, his passport, together with any passport in ACH's name, will be seized.

Background

[2] The father was born on 21st October 1960, and lives in the United States. The mother was born on 16th October 1970, and lives with ACH at an undisclosed address in this country. The father is American, the mother is British. Following ACH's birth, the family initially lived in Texas in the United States until 24th June 2009 when they relocated to the United Kingdom. ACH subsequently became the subject of an application by the father for her return to the United States pursuant to the Hague Convention. The final hearing of that application was heard by His Honour Judge Jenkins in September 2010, resulting in a handed down judgment on 3rd December 2010, whereby Judge Jenkins declared that ACH was habitually resident in the United Kingdom, with the consequence that the father's application for summary return was refused the court having no jurisdiction. After the judgment was given, the father sought permission to appeal, which application was refused by Thorpe LJ.

[3] During the course of his judgment in the Hague Convention case, His Honour Judge Jenkins made a number of damning findings in relation to the father's credibility and approach to the case. These included evidence that the father produced:

"... showed the father's lack of self-awareness. It demonstrates his insensitivity to the feelings of others, including the mother. He was shown not to be credible on matters that went to the heart of the evidence and also on matters that were not central but could have been helpful in establishing his personal credit."

A further finding was that the evidence given by the father that:

"... the parties had gone to England for an extended holiday, appeared not to be founded in reality."

And again:

"The father was driven to accept that he was accustomed to making grandiose statements. The job applications that have been exhibited contain many misleading statements or downright lies. The persistence of the father's positive claims for himself and his position in life is a hallmark of someone who is a fantasist and self-deceiver."

His Honour Judge Jenkins also examined the basis that the father said founded the mother's retention of the child in this country as follows:

"The father puts his case on the basis of a conspiracy between the mother and various relatives... The evidence that there was a conspiracy is almost non-existent. Its existence is so improbable that I feel I need to make no other observation other than that I do not accept that there was one. The alleged conspiracy, it should be said, was that the mother quite deliberately went to the United States and became pregnant by an American citizen with the sole purpose of thereafter abducting the resulting child."

Finally, His Honour Judge Jenkins made the following observations in relation to the father's general trustworthiness in relation to litigation:

"My mistrust of the father extends to his conduct of the litigation. I do not trust him in relation to undertakings that he gave so belatedly about the mother and ACH in order for the hearing to go ahead... I therefore have a concern about his attitude in the Texas proceedings were the mother and child to be ordered to go to America, and the value of any undertaking given by him in relation to criminal proceedings."

[4] Following the conclusion of the Hague proceedings, the mother applied, on 23 December 2010, without notice, for a residence order and a prohibited steps order, preventing the father from removing ACH from the mother's care, the jurisdiction, her home or her school. These orders were made and therefore continued on the return date on 27th January 2011. They have remained in force to date.

[5] Since the conclusion of the United Kingdom proceedings, the mother has heard nothing from the father. He has made no approach to her or made any application for contact. Instead, notwithstanding the United Kingdom judgment and the Court of Appeal’s refusal of permission to appeal, the father, upon his return to the United States, filed what is known as a:

"Petition in Suit affecting the Parent-Child Relationship and request to declare Texas as the child's habitual residence under the Hague Convention and the child's home state under the Uniform Child Custody Jurisdiction and Enforcement Act and request to decline to recognise the United Kingdom's order."

[6] I am told that, upon advice from her US lawyers, the mother did not engage in these proceedings and, despite the finding of this court as to ACH's habitual residence and of the availability to that court of the judgment of HHJ Jenkins, the Texan court nevertheless made an order in the father's favour in the mother's absence. The first of these orders was dated 19th August 2013 and states as follows:

"The Court further finds that BH shall be the only named Conservator of the child, ACH SH, as the Court finds that it is not in the child's best interests to name SC as a Conservator as such would endanger the physical and emotional welfare of the child. It is ordered that BH is appointed Sole Managing Conservator of the following child, ACH SC. It is ordered that BH as Parent Sole Managing Conservator, shall have the following exclusive rights and duties: (1) the right to designate the primary residence of the child without regard to geographical restriction... The right to apply for and obtain a passport for the child without the consent of or notice to SC."

The provision in relation to the passport went on as follows:

"If BH, as Sole Managing Conservator of the child applies for a passport for the child, it is ordered that BH has the exclusive right to apply for and obtain a passport for the child without the prior consent of SC and is not otherwise required or ordered herein to notify SC of his further application for or receipt of any passport for the child. It is further ordered that BH shall have the exclusive right to maintain and hold any passport for the child."

[7] On 5 September 2013, the mother unsurprisingly having failed, pursuant to the Texan order of 19th August 2013 to return ACH to the jurisdiction of the United States, the US Court made a further ex parte order. The order states as follows:

"The Court finds that it has previously made an order on 19 August 2013 finding that it is not in the best interests of the child to name the Respondent as a Conservator, and the Respondent's conservatorship would endanger the physical and emotional welfare of the child. Further, the Court finds that the Respondent has a history of abusing legal narcotics and further has left the child's habitual residence and home state, absconding and abducting the child using fraudulent inducement with the intention of keeping the child from the Petitioner and has further failed and refused to return the child to the Petitioner as ordered by this Court's August 19 2013 orders. The Court finds that the Respondent has already abducted the child and herself faces risk of apprehension in the United States as well as the United Kingdom and that, as a result, there exists a clear risk that the Respondent will further secrete herself and the child making it nearly impossible to locate and return ACH SH in the future."

[8] The court thereafter went on to issue a warrant seeking physical custody of ACH and for her to be returned to the jurisdiction of the United States. The order purported to direct all law enforcement agencies:

"... Police Departments, Interpol, Federal and State agencies, Government agencies, Sheriffs, and any other authorised law enforcements in this State or in any other jurisdiction as necessary and specifically including any person authorised under the Uniform Child Custody Jurisdiction and Enforcement Act to immediately take the minor child into custody and return the minor child to the physical custody of the Petitioner, BH."

[9] The mother's situation therefore vis-à-vis the Texan courts is as follows:

(1) the father has sole residence of ACH;

(2) the mother would appear to be being stripped of her parental responsibility;

(3) ACH, who has never been separated from her mother since birth, is seemingly to be removed from her care forthwith and thereafter to have only supervised contact with her mother;

(4) the father can obtain a passport without the mother's consent and is not required to notify her having done so.

[10] At first blush it may seem surprising that the Texan courts should have assumed jurisdiction in circumstances where the father had failed in his application for the summary return of the child to the US in the Hague proceedings in the England. I bear in mind however that in a European case a non-return under the Hague Convention is not necessarily the end of the matter because of Article 11 which applies in Article 13 cases (so would not have applied in this case where the obstacle to return was the fact that ACH’s habitual residence was in England not Texas). The European position does however exemplify how Hague non-return orders are not always the end of the matter. This court has no information or evidence as to the Texan arrangements in relation to the exercise of jurisdiction in relation to a child post – Hague.

[11] Whatever may have been the jurisdictional basis which led the Texan courts to assuming jurisdiction in ACH’s case, the fact remains that ACH lives and is habitually resident in this country and the English courts have jurisdiction to deal with all and any issues in relation to her welfare. It is against this background and the findings of HHJ Jenkins that the mother has applied for the making of the passport order.

Service

[12] The father lives with his parents. It is to that address that documents have been successfully sent throughout the proceedings. Accordingly, on 24 December 2013, service of the application and accompanying documents was effected by post to that address. I am told that certain of the orders made by the Texan courts which the father already has in his possession were not included in the bundle on the basis that he already had them.

[13] On 6 January 2014, in what appears to be a really “belt and braces” action, service was effected on the father to his hotmail account - an email account which had hitherto enabled documents to be sent to him.

[14] On 20 January 2014, the matter came before Keehan J for directions. That order made normal case management provisions and also set the matter down for trial today, 3 March. The order that resulted from that directions hearing was again served by email on 23 January and also on 21 January (a couple of days previously) served by post. The father says that he received that order at the postal address on 3 February 2014, which, inter alia, notified him of today's hearing.

[15] On 29 and again on 30 January of this year, notwithstanding that service had been effected (it was felt and believed) by both post and email, attempts were also made personally to serve the father. The affidavit of service indicates that on the first occasion no one was in, and on the second occasion the paternal grandmother was spoken to but said that the father was out. Unfortunately, the papers were not returned, although the father does not suggest that he has not had service of the order.

[16] On 16 February the father sent an email, now with a new gmail address, asking for an adjournment of today's hearing. The matter was put in the Applications Court before Coleridge J on 17 February, which application was refused. On 28 February a further letter/application was received by fax and email to the court where, in a letter dated 25 February, the father once against asked for an adjournment for 60 days in order to obtain representation and to take part in the proceedings. It should be noted that Keehan J had provided for the father to attend by way of video link if he wished.

[17] I refuse the application for an adjournment:

(1) I am satisfied, as were Keehan J and Coleridge J, that postal service had been affected of the original application and that service had been affected of Keehan J's subsequent order. I know not whether the father continues to access his hotmail account, but he took no steps to inform anyone that that was no longer his valid email address.

(2) Whatever is the position so far as email is concerned, the father on his own account has known for a month about this application and he has known since 17 February that there was to be no adjournment of today's hearing. In my judgment, this gave him ample time to obtain representation in this country, particularly in an international case as such cases are routinely "turned round" with considerable expedition, and in relation to which experienced specialist counsel and solicitors routinely deal with matters in a matter of days, if not weeks.

The Application

[18] Miss Ridley, counsel on behalf of the mother, very properly brought my attention to the case of B v A (Wasted Costs Order) [2013] 2 FLR 958, a judgment by Charles J where there was consideration of ex parte applications in the context of Tipstaff orders. She referred me in particular to paras.6 and 7 as follows:

“6. Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that: i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival, ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

7. The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example [a case relating to passport orders] a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child)."

[19] Miss Ridley further, in the light of B v A, draws the court's attention to the fact that there has been no direct threat made by the father to abduct ACH. Further, she accepts that the making of the order that she proposes potentially restricts the freedom of movement of the father and that, as in all cases which do cause such a restriction, it must be proportionate and must not be open-ended. The risk, however, she submits is very real, and the consequences for ACH are so severe that the making of the proposed order is proportionate in all the circumstances, particularly with the safeguard that she suggests to the court, of a return date within 48 hours of seizure of travel documents upon the father's entry to this country.

[20] Miss Ridley prays in aid:

(i) the concerning findings of HHJ Jenkins as to the credibility of the father and the court's inability to rely on any undertakings he may give;

(ii) rather than seek involvement and orders through these courts, nearly three years later, the father has been to the Texas court and obtained orders which simply cannot be regarded on any view as child-centred, involving, as they do, on their face, the removal of this young child from her mother to a stranger;

(iii) the father has set out to put himself in a position where he can, if he abducts this child, with the benefit of the American passport he is able, legitimately to obtain for her, get her out of the UK and having done so he will thereafter have the protection of the Texan courts on his return to the United States. The Texan orders mean that the court cannot presume that a Hague Convention application would necessarily succeed where there has been no acceptance by the Texan courts that ACH is in fact habitually resident in this country.

[21] Having read the papers and in particular the judgment of HHJ Jenkins I am satisfied that it would be inimical to ACH's welfare for her to be removed from her mother's care by her father who is a total a stranger and for her to be taken from all she knows to a foreign country. Rather, the father should accept the reality that ACH's home is in the United Kingdom with her mother and, having accepted that, start working with these courts and with the mother to establish contact and to build up a relationship with his child. Until such time as he does that, or ACH is of such an age that she cannot be effectively abducted, I take the view that his actions to date inevitably lead the court to conclude there is a real risk that the father will use the vehicle that he has put in place, namely passport and Texan orders, to enter into this country and abduct ACH.

[22] In those circumstances, taking all the matters into account and with the wise words of caution of Charles J in B v A, at the forefront of my mind I make the passport order sought.

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