CHAPTER TWO – CHILD ABDUCTIONS TO AND FROM ENGLAND AND WALES
Firstly, a distinction should be drawn between child abductions into and out of England and Wales, also referred to as incoming and outgoing cases respectively. This will be the difference between knowing when to issue an application in the English High Court or the foreign court where the child has been taken to. In the latter scenario, English lawyers would need to be prepared to advice and where necessary, assist the client with contacting the International Child Abduction and Contact Unit for England and Wales (‘ICACU’), who will in turn set in motion access to a suitable legal representative in the foreign Hague State that the child has been taken to. ICACU is the Central Authority for the operation of the 1980 Hague Convention. In essence, an outgoing case will concern the abduction of a child from England and Wales to another jurisdiction. Whereas incoming applications concern cases with a child being abducted to England and Wales, and most applications from the ‘left behind’ parent, if not all, will come via ICACU. Where the Hague Convention is concerned, in both instances, incoming cases are dealt with in the English courts, all cases are lodged in and will commence in London and will be heard at the High Court of the Family Division. The High Court has exclusive jurisdiction in such cases (Child Abduction and Custody Act 1985, section 4), with the concentration of jurisdiction being an obvious advantage. In a Hague outgoing case, the foreign court to which the child has been removed to or retained would hear the application for the summary return of the child to England and Wales.
An application under the court’s inherent jurisdiction in respect of non-Convention cases is made under Form C66, whereas a Hague Convention application is made under Form C67.
In addition to ICACU, the community of international child abduction specialists also involves the Office of the Head of International Family Justice.[1] The office liaises with members of the International Hague Network of Judges[2] and the European Judicial Network of Judges, addressing enquiries on international family law cases. The inaugural head The Rt. Hon. Sir Mathew Thorpe LJ is superseded by the current Head, Lord Justice Moylan, and Deputy Head, Mr Justice MacDonald.[3] The Office is crucial, not only in its role in assisting and training judges in this jurisdiction and abroad, but also in contributing to the development of family law, practice, and policy.
Further, from a public access perspective, Reunite is a charity specialised in offering advice, assistance, and mediation to the public on international parental child abduction. Reunite is also engaged in research and policy, and frequently intervenes in proceedings. The charity is part funded by the UK Ministry of Justice and UK Foreign and Commonwealth Office.[4]
2.1 Child Abduction to England and Wales
2.2 Child Abduction from England and Wales
2.3 When Should You Apply to the English High Court?
An application may be made to the High Court for the return of a child(ren) who has been abducted from a Hague Convention State where s/he was habitually resident prior to the removal to or retention in England and Wales. Practitioners are encouraged to familiarise themselves with relevant provisions under Practice Direction 12F – International Child Abduction as well as the Family Procedural Rules 2010.
An application may also be brought under the inherent jurisdiction of the High Court for the return of a child(ren) who has been abducted from England and Wales to a non-Convention State, or vice versa. On the former scenario, habitual residence is mostly the jurisdictional basis, and this is explored further in chapter 4.1. However, see also below other arguments that may be advanced. Practitioners are encouraged to familiarise themselves with relevant provisions under Practice Direction 12D – Inherent Jurisdiction (including Wardship Proceedings) and FPR 2010. Note however, that there are also other important criteria before an application can be successfully issued, and this is explored further in subsequent chapters.
Where an outgoing case ends up in the English court and, say, an application under section 8 of the Children Act 1989 is brought in tandem with or in advance of a 1980 Hague application in the foreign court, there must be good reason as to why the court should depart from the proper and effective mechanism available to Hague Convention countries (see (S (Abduction – Hague Convention or BIIa) [2018] EWCA Civ 1226 [47]). Absence good reason, such as a potentially persuasive argument for declaratory relief e.g., a declaration of habitual residence, as per (S (Abduction – Hague Convention or BIIa) the ‘better course for the court is to defer making a return order until an application under the 1980 Hague Convention has been determined in the other Member State.’ Though this related to Brussels IIa, the same argument persists in relation to a different course of remedy other than the 1980 Hague Convention if available, including the 1996 Hague Convention. To pursue applications notwithstanding the aforementioned runs the risk of criticisms, delays, expense, and in essence, a scatter gun approach that may well be ineffectual.
2.4 Other Jurisdictional Arguments
2.4.1 Forum Conveniens
Briefly on this topic, in a non-Convention case, an application under the inherent jurisdiction of the High Court may raise jurisdictional arguments. This may be on the basis that the English Court has jurisdiction but so does the other country, e.g., because it is the country first seised on account of extant proceedings or because it is asserted that habitual residence can be established in that country. In these circumstances, a question arises on the issue of the appropriate forum for the case to be heard. At this juncture, it is helpful for practitioners to refer to the guidance provided by MacDonald J in W v F (Forum Conveniens) [2019] EWHC 1995 (Fam) at para 30:
- Where the English court does have jurisdiction under Art 8 but there are proceedings also in a third-party non-member state the issue becomes one of forum conveniens.As I have already noted, the issue of forum conveniens is to be determined by reference to the principles set out in the case of Spiliada Maritime Corporation v Consulex [1997] AC 460. These cardinal principles can be stated as follows:
- i) It is upon the party seeking a stay of the English proceedings to establish that it is appropriate;
- ii) A stay will only be granted where the court is satisfied that there is some other forum available where the case may be more suitably tried for the interests of all parties and the ends of justice. Thus, the party seeking a stay must show not only that England is not the natural and appropriate forum but that there is another available forum that is clearly and distinctly more appropriate;
iii) The court must first consider what is the ‘natural forum’, namely that place with which the case has the most real and substantial connection. Connecting factors will include not only matters of convenience and expense but also factors such as the relevant law governing the proceedings and the places where the parties reside;
- iv) If the court concludes having regard to the foregoing matters that another forum is more suitable than England it should normally grant a stay unless the other party can show that there are circumstances by reason of which justice requires that a stay should nevertheless be refused. In determining this, the court will consider all the circumstances of the case, including those which go beyond those taken into account when considering connecting factors.
- In determining the appropriate forum in cases concerning children using the principles in Spiliada Maritime Corporation v Consulex, the child’s best interests would not appear to be paramount, but rather an important consideration (whilst in H v H (Minors)(Forum Conveniens)(Nos 1 and 2)[1993] 1 FLR 958 at 972 Waite J (as he then was) held that the child’s interests were paramount, subsequent decisions have treated those interests as an important consideration: Re S (Residence Order: Forum Conveniens) [1995] 1 FLR 314 at 325, Re V (Forum Conveniens) [2005] 1 FLR 718 and Re K [2015] EWCA Civ 352).
- The starting point when determining whether the party seeking the stay has established that England is not the appropriate forum for a case concerning a child is that the court with the pre-eminent claim to jurisdiction is the place where the child habitually resides (although habitual residence will not be a conclusive factor). In Re M (Jurisdiction: Forum Conveniens)[1995] 2 FLR 224 at 225G Waite LJ observed as follows:
“There is no limit, in legal theory, to the jurisdiction of the court in England to act in the interests of any child who happens to be within the jurisdiction for whatever purpose and for however short a time. In practice, however, if the child is not habitually resident in this country and there are legal procedures in the country of habitual residence available to achieve a fair hearing of competing parental claims regarding the child’s upbringing, the English court will decline jurisdiction, except for the purpose of making whatever orders are necessary to ensure a speedy and peaceful return of the child to the country of habitual residence. The practice thus is to follow the spirit of the Convention, even though its formal terms are inapplicable.”
2.4.2 Nationality
In relation to nationality, the Supreme Court case of Re B (A Child) [2016] UKSC 4 rejected the argument that the nationality-based jurisdiction falls for exercise only in cases ‘at the extreme end of the spectrum,’ the dicta, as per Lady Hale, and Lord Toulson, provides at para. 60 that ‘…the basis of the jurisdiction, as was pointed out by Pearson LJ in In re P (GE) (An Infant) [1965] Ch 568, at 587, is that ‘an infant of British nationality, whether he is in or outside this country, owes a duty of allegiance to the Sovereign and so is entitled to protection.’ The real question is whether the circumstances are such that this British child requires that protection. For our part we do not consider that the inherent jurisdiction is to be confined by a classification which limits its exercise to ‘cases which are at the extreme end of the spectrum’, per McFarlane LJ in In re N (Abduction: Appeal) [2012] EWCA Civ 1086; [2013] 1 FLR 457, para 29.’ With this in mind, evoking jurisdiction on the basis of nationality, especially where tensions exist in relation to the concept of comity, should implore the need for protection and be approached with circumspection.
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[1] https://www.judiciary.uk/about-the-judiciary/international/international-family-justice/. The office may be contacted by email at IFJOffice@Justice.gov.uk or by telephone: +44 (0) 2079477197, as of 20 June 2023.
[2] See https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction/ihnj.
[3] Also the International Hague Network Judges for England and Wales.
[4] Reunite International Child Abduction Centre, PO Box 7124, Leicester LE1 7XX United Kingdom. Telephone number: +44(0)116 255 6234, Email: adviceline@reunite.org, Internet: www.reunite.org.