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A futile gesture? I hope not

I am prepared for the worst, but hope for the best.

– Benjamin Disraeli

When a child is beyond the ‘range’ of the Hague Convention on Child Abduction (i.e. in a country that is not a signatory to the Convention) any order made by a court in this country aimed at recovering them can seem a pretty hopeless, or even futile, gesture. However, it is still good to see our courts prepared to do whatever they can to reunite families.

The order made by Mr Justice Peter Jackson in Re H (Jurisdiction) may appear to some to be a futile gesture. Indeed, it may turn out to be so, but it is surely still good that he found a way through the jurisdictional maze to make it.

The case concerned a six-year-old child, ‘Z’, who is a British national but who is not known to have been present in this country at any stage during his life. Mr Justice Jackson describes the unusual circumstances of the case:

“The parents, who are first cousins, are both Afghan nationals. The father came to this country in 2000 and has since 2007 been a British citizen. In 2006, he and the mother were married in Afghanistan and in December 2009, their first child Z was born there. Z is a dual Afghan/British citizen. When he was four weeks old, he was placed by his parents in the care of their mutual uncle and at the same time they themselves came to England in disputed circumstances.”

The parents’ relationship broke down soon after they came to this country, and they separated. Mr Justice Jackson describes what happened next:

“In February 2011, the mother began wardship proceedings in relation to Z, seeking to have him brought to England. The father’s response was that the child had disappeared from the uncle’s home in January 2011 and that his whereabouts was unknown. An order was made requiring the father to bring the child to England, but that order was overturned by the Court of Appeal in August 2011 on the basis that the English court lacked jurisdiction because Z was not habitually resident here.”

The matter did not, however, rest there. In September 2013 the Supreme Court ruled that the English courts can intervene in a dispute over the residence of a British child who has never been to this country, albeit only in appropriate circumstances. Mr Justice Jackson takes up the story again:

“Following that decision, the mother renewed her efforts to invoke the assistance of this court, though it was not until December 2014 that she obtained legal aid to do so. A location order was made and in consequence the father’s passport was seized. In October 2015, the matter came before Newton J for a fact-finding hearing and in November 2015 he delivered a judgment in which he found that the father had travelled to Afghanistan and removed Z from the care of the uncle in January 2011. He found that the father knows precisely where Z is to this day.”

Despite those findings, the father denied knowing anything about Z’s whereabouts since January 2011, and therefore the matter has not got any further forward.

Against that background, the mother invited the Court to make an order requiring the father to give information about the child’s whereabouts now and since 2011, and about his general circumstances. This was the application that came before Mr Justice Jackson.

Mr Justice Jackson had to decide whether it was appropriate for the court to make the order sought by the mother. He concluded that it was, as the order was necessary for Z’s welfare and protection. He said that the fact that there was no evidence of serious harm gave no reassurance, as it was no more than the result of there being no evidence at all. The mother was in no position to seek remedies in Afghanistan without knowing Z’s whereabouts, and in any event, he said:

“The solution to this deeply troubling situation lies in this country because it is here that the father resides. It is only by this court exercising its powers that a remedy is likely to be available.”

Accordingly, he made an order requiring the father to give full information about Z’s whereabouts, within 14 days.

This order may turn out to be futile – the father, despite the possibility of enforcement action, may not disclose Z’s whereabouts, or may truly not know where he is. Even if he does disclose Z’s whereabouts, the mother still obviously faces an uphill task in recovering him. However, making the order is surely a step worth taking – let us hope that it is instrumental in ultimately reuniting mother and child.

The full report of Re H can be read here.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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