A recently published child abduction case, decided by Mr Justice MacDonald in the High Court at the end of April, raises three points of interest.
The facts in R v R were as follows:
- The parents, who are both British nationals, were married in 2003.
- They have two daughters, now aged eight and five.
- The family emigrated to Canada in July 2014.
- On 11 September 2015 the mother removed the children from the jurisdiction of Canada and brought them to England.
- On 22 September the mother, apparently worried that the father would take the children back to Canada where she considered he could not look after them alone, issued an application in the English Family Court without notice to the father (known as ‘ex parte’) for a child arrangements order.
- On the same day the matter went before a district judge, who made prohibited steps orders preventing the father from removing the children from the care of their mother, from their schools or from the jurisdiction.
- On 9 October the father informed the English court that he had decided not to pursue a claim under the Hague Convention to have the children returned to Canada and that he had agreed to the children remaining in the UK, provided that his contact with them could be agreed.
- The prohibited steps orders were extended by the court on 12 October.
- On 30 November the father issued proceedings in the Supreme Court of British Columbia for divorce, financial relief and sole custody of the children in Canada.
- On 10 December the mother issued divorce proceedings in England.
- On 6 January 2016 the Supreme Court of British Columbia granted the father an order declaring him to be Guardian of both children.
- On 2 February the father issued an application under the 1980 Hague Convention, seeking the summary return of the children to Canada.
- The mother sought to defend the application on the basis that the father had acquiesced to the children remaining in this jurisdiction.
As I said at the beginning of this post, the case raises three points of interest. These are: whether the court should have proceeded with the mother’s application without notice to the father, whether the court had jurisdiction to make prohibited steps orders in respect of these children and, lastly, whether the father had, indeed, acquiesced to the children remaining in this jurisdiction. I shall deal with each of these in turn.
Without notice application: Obviously, a party should normally be given notice of any application made against them, and be given an opportunity to defend the application. Only in exceptional cases, therefore, should the court proceed without notice to the other party. It is clear that Mr Justice MacDonald was not satisfied that this was one of those cases:
“On 22 September 2015, beyond the mother’s say-so, there was no evidence at all that the father (who was resident in Canada and was not the parent who had wrongfully removed the children from the jurisdiction) was at that point on his way to England to take back the children. There was no evidence beyond the mother’s say-so that he presented a risk of harm to the children and there was no evidence beyond the mother’s say-so that the father could not look after them properly.”
Jurisdiction: As Mr Justice MacDonald pointed out, the English court only has substantive jurisdiction where the child is habitually resident in England and Wales. Where the children had moved to Canada 14 months previously and had only been back in this jurisdiction for 10 days, it was self-evident that there was reason to believe that there may be an issue as to jurisdiction in this case. The mother should have made this clear in her application, and the court should have taken up the point, and considered it as a preliminary matter. Mr Justice MacDonald was doubtful that the court had jurisdiction to make the orders it did on 22 September, and his judgment contains guidance for courts and practitioners on this issue.
Acquiescence: Mr Justice MacDonald explained the crux of the matter thus:
“Unless the mother is able … to prove as a matter of fact that the father acquiesced, the defence of acquiesce cannot succeed. The only exception to this is if the case is one that falls within the ‘exceptional’ category. The case will fall into this category only where, although the father has not in fact acquiesced, the words and actions of the father clearly and unequivocally show, and have led the mother to believe, that the father was not asserting, or going to assert, his right to summary return of the children and were inconsistent with such a return, such that justice requires that the father be held to have acquiesced to the children remaining in the jurisdiction of England and Wales.”
The mother argued that what the father told the court (see paragraph 7 above) put the case within the ‘exceptional’ category, and that his delay in issuing the Hague application indicated his acquiescence. Mr Justice MacDonald disagreed:
“I have concluded that the subjective intention of the father was not that the children should remain in the jurisdiction of England and Wales, and that the father did not, as a matter of fact, acquiesce to the children remaining in this jurisdiction following their wrongful removal by their mother from the jurisdiction of Canada. I have further concluded that the statements and actions on the part of the father subsequent to the children arriving in England were not capable of clearly and unequivocally showing and leading the mother to believe that the father was not asserting, or going to assert, his right to summary return of the children and were not inconsistent with such a return.”
The father’s agreement to the children remaining in this country was clearly contingent upon the issue of contact being agreed, and was not therefore unequivocal. The delay is explained by the efforts to agree that issue – only when it became clear that no agreement could be reached did the father issue his application.
Accordingly, the mother’s defence was not made out and therefore Mr Justice MacDonald ordered that the children be returned forthwith to Canada, in order that the Canadian courts can determine the outstanding issues between the parties as to the children’s welfare.
The full report of R v R can be read here.