I remember when I was a law student how it seemed that the law covered every eventuality. As we dealt with each topic we would be taught about the various scenarios that had been considered by Parliament when the law was framed, and then of all the judgments that dealt with any ‘gaps’ in the law that parliament had missed. It really seemed as though the law provided an answer for every possibility.
Once I began to practise, however, it soon became clear that there are far more possibilities in human actions and interactions than could ever be covered by any system of law. The law, therefore, must be capable of dealing with far more eventualities than anyone could imagine.
Take international child abduction, for example. On the face of it, the regime put in place by the Hague Convention on Child Abduction seems to deal with all the possible reasons why it may not be right to order the return of the child to its ‘home’ country (delay, rights of custody of other parent, consent of other parent, risk of harm to the child, etc.), and provides a clear remedy if none of those reasons are present: the child should be returned forthwith.
But just in the last week or so we have seen two examples of cases where the circumstances do not (necessarily) fall within the range of possibilities envisaged by the Convention. Last week I wrote here about the case X, Y and Z (Children) (Retrospective Leave to Remove from the Jurisdiction), in which the mother was ordered by the Spanish court to return the children, and yet the English court is now considering whether to proceed with an application by the mother for retrospective leave to remove the children, without insisting that the mother comply with the Spanish order. The reason for this is that the children have now been settled in Spain for nearly three and a half years – clearly, not a situation envisaged by the drafters of the Hague Convention.
The other example is the case is BK v NK (Suspension of Return Order), heard by Mr Justice MacDonald in the High Court in August. In this case, the father sought the return of his six year old son to Poland. The mother put forward two defences to the application: that the father did not have ‘rights of custody’ in respect of the child, and that there was a grave risk that the return of the child to Poland would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Despite finding neither of these defences made out, Mr Justice MacDonald did not order the immediate return of the child to Poland.
Now, the alert reader may find this difficult to understand. Surely, the Convention is clear: if the defences are not made out then the court must order the return of the child ‘forthwith’? Well, no. As Mr Justice MacDonald explains in his judgment, a body of case law has emerged that makes it clear that a court can suspend a return order, if an exceptional circumstance exists.
What, then, was the ‘exceptional circumstance’ here? Quite simple: the father is no longer residing in Poland. He was born in Armenia, and is an Armenian national. He claims to have lived in Poland since he was seven years of age, on a temporary residence card. Despite this, he was deported to Armenia in June this year, after his application under the Hague Convention was issued, and he is now living with family in Armenia. He has lodged an appeal against the deportation, but there is no clear indication as to whether he will be able to return.
In these circumstances Mr Justice MacDonald felt that a return order would expose the child to “significant disruption, uncertainty and anxiety in circumstances where there is no prospect at the present time of him re-establishing his relationship with his father in Poland”. He therefore suspended the return order for a period of ten weeks to allow the mother to make an application in the Polish court for interim permission to remove the child from the jurisdiction of Poland to the jurisdiction of England and Wales.
The full report of the case can be read here.