Private Law
October 2021

01 November 2021
Hague Convention outward return case
ES v LS [2021] EWHC 2758 (Fam

Summary: An outward return case under the Hague 1980 Convention before Mostyn J. Mostyn J reached the conclusion that “many of these outward return cases under the Hague 1980 Convention have become disproportionately complex, lengthy and expensive. Invariably they bristle with abstruse legal points. They occupy an unreasonable amount of the resources of the High Court at the expense of other urgent cases of a serious and substantive nature, which are pushed to the back of an ever-lengthening queue.” Mostyn J gave reminders on how such proceedings should be conducted and went on to consider the meaning of the phrase “now settled” in Article 12.

Background: Both the mother and father are of Latvian nationality. At the time of the hearing, they had 2 children aged 14 ½ and 12. The mother brought the children to live in the UK in December 2019. The father commenced his application in March 2021 with a without notice application for a location and passport order. The mother raised the following defences i) Settlement under Article 12, ii) Children's Objections under Article 13, iii) Consent and Acquiescence under Article 13(a), iv) Grave risk of harm and intolerability under Article 13(b). Mostyn J ruled that he would consider the first and second defences and only then, if necessary, the third and fourth defences. He decided that the father knew of the mother's move and where she and the children were and by the time that proceedings were begun the children were settled. He refused to make the return order on the basis that the mother's first two defences were made out.

Article 12: Mostyn J considered the meaning of ‘settled’. He held that "in order to be settled somewhere, a person must not only physically reside in a new home as a permanent residence but must genuinely intend to establish that place as a new home. Thus there must be proof of both a physical constituent and a mental constituent. For a younger child the relevant mental state will be that of her primary carer; for an older child it will be the mental state of the child herself" [para 36]. Mostyn J rejected the need for there to be a finding that the subject children are living in a stable, contented, normative, conflict-free family environment. He referred to the fact that for 11 months the children and their mother lived in the UK quite unremarkably and that it was quite clear that the children were settled in the UK on 13 May 2021 and have remained settled here to the present day.

Mostyn J went on to consider the meaning of ‘now’. At para 69, he concluded that “having looked at the matter carefully, I am convinced that 'now' means 'as at the date of trial'. However, my decision is, like that of Bracewell J, academic as I am satisfied that the children were settled here when proceedings were commenced on 13 May 2021 and have continued to be settled here until the present day.”

The procedural issues: Mostyn J identified matters which he regarded as poor practice, which should not be repeated in other cases. He was concerned that such cases are taking up too much of the High Court's time. He specifically noted the following: -

  1. There were 2 bundles 484 and 153 pages contrary to PD27A r 5.1.[350pp in 1 file], and a bundle of authorities with 14 authorities (409 pages), contrary to PD27A r4.3A.1 (maximum of 10 authorities);
  2. The case had been listed for 2 days with the expectation of oral evidence from the Family Court Adviser and the parents. When Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings issued by Sir James Munby P [para 3.8] says that oral evidence will rarely be directed and only if it is necessary. The procedure was supposed to be a simple summary remedy in effect an interim order (similar to a freezing order) pending the substantive welfare decision in the country from which the children came, if return is ordered. Oral evidence would rarely be required to determine any of the defences in such circumstances.
  3. Although the father knew where the children lived, he made a without notice application for amongst other things location orders and orders to secure details of the address from Government departments. The application was unnecessary, and the evidence did not comply with the requirements of the Practice Guidance (above) paras 2.1-2.2 and the case law which founded the Guidance. The routine use of such applications should have ceased and "the time had come to insist on the scrupulous observance of the Practice Guidance". He drew attention to the practice in the Administrative Court of imposing sanctions on lawyers who made baseless applications Re the Court's exercise of the Hamid jurisdiction [2021] EWHC 1895 (Admin).
Arbuthnot J considered the fathers breach of a final Child Arrangements Order.
Malone, Re (Contempt of Court) [2021] EWHC 2723 (Fam)

Summary: Arbuthnot J considered the fathers breach of a final Child Arrangements Order.

Background: After protracted proceedings, a final Child Arrangements Order was made by Deputy District Judge Goudie in the family court on 8th June 2021. The child was to live with his mother but to have regular supervised contact with his father. The contact was to take place every Tuesday and Wednesday between 1pm and 5.30pm. Mr Malone's mother, the paternal grandmother or his father or another named family member were to supervise the contact that was to take place.

The order was endorsed with this warning: in bold: "Where a Child Arrangements Order is in force: if you do not comply with a provision of this Child Arrangements Order–(a) you may be held in contempt of court and be committed to prison or fined; and/or(b) the Court may make an order requiring you to undertake unpaid work ("an enforcement order") and/or an order that you pay financial compensation."

In the run-up to 4th July 2021, James' nursery asked that he self-isolate because of Covid 19. He was to do this from Friday 25th June 2021 to midday on 3rd July 2021. James therefore missed two contact sessions due to take place with his father. The mother told the paternal grandmother that this was due to Covid and at the nursery's request. As a result of the missed contact, the mother decided to arrange for the father to have a longer day with their son the day after the end of the self-isolation, on 4th July 2021. This was to be from 9am to 6pm, exactly the length of contact the father had missed. The paternal grandmother came to collect James and he was taken back to her home where Mr Malone was waiting. At about 10.15am, Mr Malone removed James from the area and failed to return James to the paternal grandmother's home. The mother later tried to contact the paternal grandmother to find out when they would return. At 6.30pm the grandmother confirmed that James and his father had gone missing. The mother immediately contacted the police and for the next week, there was a nationwide search for the little boy involving the police. There was much publicity in the press aimed at finding out where they were.

Mr Malone was finally tracked down at just after midnight on 11th July 2021 in Dunblane, Scotland. Mr Malone accepted he was in contempt of court. His reasons for the abduction were that he had been involved in the family proceedings for three years. He said he had found them extremely difficult and believed that he was being removed from his son's life.

Culpability and harm, aggravating and mitigating features: Arbuthnot J noted that Mr Malone had planned this abduction and found his culpability to be high. The next consideration was harm. James found the removal from his father's care to be traumatic. He has autism and is more vulnerable to change than many children. There was other harm - which was that the contact between James and his father may now take a different route. Finally, there was much press involvement in the case, and it is difficult to anticipate what the effect of that information may be on James as he grows older. Arbuthnot J found medium harm in the circumstances.

Arbuthnot J considered the aggravating features. Mr Malone had come to an agreement with James' mother about contact after they had separated – an agreement which he breached. His behaviour in breaching the agreement was considered an aggravating feature. Arbuthnot J found that this was a planned purposeful breach of a court order by a father who considers he knows what is best for James.

Sentencing: the starting point is one of six months immediate custody. Arbuthnot J reduced this by a third and gave full credit for his admission of the contempt. Arbuthnot J concluded that the planned nature of the abduction is such that a suspended sentence is not appropriate and that an immediate custodial order is the only appropriate sentence reflecting the gravity of the contempt. Mr Malone was committed to prison for four months.

Court of Protection and jurisdiction
AB v XS [2021] EWCOP 57

Summary: Lieven J determined that the Court of Protection does not have jurisdiction under the Mental Capacity Act 2005 (‘MCA’) to direct the return of XS to this jurisdiction as XS is habitually resident in Lebanon. She considers the test to apply in cases of incapacity. She also concluded that it would be inappropriate to use the Inherent Jurisdiction of the High Court as to do would cut across the statutory regime. In any event, it was in XS's best interests to remain in Lebanon.

This case concerns XS, a 76-year-old woman who currently resides in Lebanon and is a dual UK and Lebanese citizen. In 2013 she was diagnosed with Alzheimer's Disease. In May 2014 during a hospital admission, following a fall, there was a best interest meeting at which the professionals agreed she did not have capacity in respect of her residence and that she should be discharged to a care home. The notes at this time refer to her discussing going to Lebanon to visit her family and friends, including her brother R. There is some reference to her wanting to visit but not want to stay there forever. On 9 September 2014 there is a case note that records XS saying that she would like to visit Lebanon to "trial it out". She was certainly keen to go to Lebanon for a time without there being evidence of her committing to a permanent move. On 10 September 2014 a capacity assessment was undertaken, and it was concluded that XS had capacity to enter into a Lasting Power of Attorney ('LPA'). XS's solicitor, Ms Perkins, produced an attendance note at the time which indicated she believed XS had capacity. Further, she was examined by Dr Ruth Allen, a consultant old age psychiatrist, who also confirmed her capacity. The LPA was entered into on 11 September 2014 and was later registered. (Lieven J had upheld the validity of the LPA at a previous hearing). Later in September 2014 XS travelled to Lebanon and she moved into a flat very close to that of her brother, R. R died in April 2016. XS was then moved into a care home in Beirut. Although the evidence at this point is not entirely clear, there is a strong implication from the material before the judge that by this date XS no longer had capacity, certainly in respect of where and in what country she lived. Her nephew, GH, who is R's son, filed a witness statement in these proceedings referring to having tried to consider what was best for XS at that time, and her having been moved to a care home. The fact that GH was deciding these matters, and the view of his evidence, is that XS had lost capacity by this point.

AB, XS's cousin, sought to bring XS back to the UK. AS brought proceedings in Lebanon and the court there appointed a guardian. In September 2020 authorisation was granted for AB to arrange for XS to return to England and Wales. 2 of XS's nephews who live in the USA obtained a travel ban preventing the move. There was expert evidence before Lieven J doubting the validity of the travel ban. AB therefore brought proceedings in England and Wales. The nephews were given notice but took no part. XS was represented by the OS. The proceedings in Lebanon were due to be heard in October 2021.

The issues: There are three issues in the case:

a. Whether XS is habitually resident in England and therefore the Court of Protection retains jurisdiction;

b. Whether the High Court can make an order for XS to return to the UK under the inherent jurisdiction;

c. Whether it is in XS's best interests to be brought back to the UK.

Mental Capacity Act 2005:
For the Court of Protection to exercise powers in respect of a person overseas P must (in personal welfare cases) be habitually resident here: s63 MCA 2005, Schedule 3 (7) para (1). Lieven J considered An English Local Authority v SW [2014] EWCOP 43 Moylan J and Re MN [2010] EWHC 1926 (Fam) Hedley J and concluded that "if an incapacitated person is moved from one country to another, then they can change their habitual residence once the requisite degree of integration is achieved, regardless of their inability to have exercised any decision making in that choice. The position might be different if the person was removed unlawfully…" [para 26]. She explained at [para 27] that "One could have an incapacitated adult who retains strong roots in the original country, such as a home and family, and who had expressed an unequivocal desire to return before s/he lost capacity. That person might remain habitually resident in the original country even after a prolonged stay in the new country. However, it must be the case that after a sufficiently long period in the new country, the sheer fact of physical integration may become overwhelming and habitual residence moves to the new country. This would be the case even if the individual had originally wished to return to their earlier country of habitual residence. The focus of the test being on integration rather than intention, means that the fact of physical integration will ultimately be determinative." She added at [para 29] "It is not possible to determine what she would have said in 2014 if told her brother would die in 2016. However, that is not the correct question. Rather, the question is whether she is now integrated into society in Lebanon, and the evidence is clear that she is. It therefore follows that XS is habitually resident in Lebanon and the Court has no power under the MCA to make a return order.

Inherent Jurisdiction:
Having concluded that the Mental Capacity Act 2005 could not be used, she went on to consider whether the Inherent Jurisdiction could be used instead. She concluded that it was not appropriate to use the High Court's powers when to do so would be to contradict a limit imposed by Parliament [para 35]. As Lord Sumption said in Re B, it is important that the courts do not circumvent principled limitations set by Parliament in a scheme such as the MCA simply because they think that it would be in a person's "best interests" for the Court to intervene.

Best Interests:
Lieven J then went onto consider the medical evidence which showed that XS was well-settled, apparently content and well cared for in the care home in Lebanon and given that she is very frail and is in the advanced stages of dementia a move to England and Wales was not in her best interests.

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