A successful Hague Convention defence

Continuing my theme of the international complexities of family law, one of the most common, and saddest, types of family case with an international element involves one parent moving a child from their home country without the consent of the other parent. A recently reported example is SP (Father) v EB (Mother) & Another, in which Mr Justice Mostyn considered a father’s application for the summary return of his 14 year-old daughter to Malta, under the Hague Convention.

The application was strenuously opposed, both by the mother and by the child. They relied on three defences under the Convention: the child’s objection to being returned, Article 13(b) of the Convention (that there was a grave risk that her return would expose her to physical or psychological harm, or otherwise place her in an intolerable situation) and Article 20 (that her human right to family life would be violated by being forced to return to Malta, she having established a family life in this country).

Mr Justice Mostyn began his judgment, indeed spent a large part of it, by setting out the legal principles relevant to the case. In particular:

1. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone’s rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.
2. There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined.
3. The Convention does not deal with issues relating to the child’s welfare, such as their residence or their contact with the other parent – all it does is provide that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future.
4. Cases of this type should be proceeded with without delay. This does not just apply to the application by the parent ‘left behind’ for the child’s return under the Convention, but also to their application to their home court for full welfare proceedings about the child’s future.
5. If the home court has made an order requiring the return of the child to that country then that order would be almost automatically enforceable without recourse to any of the defences available under the Hague Convention.

Briefly, the facts of the case were as follows. Both parents and the child are Maltese. The child lived in Malta until June 2013, when her mother brought her to England, without the knowledge or consent of the father. Since that time they have been living with the maternal grandfather in London. The father applied for the child’s return under the Hague Convention. That application was successful, but the mother appealed. On 1 May 2014 the Court of Appeal allowed the appeal, and ordered a re-hearing.

The re-hearing went before Mr Justice Mostyn on 24 November, by when the child had been living in this country for eighteen months. Mr Justice Mostyn said that: “She is well and truly settled here and is literally and technically habitually resident here.” One of the defences to a Hague Convention application is that more than one year has elapsed since the date of the wrongful removal before the return application is made and the child is settled in their new environment. However, that defence was not available here, as the Court of Appeal ordered a retrial of the father’s original application, rather than dismissing that application and requiring the father to make a fresh one.

However, the fact that the child was now settled here was clearly a factor, even if it was not available as a defence. Also of importance was the fact that the father had not, in the entire eighteen months, issued any kind of welfare proceedings in Malta. If he had and the Maltese court had ordered the child’s return, then that may well have been the end of the matter, as mentioned at paragraph 5 above.

In the event Mr Justice Mostyn found all three of the raised defences made out. In the circumstances of her having been in this country for so long and having settled here, she was entitled to object to being returned, there was a risk that being required to give up her new life and return would cause her harm and a return would violate her right to family life. The father’s application was therefore dismissed.

In any event, said Mr Justice Mostyn, there were two further matters which may make a return order futile. Firstly, the child is, as he mentioned, now habitually resident here, which may mean that the English court now has jurisdiction to deal with the welfare proceedings. Secondly, in the absence of a Maltese Court order preventing her from doing so, the child was old enough to simply get on a plane back to England after being returned to Malta.

The free movement of modern families, or parts of them, from one country to another seems to throw up an almost inexhaustible supply of new scenarios for the family courts to grapple with, and this case is just another example.