Bringing Hague proceedings to an early conclusion

family law

One might imagine that a situation where the parties to proceedings are agreed that they should not continue would be a simple one for the court to deal with. However, as the case In the Matter of D (Children) (Child Abduction: Practice) demonstrates, even this apparently straightforward scenario can be fraught with difficulties.

As I think I may have said before, cases on particular topics are like buses: you don’t see one for ages, and then two come along at the same time. So it is that I find myself writing about a Hague Child Abduction Convention case for the second day running. I say this so as to prevent repetition: in my post yesterday I gave a brief explanation of the Convention, and I therefore refer the reader to that post if he/she should require such an explanation.

The background to D (Children) is that the father is American and the mother is English. They have two children, born in 2007 and 2008. The family lived in the United States. After the marriage broke down proceedings took place in the Superior Court of the State of California. That court awarded custody of the children to the mother and granted her a domestic violence restraining order against the father. Furthermore, on the 17th of March 2015, the same court made an ex parte order authorising the mother to remove the children from the United States. On the 25th of March the mother brought the children to this country.

Then on the 20th of April 2015 the father commenced proceedings in the Court of Appeal of the State of California to appeal against the order of the 17th of March. In addition, on the 15th of September the same year, the father commenced proceedings in this country seeking the summary return of the children to the United States, in accordance with the Hague Convention.

The Californian Court of Appeal gave judgment on the father’s appeal on the 24th of September. In that judgment it made clear that under state law, a stay (suspension) of 30 days on the order made on the 17th of March arose automatically by operation of law and that accordingly the mother, whether she was aware of it or not, had removed the children while that stay was in place. The court went on to order that there should be a full hearing of the mother’s request to move to England with the children, and that hearing has since been fixed for the 2nd of May this year. Meanwhile, however, the court granted the mother temporary permission to remain in England with the children until her application was heard.

That, then, was the situation when the father’s Hague Convention application went before the President of the Family Division Sir James Munby on the 20th of January. In the circumstances counsel for both the father and the mother acknowledged that there was no point in continuing with the Hague proceedings. However, they were not agreed upon what Sir James should do: counsel for the father sought permission to withdraw the Hague proceedings, but counsel for the mother said that they should be struck out or summarily dismissed.

The crux of the problem was that neither party wanted to be exposed to the risk of the kind of uncertainties that had arisen in a previous case where a Hague application had also not proceeded, in circumstances where, as here, the application might be renewed, should the mother not comply with any order of the courts. In particular, the father did not want people to conclude that his application had been decided, thereby preventing him from making a fresh application. Nor did he want his not continuing with the application to be construed as him acquiescing in the mother’s removal of the children, thereby providing the mother with a defence to a further application.

In the event it was agreed that Sir James should make an order giving the father permission to withdraw his application, but specifically stating that he was not acquiescing in the removal and that he reserved the right to make a fresh application if need be.

Sir James also made the following points by way of guidance on the whole area of bringing Hague proceedings to an early end:

  1. Hague proceedings are summary in nature (they should usually be determined within six weeks) and it is not very often that they should be dealt with in an ‘ultra-summary’ fashion.
  2. Where a party attempts to bring a Hague application to an early end on the basis of an argument about the merits of the case (for example, a delay in making the application), such arguments should be dealt with as part of the main hearing and not by way of a preliminary point.
  3. Where, as here, the Hague application has been overtaken by subsequent events, such as a change in the family’s circumstances or developments in the foreign court, the effect of which has been to make it unnecessary and inappropriate to allow the proceedings to continue, then the court has power to bring the proceedings to a premature conclusion.

The full report of D (Children) can be read here.

Depiction of the Californian flag by Devin Cook via Wikipedia

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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