There is some corner of a foreign field that is forever not part of the Hague Convention

The quirky case of Leicester City Council v Chhatbar 2014 – which features without a doubt the best application for permission to appeal I’ve ever read

http://www.bailii.org/ew/cases/EWHC/Fam/2014/830.html

The parents names are reported in the case because they are freely available to view on the Interpol website  (the Daily Mail attended the hearing and sought that permission to name the parent, which was granted)

1. On 12^th October 2013 at a time when Mr. Chhatbar and Miss Rahman frankly concede they knew that Abdul Rahman was the subject of protective measures, they left England and Wales and travelled to the Turkish Republic of Northern Cyprus. As is well known, the Turkish Republic of Northern Cyprus is recognised as an independent state only by Turkey. The rest of the world, and specifically the European Union, regard the Turkish Republic of Northern Cyprus as being a military occupation by Turkey of part of the Cypriot Republic. The Turkish Republic of Northern Cyprus is not a signatory to the 1980 Hague Convention on the Civil Effects of Child Abduction, nor does it subscribe to or apply the child abduction provisions of the Brussels II regulation.

1. The court can easily conclude that a motive for these parents taking this child to the Turkish Republic of Northern Cyprus is that, uniquely within Europe, it represents a safe haven from the provisions of the 1980 Hague Convention.

1. The reason I am being asked to determine that on 17^th October 2013 when Abdul Rahman was made a ward of court he was habitually resident in England and Wales is not in order to demonstrate that on 12^th October 2014 he was unlawfully removed from England and Wales within the terms of Art.3 of the Hague Convention. The reason I am being asked to determine this issue is in order that the local authority would be equipped to argue, should Abdul Rahman ever be taken to a Hague Convention country, that from 17^th October 2013 he was being unlawfully retained by the parents in Northern Cyprus. In order for an unlawful retention for the purposes of Art.3 to be proved, it has to be shown that on the relevant date Abdul Rahman was habitually resident here and that at that time rights of custody had been vested in this court. Plainly the latter criterion was satisfied because this court had made him a ward of court on that day. The question is whether on that day he was habitually resident here.

If you are going to do a runner then, the Turkish Republic of Northern Cyprus is a good destination.  (though read the whole thing before booking your flight)

As it isn’t a signatory to the Hague Convention, there is no straightforward method in international law for compelling the return of the child (there MIGHT be in the law of the Turkish Republic of Northern Cyprus, but frankly who knows?).

The City Council asked the High Court to declare that the child had been unlawfully removed from England under article 3 of the Hague Convention, not so they could get the child back from Northern Cyprus, but rather so that if the family set foot in any other bit of Europe, the child COULD be recovered.

Mr. Downs frankly concedes that this exercise only becomes relevant if Abdul Rahman is taken by his parents to a Hague Convention country of which, of course, Turkey is one, the Republic of Cyprus is another, and Greece is yet another. He argues, as does the Council which he represents, that this is a reasonably foreseeable prospect. First, they say that the parents were, in fact, in Turkey as recently as December 2013. They say they went there in 2013 for a holiday. Secondly, they say that in order to be able lawfully to stay in the Turkish Republic of Northern Cyprus they need to leave the country every 90 days in order to re-enter and receive a new 90 day tourist visa.

The Judge heard from the parents by videolink, considered all of the relevant law and facts and reached this conclusion

1. In my judgment, on 17^th October 2013 both the parents and the child had their habitual residence in England and Wales. They had not severed their integration in this country. Their social and family environment was in England and Wales. Of that I have no doubt. I do not need to speculate further on the motives that drove them to leave to go to Northern Cyprus although pretty easy conclusions can be drawn.

1. I say nothing about the merits of the local authority’s case other than to observe that at the relevant time the father was under an order of probation awarded by a criminal court in relation to an offence of domestic violence. He was obliged under our law to be in this country in order to undergo the period of probation that had been awarded. Beyond that I say nothing about the merits of the steps taken by the local authority. Nor do I want to give anybody any indication of the likelihood of success, should these parents go to a Hague Convention country, of an application under the Hague Convention to such a country for the return of Abdul Rahman to this country. Of that I say nothing at all. I confine myself strictly to saying only that on 17^th October 2013 the child, Abdul Rahman Chhatbar was habitually resident in England and Wales.

What follows then, is the father’s application to appeal, which I’ll print in full

MR. CHHATBAR: Excuse me.

MR. JUSTICE MOSTYN: Yes.

MR. CHHATBAR: Can we appeal your decision?

MR. JUSTICE MOSTYN: I have given my decision. I have declared that Abdul Rahman was habitually resident in England and Wales on 17^th –

MR. CHHATBAR: Yes, I heard all that. We heard all that. We are asking you can we appeal your decision.

MR. JUSTICE MOSTYN: OK. So you need to ask me for permission to appeal.

MR. CHHATBAR: Yes, that is what we are asking.

MR. JUSTICE MOSTYN: I can only give permission if I am satisfied that you have got a real prospect of success or there is some other good reason why an appeal should be heard. Is there anything else you want to say about that?

MR. CHHATBAR: Yes, it is a joke, isn’t it? It is a fraud. It is a fraud mate. It is all a fucking fraud.

MR. JUSTICE MOSTYN: OK.

MR. CHHATBAR: Good luck in trying to find us. Good luck.

MR. JUSTICE MOSTYN: Thank you very much.

MR. CHHATBAR: The court has got no jurisdiction. We are never coming back to England. Good luck. See how powerful you are, yes. You are powerful sitting there in your chair. It is a fucking fraud.

MR. JUSTICE MOSTYN: Thank you very much, Mr. Chhatbar. It is a shame –

MR. CHHATBAR: See if you are a good parent sitting in that chair when your son takes cocaine. You are a joker, my friend, you are a joker.

The transcript doesn’t indicate whether there was any pause, and if not, hats off to Mostyn J for his response

MR. JUSTICE MOSTYN: All right. Mr. Chhatbar applies for permission to appeal. Under the Civil Procedure Rules Part 52 the permission can only be given if I am satisfied that there is a real prospect of success or there is some other compelling reason why the appeal should be heard. In as much as I can understand Mr. Chhatbar, he says that my decision is wrong because I have no jurisdiction and because it is fraudulent.

I consider that I have applied the law scrupulously to the facts of this case. I am completely satisfied that there is no prospect of success of an appeal, let alone a real one, and that there is no other compelling reason why the appeal should be heard. I therefore refuse permission. Mr. Chhatbar, of course, is entitled to renew his application for permission with the Court of Appeal. Thank you very much.

The Judge then goes on to address the Press in relation to accuracy of reporting (lets see if this makes any difference when they report the case)

On 3 March 2014 a report appeared in the Daily Mail authored by a journalist who had been in court^[2]. In the report it was stated “Financial adviser Mr Chhatbar and travel agent Miss Reheman, 19, fled after a relative made an allegation to Leicester city council social services that Mr Chhatbar had a violent past. It is a claim the couple vigorously deny, but social workers warned them to split up so Momo could live with Miss Reheman in safety or else they would seize the baby.” The report failed to mention what I had said in the first two sentences of para 17 concerning the father’s conviction for an offence of domestic violence. Further, to the best of my recollection, what was written was not mentioned in court. The President, Sir James Munby, has recently emphasised in Re P (A Child) [2013] EWHC 4048 (Fam) at paras 26 and 27^[3] that while the court will not exercise any kind of editorial control over the manner in which the media reports information which it is entitled to publish there is nonetheless, for obvious reasons, a premium on accurate press reporting of proceedings such as these.

[For the avoidance of doubt, this judgment, at which representatives of the Mail were present, WAS BEFORE that article was published, and the author of the article was in Court]