Category Archives: international

Overseas surrogacy

Posted on August 5, 2014 by suesspiciousminds

I have written a few pieces about overseas surrogacy this year , which probably reflects that more of these arrangements are being made, or at least that more of them are going wrong.

 

Surrogacy arrangements made overseas

about  a commercial arrangement with the Kiran agency to have a surrogacy in India.  (I would urge some careful research before you pick your agency in India)

 

and

 

https://suesspiciousminds.com/2014/05/16/commercial-surrogacy-iowa-and-an-unforseen-difficulty/    about a tricky commercial surrogacy in Iowa, that went wrong because the Iowa procedure is that the commissioning ‘parents’ adopt the child, which breaches English law on arranging adoptions overseas.

 

and

https://suesspiciousminds.com/2014/07/02/yet-more-international-surrogacy/   about a commercial surrogacy in Georgia, where the Georgian organisation seemed incapable of answering a straight question about whether the surrogate mother was married.

 

There has been the obvious scandal this week about baby Gammy

 

http://www.bbc.co.uk/news/world-asia-28627374

 

The story here is that an Australian couple entered into a surrogacy arrangement with commercial elements in Thailand. The surrogate mother gave birth to twins, one of whom, Gammy, has Downs Syndrome. The story (though it is refuted) is that the Australian couple took the other twin but would not take Gammy. There are calls for commercial and overseas surrogacy to be better regulated.

I would not want to demonise surrogacy in the flurry of outrage about this particular case. It works for many people and provides a legitimate way of someone to concieve and care for a biological child if they are incapable of physically carrying a child of their own, for example.

 

So first, what IS surrogacy?

 

It involves having a woman become pregnant, carry the baby, give birth and then give the baby up. But most importantly, the persons to whom the baby is given to have provided either the sperm or the eggs, or both, to make the fertilisation possible. I.e one of the people who will be caring for the baby will be a genetic parent to that child.  If there isn’t a genetic link by the provision of either sperm or eggs, that isn’t surrogacy. That’s just straight out buying a baby.

 

In England, surrogacy is legal, although the commercial element is highly regulated. A person can’t pay for a baby, nor can the surrogate mother charge a fee. What is legitimate is a payment to cover legitimate and genuine expenses involved.

 

section 2 of the Surrogacy Arrangements Act 1985 which says :

2 Negotiating surrogacy arrangements on a commercial basis, etc.

(1)No person shall on a commercial basis do any of the following acts in the United Kingdom, that is—

(a) initiate or take part in any negotiations with a view to the making of a surrogacy arrangement,

(b) offer or agree to negotiate the making of a surrogacy arrangement, or

(c) compile any information with a view to its use in making, or negotiating the making of, surrogacy arrangements;

and no person shall in the United Kingdom knowingly cause another to do any of those acts on a commercial basis.

 

Anyone purporting to run a Surrogacy Agency in the UK, or to charge an introduction fee or arrangement fee fo surrogacy is doing so illegally.

 

The Human Fertilisation and Embryology Authority has some very good guidance about Surrogacy, here

http://www.hfea.gov.uk/fertility-treatment-options-surrogacy.html#8

 

Overseas, however, it is lawful in some countries to have an Agency to put prospective commissioners together with prospective surrogates, and to charge a fee for doing so. As happened here.

 

Here are the two major issues with Surrogacy for the ‘commissioning parents’, particularly where it is overseas

 

1.  If the biological / birth mother gives birth and then does not want to hand the child over, it is easy to get embroiled in difficult litigation over it. The existence of a ‘contract’ or ‘agreement’ to hand over the baby isn’t going to be determinative of it, things will depend very much on the law in that country and the mother’s ability to look after the child. It can be very protracted, confusing and expensive.

 

2. To ensure that both ‘commissioning parents’ have legal rights to the child in this country, an application to an English Court has to be made. That’s an application for a Parental Order.  Here is the really important bit. That application MUST be issued before the child is six months old.  If it is issued six months and one day after birth, it is too late. You can’t get your Parental Order. The Court has no power to cut you some slack or let you off. That six month cut off is a real deal. So you have to be organised.  Also, your application has to cover all of the necessary details – getting evidence that the Surrogate mother is not married, that she is the genuine mother of the child and that she genuinely consents is all vital. And for that, given that the Surrogate mother is overseas, you can be entirely dependent on the Surrogate Agency being good.  (they aren’t always)

 

One of the things the Court will have to do in the consideration of the Parental Order is look at the fees that you paid. This is a scrutiny to make sure that you paid a reasonable and fair amount, and importantly that it wasn’t such a high amount that it becomes ‘buying a baby’  – i.e that the sum offered is so much that the Surrogate mother is not simply doing this as a purely commercial enterprise. As a matter of public policy, the Government don’t want people buying and selling babies. And when it comes to ‘buying’ a baby from  a country that has substantial poverty and different standards of living that becomes even more sensitive.

 

Here are the guidelines for Courts when approving such payments (which remember is retrospective – after the money has been paid and the baby handed over)

 

When considering whether to authorise the payments made in this case the relevant principles are firmly established by the cases, starting with Re X and Y (Foreign Surrogacy) [2008] EWHC 3030 (Fam) [2009] 2WLR 1274 (paragraph 19 and 20) and the cases that have followed (in particular Re S (Parental Order) [2009] EWHC 2977 (Fam), Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006 Re IJ (Foreign Surrogacy Agreement Parental Order) [2011] EWHC 921 (Fam) [2011] 2FLR 646 and Re X and Y (Parental Order: Retrospective Authorisation of Payments) [2011] EWHC 3147 (Fam)).

(1) the question whether a sum paid is disproportionate to “reasonable expenses” is a question of fact in each case. What the court will be considering is whether the sum is so low that it may unfairly exploit the surrogate mother, or so high that it may place undue pressure on her with the risk, in either scenario, that it may overbear her free will;

(2) the principles underpinning section 54 (8), which must be respected by the court, is that it is contrary to public policy to sanction excessive payments that effectively amount to buying children from overseas.

(3) however, as a result of the changes brought about by the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, the decision whether to authorise payments retrospectively is a decision relating to a parental order and in making that decision, the court must regard the child’s welfare as the paramount consideration.

(4) as a consequence it is difficult to imagine a set of circumstances in which, by the time an application for a parental order comes to court, the welfare of any child, particularly a foreign child, would not be gravely compromised by a refusal to make the order: As a result: “it will only be in the clearest case of the abuse of public policy that the court will be able to withhold an order if otherwise welfare considerations support its making”, per Hedley J in Re L (Commercial Surrogacy) [2010] EWHC 3146 (Fam), [2011] 2WLR 1006, at paragraph 10.

(5) where the applicants for a parental order are acting in good faith and without ‘moral taint’ in their dealings with the surrogate mother, with no attempt to defraud the authorities, and the payments are not so disproportionate that the granting of parental orders would be an affront to public policy, it will ordinarily be appropriate for the court to exercise its discretion to give retrospective authorisation, having regard to the paramountcy of the child’s lifelong welfare.

 

It is worth noting that the sort of amounts sanctioned by English Courts this year have been approximately £20,000, which went to an Agency in India. (The Agency kept nearly all of that, with about £4,000 going to the Surrogate mother).

 

In England, £4,000 is not out of line with what one might pay a Surrogate Mother in terms of expenses, but £4,000 probably is a substantial amount more in India in terms of buying power.  How confident can we be that this is not exploitative, and essentially ‘buying’ a baby?

 

I’d certainly urge anyone contemplating surrogacy overseas to get their own legal advice, and probably to contact the HFEA for help and guidance. There are better places than others when considering overseas surrogacy, and certainly better agencies than others.

 

 

 

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Passage to India (and laying the smackdown on the Legal Aid Agency)

Posted on August 5, 2014 by suesspiciousminds

There seems to be increasing amounts of litigation about children being taken on holiday to countries outside of the Hague Convention, particularly when the children are the subjects of private law dispute about contact and residence (or as I now have to call it but won’t ,  “Child Arrangements”)

 

[If you want to skip to the bit where the Judge rips the LAA a new one, I’ll understand, you can come back afterwards if you’re interested in the background. Scroll down to the bit that says “SMACKDOWN!”]

There was one about Iran recently,  Re H (a child) 2014   http://www.bailii.org/ew/cases/EWCA/Civ/2014/989.html

 

This one is about a trip to India that the mother wanted to make with the children.  Re AB (A child: Temporary Leave to Remove from the Jurisdiction : Expert Evidence) 2014   heard by His Honour Judge Bellamy sitting as a High Court judge.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/2758.html

 

Why this particular case is helpful is that the Court managed to get some expert legal advice from the Indian jurisdiction, notably on what might happen if the mother refused to return the children. This might save others in the same position hours of difficult research, so it is useful that the Court set it out here:-

 

ANSWER TO QUERIES

(i) What is the legal position in India if the Mother does not return to the United Kingdom with the child and remains instead with her in India? What impact, if any, would be made by pre-existing orders from the High Court in England making declarations of habitual residence in England and mandatory orders in relation to the return of the child by a certain date?
Answer

If the mother does not return to the United Kingdom with the Child, the father will have to bring a claim for custody in India under provisions of Hindu Minority and Guardianship Act 1956. The pre-existing orders from the High Court in England making declaration of habitual residence in England and mandatory order in relation to the return of child by a certain date will only be one of the factors to be considered and court will draw up independent judgment on merits having regard to welfare of the children.

(ii) What legal remedy would the father have, and what procedure would apply if he found himself having to take steps to effect the return of the child to the United Kingdom? What would be the likely timescale, cost and likelihood of success?
Answer

Father would have to file an application for custody of children under the provision of Hindu Minority and Guardianship Act. The proceedings may take from 1 year to 2 year and likelihood of success cannot be predicted as it will be dependent on Court’s fact finding to ascertain best interest and welfare of the children in deciding the custody rights.

(iii) As India is not a signatory to the Hague Convention, is there any other Agreement or Treaty in place with the United Kingdom which would assist in alleviating the Father’s concerns or in assisting if the child was not to be returned?
Answer

No there is no other treaty except treaty to enforce judgements passed by reciprocating courts in UK and India, however in matters of child custody, courts will not pass summary judgements and will pass independent judgement considering welfare of the children.

(iv) Is there scope for the mother obtaining a Mirror Order on her arrival in India? If so, what is the relevant procedure and what protection would such order give in ensuring the return of the child to the United Kingdom?
Answer

No, Courts in India will not pass mirror orders but will pass independent orders considering welfare of children.
 

(v) Are there other practical or legal safeguards which could be put in place before or on the Mother’s arrival in India? For Example (sic), requiring family members to take oath in relation to not assisting in the retention of the children, or lodging the children’s passport with a British Embassy or another place?
Answer

Since the foreign custody orders cannot be enforced mechanically, it is suggested that in the event of any litigation in the foreign country of habitual residence, a letter of request be obtained from the UK court in which litigation is pending for incorporating safeguards and conditions to ensure the return of the minor child to the country of normal residence.
This letter of request should be addressed by the UK court to the Registrar General of the High Court within whose jurisdiction the estranged spouse is residing with the minor child. It should also be specifically mentioned that the passports of the parent and the child should be deposited with the Registrar General of the state High Court to ensure that the child is not taken away from the jurisdiction of the [state] where he or she is confined.’

 

The answers are both technical and practical, so useful to others in the same position.

 

You might remember in the distant past, His Honour Judge Bellamy encountering much the same issues and having the ridiculous position of the Legal Aid Agency refusing to pay for the expert to answer those vital questions (presumably on the basis that English lawyers could magically find the answer to these questions in any other given national jurisdiction)   Re R (children : temporary leave to remove from the jurisdiction)

http://www.bailii.org/ew/cases/EWHC/Fam/2014/643.html

 

So, it is impressive that the report was produced here. Let’s have a look at how.  Clue – it was not done simply, and the Legal Aid Agency showed a painful lack of knowledge of the Court of Appeal’s decision that their previous policy of insisting that they would only pay for reports if EVERYONE was paying an equal share was unlawful.

 

42. This is the second time this year that it has been necessary for me to consider the conduct of the Legal Aid Agency when dealing with an application for prior authority to incur the fees of an expert in an application for the temporary removal of a child to a non-Hague Convention state – see Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam). In that case I was critical of the LAA (see paragraphs 81 to 97). Before deciding whether further criticism is merited it is necessary to consider the history of the application for prior authority.
 

The mother’s application for prior authority

43. As I have noted, the expert proposed by the mother was Mr Ravindra Kumar. Mr Kumar is a legal associate with Singhania & Co, a firm of ‘Solicitors & Indian Advocates’ with offices in India and London. In his curriculum vitae Mr Kumar says that he is ‘a consultant in Singhania’s litigation group, concentrates his practice on handling litigations in UK and in India. He has advised clients on Indian laws and India-specific issues including family laws and matrimonial laws issues. Maintenance and Adoption Laws issue. Mr Kumar had given expert witness evidence on issues pertaining to India laws on matrimonial matters, wills and contacts issues. Affiliations: Supreme Court Bar Association [SCBA], India. Delhi High Court Bar Association [DHCBA], India’.
 

44.  I heard the mother’s application for permission to obtain expert evidence on 13th June. I was satisfied that expert evidence was necessary and that Mr Kumar was an appropriately qualified expert. I decided that the cost of the expert evidence should be borne by the mother. In an extempore judgment I said,
 

8. There can, in my judgment, be no doubt as to the need for an expert’s report in this case. The law relating to the reliance upon expert evidence in Children Act proceedings is now to be found at s.13(6) of the Children and Families Act 2014 of which reads:
‘The court may give permission as mentioned in subsection (1), (3) or (5) only if the court is of the opinion that the expert evidence is necessary to assist the court to resolve the proceedings justly.’
There is in this case absolutely no doubt that expert evidence is necessary.
9. The issue that then arises is who is to pay. The mother is publicly funded and the father is a litigant in person. The father’s means are extremely straightened. He works for [a supermarket] and has an income of £1,200 per month out of which he has mortgage repayments of £500, car insurance of £28, fuel of £300, a mobile phone contract of £42, electricity of £76, food of £178 and finally a debt management payment of £76. The father has produced evidence from a debt management company which shows that the £76 per month that he is paying is for the payment of some eight debts which together amount to around £6,500. There can be, in my judgment, not the slightest doubt of this father’s inability to be able to afford to pay.
10. If the father cannot pay, is it appropriate to require the mother to pay for the whole of the costs of this report? In my judgment it is, and for two reasons. The first reason is the obvious one that it is her application for the temporary removal of AB from the jurisdiction. It is she who wants to do something that potentially could cause the breakdown of contact between AB and his father, and could potentially leave the father in an extremely difficult position in trying to right a wrong. Therefore, it is only just, in my view, that she should bear the costs of paying for that report, and that would be the case even if she were not publicly funded. The second reason why it is appropriate for her to pay the costs is because the father simply cannot afford to pay, of that I am in no doubt.
11. The position with respect to the Legal Aid Agency funding the entirety of the costs of an expert under one party’s public funding certificate is an issue that has been considered by the court twice over the course of the last twelve months. Firstly in the decision of Ryder J (as he then was) in JG v The Lord Chancellor & Ors [2013] 2 FLR 1174 and more recently by the Court of Appeal overturning the decision of Ryder J in that same case in JG v The Lord Chancellor & Ors [2014] EWCA Civ.656. In that case it was argued on behalf of the Lord Chancellor and the Legal Aid Agency that the normal rule was one of equal apportionment of expert costs amongst all parties to proceedings. At para.86 of the judgment of Black LJ in the Court of Appeal, she said this:
‘I do not accept that there is a normal rule of equal apportionment of the costs; in my view, like so many of the issues that arise in this appeal, it all depends on the particular circumstances of the case.’
At para.90, having referred to three authorities, she said this:
‘What I draw from the three authorities to which I have just made reference is that the court has discretion as to what order is made as to the costs of instructing experts in family proceedings and that that discretion must be exercised bearing in mind all the circumstances of the particular case.’
Then at para.93, she said this:
‘None of the authorities which I have just cited turned on the impecuniosity of the parties. Although they differ from the present case in that they were care cases, they are capable of providing assistance as to “the principles on which the discretion of [the] court is normally exercised” in relation to the cost of expert evidence. As I have explained, to my mind, they do not reveal the existence of a normal rule that costs be apportioned equally any more than Rule 25.12(6) does. Accordingly, in so far as the Lord Chancellor’s submissions proceed upon the basis that equal apportionment is the norm, I would question the premise. In order to decide whether a court order has fallen foul of s.22(4), a more sophisticated exercise is required. It is necessary to ask what order the court would make in its discretion on the particular facts of that case, leaving aside any resources problems. The answer may not uncommonly be an order for equal apportionment of the costs but that cannot be assumed. It may be that a full consideration of the circumstances of the case produces the result that the publicly funded party should be paying a greater share of the costs in any event, quite irrespective of any financial difficulties that the other parties may have in sharing the costs of the expert. In such circumstances, s.22(4) does not prevent the court from making an order accordingly, because the order is in no way affected by the fact of public funding.
The reference in her Ladyship’s judgment to s.22(4) is to s.22(4) of the Access to Justice Act 1999.
12. In light of her Ladyship’s comments, I am in no doubt at all that it is right to say in this case that even leaving to one side the ability to fund the costs of an expert report, the cost of the expert report proposed in this case should be borne entirely by the mother. The fact that she is publicly funded makes no difference to that conclusion. There is, as I have already said, the subsidiary point that the father simply cannot afford to pay.
13. It is my sincere hope that the problems encountered by the court and the parents in Re R (Children: Temporary Leave to Remove from Jurisdiction) will not be visited again upon this mother in this case. I shall make the order giving permission for the expert’s report. I approve the draft letter of instruction, and the costs will be limited to £1,000. The costs will be met by the mother and I deem that to be a reasonable and proportionate expense on her public funding certificate. I direct that there be an expedited transcript of this judgment at public expense to assist the mother in obtaining prior authority.
45.The Court of Appeal’s decision in JG v The Lord Chancellor & Ors was handed down on 21st May. The mother’s application for prior authority was sent to the LAA a month later, on 20th June. The application was made in the LAA’s prescribed form APP8A and was submitted together with relevant supporting documents. Following an enquiry as to progress, the application was re-sent by e-mail on 3rd July.

 

It seems pretty obvious that following JG v Lord Chancellor, that the Legal Aid Agency would have notified their front line staff that the previous policy was not going to fly anymore, and that a stock refusal to fund assessments that the Court had deemed necessary just because there was another party who wasn’t paying an equal share would not do at all. But no

 

46. An e-mail response from the LAA on 3rd July suggests that the writer of that e-mail was unaware of the Court of Appeal’s decision in JG v The Lord Chancellor & Ors. The e-mail reads:
 

47. ‘I can confirm on the information provided we would expect the costs to be apportioned between the parties as per S22(4) AJA 1999 which expects all parties to bear an equal share in the costs of an expert. The costs were originally being shared between the parties therefore it is not considered reasonable to transfer the burden of costs onto the publically (sic) funded party. We will need to see evidence to satisfy itself that the father should share in the costs and the court will need to undertake a robust assessment of the father’s means.’
The mother’s solicitors replied on 8th July. By then they had received the transcript of my judgment of 13th June and attached it to their response. Initially, it appeared that my judgment would help to resolve the issue. On 11th July an e-mail from Ann Davies, a senior caseworker at the LAA, said,
 

48. ‘Thank you for your e-mail and confirm I have reviewed our earlier decision. An authority will be issued in this matter however, despite my search of our completed applications I have been unable to find your APP8A…Please e-mail me a copy to enable me to consider this properly…’
The mother’s solicitor had already sent the LAA an application for prior authority in form APP8A on 20th June and on 3rd July. Form APP8A was sent to the LAA for a third time, by e-mail, on 14th July.

49. The optimism generated by Ms Davies’ e-mail was misplaced

 

The LAA refused the assessment, and refused it again, and again, and a fourth time. They moved on to a whole new area to get bogged down in, which was that the expert was a qualified solicitor, and thus wasn’t an expert.  The Judge disagreed

 

Is Mr Kumar an expert?

56. In proceedings in the Family Court, the position concerning expert evidence is clear. The Family Court Practice 2014 states (p.2009) that.
 

‘The general rule is that a witness may only give evidence as to fact observed by them. That rule is overridden in the case of opinion evidence given by a person whose expertise justifies the court in receiving that opinion.’
Hershman & McFarlane Children Law and Practice states (C3057) that,

‘It is for the court to determine in each case that the witness has the necessary expertise to come within the exception to the normal rule that opinion evidence is not admissible.’
Section 3(1) of the Civil Evidence Act 1972 provides that,

‘Subject to any rules of court made in pursuance of…this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.’

57. Section 4(1) of the Civil Evidence Act 1972 is also relevant. It provides that,
 

‘It is hereby declared that that in civil proceedings a person who is suitably qualified to do so on account of his knowledge or experience is competent to give expert evidence as to the law of any country or territory outside the United Kingdom, or of any part of the United Kingdom other than England and Wales, irrespective of whether he has acted or is entitled to act as a legal practitioner there.’

58. In the circumstances of this case I am in no doubt that Mr Kumar is ‘qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) and is properly to be regarded as an expert in Indian law.

 

I don’t know what the Latin for ‘stick that in your pipe and smoke it is’, but it probably should be inserted at the conclusion of this section.

 

[The joy of google – it is  Habeto eas solus, qui in vobis est, ut fumo et tibia canentium  – feel free to sprinkle that into your skeleton arguments if you feel bold ]

 

With all this in mind, those of us who read H H J Bellamy’s judgment in Re R are waiting for him to Etiam iuvat asinis  or indeed  ut in Republica, asini eorum,    [either  Apply Boots to Asses, or Get Medieval on their ass, depending on your preference]

 

I was not disappointed

 

 

SMACKDOWN  SMACKDOWN SMACKDOWN !!!!

 

Discussion and conclusions

It is a matter of concern that two months after the Court of Appeal handed down its decision in JG v The Lord Chancellor & Ors [2014] EWCA Civ 656 a senior case worker and a Director should both reject an application for prior authority by advancing arguments based on an interpretation of s.22(4) of the Access to Justice Act 1999 which had been so roundly rejected by the Court of Appeal. That, though, is not the only concern about the approach of the LAA in this case.
 

As I noted earlier, the 2013 Standard Civil Contract does not define the word ‘expert’. That is unsurprising. The determination of whether expert evidence is necessary in order to resolve a case justly and whether a particular witness ‘is qualified to give expert evidence’ (s.3(1) of the Civil Evidence Act 1972) are issues for determination by the court not by the LAA. I am concerned that in this case the LAA should have disregarded a decision by the court that Mr Kumar is an expert. In my judgment it was not open to the LAA to disregard a judicial decision on this issue.
 

The Standard Terms of the 2013 Standard Civil Contract define the term ‘Approved Third Party’ as someone engaged by a party to the Contract ‘to undertake non-legal work ancillary to Contract Work, including experts’. The expression ‘non-legal work’ is not defined. In my judgment, it includes giving expert advice on the law of any country or territory outside the United Kingdom. Whether the ‘expert’ is an academic specialising in that area or a person who is a practitioner in that foreign state is immaterial. It is equally immaterial if such a practitioner happens to have dual qualification enabling him also to practice law in England and Wales. I reject Ms Davies’ analysis and interpretation of the 2013 Standard Civil Contract.
 

I also reject Ms Davies’ attempt to pray in aid the provisions of the Civil Legal Aid (Remuneration) Regulations 2013. The regulations do not define the word ‘expert’. Ms Davies refers to the 63 different categories of expert set out in the Table which follows paragraph 1 of Schedule 5 of the regulations. The point made appears to be that there is some significance in the fact that nowhere in this list is there ‘provision for legal work’. It is clear from Schedule 5 paragraph 3 that the list of experts in the Table is not intended to be either an exhaustive list of the categories of experts for which fees will be paid by the LAA or an indicative list of the categories of expertise in which expert evidence will be funded.
 

All of the issues I have raised so far give rise to concern about the adequacy of training for those members of LAA staff responsible for determining applications for prior authority.
 

In addition to these particular issues I also have two general concerns. Firstly, I am concerned that the mother’s solicitors had to submit their application for prior authority three times before the LAA finally acknowledged that it had received a complete set of documents. I am also concerned that to arrive at the stage at which the LAA appeared to agree in principle to fund a non-solicitor expert in Indian law took more than four weeks and in excess of 20 letters and e-mails between the solicitor and the LAA. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) I expressed concern about a similar state of affairs in that case. I said that,
 

’95. The applications for prior authority to instruct an expert have been going backwards and forwards between the LAA and solicitors for some six months. Although I have not been given details of the time spent by the solicitors in pursuing this issue with the LAA, it seems to me to be self-evident that it must have been considerable. This process is wasteful and inefficient. Solicitors are being required to deal with a level of bureaucracy that is almost impenetrable. They are also being required to deal with the consequences that flow from decisions that are unappealable including explaining to their clients why they cannot have the expert evidence which the court has directed is necessary. This is unsatisfactory.’
When considered alongside Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the facts of this present case strongly suggest that, administratively, the LAA is disorganised. The consequences of this for litigants and their hard-pressed solicitors are matters of concern.

Secondly, I am concerned about what appears to be resistance by the LAA to the granting of prior approval for the use of an expert as to the law of a foreign state in connection with an application for temporary leave to remove a child to a non-Hague Convention country. In Re R (Children: Temporary Leave to Remove From Jurisdiction) [2014] EWHC 643 (Fam) the correspondence between the LAA and the mother’s solicitor suggested that the LAA was highly resistant to meeting the cost of such an expert The correspondence between the LAA and the solicitor for the mother in this present case gives the same impression.
 

In light of my further criticisms of the LAA I direct that the mother’s solicitor shall forthwith forward a copy of this judgment to the Chief Executive of the LAA.

 

 

I will add, simply Solum versus est, et ut ‘quia, ut dicit Bellamy saxum iudicis gelu

 

 

[For non-wrasslin’  fans or non-Latin speakers  –  “And that’s the bottom line, cos Stone Cold Judge Bellamy says so” ]

 

Can I get a "Hell yeah!" ?

Can I get a “Hell yeah!” ?

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Ruling on ‘the rule’

Posted on August 4, 2014 by suesspiciousminds

 

 
In which I ameliorate some of the pain of reading a Brussels II judgment by digressions into betrayal by the BBC, Tarzan wrestling an alligator, James Joyce and Tommy Steele…

The Court of Appeal in Re H (jurisdiction) 2014 were asked to determine whether the trial judge, Mr Justice Peter Jackson, had been wrong to consider that he was not bound by the old ‘rule’ that if two people had parental responsibility neither can unilaterally change child’s habitual residence to another country.

That ‘rule’ is what stops one parent legging it to Spain with the kids and then saying, “well if you want to go to Court about it, I’m afraid we’re all Spanish now, so you’ll have to do it in the Spanish Courts. And I know your Spanish doesn’t stretch further than Dos Cervaza por favor, so good luck with THAT, pal”

[Or at least, it doesn’t stop them doing the legging, but it historically meant that if the other parent hadn’t agreed, then the habitual residence of the children, and the right Court to hear the case in was going to be English]

In the trial itself, it had been argued that the changes to the test of ‘habitual residence’ had meant that this issue was one of a raft of factors rather than being finally determinative of habitual residence, and thus ‘the rule’ was dead.

At appeal, the other side argued that if ‘the rule’ was going to be abolished, then it needed to be done so explicitly, and in the absence of such an explicit abolition it was still good law and binding – thus Mr Justice Peter Jackson had been wrong in diverting from it.
http://www.bailii.org/ew/cases/EWCA/Civ/2014/1101.html
Frankly, if you are interested enough to care about the WHY, then you will love the Court of Appeal judgment and can read it all there, it is set out in paragraphs 19 to 37 (It just SEEMS like it is in paragraphs 19 to 64,912)

What you want is the answer, which is that ‘the rule’ is no more. It may be a part of the relevant factual matrix, but just because mum moves the children to Spain against dad’s wishes, doesn’t mean that the children can’t be habitually resident in Spain.
it was submitted to us that a parent’s ability to change their child’s habitual residence unilaterally will be limited by the inclusion of the purposes and intentions of the parents as one of the relevant factors in the factual determination of where a child is habitually resident (see Baroness Hale at §54(ii) of Re A and also at §23 of Re L). I accept that submission. Furthermore, as Baroness Hale said at §26 of Re L, the fact that the child’s residence is precarious (as it may well be where one parent has acted unilaterally) may prevent it from acquiring the necessary quality of stability for habitual residence. However, the fact that one parent neither wanted nor sanctioned the move will not inevitably prevent the child from becoming habitually resident somewhere. If that were the case, the ‘rule’ would be alive and well, albeit dressed up in the new clothes of parental intention as one of the factors in the court’s determination.

Given the Supreme Court’s clear emphasis that habitual residence is essentially a factual question and its distaste for subsidiary rules about it, and given that the parents’ purpose and intention in any event play a part in the factual enquiry, I would now consign the ‘rule’, whether it was truly a binding rule or whether it was just a well-established method of approaching cases, to history in favour of a factual enquiry tailored to the circumstances of the individual case.
The Court of Appeal also go on to say that Parens Patriae jurisdiction [inherent jurisdiction] has no place in these matters, and that the Court should use Article 10 of Brussels II forum conveniens even in a case where the other country is not in Europe. And if for some reason, you are interested in that, may I suggest that you open a window and get yourself some fresh air.

[but it is all at paras 38 to 54. I’m afraid that there is not a sentence there that I was able to read and make sense of first time out. Every single sentence was something of a wrestling match with language, where I had to deconstruct every single aspect and put it back together again to try to work out what was going on, much like Tarzan wrestling with an alligator in a black and white Johnny Weissmuller movie. I ran out of enthusiasm for that exercise at about para 40]

 

That is probably deeply annoying for anyone who does international law and child abduction cases, because this seems to me to be a double whammy of

1. We are going to be arguing about habitual residence in every case on minute detail, rather than applying a simple ‘they ARE in Spain, but against dad’s wishes, so they are still habitually resident in England” test and

2. We’ve just lost the jedi hand-wave of “What’s my power to do this?” “The inherent jurisdiction” – and now need to find chapter and verse on Brussels II article 10.

And more to the point, the last thing anyone needs is more Brussels II.

If a lot of legislation has the ‘bet you can’t read all of this’ quality of “A Brief History of Time” then Brussels II is the equivalent of reading the entireity of “Finnegans Wake” whilst you have both a migraine and a nearby six year old boy who just got a One-Man-Band kit* for his birthday.

[* To play “Crash Bang Wallop What a Picture” on a one man band kit, with Tommy Steele was the second Jim’ll Fix It request I sent in. The first was to meet Enid Blyton, who was long dead at the time. In retrospect, I am no longer bitter and twisted that the BBC never granted my opportunity to go on Jim’ll Fix It]

 

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yet more international surrogacy

Posted on July 2, 2014 by suesspiciousminds

 

This time, Re D (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/2121.html

 

This case was heard in the High Court, by Moylan J

 

 

  • This case provides a clear example of the difficulties created as a result of surrogacy arrangements being subject to varying degrees of domestic regulation, from significant regulation to none at all, and also because of the existence of significant differences in the effect of such domestic regulation. There is, in my view, a compelling need for a uniform system of regulation to be created by an international instrument in order to make available an appropriate structure in respect of what can only be described as the surrogacy market.

 

 

 

  • These proceedings concern a young boy called D who was born in 2010. He was born in the Republic of Georgia as a result of a commercial surrogacy arrangement, using eggs from a donor and the First Respondent’s sperm, which took place at and through a clinic in Georgia.

 

The particular wrinkle in this case was whether the surrogate mother was married at the time of this arrangement. Because if he was, under English law, he would be the child’s legal father, leaving the ‘commissioning father’ the genetic father, but having no legal rights about the child.

 

  • By virtue of section 35 of the HFEA 2008 the answer to the question, “Who is the legal father?”, depends on whether the surrogate mother was married at the relevant time. Section 35(1) provides:

 

 

“If – (a) at the time of the placing in her of the embryo or of the sperm and eggs or of her artificial insemination, W was a party to a marriage, and;

(b) the creation of the embryo carried by her was not brought about with the sperm of the other party to the marriage,

then, subject to section 38(2) to (4), the other party to the marriage is to be treated as the father of the child unless it is shown that he did not consent to the placing in her of the embryo or the sperm and eggs or to her artificial insemination (as the case may be).”

Section 35(2) provides:

“This section applies whether W was in the United Kingdom or elsewhere at the time mentioned in subsection (1)(a).”

 

  • Section 48 of the HFEA 2008 provides that where, by virtue of the provisions of the Act, a person is to be treated as the mother, father or parent of a child,

 

 

“that person is to be treated in law as the mother, father or parent (as the case may be) of the child for all purposes”.

Section 48(2) provides the converse, namely that where, by virtue of the HFEA 2008, a person is not to be treated as a parent of the child,

“that person is to be treated in law as not being a parent of the child for any purpose”.

 

 

The surrogacy and insemination was managed through a clinic, whose director is named MK in this judgment. MK sadly gave two rather different accounts of the surrogate mother’s matrimonial status

 

 

  • When the mother and MK went to the British Embassy in Georgia on 5th January 2011 MK informed the consular official that:

 

 

“The surrogate mother is divorced and was divorced before she entered into the surrogacy arrangement. There are a further five surrogate mothers waiting to deliver their babies in February/March all destined for the UK.”

On 30th December 2011 MK sent an e-mail to the mother’s solicitors in which she said:

“As for surrogate mother, yes, she is and was legally married. She is married also now. We have holidays here until January 3rd and then I will send official letter to public registry and obtain the proof that the surrogate mother is and was legally married, also request copy of her marriage certificate.”

[On version 1 the ‘commissioning man’ who provided the gametes was the genetic father and legal father, on version 2 he was only the genetic father. You absolutely don’t want any doubt about this issue, but the doubts just got worse]

In an e-mail dated 5th January 2012 MK said:

“Also one more important issue. Surrogate signed a contract with us claiming she was single. This was declared to the UK Embassy but very recently we became aware that the surrogate was married. I went to the UK Embassy with the mother to declare the surrogacy but I do not think this is problematic because some of our UK citizen surrogate mothers were married but UK law regulates this and none of our former potential parents has any problem because of this. You can check same in UK Embassy.”

On 20th February 2012 MK said that they had been unable to find the surrogate mother.

  • On 15th October 2012 MK said that the surrogate mother:

 

“Was either divorced or single. We do not match married surrogates to UK couple but we cannot provide any proof as we do not have any further link with her and only she can obtain proof of her marital status from public registry.”

The fact that only the surrogate mother could obtain proof of her marital status from the public registry was subsequently confirmed by the detective agency. In another e-mail of the same date, 15th October 2012, MK said:

“Paperwork was completed and D was granted papers to go to UK. At the time the surrogate mother has declared that she was single. We were later to be informed she had, indeed, been married.”

And then a bit later:

“I had a declaration (just my team member reminder) that surrogate mother was single when she signed and was given to the Embassy.”

In answer to the question as to whether she had any more information, MK said nothing more.

[I think that this Judge was very kind in not naming the agency or MK. Well, kind to them. Not so much to people who are wanting to enter into a surrogacy arrangement and might want to avoid complications, doubts and costly litigation down the line…]

Determination

  • Turning now to my determination, the evidence in this case, on the issue of whether the surrogate mother was married at the relevant time, is clearly not satisfactory. The only person able to give direct evidence is MK and she has refused to provide a statement. She has said, at different times, that the surrogate mother was single, married and divorced. I do not consider that any greater weight can be given to MK’s e-mail of 30th December 2011 than her other statements, which were either also provided to the mother’s solicitors or to the consular official at the British Embassy. These were, as I would describe them, equally official statements.

 

  • The mother’s evidence is inevitably unclear, based, as it is, on what she was told by MK or the impression she gained from MK.

 

  • In my view, the evidence does not establish that the surrogate mother was married at the relevant time. The evidence is not sufficient to enable me to come to that conclusion on the balance of probabilities. Indeed, in my view there is considerable doubt as to whether the clinic provided accurate details as to the identity of the surrogate mother. It is notable that the clinic has failed to provide its contract with the surrogate mother, although this may be explained by being unwilling to reveal the terms of that contract.

 

  • I propose, very briefly, to outline the orders agreed by the parties. In their position statements the parties were seeking different solutions. Those being addressed were adoption, special guardianship and shared residence. The mother sought either an adoption order or a special guardianship order. The father, in an extremely balanced statement, sought a shared residence order. The Local Authority supported the making of a special guardianship order. The guardian did not support the making of either an adoption order or a special guardianship order, having regard in particular to the effect those orders would have on the parties’ respective positions as parents. The guardian’s recommendation was that both parties should have parental responsibility and that there should be a shared residence order.

 

  • The parties, through sensible discussions, have agreed on a structure which follows that made by King J in the case of JP v LP & Ors [2014] EWHC 595 (Fam), including that D should remain a ward of court and that there should be a shared residence order. As I said at the beginning of this judgment, I am entirely satisfied that the proposed orders are in D’s best interests and, accordingly, at the request of the parties, I make such orders.

 

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All a matter of interpretation

Posted on May 23, 2014 by suesspiciousminds

The President’s decision in Re J and S (children) 2014

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2014/4.html

 

This was an application by parents for leave to oppose the making of adoption orders. The care order and placement order had been made in May 2013 by Theis J   http://www.bailii.org/ew/cases/EWHC/Fam/2013/2308.html

 

The President refused the application, the parents change of circumstances being put in these three ways

 

 

  1. That they had lodged an application with the European Court of Human Rights
  2. That the placement with a homosexual couple was contrary to the parents Slovak Roma heritage and their Catholic religious beliefs
  3. That there had been changes to the home conditions

 

 There is reference within the judgment to a Slovak organisation which provides assistance to Slovak citizens who become involved in English care proceedings – it might well be worth following this up if you are a Slovak citizen or are providing advice to someone who is.

31 In the present case Ms Sparrow relies upon three matters as constituting a change in circumstances.

32 The first is the pending applications before the European Court of Human Rights. As I have already noted, the parents’ applications for Article 39 measures have been rejected on three occasions. The present position is that the substantive applications remain pending before the European Court of Human Rights and, as letters from the Court state, will be considered “as soon as possible” though due to the Court’s heavy workload “it is not possible to indicate when this will be.” I say nothing as to what the position might be in a case where the Court has made interim measures under Rule 39. This is not that case. I fail to see how the mere fact that there is an application pending before the European Court of Human Rights can possibly amount to a “change in circumstances” for the purpose of section 47(5). I agree with what Moor J said in The Prospective Adopters v IA and Another [2014] EWHC 331 (Fam), para 39:

“The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.”

33 The second alleged change in circumstances arises out of the fact that J and S have been placed with prospective adopters who are a same sex couple. The parents put the point very simply and very eloquently in their witness statement:

“Our family is a Slovak Roma family and we are practising Catholics and a homosexual couple as potential adopters is very different from what Mrs Justice Theis had in mind in her judgment as this will not promote the children’s Roma heritage or their Catholic faith … Whilst we have no doubt that the prospective adopters have been properly assessed by the Local Authority, they are a homosexual couple and as such their lifestyle goes against our Roma culture and lifestyle

The children will not be able to be brought up in the Catholic faith because of the conflicts between Catholicism and homosexuality. They would not be able to maintain their Catholic faith if they are adopted by this couple and even if it was promised that they would attend church the children would at some stage be taught or learn of the attitude of the church to same sex couples. This would undoubtedly be upsetting to them and cause them to be in conflict between their religion and home life.

Slovakia still does not recognise same sex couples and so their Slovak roots and values will not be maintained. In 2013 the Catholic Bishops in Slovakia condemned same sex marriage.”

They go on to say:

“If, as expected, our children will try to find us and their siblings and roots, then they will discover the huge differences between our culture and the couple with whom they have been brought up. This is likely to cause them great upset and to suffer a conflict within themselves such as to set them against their adoptive parents. This would therefore cause the children great psychological harm as homosexuality is not recognised in the world wide Roma community. Having Roma children live with homosexuals or being adopted by them would be found to be humiliating … Ethnic, cultural and religious identity is an important part of identity and this aspect of a child’s needs in an adoptive placement should be considered very carefully. We do not accept that this has been properly considered by Kent County Council.”

They add:

“By proceeding with the adoption process and supporting adoption by a homosexual couple the Local Authority are continuing to act in such a way that will change our children who are of Slovak Roma heritage into white middle class English children which is contrary to the human rights of us and of the children. This is social engineering and is a conscious and deliberate effort by Kent County Council to transform our children from Slovak Roma children to English middle class children.”

34 Put very shortly, what Ms Sparrow says is that J and S have been put in a placement of a kind that was not contemplated by Theis J and which is wholly unsuitable having regard to the children’s Slovak Roma origins and Catholic roots.

35 I do not see how this can be described as a change in circumstances. There is nothing in all the material I have seen to suggest that the children’s placement with the prospective adopters was inappropriate or wrong, let alone irrational or unlawful, having regard to the principles that the local authority had to apply. Everything I have seen indicates that the process was conscientiously and properly undertaken having regard, as the paramount consideration, and as section 1(2) of the 2002 Act requires, to the children’s welfare throughout their lives. Nor, despite Ms Sparrow’s characterisation, has it been demonstrated that the placement was of a kind not contemplated by Theis J. On the contrary, Theis J expressly held, as we have seen, that the children’s welfare needs “outweigh” the impact that adoption would have on their Roma identity.

36 Of course, any judge should have a decent respect to the opinions of those who come here from a foreign land, particularly if they have come from another country within the European Union. As I said in Re K; A Local Authority v N and Others [2005] EWHC 2956 (Fam), [2007] 1 FLR 399, para 26, “the court must always be sensitive to the cultural, social and religious circumstances of the particular child and family.” But the fact is, the law is, that, at the end of the day, I have to judge matters according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative. They have made their life in this country and cannot impose their own views either on the local authority or on the court. Thus far I agree with the local authority. I have to say, however, that it was, in my view, unfortunate that the local authority should have referred at one stage in the proceedings to the parents’ views on homosexuality in such a way as to suggest that they are bigoted. The label is unnecessary and hurtful.

37 The third alleged change in circumstances (not canvassed either in the parents’ statement or in Ms Sparrow’s written submissions) relates to what are said to be improvements in the parents’ domestic and family circumstances. I am prepared to assume for the sake of argument that there have indeed been improvements of the kind Ms Sparrow refers to, but it does not, in my judgment, take the parents anywhere. The short fact is that nothing Ms Sparrow has said begins to suggest any change which bears in any way on Theis J’s findings in relation to the parents’ non-acceptance of other peoples concerns and their inability to change.

38 In my judgment, none of the matters relied upon by Ms Sparrow, whether taken separately or together, amount to a change in circumstances sufficient to take the parents beyond the first stage. They fall at the first hurdle. That being so, there is no need for me to go on to consider the second stage of the inquiry. I make clear, however, that even if the parents had been able to overcome the first hurdle, they would, in my judgment, have fallen at the second. Their ultimate prospects of success if leave to oppose was given are threadbare. They are entirely lacking in solidity. In truth, I have to say, they are little more than fanciful.

 

 

 

The part of the application which has wider implications than just for this unfortunate family relates to the initial hearing of this application on 7th May, which had to be adjourned because the interpreters that had been booked did not attend.

 

8. The hearing on 7 May 2014

9. The hearing before me on 7 May 2014 was unable to proceed. Despite the order made by Judge Murdoch, and although HMCTS had, as was subsequently conceded by it, gone through the appropriate procedures with Capita Translation and Interpreting Limited (Capita) to book two interpreters, no interpreter was present at court. I had no choice but to adjourn the hearing. How could I do otherwise? It would have been unjust, indeed inhumane, to continue with the final hearing of applications as significant as those before me – this, after all, was their final opportunity to prevent the adoption of their children – if the parents were unable to understand what was being said. Anyone tempted to suggest that an adjournment was not necessary might care to consider what our reaction would be if an English parent before a foreign court in similar circumstances was not provided with an interpreter.

10. I accordingly adjourned the hearing until 15 May 2014. I directed that HMCTS was to provide two interpreters for that hearing. I directed that Capita’s Relationship Director, Sonia Facchini, file a written statement (with statement of truth) explaining the circumstances in which and the reasons why no interpreters had been provided by Capita for the hearing on 7 May 2014. I gave Capita permission to apply to vary or discharge this order. It chose not to. I reserved the costs of the hearing on 7 May 2014 to the hearing on 15 May 2014 “for consideration of, inter alia, whether Capita should pay such costs.”

 

 

Capita did produce that statement, which raises more concerns than it resolved.

 

It indicated three matters of concern

 

  1. Capita, although being paid to perform the Government contract of providing interpreters for Court eschews all liability if the interpreters they book don’t attend Court.
  2. Capita don’t tell the Court until 2pm the day before the hearing that no interpreter will be coming, giving no time for alternative arrangements to be made
  3. Capita say that on they have 29 Slovak interpreters, and on the day in question there were 39 separate court hearings that required them. Thus raising huge issues about provision of interpreters.

 

Anyone who does family law will have had experiences of interpreters being booked and not attending, or a wholly unsuitable interpreter attending, and trying to deal with the fallout from this. Capita’s explanation here provides some context for just how bad things have become

 

Capita

11  Ms Facchini’s statement is dated 14 May 2014. I need not go into the full details. That is a matter for a future occasion. For immediate purposes there are three points demanding notice. The first is that, according to Ms Facchini, the contractual arrangements between Capita and the interpreters it provides do not give Capita the ability to require that any particular interpreter accepts any particular assignment, or even to honour any engagement which the interpreter has accepted. The consequence, apparently, was that in this case the two interpreters who had accepted the assignment (one on 14 and the other on 17 April 2014) later cancelled (on 5 and 1 May 2014 respectively). The second is that it is only at 2pm on the day before the hearing that Capita notifies the court that there is no interpreter assigned. The third is the revelation that on 7 May 2014 Capita had only 29 suitably qualified Slovak language interpreters on its books (only 13 within a 100 miles radius of the Royal Courts of Justice) whereas it was requested to provide 39 such interpreters for court hearings that day. This is on any view a concerning state of affairs. If the consequence is that a hearing such as that before me on 7 May 2014 has to be abandoned then that is an unacceptable state of affairs. It might be thought that something needs to be done.

12 Whether the underlying causes are to be found in the nature of the contract between the Ministry of Justice and HMCTS or whoever and Capita, or in the nature of the contract between Capita and the interpreters it retains, or in the sums paid respectively to Capita and its interpreters, or in an inadequate supply of interpreters (unlikely one might have thought in a language such as Slovak), I do not know. We need to find out.

 

 

I don’t think we will have heard the last of this issue.

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She moved to his prairie, and married a Texan

Posted on May 17, 2014 by suesspiciousminds

 

A very peculiar case, involving international law and an application for a Passport order.

SC and BH 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1584.html

 

This case had started as Hague Convention proceedings in England in 2010. The father, a Texan, had applied for the Court to return the child to him in Texas, on the basis that the mother had unlawfully removed the child. That hearing did not go too well for the father

 

  • During the course of his judgment in the Hague Convention case, His Honour Judge Jenkins made a number of damning findings in relation to the father’s credibility and approach to the case. These included evidence that the father produced:

 

 

 

“… showed the father’s lack of self-awareness. It demonstrates his insensitivity to the feelings of others, including the mother. He was shown not to be credible on matters that went to the heart of the evidence and also on matters that were not central but could have been helpful in establishing his personal credit.”

 

A further finding was that the evidence given by the father that:

 

“… the parties had gone to England for an extended holiday, appeared not to be founded in reality.”

 

And again:

 

“The father was driven to accept that he was accustomed to making grandiose statements. The job applications that have been exhibited contain many misleading statements or downright lies. The persistence of the father’s positive claims for himself and his position in life is a hallmark of someone who is a fantasist and self-deceiver.”

 

His Honour Judge Jenkins also examined the basis that the father said founded the mother’s retention of the child in this country as follows:

 

“The father puts his case on the basis of a conspiracy between the mother and various relatives… The evidence that there was a conspiracy is almost non-existent. Its existence is so improbable that I feel I need to make no other observation other than that I do not accept that there was one. The alleged conspiracy, it should be said, was that the mother quite deliberately went to the United States and became pregnant by an American citizen with the sole purpose of thereafter abducting the resulting child.“

 

Finally, His Honour Judge Jenkins made the following observations in relation to the father’s general trustworthiness in relation to litigation:

 

“My mistrust of the father extends to his conduct of the litigation. I do not trust him in relation to undertakings that he gave so belatedly about the mother and ACH in order for the hearing to go ahead… I therefore have a concern about his attitude in the Texas proceedings were the mother and child to be ordered to go to America, and the value of any undertaking given by him in relation to criminal proceedings.“

 

 

  • Following the conclusion of the Hague proceedings, the mother applied, on 23 December 2010, without notice, for a residence order and a prohibited steps order, preventing the father from removing ACH from the mother’s care, the jurisdiction, her home or her school. These orders were made and therefore continued on the return date on 27th January 2011. They have remained in force to date.

 

 

Well, that’s the end of that then.

Not quite, because what happened then was that the father went to Court in Texas and got orders in entirely the opposite direction.

 

  • I am told that, upon advice from her US lawyers, the mother did not engage in these proceedings and, despite the finding of this court as to ACH’s habitual residence and of the availability to that court of the judgment of HHJ Jenkins, the Texan court nevertheless made an order in the father’s favour in the mother’s absence. The first of these orders was dated 19th August 2013 and states as follows:

 

 

 

“The Court further finds that BH shall be the only named Conservator of the child, ACH SH, as the Court finds that it is not in the child’s best interests to name SC as a Conservator as such would endanger the physical and emotional welfare of the child. It is ordered that BH is appointed Sole Managing Conservator of the following child, ACH SC. It is ordered that BH as Parent Sole Managing Conservator, shall have the following exclusive rights and duties: (1) the right to designate the primary residence of the child without regard to geographical restriction… The right to apply for and obtain a passport for the child without the consent of or notice to SC.“

 

The provision in relation to the passport went on as follows:

 

“If BH, as Sole Managing Conservator of the child applies for a passport for the child, it is ordered that BH has the exclusive right to apply for and obtain a passport for the child without the prior consent of SC and is not otherwise required or ordered herein to notify SC of his further application for or receipt of any passport for the child. It is further ordered that BH shall have the exclusive right to maintain and hold any passport for the child.”

 

 

  • On 5 September 2013, the mother unsurprisingly having failed, pursuant to the Texan order of 19th August 2013 to return ACH to the jurisdiction of the United States, the US Court made a further ex parte order. The order states as follows:

 

 

 

“The Court finds that it has previously made an order on 19 August 2013 finding that it is not in the best interests of the child to name the Respondent as a Conservator, and the Respondent’s conservatorship would endanger the physical and emotional welfare of the child. Further, the Court finds that the Respondent has a history of abusing legal narcotics and further has left the child’s habitual residence and home state, absconding and abducting the child using fraudulent inducement with the intention of keeping the child from the Petitioner and has further failed and refused to return the child to the Petitioner as ordered by this Court’s August 19 2013 orders. The Court finds that the Respondent has already abducted the child and herself faces risk of apprehension in the United States as well as the United Kingdom and that, as a result, there exists a clear risk that the Respondent will further secrete herself and the child making it nearly impossible to locate and return ACH SH in the future.“

 

 

  • The court thereafter went on to issue a warrant seeking physical custody of ACH and for her to be returned to the jurisdiction of the United States. The order purported to direct all law enforcement agencies:

 

 

 

“… Police Departments, Interpol, Federal and State agencies, Government agencies, Sheriffs, and any other authorised law enforcements in this State or in any other jurisdiction as necessary and specifically including any person authorised under the Uniform Child Custody Jurisdiction and Enforcement Act to immediately take the minor child into custody and return the minor child to the physical custody of the Petitioner, BH.”

 

 

  • The mother’s situation therefore vis-à-vis the Texan courts is as follows:

 

 

 

(1) the father has sole residence of ACH; 

(2) the mother would appear to be being stripped of her parental responsibility; (3) ACH, who has never been separated from her mother since birth, is seemingly to be removed from her care forthwith and thereafter to have only supervised contact with her mother;

(4) the father can obtain a passport without the mother’s consent and is not required to notify her having done so.

 

 

  • At first blush it may seem surprising that the Texan courts should have assumed jurisdiction in circumstances where the father had failed in his application for the summary return of the child to the US in the Hague proceedings in the England. I bear in mind however that in a European case a non-return under the Hague Convention is not necessarily the end of the matter because of Article 11 which applies in Article 13 cases (so would not have applied in this case where the obstacle to return was the fact that ACH’s habitual residence was in England not Texas). The European position does however exemplify how Hague non-return orders are not always the end of the matter. This court has no information or evidence as to the Texan arrangements in relation to the exercise of jurisdiction in relation to a child post – Hague.

 

 

 

 

  • Whatever may have been the jurisdictional basis which led the Texan courts to assuming jurisdiction in ACH’s case, the fact remains that ACH lives and is habitually resident in this country and the English courts have jurisdiction to deal with all and any issues in relation to her welfare. It is against this background and the findings of HHJ Jenkins that the mother has applied for the making of the passport order.

 

That would mean that if the father came to the UK and took the child, he would be able to get the child back to Texas and the mother would have no chance of being able to recover the child, despite the rulings in her favour in the UK Court.

That is why the mother applied for a Passport order.  (I have to confess, not being a specialist international lawyer, that was a new concept to me)  – the Passport order would be an order that if the father entered the UK, his passport and any passport he was carrying in the child’s name would both be seized. That would obviously stop him leaving the UK with the child (0r indeed at all)

 

The Court’s powers to make such an order don’t come from statute, but from the inherent jurisdiction – my best efforts are that this first got determined in Re A-K (minors :foreign passport jurisdiction) 1997 where the High Court ruled that the inherent jurisdiction did give the power for the High Court to remove a passport from a foreign national.

The mother’s legal team righly brought to the Court’s attention Charles J’s authority of B v A  – warning the Court to be careful about making such serious orders

 

  • Miss Ridley, counsel on behalf of the mother, very properly brought my attention to the case of B v A (Wasted Costs Order) [2013] 2 FLR 958, a judgment by Charles J where there was consideration of ex parte applications in the context of Tipstaff orders. She referred me in particular to paras.6 and 7 as follows:

 

 

 

“6. Tipstaff orders, and thus location orders, are (and are designed to be) powerful weapons in the search for children and the determination by the courts of England and Wales of issues relating to their future. They enable public authorities to interfere in the private lives of adults and children and carry serious penalties. It should be known to all judges who grant them that experience has shown that:

i) the travelling time of a flight to England can often allow for steps to be taken to meet the relevant adult and child at the airport on arrival,

ii) the orders can often be triggered when an adult comes to the notice of the police for some other reason (e.g. a motoring offence), and

iii) these possible triggers to an order mean that care needs to be taken to ensure that their enforcement (and so possibly an arrest and detention under them) only remains a possibility for as long as they are needed to fulfil their purpose.

 

7. The potentially serious impact of such orders means that those who apply for them and those who grant them should act with caution and due regard to the principles and procedures relating to the grant of relief on a without notice basis (see for example [a case relating to passport orders] a case seeking a financial remedy but the same approach is required to a case relating to the alleged abduction of a child or other proceedings relating to a child).”

 

 

  • Miss Ridley further, in the light of B v A, draws the court’s attention to the fact that there has been no direct threat made by the father to abduct ACH. Further, she accepts that the making of the order that she proposes potentially restricts the freedom of movement of the father and that, as in all cases which do cause such a restriction, it must be proportionate and must not be open-ended. The risk, however, she submits is very real, and the consequences for ACH are so severe that the making of the proposed order is proportionate in all the circumstances, particularly with the safeguard that she suggests to the court, of a return date within 48 hours of seizure of travel documents upon the father’s entry to this country.

 

 

 

In this particular case, the risks were considered sufficient for the Court to make such an order

 

 

  • Miss Ridley prays in aid:

 

 

 

 

(i) the concerning findings of HHJ Jenkins as to the credibility of the father and the court’s inability to rely on any undertakings he may give; 

(ii) rather than seek involvement and orders through these courts, nearly three years later, the father has been to the Texas court and obtained orders which simply cannot be regarded on any view as child-centred, involving, as they do, on their face, the removal of this young child from her mother to a stranger;

(iii) the father has set out to put himself in a position where he can, if he abducts this child, with the benefit of the American passport he is able, legitimately to obtain for her, get her out of the UK and having done so he will thereafter have the protection of the Texan courts on his return to the United States. The Texan orders mean that the court cannot presume that a Hague Convention application would necessarily succeed where there has been no acceptance by the Texan courts that ACH is in fact habitually resident in this country.

 

 

  • Having read the papers and in particular the judgment of HHJ Jenkins I am satisfied that it would be inimical to ACH’s welfare for her to be removed from her mother’s care by her father who is a total a stranger and for her to be taken from all she knows to a foreign country. Rather, the father should accept the reality that ACH’s home is in the United Kingdom with her mother and, having accepted that, start working with these courts and with the mother to establish contact and to build up a relationship with his child. Until such time as he does that, or ACH is of such an age that she cannot be effectively abducted, I take the view that his actions to date inevitably lead the court to conclude there is a real risk that the father will use the vehicle that he has put in place, namely passport and Texan orders, to enter into this country and abduct ACH.

 

 

 

 

  • In those circumstances, taking all the matters into account and with the wise words of caution of Charles J in B v A, at the forefront of my mind I make the passport order sought.

 

Hopefully the order, and service of it, will discourage the father from coming to the UK. It might not, in which case, there’s going to be a very difficult conversation at Passport control. If you are flying back from America, and you get behind a man in the queue wearing a ten-gallon hat and shouting about “passport orders”, just move to a different queue, you could well be there for some time. That’s assuming that the father doesn’t go back to the Texas Court and get an order authorising the use of nuclear weapons against the High Court. They don’t say “don’t mess with Texas” for fun, you know.

 

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

Posted on March 22, 2014 by suesspiciousminds

 

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 12th 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 17th 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 12th 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 17th 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 17th 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 17th 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 17th –

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]

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An air of indifference

Posted on March 20, 2014 by suesspiciousminds

 

The High Court kicking ass and taking names in Re A (A child) 2014

 

http://www.bailii.org/ew/cases/EWHC/Fam/2014/604.html

 

This involved a set of care proceedings in which the father was Latvian. For one reason or another, he did not get served with notice of the proceedings or get told that his child was in care or that he was entitled to be represented for FIVE months.  That despite a series of orders being made that he was to be located and served.

 

The High Court understandably took a dim view of this

 

As far as I can establish orders made were not complied with. When the matter first came before me in September, I am afraid to say that there was an air of indifference by the parties as to the fact that there had been woeful non-compliance with court orders.

 

 

The High Court gave some guidance on cases where one parent lives abroad, this being a more common feature in care proceedings

 

  1. In cases such as this, where one or both of the parents lives abroad, the following action should be taken:

(1) At an early stage every effort should be made to locate, contact and engage a parent who lives abroad. If that other country is one of the signatories to B2R information as to the parent’s whereabouts can be obtained through an Article 55 request via the Central Authority. My experience is they respond effectively and efficiently to focused requests made;

(2) Once contacted the parties and, if necessary, the court should take active steps to secure legal representation for such parents. In this case nothing effective was done for five months. It took less than five hours at the hearing in September to contact the father and secure representation. Most solicitors who do this sort of work have a wealth of experience in undertaking work where one of the parties resides abroad. It is now a much more regular feature of this type of case;

(3) The court must effectively timetable any issues as to jurisdiction to avoid the delays that occurred in this case. This includes early consideration regarding transfer to the High Court. A party seeking written expert legal advice about the extent of this court’s jurisdiction as to habitual residence is not likely to be a helpful step. The question of jurisdiction is a matter to be determined by the court following submissions from the party’s legal representatives.

(4) There needs to be a more hands-on approach by all parties with regard to compliance with court orders. No party should be able to sit back as a spectator and watch non-compliance with orders and not shoulder any responsibility that flow as a result of those failures. The air of indifference by all parties in this case at the hearing in September to the fact that the father had not been served for five months was shocking.

 

 

Ignore those at your peril. I imagine if you happen to be before this particular judge and haven’t followed these guidelines if the issue arises, that it might turn out to be a difficult day in Court.  The retired manager of Manchester United was often described, when shouting at his players, to have given them ‘the hairdryer treatment’   – I suspect that would be putting it mildly. *

 

(* I note Charles J’s comments to the House of Lords committee looking at the Mental Capacity Act 2005 that writing a judgment on a deprivation of liberty case left him feeling like he had been in a washing machine on spin cycle)

 

At any rate, I don’t think that the judicial approach would be indifference.

 

Returning to the case itself, once the father was served, his application was that the case should be dealt with in Latvia.

 

His starting point was that the child was not habitually resident in England, but in Latvia when the proceedings started, so the English Court has no jurisdiction. His fallback position was that even if the English Court had jurisdiction, Latvia should be preferred under Brussels II

 

 

The father’s case was that the mother had taken the child out of Latvia and come to England without his consent, and that having not consented to that removal, it was an unlawful one

 

It is agreed in those circumstances that the removal of A was wrongful pursuant to Articles 3 and 5 of the Hague Convention, because he was habitually resident in Latvia prior to the removal. The father had rights of custody in respect of him under Latvian law under Articles 177 and 178, the father did not consent to his removal and the removal was in breach of his rights of custody which he was exercising or would have done but for the removal.

 

 

The mother claimed that the father had acquiesced in the removal

 

In determining acquiescence the House of Lords decision Re H (Abduction: Acquiescence) [1997] 1 FLR 872 is the leading authority setting out the factors that the court should take into account. They are summarised as follows: firstly, the question of whether the wronged parent has acquiesced in the removal or retention of a child depends on his actual state of mind; secondly, the subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent; thirdly, the trial judge in reaching his decision on that question of fact will, no doubt, be inclined to attach more weight to the contemporaneous words or actions of the wronged parent than to his bare assertions in evidence of his intentions; fourthly, the court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted children and; fifthly, where the words or actions of the wronged parent had clearly and unequivocally shown or had led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

 

 

The Court was satisfied that the father had been making efforts to locate the mother and the child, and had made applications to Courts in Latvia, this being compelling reasons to discount a suggestion that he had acquiesced to the removal.

 

The Court then looked at whether mother had demonstrated a defence to the abduction that would make it justifiable, and concluded that she had not, or whether there was now ‘settlement in England; and that there was not. (If you are fascinated about the law on abduction, there’s a lot of meaty information in this judgment, but it probably lies outside of the scope of non-specialists)

 

 

Thus, the child was wrongly removed from Latvia, that removal did not change residence, and the English Court had to order return of the child to Latvia, and any future proceedings would be in Latvia rather than England.  The child had legally been habitually resident in Latvia (although was physically in England) at the time the proceedings began

 

  1. For the reasons that I have already set out, I do not consider the father has acquiesced to the retention by the mother of A here and in the same way I do not consider he has acquiesced to A’s habitual residence here and in those circumstances Article 10 B2R applies and A’s habitual residence remains in Latvia.
  1. So for those very brief reasons I am clear that at the time the proceedings were commenced in this jurisdiction A’s habitual residence was in Latvia and so this court, other than for the limited purposes under Article 20 B2R, does not have jurisdiction to determine the care proceedings.
  1. In those circumstances A should be returned to Latvia and I will hear submissions from the parties as to the practical arrangements that need to be made.

 

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And I ain’t talking ‘bout chicken and gravy

Posted on February 21, 2014 by suesspiciousminds

I’m afraid that I have to tackle the Court of Appeal decision in Re M (A Child) 2014, but it relates to Brussels II, article 15 and the Vienna Convention, and frankly it is hard for even me to have any enthusiasm for it

 So this is better – not sure who wrote this translation of a Human Rights blog article so that Snoop Doggy Dogg is the only person alive who could understand what is being said, but courtesy of John Bolch over at www.familylore.com   it did entertain me

 

http://www.gizoogle.net/index.php?search=http%3A%2F%2Fukhumanrightsblog.com%2F2012%2F11%2F21%2Fthe-bailii-lecture-no-judgment-no-justice%2F&se=Gizoogle+Dis+Shiznit

 

Sample :-

In relation ta tha straight-up original gangsta requirement, dat shiznit was blingin ta recognise dat tha hood was tha real crew: judgments had ta drop a rhyme ta tha public, as well as ta tha lawyers n’ litigants, n’ you can put dat on yo’ toast. They should therefore be sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about.

 

Quite so.  

 

Sigh, onto Re M

 This is the appeal from Mostyn J’s decision

 https://suesspiciousminds.com/2014/01/08/brussels-sprouts-ii-this-time-its-jurisdictional/

 in which, to be fair, he had clearly grasped that there were some wider public policy issues that were worthy of being looked at by the Court of Appeal, so gave a judgment which made it plain that he expected / indeed wanted to be appealed.

 

The issue that troubled him was the argument in the case that where one of the parents is from a European country that DOESN’T have non-consensual adoption, shouldn’t the presumption be that the case SHOULD be transferred to that country under Brussels II article 15. That’s what he went for in the end.  

[You can see some force in it, but the consequence of it is that you get a “Get out of Adoption free” card so long as one of the parents is from a country in the EC that isn’t Britain]

 You may also recall, that although this appeal was pending, the President got stuck into many of the Brussels II issues that Mostyn J had raised in Re M, and gave a judgment in a case called Re E

 

https://suesspiciousminds.com/2014/01/14/this-means-nothing-to-me-ahhhhh-vienna/

 

I speculated at the time that this was something of a pre-emptive strike to the Re M appeal, and I also speculated that (a) The President would find himself sitting on that appeal and (b) that the Court of Appeal would probably not stray far from Re E

 

Well, how wrong I was

 (Wait, no, I wasn’t)

 

http://www.bailii.org/ew/cases/EWCA/Civ/2014/152.html

 The Court of Appeal’s panel of three Judges did include the President, and Re E was greatly preferred to Mostyn J’s decision in Re M

 

The Court of Appeal heard the argument that where a parent is from an EC country and adoption is an issue, there should be a presumption that the case SHOULD transfer to the country that DOESN’T countenance non consensual adoption.

 

They also heard the argument that the opposite presumption should apply, as only a Court that can hear and consider ALL of the options can do it properly.

 

The Court of Appeal, being no mugs, decided instead that there was no presumption either way and that BRII should be decided on the circumstances of the case and that the wording of article 15 needed no gloss or subtext

 

15.   ) First, it must determine whether the child has, within the meaning of Art 15(3), ‘a particular connection’ with the relevant other member state – here, the UK. Given the various matters set out in Art 15(3) as bearing on this question, this is, in essence, a simple question of fact. For example, is the other member state the former habitual residence of the child (see Art 15(3) (b)) or the place of the child’s nationality (see Art 15(3) (c))?

ii) Secondly, it must determine whether the court of that other member state ‘would be better placed to hear the case, or a specific part thereof’. This involves an exercise in evaluation, to be undertaken in the light of all the circumstances of the particular case.

iii) Thirdly, it must determine if a transfer to the other court ‘is in the best interests of the child.’ This again involves an evaluation undertaken in the light of all the circumstances of the particular child.”

 

 

51. There is, in my judgment, no room for a “sub-text” in the interpretation of B2R, as the judge held at [29]. Still less is there any room for a sub-text that directly contradicts the basic policy of B2R as set out in recital (12). So the real question is whether the judge’s view that there was a sub-text of the kind that he identified vitiated his balancing exercise. It is difficult, in any event, to shake off the impression that the text of the judge’s judgment had its own sub-text, which he had articulated at [29]. But even allowing for the fact that he posed himself the right questions, I agree with Ryder LJ, for the reasons that he gives, that his answers were vitiated by his mistaken view of the underlying policy of B2R.

 

And 54

 

  1. The language of Article 15 is clear and simple. It requires no gloss. It is to be read without preconceptions or assumptions imported from our domestic law. In particular, and as this case demonstrates, it is unnecessary and potentially confusing to refer to the paramountcy of the child’s interests. Judges should focus on the language of Article 15: will a transfer be “in the best interests of the child”? That is the relevant question, and that is the question which the judge should ask himself.

v) In relation to the second and third questions there is one point to be added. In determining whether the other court is “better placed to hear the case” and whether, if it is, a transfer will be “in the best interests of the child”, it is not permissible for the court to enter into a comparison of such matters as the competence, diligence, resources or efficacy of either the child protection services or the courts of the other State. As Mostyn J correctly said, that is “territory into which I must not go.” I refer in this context, though without quotation, to what I said in Re E, paras [17]-[21].

vi) In particular, and in complete agreement with what Ryder LJ has said, I wish to emphasise that the question of whether the other court will have available to it the full list of options available to the English court – for example, the ability to order a non-consensual adoption – is simply not relevant to either the second or the third question. As Ryder LJ has explained, by reference to the decisions of the Supreme Court in Re I and of this court in Re K, the question asked by Article 15 is whether it is in the child’s best interests for the case to be determined in another jurisdiction, and that is quite different from the substantive question in the proceedings, “what outcome to these proceedings will be in the best interests of the child?”

vii) Article 15 contemplates a relatively simple and straight forward process. Unnecessary satellite litigation in such cases is a great evil. Proper regard for the requirements of B2R and a proper adherence to the essential philosophy underlying it, requires an appropriately summary process. Too ready a willingness on the part of the court to go into the full merits of the case can only be destructive of the system enshrined in B2R and lead to the protracted and costly battles over jurisdiction which it is the very purpose of B2R to avoid. Submissions should be measured in hours and not days. As Lady Hale observed in Re I in the passage already cited by Ryder LJ, the task for the judge under Article 15 “will not depend upon a profound investigation of the child’s situation and upbringing but upon the sort of considerations which come into play when deciding upon the most appropriate forum.”

 

 

Note the strong remarks made by each of the Judges about the need for the issue of which jurisdiction should properly hear the case to be fully considered at an early stage

 

 

47 Jurisdiction must be considered in every children case with an international element and at the earliest opportunity i.e. when the proceedings are issued and at the Case Management Hearing. 

 

 

And the President

 

  1. The ultimate outcome of this appeal should not be allowed to obscure the great importance of Article 15. In the nature of things one cannot be sure, but I have an uncomfortable feeling that Article 15 has hitherto played far too little part in the daily practice of our courts and that its great importance has not been as widely appreciated as it should be. I repeat what I said in Re E, paras [35]-[36]:

“It is highly desirable, and from now on good practice will require, that in any care or other public law case with a European dimension the court should set out quite explicitly, both in its judgment and in its order:

(i) the basis upon which, in accordance with the relevant provisions of BIIR, it is, as the case may be, either accepting or rejecting jurisdiction;

(ii) the basis upon which, in accordance with Article 15, it either has or, as the case may be, has not decided to exercise its powers under Article 15.

This will both demonstrate that the court has actually addressed issues which, one fears, in the past may sometimes have gone unnoticed, and also identify, so there is no room for argument, the precise basis upon which the court has proceeded. Both points, as it seems to me, are vital.”

I added: “Judges must be astute to raise these points even if they have been overlooked by the parties.”

  1. It is also vital, as this case has demonstrated, that the Article 15 issue is considered at the earliest opportunity, that is, as Ryder LJ has pointed out, when the proceedings are issued and at the Case Management Hearing. I agree with him that the Family Procedure Rules Committee should be invited as a matter of urgency to consider appropriate alterations to Practice Direction 12A to ensure that this happens in future

 

I’m not sure, if I read this judgment that it is sufficiently well freestyled ta enable reasonably intelligent non-lawyers ta KNOW what tha f**k tha case was about, but that’s no easy task, you get me?

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Another month, another faked pregnancy

Posted on February 18, 2014 by suesspiciousminds

This is, I think the third, possibly fourth, decision of the High Court  in the last two years involving “parents” who undertook fertility treatment in Nigeria, underwent some form of “labour” and returned to the UK with a child that was not biologically theirs.

London Borough of Hillingdon v AO 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/75.html

In this one, after the DNA test showed that the baby was not biologically related to either of them, the Lagos fertility clinic told the parents that the treatment process and herbal drinks would have altered the baby’s DNA… that wasn’t an explanation that the Court accepted.

In this case, as in Coleridge J’s case (but unlike Parker J’s case) the Judge accepted that the parents had been deceived by the clinic, rather than participants in a deliberate deception.

    1. In July also the parents co-operated with the request for DNA testing, which had they known for certain would have proved they were not A’s parents they may have resisted or prevaricated about.

 

    1. What is striking in their evidence is that the mother attended the surgery three times in March and April when she says she was 7 plus months pregnant and approaching her due date. If the mother had known that she was not in fact pregnant this was an extraordinary action, not just once but three times. It would have been very risky because a doctor may have wanted to examine her, and the truth would have been ascertained relatively easily and quickly, and had she refused an examination the doctors may well have been sufficiently concerned to raise child protection issues with the Local Authority. Had she known she was not pregnant it would have been more prudent to stay away and if necessary forego any maternity benefits or sick leave. Or, I ask myself did she go to see the doctors with a form of arrogance and bluster thinking she could bluff and delude them.

 

    1. I have seen both parents in Court over a number of days. They certainly do not give the appearance of people who can assert and bluster their way through difficult situations.

 

  1. In the end, having considered all the evidence before me and notwithstanding the inconsistencies in their account I am driven to conclude that in some way they allowed themselves to be duped by fraudsters. They so much wanted a baby. They come from Nigeria with the heritage of traditional herbal medicine, and allowed themselves to fall under the spell of the herbalists believing what was said to the mother, and acting faithfully upon the instructions given to them. Contrary to the submissions of the Local Authority and Guardian I do not find the parents were wilfully and knowingly involved with or parties to a wrongful removal of A from her mother, or that they cynically ‘bought’ a baby. Throughout this evidence the father referred to ‘a process’ they went through. I accept there was a process, a charade in which they were unknowing players, in which they were deceived.

If anyone who reads this blog does happen to be an investigative journalist OR knows one, there’s a good story here one way or the other.  Either some Nigerian fertility clinics are a cloak and cover for illicit child trafficking which is a conspiracy with people living in England (and America) who want children  OR they are deceiving and hoodwinking in an elaborate and interesting way people who desperately want to conceive children and taking money off them before passing off a stranger’s baby as their own.   {I actually genuinely believe that it is the latter, which makes it a really good subject for hidden camera investigation}

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