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Someone had blunder’d


In these times where every week seems to give family practitioners another raft of guidance to follow, another lecture on how awful we all are for not doing this that and the other and another bout of finger wagging, this case might make some of us happy.


Re J (A child) 2015


In which there was a terrible cock-up, and it wasted a lot of time and money, and was unfair and an apology had to be made. But for once, it was the Court having to say that they got it wrong, rather than wagging fingers at everyone else. Even more sweet because the apology was delivered by the President himself.  (Fair play to him, he came out and did it straight)


This was a case where mother was told by Pauffley J to return her child to America forthwith. Mother made an application to appeal.  That application came before King LJ as a paperwork request. The mother and her solicitors were told that the application for permission to appeal was refused. A stay had been made to prevent Pauffley J’s order taking effect for 3 weeks, to allow the application for permission to appeal to come before the Court of Appeal for an oral application.


When that 3 week period expired, father applied to the High Court for enforcement of the order (as he was entitled to), because the child had not been returned to America. The case came before the President on 29th May 2015 and the President made a series of orders, including an order to seize mother’s passport.


What the President did not know, and what none of thelawyers  knew, was that King LJ had extended the stay to 12th June (at a hearing where mother appeared in person and permission to appeal was refused). Everyone knew that permission to appeal had been refused, but nobody (save the mother and King LJ knew about the stay being extended)


So, at the time that the President was making really serious orders (the tipstaff going out and forcibly taking mother’s passport away from her) on the basis of mother being in breach of Pauffley J’s order, the Court had already granted a stay of that order. The mother was  not in breach of the Court order.


Rather embarrassingly, it was the mother who had to notify the Court when she was served with the President’s order, drawn on the basis that she was in breach of Pauffley J’s order that she (and apparently she alone) was in possession of knowledge that King LJ had extended the stay until 12th June and thus she wasn’t in breach.



  • So far as concerns events after I had made the orders on 29 May 2015, what appears to have happened was this. When the passport order was executed on 31 May 2015, by police officers acting on the authority of the Tipstaff, the mother complained and spoke to the Tipstaff by telephone. He was told by her that the Court of Appeal had granted a stay until 12 June 2015. Quite properly, and clothed with the authority of the passport order I had made, he indicated that my order would nonetheless be enforced. The police officers accordingly seized the mother’s passport.
  • The Tipstaff communicated what the mother had said to him to Dawson Cornwell in a telephone conversation at about 9.30am on 1 June 2015. Dawson Cornwell emailed the CAO at 10.50am, setting out the history of the matter in appropriate detail, attaching a copy of the order I had made on 29 May 2015, and saying:


“We today spoke to … the Tipstaff. He confirmed that he spoke to the Mother on the telephone yesterday when the officers attended her property. She informed him that it was her understanding that the Court of Appeal had told her that she was to return to the USA by 12 June 2015. We have not been informed of this, nor has our client. Please would you urgently confirm if this is the case?”

They added:

“We should be most grateful to hear from you as to whether the Court of Appeal has indeed set the return date for 12 June 2015.”

Dawson Cornwell received no response from the CAO. Later the same day, and apparently as a result of a request from her, the CAO emailed the mother, sending her a copy of the draft of the order made by King LJ, saying that it was awaiting approval by the judge.


  • The next day, 2 June 2015, King LJ’s order of 22 May 2015 was sealed. It was emailed to the mother and the father by the CAO at 16.26. That email was not copied to Dawson Cornwell or anyone else. Almost immediately, however, the mother sent the order to the office of the Clerk of the Rules, which helpfully passed it on immediately to Dawson Cornwell. Very promptly, and very properly, Dawson Cornwell emailed the mother’s solicitors the same afternoon a letter saying:


“Given that a stay of execution has been granted by the Court of Appeal, we confirm that we will not seek to enforce paragraph 7 of the Order of the President of the Family Division of 29 May 2105 until 23.59 on 12 June 2015, in the event of your client’s non-compliance with that Order.”

The mother’s solicitors responded by email (by now it was 17.40) saying that they had emailed the letter to their client. On the morning of 4 June 2015 the mother emailed Dawson Cornwell asserting that there was a stay of execution until 12 June 2015.


  • I have set out the unhappy history of the matter in some detail, but the key fact is stark and simple. When I made the orders on 29 May 2015 I was unaware that King LJ had granted a stay until 12 June 2015. That fact alone, irrespective of how it had come about, necessitated the setting aside of the relevant parts of my order. As the order I made on 4 June 2015 recited, I was:


“setting aside the order … dated 29 May 2015 on the basis of inadvertent non-disclosure of critical information (that being that the Court of Appeal granted the mother a stay of execution of the order of 24 April 2015 until 12 June 2015).”

Paragraphs 7 and 9 of the order of 29 May 2015 were simply inconsistent with the stay.


  • Had I known of the stay, I would still have been prepared to make the passport order, and the orders consequential upon the passport order, for the basis of that order was the mother’s non-compliance with the earlier order made on 20 March 2015 by the Deputy Judge, and the need for such an order, in all the circumstances, was not affected by the stay. That is why I have not set them aside. Had I known of the stay I would not, however, have been prepared to grant any other relief. It would have been premature to do so while the stay was in force.
  • I wish to make it absolutely clear that, in my judgment, no criticism of any kind attaches to Dawson Cornwell, Ms Hutchinson or Ms Chaudhry. Given the terms of the email sent by the CAO on 26 May 2015, especially when contrasted with the language of the earlier email sent by Ms Said on 7 May 2015, they were entitled to assume that there was no longer any stay in place. Certainly, when I read that email on 29 May 2015 it never occurred to me that there might be a stay. After all, King LJ had refused permission to appeal, so there could be no question of a stay pending an application to the Supreme Court. And given the critical significance of a stay, any reader of the email from the CAO dated 26 May 2015 was surely entitled to assume that, if a stay had been granted, the news that “permission to appeal is refused” would have been caveated by a reference to the fact that there was nonetheless a stay. Most unhappily, it was not.
  • There is one further matter I must place on record. On the afternoon of 22 May 2015, King LJ’s clerk had emailed the Clerk of the Rules with the information that King LJ had extended the stay until 12 June 2015. Again most unhappily, the information in that email, which of course was unknown to Dawson Cornwell, was not passed on to me when I was dealing with the matter on 29 May 2015. It did not come to my attention until later in the afternoon following the hearing before me on 4 June 2015.
  • The mother and J are entitled to an unreserved apology for what has happened. It should not have happened. It did happen. I am very sorry that it did. I hope that nothing similar happens again. Procedures in the court offices will, no doubt, be tightened up in the light of what this most unfortunate case has revealed.



I note that in looking at the reasons why a Court did not know that extremely relevant Court orders on the case had been made which would have transformed the Court’s thinking, it is a shame that the President did not refer to the seminal case of Right Hand versus Left Hand  (ex parte Escher) 1854  in which it was held that the Left Hand had no knowledge of what the Right Hand was doing and vice versa.


Perhaps we need a brand new Monopoly card

Court error in your favour. Collect  ten red faces!

Court error in your favour. Collect ten red faces!


It is mean of me to gloat. Everyone can make mistakes, even very significant ones like this. We are all human beings, and working under pressure and tight deadlines. The Court, like all of us, is only human.


As Alexander Pope said, “To err is human, to forgive, divine”


So on behalf of those of us who have been getting nothing but lectures and grief from judgments, speeches, Practice Directions and Views about how every tiny thing we do we are doing wrong and the solution is to become more cumbersome, time-consuming and intricate over the last two years, Mr President, we forgive you.


She moved to his prairie, and married a Texan


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

SC and BH 2014


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.