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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C-W (A Child), Re [2015] EWCA Civ 1272 (11 December 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1272.html Cite as: [2017] 1 FLR 131, [2015] EWCA Civ 1272, [2017] 4 WLR 51, [2016] 1 FCR 572, [2016] Fam Law 286 |
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COURT
OF APPEAL (
CIVIL
DIVISION)
ON APPEAL
FROM
THE
CENTRAL
FAMILY
COURT
Her Honour Judge
Williams
![]() ![]() Strand, London, ![]() ![]() |
||
![]() ![]() |
B e f
o r e :
FAMILY
DIVISION
LORD JUSTICE RICHARDS
and
LORD JUSTICE FLOYD
____________________
Re ![]() ![]() ![]() |
____________________
Devereux
(instructed by
Dawson
Cornwell)
for
the appellant (
C-W's
mother)
The respondent (C-W's
father)
appeared in person assisted by a McKenzie
friend
Hearing
date
: 26 November 2015
____________________
Sir James Munby, President of the Family
Division
:
"I have to assess the mother andwhether
she
would
either return
C-W
after
contact
or allow
C-W
to
come
to this
country
![]()
for
![]()
contact.
The mother is very angry. She is, as [
counsel]
![]()
for
the
father
says, living below the United States' radar. She is an illegal immigrant. As such, if
C-W
![]()
was
![]()
with
her, she
could
get up and move and
disappear.
The
father
says that if he had residence and
C-W
![]()
went
there on a
contact
visit he
would
not be able to use the Hague proceedings because the mother
would
![]()
disappear
"below the radar" and the American authorities
would
![]()
find
it extremely
difficult
to
find
her; and the
father
is not entitled as of now to go to the United States and
cannot
go until after
December
2012, even then it is unknown
whether
he
will
be allowed to enter the
country.
The mother is very angry, living "below the radar", not
wanting
to
come
to the attention of the authorities. I have listened to her
carefully
and I have
come
to the view that I simply
cannot
rely on her either to return
C-W
after
contact
or to allow her to
come
to this
country.
I think she
would
![]()
disappear.
She looks on
C-W
as 'her'
child
'my
daughter'.
She said more than once that "he stole my
daughter".
It is very revealing. I
do
not think I
can
trust the mother not to
disappear.
I
cannot
trust her to allow
C-W
to
come
back to this
country.
That is a
finding
that is a sad one to make but one that impacts on how I view the rest of the
case."
"Following
![]()
closing
submissions on 19 May 2015, you requested
further
information to assist the
court
in the event that the
court
made an order that [
C-W]
![]()
could
spend time
with
her Mother in the USA. This letter
follows
up on that request
with
![]()
further
![]()
details
relating to the practical mechanics of ensuring that [
C-W]
![]()
would
not be: (a)
wrongfully
retained in the USA at the
conclusion
of such
contact;
or (b)
wrongfully
removed to a Non-Hague jurisdiction.
… the safeguards and practical mechanics of them as set out in this letterwould
be in addition to those offered by the Mother in her two
witness
statements."
"He hasconfirmed
that their standard
contract
![]()
could
be amended so that it addresses the
following:
(a)collecting
[
C-W's]
passport, via a
courier,
![]()
from
her at the airport on her arrival in the USA;
(b) holding [her] passportfor
the
duration
of any time she spends in the USA;
(c)
returning [her] passport to her, via a
courier,
at the airport at the point of
departure
at the
conclusion
of US
contact;
(d)
![]()
confirming
to [the
father]
![]()
when
the passport is either in [the Attorney's] possession or has been released to the
courier
![]()
for
transport to the airport to be given to [
C-W].
[The Attorney] has suggested that matterscould
be arranged so that [
C-W's]
passport
could,
in principle, be handed over to an air steward or
flight
attendant
when
she goes to the airport to return to the UK as an unaccompanied minor."
i) To address the concern
that
C-W
might be removed to a non-Hague or
Caribbean
jurisdiction
whilst
in
Florida,
both the English order (registered in the
Florida
courts)
and the
Florida
'mirror' order
could
make
clear
the extent to
which
C-W
is permitted to travel,
for
what
reason, and to
where,
that is, only to the United Kingdom.
ii) A further
legal layer of protection
would
be
for
the 'mirror' order to provide that the
Florida
court
could
enter an order requiring the return of
C-W
without
a hearing and upon affidavit if the
deadline
for
her return
were
not met.
"The risk of [C-W]
not being returned … appears to be overall a relatively low risk … but in my view it is a risk
which
I am bound to take into account
for
all the reasons I have given and I
will
therefore refuse this application.
… I havefound
that the proposed safeguards
will
not alleviate this
father's
![]()
concerns,
![]()
which
I am satisfied are genuinely held
for
the reasons I have given."
"The judge's assessment of the low risk of non returnfrom
USA renders
father's
![]()
fear
unfounded. The judge has
weighted
the
father's
![]()
fear
above other
welfare
![]()
considerations
and has
failed
to
consider
the adequacy of safeguards objectively."
I am content
to adopt this as a succinct summary of the reasons
why
this appeal must, in my judgment, be allowed.
Lord Justice Richards :
Lord Justice Floyd
:
Annexe
"THECOURT
RECORDING that the
father
has a Residence Order made in his
favour
(by order of Mrs Justice Hogg
dated
9 September 2011) in relation to
C-W
("
C-W")
that
C-W
shall reside
with
him in England and
Wales;
![]()
AND THE MOTHER ANDFATHER
AGREEING AND THE
COURT
![]()
DECLARING
that the
courts
of England and
Wales
are the
courts
![]()
with
primary jurisdiction to
consider
matters relating to the exercise of parental responsibility in respect of
C-W
on the basis that (as at the
date
of this order) (i)
C-W
is habitually resident in England and
Wales
and (ii) the
courts
of England and
Wales
are best placed to make
decisions
about
C-W's
upbringing and
welfare;
![]()
AND THECOURT
![]()
DECLARING
that the mother and
father
both have "rights of
custody"
in relation to
C-W
![]()
for
the purposes of Articles 3 and 5 of the 1980 Hague
Convention
on the
Civil
Aspects of International
Child
Abduction
AND the mother giving thefollowing
undertakings to the
court,
voluntarily and
with
the benefit of legal advice, and understanding the
consequences
if she
were
to be
found
by a
court
in England and
Wales
to have breached such undertakings:
(i) Not to initiate or issue any proceedings in anycourt
in the State of
Florida
or elsewhere in the United States of America in relation to
C-W
except
for
the purpose of
complying
![]()
with
paragraph 5(i)(a) below;
(ii) To returnC-W,
or
cause
the return of
C-W,
to the jurisdiction of England and
Wales
![]()
forthwith
at the
conclusion
of each of the periods of time
C-W
spends in
Florida
in accordance
with
paragraph 4 below;
AND the motherfurther
agreeing and acknowledging that:
(i)C-W
lives in the jurisdiction of England and
Wales
in the
care
of the
father;
(ii) Thefather
is
C-W's
primary
carer;
(iii) Shedoes
not seek to
challenge
(and
will
not seek to
challenge
before any
court
in the State of
Florida
or elsewhere in the United States of America) the
fact
that
C-W
lives in the jurisdiction of England and
Wales
in the primary
care
of the
father;
IT IS ORDERED that:
1.For
the avoidance of
doubt,
and in accordance
with
the order of Mrs Justice Hogg
dated
9 September 2011,
C-W
shall reside
with
the
father
in England and
Wales.
2. Subject to the prior implementation infull
and before
C-W
leaves the jurisdiction of England and
Wales
of the requirements and safeguards set out in paragraph 5 below, the mother shall have permission to take
C-W
out of the jurisdiction of England and
Wales
![]()
for
the purposes of spending time
with
the mother in
Florida
in accordance
with
paragraph 4 below.
3. The mother shall not be permitted to removeC-W
![]()
from
![]()
Florida
except
for
effecting the return of
C-W
to the jurisdiction of England and
Wales
at the
conclusion
of any period of time that
C-W
has spent in
Florida
in accordance
with
paragraph 4.
4. Thefather
shall make
C-W
available to spend time
with
the mother in
Florida
[as agreed or ordered].
5. Any time spent byC-W
![]()
with
the mother as provided
for
in paragraph 4 above shall be subject to strict
compliance
![]()
with
the
following
![]()
conditions
imposed pursuant to section 11(7) of the
Children
Act 1989:
(i) Prior toC-W
leaving the jurisdiction of England and
Wales
![]()
for
the
first
period of
contact
taking place in
Florida
the mother shall (a) obtain
from
a
competent
![]()
court
of the State of
Florida
and at her sole
cost
an order in the
form
referred to in paragraph 6 below and (b) provide the
father
![]()
with
a sealed and officially
certified
![]()
copy
of such order.
(ii) The mother shall arrange and payfor
the air
fares
![]()
for
![]()
C-W
to travel to and
from
![]()
Florida.
(iii) The mother shall provide thefather
![]()
with
![]()
C-W's
![]()
flight
itinerary not less than 7
days
prior to the
date
of travel (such itinerary to include airline
details
and
flights
times).
(iv) The mother shall arrange and payfor
the retention in accordance
with
the
following
provisions of
C-W's
passports
for
the entirety of any period of time that
C-W
spends in
Florida:
(a) The mother shall engage a service inFlorida
that
can
retain passports (in the
first
instance the service shall be that of Maxim Investigations and if that service is no longer available it shall be the service provided by Mr Gary Maisel, Attorney);
(b)C-W's
passports shall be
collected
![]()
from
![]()
C-W
at the airport
when
she arrives in
Florida;
(c)
![]()
C-W's
passports shall be held
for
the
duration
of any time she spends in
Florida
and shall not be released to any person save as provided
for
by (
d)
below);
(d)
![]()
C-W's
passports shall be returned to her at the airport at the point of
departure
at the
conclusion
of
contact
![]()
with
the mother in
Florida;
(e) Thefather
shall be informed as soon as is practicable that
C-W's
passports have been retained in accordance
with
the passport retention service;
(f)
The mother shall not retain
C-W's
passports
during
the period of time
C-W
spends in
Florida.
6 The order to be obtained by the motherfrom
the
Florida
![]()
court
in accordance
with
paragraph 5(i)(a) above must if the
conditions
in this order are to be satisfied
contain
the
following
provisions:
(i) a provision registering this order pursuant to The UniformChild-Custody
Jurisdiction and Enforcement Act 1997 (the mother and
father
expressly
waiving
any
contest
as to registration);
(ii) provisions in mirrorform
to the recitals to and paragraphs 1-5 inclusive of this order;
(iii) provisions so that thecourts
of the State of
Florida
recognise that England and
Wales
is the State in
which
this "
child
![]()
custody
![]()
determination"
has been made and is the State of
C-W's
habitual residence;
(iv) a provision that in the event that the motherdoes
not
forthwith
return
C-W
to the jurisdiction of England and
Wales
in accordance
with
her undertakings and the terms of this order (ie
forthwith
at the
conclusion
of each of the periods of time
C-W
spends in
Florida)
the
courts
of the State of
Florida
shall, on the provision of affidavit evidence but
without
a hearing, order the immediate return of
C-W
to England and
Wales;
(v) a provisiondirecting
the attention of the immigration authorities of the United States of America and all other relevant authorities in the State of
Florida
and in the United States of America to the terms of the order of the
Florida
![]()
court."