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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P (A Child) (Abduction : Inherent Jurisdiction)  EWCA Civ 1171 (28 July 2021)
Cite as:  EWCA Civ 1171
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ON APPEAL FROM THE HIGH COURT (FAMILY DIVISION)
Ms Clare Ambrose (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
LORD JUSTICE ARNOLD
| P (A Child) (Abduction : Inherent Jurisdiction)
Paul Hepher (instructed by Thompson & Co Solicitors Ltd) for the Respondent Father
Michael Gration (instructed by CAFCASS Legal) for the Respondent Child by their Children's Guardian
Hearing date : 22 June 2021
Crown Copyright ©
Lord Justice Peter Jackson :
"25. It is common ground that from around the end of February 2017 both parents were making arrangements for the father to travel to India with A. There is a dispute as to what was discussed and whether these arrangements were being made for what the mother believed was for a holiday for 1 month (the mother's case) or whether she wanted the father to take responsibility for A and understood he would take him permanently to India (the father's case).
26. A needed an Indian visa in order to visit India as he is a US citizen. He travelled to India on a visitors or tourist visa. The father later registered A as an Overseas Citizen of India on 26 June 2018.
27. It is common ground that both parents signed a custody agreement ("the custody agreement") and this was witnessed at a travel agent in Edison New Jersey on 8 March 2017. The circumstances surrounding that agreement are disputed but it is common ground that the agreement was obtained with a view to obtaining a visa, and that the initial application for a visa for A to enter India with his father was refused. Under the custody agreement the parents agreed that:
"The Father is permitted to move anywhere both within and outside of the United States, with A without the Mother's consent….The parties acknowledge that due to their financial and other circumstances, this is the best decision for the welfare of A as the Mother is not able to take care of A. The Father shall be responsible for all expenses related to A, including healthcare, education and his day-to-day expenses."
28. It is also common ground that by consent the father obtained an order from the New Jersey Court for sole custody ("the custody order") of A dated 2 May 2017 and the mother was aware of this application in advance. Both parents accept that:
a) following the rejection of the initial visa application, and towards the end of April 2017 the father proposed to the mother that he obtain an order for sole custody over A in order to obtain a visa for A to travel with him;
b) both parents went to court on 1 or 2 May 2017 when a hearing had been fixed for the father's application for sole custody;
c) the parents had a meeting with a court appointed staff member (Ms Brinder Shravastava) who arranged for a Gujarati interpreter, at which point there was a consultation, and the mother was asked why she was giving sole custody, she confirmed that the couple were separating and she could not take financial care of the baby, and also confirmed that the parents had a mutual understanding of when she would be seeing the child, that she understood that she was giving up all her rights to A, and the court staff member confirmed to her that she could apply for joint custody if she wanted[. F]ollowing this consultation the judge approved the custody order;
d) both parents signed the order stating "I hereby declare that I understand all provisions of this Order";
e) each of the parents were given a copy of the court order, and a sealed copy was sent to them by post.
29. The basis upon which the custody order was obtained is disputed. The mother says that the father deceived her by telling her that the order was needed to obtain a visa for A for the purpose of a one month holiday and they would then return to live together in the USA. The father says the mother had agreed that he would obtain sole custody in the knowledge that he was taking A permanently to India.
30. On 28 June 2017 the father informed the mother that he had purchased one way tickets for himself and A to travel to India on 27 July 2017. Around this time he gave one month's notice on his lease on the apartment with a view to departing for India when the lease came to an end on 1 August 2017. The mother was planning to stay at [the aunt]'s house on the end of the lease. She knew he was making arrangements to put his furniture into storage. Indeed the storage agreement was taken out in her aunt's name on around 24 July 2017. She also knew that he gave notice quitting his job. Until the father's departure the mother lived with him in the apartment and they continued to have sexual relations. On 27 July 2017 the father travelled with A from the USA to India (A was aged 8 months at the time) and the mother travelled with him to the airport. All these matters were common ground. The dispute was as to the parties' future intentions, and what had been communicated to the mother. The mother says that she was deceived to believe that the plan was that the father would return after a month's holiday and the couple would find a new apartment on his return to the USA. The father says that the couple had decided to part, he was returning to India and she was going to stay with her aunt and planned to rent an apartment with her sister.
31. Shortly after the father's arrival in India on 27 July there was a telephone conversation between the parties on 29 July 2017 but its contents are disputed. The mother says that this was the first time he told her that he would not be returning with A to the USA. The father says that the mother told him not to call or contact her again. It is common ground that the parents have not spoken to each other since then, or exchanged emails or text messages or contacted each other on social media.
32. The mother contacted the firm of New Jersey lawyers that were dealing with her immigration case, and set up a meeting on 3 August 2017 which the lawyers have said was about the abduction of A."
"33. In November 2017 the mother secured a US work permit which enables her to work and she currently works at Dunkin Donuts as a cashier.
34. A and the father remained living with the paternal grandparents in India until coming to the UK for a short holiday on 1/2 October 2021.
35. On 12 July 2018 the mother commenced proceedings in the US for joint custody. No legal aid was available.
36. On 16 September 2018 the mother obtained an order for joint custody in the New Jersey courts, and Judge Daniel Brown made an order that the father return A to the US immediately. The father became aware of the proceedings and on around 17 and 24 September 2018 he made at least two telephone calls to find out what had happened. He was told by a member of staff that an order had been made giving the mother joint custody.
37. The mother made a criminal complaint against the father for kidnapping and in July 2019 criminal proceedings in the USA were instituted against the father. As a result, an international arrest warrant appears to have been issued against the father. The FBI also became involved in the case.
38. On 27 July 2020 the mother applied for a "U" visa in the USA on the basis that she is the victim of a "qualifying" criminal activity. The basis of that application is, in part at least, the alleged abduction of A.
39. On 1 October the father travelled from India to the UK with A. He had been offered free flights and a free hotel by a friend. On arrival he was promptly arrested on 2 October 2020 in execution of the international arrest warrant. He was taken from the airport to HMP Wandsworth where he remains. He is contesting his extradition to the USA and his extradition proceedings are due to be heard in a 3 day case starting on 17 May 2021.
40. On 16 October 2020 the mother made an application for sole custody in the New Jersey courts.
41. A hearing took place in the family law proceedings in New Jersey on 24 March 2021 and the New Jersey court was aware of these proceedings. It made an order that the mother shall have temporary legal and physical custody of A pending further order.
42. Since arrival in London A has been re-introduced to his mother by video contact, and has had video contact with the paternal grandparents, and also the father's sister and brother-in-law who live in Harrow. He has had no direct contact with his father but has spoken to him over the phone."
"23. It is further ORDERED: Defendant's application for legal and residential custody of the parties' child is GRANTED IN PART; DENIED IN PART. The May 1, 2017 Order, which was entered by consent of the parties, provided that the Plaintiff was to have sole legal custody of the child with Defendant's parenting time to be agreed upon by the parties. Apparently, Defendant agreed to Plaintiff taking the child to India for 2 weeks of vacation but Plaintiff never returned the child. According to Defendant, the child is currently in foster care in the UK. According to Defendant, the Plaintiff is currently in prison in the UK as a result of an international warrant issued by the FBI for kidnapping. It is the Court's understanding that the Defendant made application in the UK and that the UK Courts will decide on March 26, 2021 if the child should be returned to India or the U.S. It is not clear why Defendant has now petitioned two (2) different courts in two (2) different countries. Regardless, this Court declines to permanently modify the custody and parenting time in the May 1, 2017 order insofar as Defendant fails to demonstrate that such an arrangement is in the child's best interests. However, NJSA 9:2-2 provides that when this Court has jurisdiction over the custody of a minor child, the child shall not be removed out of its jurisdiction absent the consent of both parents, unless the Court, upon cause shown, shall otherwise order. The parties implicitly acknowledged that this Court has jurisdiction by agreeing to the May 1, 2017 Consent Order. Thus, Plaintiff had no legal authority to permanently remove the child. While the Court declines to permanently modify custody or parenting time, Defendant shall have temporary legal and physical custody of the child pending further order of the Court. The intention of this Order is to ensure the return of the child to Defendant until such time as both parties can appear before the Court to address custody and parenting time on a prospective basis."
The hearing before the Judge
(i) The mother sought the summary return of A to the United States, alternatively his return under the inherent jurisdiction.
(ii) The father sought the dismissal of the mother's application and A's return to India under the inherent jurisdiction.
(iii) The Guardian supported the outcome sought by the mother if her account of A's removal from the United States was accepted, and the outcome sought by the father if his account was accepted.
(i) The mother had rights of custody in July 2017 so as to allow her to invoke the Convention, notwithstanding the custody agreement and consent order. This is no longer in issue.
(ii) The father's account of events prior to his departure from the United States with A was consistent and to be preferred to the mother's. Her evidence on the disputed factual issues was unreliable. It was not supported by the contemporaneous evidence, was internally inconsistent, was inconsistent with the known facts and contemporaneous evidence, and was inherently improbable. These conclusions followed an extensive review of the evidence and in reaching them the Judge did not overlook the unusual aspects of the case:
"78. It is relatively unusual for a mother to give up all her rights to a child and agree that the father may permanently take a child to another country. In addition, it is common for a father to have greater financial control and independence and for a mother to be more vulnerable and dependent due to childcare obligations and lack of resources such as finances, education and language skills. In this context, at a superficial level the mother's case might appear inherently more probable than that of the father. However, based on the undisputed evidence here it would be very wrong to conclude that the mother's version of events is inherently more probable.
79. Although the mother has faced challenges (including the lack of immigration status), she is, on her own evidence, an educated, literate, determined and resourceful woman with family support. She is acutely aware of immigration issues. On the mother's own account, she was keen to secure her immigration status and get married to the father but he was not willing to marry after his divorce came through or after A was born, and there was clearly tension with the grandparents. His family had businesses and property while he had only found short term jobs in the US. The father's account of the parents deciding to separate at that stage, with him taking sole care of A so that she was not impeded in re-marrying was most consistent with the known facts at the time."
(iii) Accordingly, the mother had consented to A's permanent removal from the United States.
"82. I find that in their discussions prior to the custody agreement, the custody order and the departure of A to India on 27 July 2017 the mother had agreed that the father should be granted sole custody over A because she had agreed that the father should take full responsibility for A and he could take him to India permanently and care for him there. The mother agreed to the custody agreement and custody order as a means to enable the father to obtain a visa to take A to India permanently. She was fully aware of the contents of the custody agreement which were read out to her in Gujarati by Ms Toral Parekh, a New Jersey lawyer. Her agreement to A's departure and the custody order was not induced by the father falsely assuring her that he was only going for a month for a holiday or for the purpose of a DNA test. The mother knew and agreed that the father and A were moving permanently. The agreement arose from the parents' decision to separate and live their own lives, in circumstances where the father was unwilling to marry the mother."
The Judge added that she found the mother to have deliberately lied throughout her evidence in an apparent attempt to support a case on abduction, most probably with a view to improving her prospects of securing a green card and also enabling her to have A in the United States. The Judge did not speculate about why the mother would seek this outcome now (and go to the lengths of having the father imprisoned as a means of achieving it) if she had agreed to it in 2017. This state of affairs might of course have arisen from the mother having repented of her decision to allow A to go, but that was not a possibility raised by any party and it is not considered in the judgment.
(iv) The father would not have established the defence of acquiescence.
"86. Given my findings on consent I do not need to address acquiescence and it would be somewhat artificial to make findings on such a counterfactual position. However, if necessary I accept that the father would not have established acquiescence since there was some evidence that the mother had contacted lawyers about abduction on 3 August 2017. Although the mother delayed in making an application for custody, she was taking steps to obtain custody in the period up to the issue of her application on 10 August 2018. The father was aware of these steps from September 2018.
It is not clear why the Judge placed some reliance on the contact with lawyers in relation to acquiescence but not in relation to the question of consent.
(v) A was settled in India. The Judge found that the father was his primary attachment figure but the grandmother also had a significant caring role. The Guardian's evidence showed that A was a well-cared-for child whose adaptation to foster care indicated previous secure and positive attachments. Prior to coming to England, A was physically, emotionally and psychologically settled with the father and the paternal grandparents in India. These conclusions are not in issue on this appeal.
"105. The guardian considered that the appropriate options depended on the facts found and explored the options both ways. She considered that sending A to the USA would cause further disruption to A and could not be justified in circumstances where the mother had knowingly agreed to his removal, and had lied in alleging abduction. The guardian considered that this would mean that he would be placed in the care of a mother who has not been consistent in her commitment or her capacity to care for him. If she had not been truthful about the circumstances that gave rise to his life in India, and this action had led to the arrest and imprisonment of the father, and had led to A being placed in foster care then she had caused serious harm to A. The guardian said she would not have confidence in the mother's ability to prioritise A's needs. To send A to the USA in that scenario would present risks to his welfare. She acknowledged the risk that A would not have an on-going and meaningful relationship with his mother. However, greater harm would arise from the alternative of placing him with the mother in the USA since she is someone he is not familiar with and whose actions have caused him harm. The guardian accepted that while the father's family have not promoted contact with the mother, it could not be said they had deliberately obstructed it. The guardian was concerned that the mother had wilfully obstructed the father's relationship, whereas at worst the father's family had omitted to promote her relationship with A. This was very different to a deliberate separation and severing of A's relationship with her.
106. In forming the view that A should not be returned to the USA the guardian also took into account that the mother has not cared for A since he was 8 months old and the usual safeguarding precautions have not been taken regarding her or the family members she live with. She also had regard to the fact that the mother's immigration status is unclear.
107. Following the father's arrest A has experienced big changes that he needs to understand. The guardian was correct in her recommendation that A must continue to be supported to understand what is happening, and prepared in advance for further change.
108. I agree with the guardian's analysis which is firmly based in A's welfare, and I adopt it. I am satisfied that A should not be returned to the USA, and an order should be made for his return to India.
109. A has been through a difficult time and he needs to return to his home and he will be cared for by his paternal grandparents, and his father in due course. It is very fortunate that A has settled so well with the foster carer and learnt English. His well-being is thanks in large part to the skilled work of the foster carer, the local authority, the guardian and also the good parenting that A has received from his father and the grandparents. This enabled him to adapt better than might be expected.
110. These proceedings have shown that A now needs to have a relationship with his mother in his life. This was the firm view of the guardian and reflects his long term welfare, whether he stays in India or eventually returns to the USA. His father, grandfather and grandmother gave evidence on oath that they will support contact between A and his mother both in India and remotely. The father said he will promote the relationship. Having given such evidence they will be expected to keep their word.
111. For reasons set out above I am satisfied that the mother's Hague Convention application for A's return to the USA should be dismissed, and no such order should be made under the inherent jurisdiction either. It is in A's best interest that he be returned to India to the care of his grandparents until his father can join him. It is also in his best interest that video contact with the mother continues and that he spends time with her if she goes to India."
(1) The Judge failed to respect international comity by ignoring orders from the courts of the USA that the father must return A to that jurisdiction.
(2) The Judge's welfare analysis was inadequate. She should have adjourned to await the extradition decision. She took no account of the inherent unlikelihood of contact between A and his mother if he returns to India.
(3) The Judge's finding of fact that the mother consented to A's permanent removal to India is challenged on 11 miscellaneous grounds.
Findings of fact
"On 3 August 2017, I contacted the lawyers that I had engaged with on my Immigration matter. I met with the managing partner in relation to the family matter and subsequently met with the lawyer in September and November 2017. It was agreed that they would make an application to modify the sole custody order to a joint custody order. However, in order to make that application, they needed to obtain a copy of the order made in May 2017. …
I met with my lawyers again in January 2018 and I regularly chased my lawyers during this time for updates. I exhibit hereto marked "PP4" emails that I sent to my lawyers chasing. I met with my lawyers again in April 2018 and an application at that time was made to obtain a copy of the May 2017 custody order. I understand that my lawyers received the order at some time in April 2018. Thereafter, my application was lodged with the court in July 2018."
The consultation on 3 August 2017 was corroborated by an email of 15 January 2021 from the lawyers:
"[M] had her first consultation in regards to her Immigration case on May 4, 2017 with the managing partner. She had a previous immigration attorney prior to hiring our firm.
We received her immigration file from her previous attorney on or about August 2017.
On August 3, 2017, [M] had a consultation with the managing partner in regards to her child being abducted from the United States by the father.
On November 7, 2017 [M] came to our office to do the complaint for custody for her son.
Attached please find the receipt notice for [M]'s U—Visa application which reflects that USCIS received it on July 27, 2020. The processing time for that application to be approved is roughly 12-18 months. That would make her eligible to apply for Permanent Residency in the United States.
Attached please also find the proof of multiple attempts made to serve [F] as to the Order of Custody from the Superior Court of New Jersey.
Attached also find the proof of the modification for custody filing from October 16, 2020. We still do not have a hearing date for the request to modify the previous application in order for [M] to obtain Sole Legal and Residential Custody of her son."
"11. This court's findings below recognise that A is a US citizen and that the Superior Court of New Jersey ("the New Jersey court") was seized in relation to custody of A in May 2017."
However, there was, although the Judge did not explicitly say so, a very clear reason why the orders made in New Jersey could not prevail, namely because they were based on the mother's case that A had been abducted. Having had the opportunity, denied to His Honour Judge Daniel Brown, of investigating that allegation, and having firmly rejected it, the Judge was entitled not to give weight to the previous orders. She noted them, but she was obliged to make her own welfare assessment, and it is to this issue that I finally turn.
"101. The court's discretion under the Hague Convention and its inherent jurisdiction are not identical. It is generally difficult to justify an order to return where the exception of consent and also settlement have been established. The same considerations would be relevant under the inherent jurisdiction where welfare is more clearly the guiding consideration (and the policy of the Hague Convention is not in play). It was not suggested that the exercise of discretion on the different bases (an exception under the Hague Convention or the court's inherent jurisdiction) would give rise to a different outcome in this case."
"It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child."
In the following paragraphs, she considered how the choice should be made, with reference to a number of factors that would vary from case to case, including the degree of connection with each country and the length of time he has spent in each. She concluded at 38:
"Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known 'check-list' in section 1(3) of the Children Act 1989; …"
"… their utility in any analysis of a child's welfare has been recognised for nearly 30 years. In its determination of an application under the inherent jurisdiction governed by consideration of a child's welfare, the court is likely to find it appropriate to consider the first six aspects of welfare specified in section 1(3) …; and, if it is considering whether to make a summary order, it will initially examine whether, in order sufficiently to identify what the child's welfare requires, it should conduct an inquiry into any or all of those aspects and, if so, how extensive that inquiry should be."
What is therefore needed in all cases is an inquiry that sufficiently identifies what the child's welfare requires.
"Whether there should be a split hearing – a fact finding hearing and then a further hearing to consider the outcome once F's extradition proceedings have been concluded and the judgment in G v G has been delivered by the Supreme Court on 19th March 2021;"
The reference is to G v G  UKSC 9, where the court considered the interaction between the Convention and asylum claims, but this was in the context of the duties of a state to which both forms of claim had been addressed, which is not the present case.
"(vi) Split Hearing
48. The Court may wish to consider a split hearing in this matter with a further hearing to be listed within a short time of the resolution of F's extradition proceedings. This would have certain advantages including:
(i) The Guardian could properly consider the findings made and therefore comment further on any issues in relation to any "settlement" defence and A's welfare, particularly in circumstances where M's account is not accepted by the Court;
(ii) Expert evidence could be obtained in respect of whether M had rights of custody;
(iii) The Court would know whether F was going to be extradited to the USA or not;
(iv) The impact of G v G in the Supreme Court could be taken into account [see below];
49. F's extradition hearing will not be completed until around 20th May in any event and so F will not be prejudiced by any delay as he has not been granted bail in any event.
50. It is of accepted that delay is of course prejudicial to A who has been in foster care since 2nd October 2020 and with whom M dearly wishes to be reunited."
Lord Justice Arnold
Lord Justice Henderson