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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> P (A Child) (Abduction : Inherent Jurisdiction) [2021] EWCA Civ 1171 (28 July 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/1171.html Cite as: [2021] 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)
FD20P00625
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PETER
JACKSON
and
LORD JUSTICE ARNOLD
____________________
![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
____________________
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 :
Introduction
The background
"25. It is common ground that from around the end of February 2017 bothparents
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 laterregistered
A as an Overseas Citizen of India on 26 June 2018.
27. It is common ground that bothparents
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 ispermitted
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. Bothparents
accept that:
a) following therejection
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) bothparents
went to court on 1 or 2 May 2017 when a hearing had been fixed for the father's application for sole custody;
c) theparents
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) bothparents
signed the order stating "I hereby declare that I understand all
provisions
of this Order";
e) each of theparents
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 thepurpose
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 hadpurchased
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 theparties
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 theabduction
of A."
"33. In November 2017 the mother secured a US workpermit
which enables her to work and she currently works at Dunkin Donuts as a cashier.
34. A and the fatherremained
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 commencedproceedings
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 fatherreturn
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 criminalproceedings
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, inpart
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 waspromptly
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 tookplace
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 beenre-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 andresidential
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 isrelatively
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 andresourceful
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 discussionsprior
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 onabduction,
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 counterfactualposition.
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 Judgeplaced
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 hisremoval,
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 bereturned
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 herrecommendation
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 bereturned
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 toreturn
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. Theseproceedings
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.
Conclusions
111. Forreasons
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."
The appeal
(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 managingpartner
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 Iregularly
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 inregards
to her Immigration case on May 4, 2017 with the managing
partner.
She had a
previous
immigration attorney
prior
to hiring our firm.
Wereceived
her immigration file from her
previous
attorney on or about August 2017.
On August 3, 2017, [M] had a consultation with the managingpartner
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.
Attachedplease
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.
Attachedplease
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 theproof
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."
Comity
"11. This court's findings belowrecognise
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.
Welfare
"101. The court's discretion under the Hague Convention and itsinherent
![]()
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 isplain,
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 apriori
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 achild'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 extraditionproceedings
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 [
2021]
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 theresolution
of F's extradition
proceedings.
This would have certain advantages including:
(i) The Guardian couldproperly
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 inrespect
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 beprejudiced
by any delay as he has not been granted bail in any event.
50. It is of accepted that delay is of courseprejudicial
to A who has been in foster care since 2nd October 2020 and with whom M dearly wishes to be
reunited."
Conclusion
Lord Justice Arnold
Lord Justice Henderson