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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> LN (A Child) (Without Notice Application for Summary Return) [2016] EWHC 1033 (Fam) (29 April 2016) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2016/1033.html Cite as: [2016] EWHC 1033 (Fam) |
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2016] EWHC 1033 ( Fam) | ||
FAMILY
DIVISION
2016 |
B e f o r e :
(sitting in public)
Re:
LN
(a
child)
(
without
notice
application
for
summary
return)
____________________
Re: LN (a child) ( without notice application for summary return) |
____________________
(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
25 Southampton Buildings, London WC2A 1AL
Tel: 020 7831 5627 Fax: 020 7831 7737
info@beverleynunnery.com
____________________
Applicant
Father.
THE RESPONDENTS did not appear and were not represented.
____________________
Crown Copyright ©
MR JUSTICE HOLMAN:
application
by a father of a
child,
made effectively
without
any
notice
to the respondents. The essential factual situation appears to be as follows.
child,
L, was born in mid September 2012. Within the papers there is a photocopy birth certificate of that
child
which describes the
applicant
as being his father and the second respondent as being his mother, and the place of birth as being at a specified hospital in London. So it appears that the
child
was born here, and the father states that for a period after the birth of the
child
the mother and
child
remained here.
child
travelled to Portugal. At that time he was aged about 1 year and 9 months old. As I understand it, there is no evidence, and frankly no suggestion, that since then the
child
has ever
returned
to England. In other words, he has now been outside England and Wales for nearly 2 years (today being 29 April
2016)
and, indeed, for over half his life to date.
child
was in Angola with his mother. Even if it was only in January 2015 that the mother and
child
first travelled from Portugal to Angola (which may well be doubtful), that would mean that he has now been in Angola for about 15 months or thereabouts, which is, of course, a very significant period of time in the life of a
child
who is even now only about 3 years and 9 months old.
child
had been in some way wrongfully removed from England, that he did not start up proceedings very promptly at a time when he understood the
child
still to be in Portugal. Portugal is a reciprocating state under the Hague Convention on the Civil Aspects of International
Child
Abduction. However, the first time that the father in fact started any proceedings was on 6 August 2015, when he issued an
application
to this court. By then, of course, it was comfortably over a year since the
child
had left England, and many months since the father had the information tending to show that the
child
was already in Angola.
application
was not at that time supported by relevant evidence. The order was that the father had permission to file and serve evidence in support of his
application
and that the
application
was stayed until that evidence had been filed and served. A curious aspect of the case is that it was only very shortly after 19 August 2015, namely on 21 August 2015, that the father actually did sign his witness statement with attached documents in support of his
application.
Pursuant to the order of Mrs. Justice Roberts, that would have opened the door to removing the stay and proceeding with his
application.
For reasons which are completely unclear to me, it was not until 7 April
2016
that solicitors on his behalf asked for the stay to be lifted and the
application
listed for hearing. However these difficulties may have arisen, the result is that there has simply been no speedy or urgent response at all in this case to the alleged wrongful removal of this
child,
now almost 2 years ago.
return
of this
child
to England now, with various ancillary orders. She submits that, on the basis of the father's evidence and account, this
child
was at any rate still habitually resident in England and Wales when he issued his
application
on 6 August 2015. Frankly, that proposition is itself highly doubtful. That was over a year since the mother and
child
had left England and Wales, and it may very well be that by then the
child
had already become habitually resident in Angola, and certainly ceased to be habitually resident here. So, frankly, I am extremely doubtful in this case whether this court has any jurisdiction at all. But even assuming provisionally that it has jurisdiction, I could not possibly exercise a discretion to order the immediate
return
of this
child
to England and Wales now.
Summary
Return:
Non-Convention Country) [2015]
EWHC
176 (
Fam).
The situation in that case was, in fact, diametrically the opposite to the situation in this case. In that case, the
child
concerned was here in England at the time of the hearing, and the
application
was for his
summary
return
to the United Arab Emirates. Both parents were represented at the hearing. Mrs. Justice Pauffley decided, on the facts and in the circumstances of that case, that the
child
concerned should be rapidly
returned
to the United Arab Emirates. At paragraph 39 of her judgment she set out, in bullet point form, what she described as "the key themes" when a court is considering
applications
for
summary
return
in non-Convention cases. I quite accept that a number of those "key themes" apply equally whether one is considering
return
from another country to this country, or from this country to another country; but the overall forensic and factual context is, even so, very different. If a
child
is actually in this country, as the
child
was in that case, then of course the court is able to be in possession of good, up-to-date information as to the circumstances of the
child.
That is in marked contrast to the present case in which I, frankly, know absolutely nothing whatsoever as to the whereabouts, or living, social or educational circumstances of the
child.
I respectfully agree with every single one of the "key themes" identified by Mrs. Justice Pauffley in that case, but one only has to apply some of them to the facts and circumstances of this case to see how it is that I could not possibly make an order today for the
summary
return
of this
child
from Angola to England. First, and overarchingly, the welfare of the
child
concerned is paramount. Mrs. Justice Pauffley says:
"If a decision is made toreturn
the
child
it must be because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration."
I ask rhetorically, how I can possibly form a judgment today that it is in the best interests of this
child
to order his
return
forthwith from Angola, when he has not been in England now for virtually two years, over half his life, and I know nothing whatsoever with regard to his circumstances there? Moving down, in her fourth "key theme" she refers to the importance of a "swift … assessment of the best interests of the
child
…". One could scarcely use the word "swift" in relation to this case, in which the
child
has already been abroad for almost two years. She goes on to say, and I agree, that:
"There is no presumption that it is likely to accord with thechild's
welfare needs to be
returned.
The most one can say… is that the judge may find it convenient to start from the proposition that it is likely to be better for the
child
to
return
to his home country for disputes about his future to be decided there. …".
In a case such as the present, however, that now clearly begs a question of what is "his home country". Is it England, in which he was born but left for the last time at the age of 1 year and 9 months; or may it be Angola, where he may well have lived for at least that length of time and is currently living now? In her sixth "key theme" Mrs. Justice Pauffley says:
"One important variable is the degree of connection of thechild
with each country. Factors such as his nationality, where he has lived for most of his life, his race, ethnicity, religion … will all come into this. Another closely related factor will be the length of time he has spent in each country."
So far as the length of time is concerned, this
child
may well have spent as long in Angola as he ever spent here. So far as nationality is concerned, none of the people involved in this case is British. The father, as I have said, is Spanish; the
child
and the mother are of joint Portuguese and Angolan nationality.
application
of the very authority which Miss Kansal has helpfully drawn to my attention, the factors all strongly point away from, rather than towards, any order for
summary
return.
child, and answers the case and evidence of the father in the documents that he has filed and which I have been told have already been sent to the most recent known email address for the mother. Whether, indeed, that email address is still a functioning address is unclear to me, since it is an email address at "… live.co.uk" and the mother appears to have severed all connections with the UK. But at all events, I am prepared to make an order to that effect. The father's solicitors can serve it upon the mother at that email address and see what happens. The matter may then be restored, in the light of whatever statement the mother does make and serve in answer, or if there is no response at all. But, quite frankly, if there is no response by the mother, then it seems to me that the father has reached the end of the road in this jurisdiction.