CASE

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Case Name

Re M. and J. (Abduction) (International Judicial Collaboration) [1999] 3 FCR 721

INCADAT reference

HC/E/UKe 266

Court

Country

UNITED KINGDOM - ENGLAND AND WALES

Name

High Court

Level

First Instance

Judge(s)
Singer J.

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

UNITED KINGDOM - ENGLAND AND WALES

Decision

Date

16 August 1999

Status

Final

Grounds

Grave Risk - Art. 13(1)(b) | Undertakings | Role of the Central Authorities - Arts 6 - 10 | Procedural Matters

Order

-

HC article(s) Considered

7 13(1)(b)

HC article(s) Relied Upon

7 13(1)(b)

Other provisions

-

Authorities | Cases referred to
Re C. (Abduction) (Grave Risk of Psychological Harm) [1999] 2 FCR 507; Re C(B). (Child Abduction: Risk of Harm) [1999] 3 FCR 510; Re H.B. (Abduction: Children's Objections to Return) [1998] 1 FCR 398; Re L. (Abduction: Pending Criminal Proceedings) [1999] 2 FCR 604.

INCADAT comment

Implementation & Application Issues

Measures to Facilitate the Return of Children
Central Authorities' Co-operation
Judicial Cooperation & Communication
Undertakings

Exceptions to Return

General Issues
Limited Nature of the Exceptions
Grave Risk of Harm
UK - England and Wales Case Law

SUMMARY

Summary available in EN | FR | ES

Facts

The children, both boys, were 7 and 1 1/4 at the date of the alleged wrongful removal. They had until then lived exclusively in the United States. The parents were married and had joint rights of custody but the children had spent much of their lives in the care of their maternal great-grandmother. The parents, in particular the father, had spent time in prison for drugs and other offences.

In September 1998 the father, who had been born in England and had lived there until the age of 13, was deported from the United States and had his resident alien status revoked. On 2 January 1999 the mother removed the two boys from the home of the maternal great-grandmother and took them to England to be with the father.

On 1 April the maternal great-grandmother initiated proceedings for the return of the children. In September 1995 she, along with the maternal grandmother, had been appointed co-guardians of the older child by the Los Angeles Superior Court. The effect of this order was that the grandmothers took over parental responsibility for the child.

Ruling

Voluntary return with undertakings agreed between the parties in the requesting State following direct contact between the English judge seized of the return application and the Californian judges seized of the substantive custody and criminal aspects of the case.

Grounds

Grave Risk - Art. 13(1)(b)

The court noted that existing English case law stated that the prospect of the arrest of the abducting parent upon return should not of itself be sufficient to make out the Article 13(1)(b) exception. However, the court accepted that the circumstances of the instant case did give rise to special concerns since the mother, who had breached her probation, faced a significant period of imprisonment if returned. Furthermore, she would not be able to initiate substantive custody proceedings in California to determine whether the children should be allowed to relocate to England. It would not be in the children's interests that they be subject to potentially profound and disturbing anxiety and uncertainty that their mother might be arrested upon her arrival. Faced with this problem the trial judge responded by making direct contact with the judge exercising criminal jurisdiction in the Superior Court of California.

Undertakings

Prior to the trial judge making contact with the Californian judges he investigated the possibility of the parties making undertakings to guarantee that the mother would retain care of the children until a substantive custody hearing. However, he noted that any such undertakings were subject to significant risk of frustration, over which the parties had no pre-emptive control, because of the likely criminal process for the mother's breach of probation.

In an out of court procedure, each actor in this case took it in turns to work towards the quashing of criminal proceedings against the taking parent, to expedite substantive custody proceedings, and to prioritise the necessary welfare investigations. A negotiated agreed undertaking between the parents later enabled the taking parent to voluntarily return with the children to the State of habitual residence.

Role of the Central Authorities - Arts 6 - 10

The Court invoked the assistance of the English Central Authority to assist in making inquiries as to how the uncertainty surrounding the mother's situation might be clarified. It noted that this was within the scope and intention of Article 7 of the Convention. The trial judge was then able to make direct contact with a Supervising Judge exercising criminal jurisdiction in the Superior Court of California. The latter indicated that he did not wish to see frustrated, impeded or delayed the investigation by the appropriate Californian court of the welfare issues in the case. With the assent of the District Attorney he undertook to recall and quash the warrant for the mother's arrest, to reinstate her probation and to take no further action until the issues relating to the children had been resolved. Subsequently contact was made on several occasions with the Supervising Judge of the Family Law Department of the Los Angeles Superior Court. He stated initially that he would do all he could to ensure that substantive custody proceedings be given such degree of priority as was consistent with a proper investigation of the issues raised. He also stated that it would be practicable for the mother to obtain pro bono representation even in advance of her return. In the light of subsequent difficulties the Californian judge was prepared to regulate immediate arrangements for the children on an interim basis prior even to their physical arrival in California. Furthermore, he then negotiated agreed undertakings with the parties' local attorneys. The English judge stated that it was essential if a process of judicial co-operation were to be successful that the court should as far as possible carry the parties consensually into the discussions. In addition full information relating to the communications between the judges should be made available promptly to all the participants. He concluded by noting that the procedures adopted in the case had enabled the mother to accept her and the children's voluntary return to California with far less resentment than might otherwise have affected the children; had dispelled uncertainty and anxiety as to the children's immediate circumstances upon return; had put in place in advance of their arrival a framework for judicial resolution of the welfare dispute; and had provided the prospect of appropriate support for the children in the event that that decision resulted in their return to England.

Procedural Matters

The case was heard over 4 days in June and July 1999. As matters became clarified with the judicial authorities in California the trial judge allowed for adjournments in the hope that the parties would be able to reconsider their and the children's positions. In this the trial judge balanced the objective of expedition with that of Article 7(c) that Central Authorities seek to secure the voluntary return of children. He further noted that an adjournment would allow the older child to complete his current school term.

INCADAT comment

Central Authorities' Co-operation

Preparation of INCADAT commentary in progress.

Judicial Cooperation & Communication

The Fourth Special Commission to review the operation of the 1980 Child Abduction Convention in 2001 recommended that Contracting States actively encourage international judicial co-operation. This view was repeated at the Fifth Special Commission in 2006.

Where this co-operation has manifested itself in the form of direct communication between judges, it has been noted that the procedural standards and safeguards of the forum should be respected. The latter was acknowledged in the "Emerging Guidance and General Principles for Judicial Communications" (Prel. Doc. No 3A for the attention of the Special Commission of June 2011, revised in July 2012) where it is stated in Principles 6.1 to 6.5 that:

"6.1 Every judge engaging in direct judicial communications must respect the law of his or her own jurisdiction.

6.2 When communicating, each judge seized should maintain his or her independence in reaching his or her own decision on the matter at issue.

6.3 Communications must not compromise the independence of the judge seized in reaching his or her own decision on the matter at issue.

6.4 In Contracting States in which direct judicial communications are practised, the following are commonly accepted procedural safeguards:

  • except in special circumstances, parties are to be notified of the nature of the proposed communication;
  • a record is to be kept of communications and it is to be made available to the parties;
  • any conclusions reached should be in writing;
  • parties or their representatives should have the opportunity to be present in certain cases, for example via conference call facilities.

6.5 Nothing in these commonly accepted procedural safeguards prevents a judge from following rules of domestic law or practices which allow greater latitude."

Direct judicial co-operation has been employed in several jurisdictions:

Canada
Y.D. v. J.B., [1996] R.D.F. 753 (Que.C.A.) [INCADAT Reference: HC/E/CA/ 369]

Hoole v. Hoole, 2008 BCSC 1248 [INCADAT Reference: HC/E/CA/ 991]

Adkins v. Adkins, 2009 BCSC 337 [INCADAT Reference: HC/E/CA 1108]
In this case, as a result of the direct communication, the Convention proceedings were adjourned pending an adjudication of the substantive custody issue by the competent Court of the child's State of habitual residence in Nevada, United States of America.

United Kingdom - England and Wales
Re M. and J. (Abduction) (International Judicial Collaboration) [1999] 3 FCR 721 [INCADAT Reference: HC/E/UKe 266]

Re A. (Custody Decision after Maltese Non-Return Order) [2006] EWHC 3397, [2007] 1 FLR 1923 [INCADAT Reference: HC/E/UKe 883]

United Kingdom - Northern Ireland
RA v DA [2012] NIFam 9 [INCADAT Reference: HC/E/UKn 1197]

United States of America
Panazatou v. Pantazatos, No. FA 960713571S (Conn. Super. Ct. Sept. 24, 1997) [INCADAT Reference: HC/E/USs 97]

Special provision is made for judicial communication in the Uniform Child-Custody Jurisdiction and Enforcement Act (1997), s. 110, see:
http://www.uniformlaws.org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf

Criticism of the practice of direct judicial co-operation has been raised by the High Court of the Hong Kong Special Administrative Region - Court of Appeal in D. v. G. [2001] 1179 HKCU 1 [INCADAT Reference: HC/E/HK 595].

A study of all aspects of international judicial co-operation was undertaken by Philippe Lortie, Permanent Bureau of the Hague Conference on Private International Law, first in 2002: "Practical Mechanisms for Facilitating Direct International Judicial Communications in the Context of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Preliminary Report", Preliminary Document No 6 of August 2002 for the attention of the Special Commission of September / October 2002.

In 2006, Philippe Lortie prepared the "Report on Judicial Communications in Relation to International Child Protection", Preliminary Document No 8 of October 2006 for the attention of the Fifth Meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (30 October - 9 November 2006).

(See < www.hcch.net >, under "Child Abduction Section" then "Special Commission meetings on the practical operation of the Convention" and "Preliminary Documents".)

In 2013, the Permanent Bureau of the Hague Conference published the brochure "Direct Judicial Communications - Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges". (See < www.hcch.net >, under "Publications", then "Brochures".)

For other commentaries see:
Hague Conference "The Judges' Newsletter" Volume IV/Summer 2002 and Volume XV/Autumn 2009. (See < www.hcch.net >, under "Child Abduction Section" then "Judges' Newsletter".)

R. Moglove Diamond, "Canadian Initiatives Respecting the Handling of Hague Abduction Convention Cases" (2008) 50 R.F.L. (6th) 275. 

(June 2014)

Limited Nature of the Exceptions

Preparation of INCADAT case law analysis in progress.

UK - England and Wales Case Law

The English Court of Appeal has taken a very strict approach to Article 13 (1) b) and it is rare indeed for the exception to be upheld.  Examples of where the standard has been reached include:

Re F. (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224, [INCADAT cite: HC/E/UKe 8];

Re M. (Abduction: Psychological Harm) [1997] 2 FLR 690, [INCADAT cite: HC/E/UKe 86];

Re M. (Abduction: Leave to Appeal) [1999] 2 FLR 550, [INCADAT cite: HC/E/UKe 263];

Re D. (Article 13B: Non-return) [2006] EWCA Civ 146, [2006] 2 FLR 305, [INCADAT cite: HC/E/UKe 818];

Klentzeris v. Klentzeris [2007] EWCA Civ 533, [2007] 2 FLR 996 [INCADAT cite: HC/E/UKe 931].

Undertakings

Preparation of INCADAT case law analysis in progress.