UK – 1998

Re: P (Minors) (UK 1998)Court of Appeal, Civil Division, 11 Mar 1998
1 International Abduction [UK 1998]

FC3 98/5515 CMS2; FC3 98/5520 CMS2; ?AFMI 98/0189


Royal Courts of Justice
London WC2

Wednesday 11 March 1998




Re: P (Minors)

MR P DUFFY OC and MR H SETRIGHT (Instructed by Messrs Dawson
Comwell & Co, London WCIR 4QT ) appqared on behalf of the

MR C GREENWOOD (Instructed by Messrs Reynolds Porter
Chamberlain, London WCIR 4QT and Messrs Clifford Chance,
London, ECIA 4JJ) appeared on behalf of the
Respondent/Father and Intervenor.

MR D LLOYD JONES (Instructed by the Treasury Solicitor,
London SWIH 9JS) appeared as an Amicus Curiae.

(As approved by the Court)


001 Before this court today is an appeal from a decision
given by the president on a preliminary issue which arose in
these circurn stances. The respondent was an official of the
United States Government. From 1994 to 1997 be served as a
diplomat at tho United States Embassy in London.
Unfortunately, during the period that he was in this
country, marital problems commenced.

002 There are two children of the family, one born on 23
December 1984 and the other barn on 18 December 1987. While
the parties were in England, the children were with them and
at all thnes they were living together as a family. The
mother is a German national and the children had dual

003 As a result of the marital problems, divorce
proceedings were started by the mother in Berlin. The mother
was conccrned that the children might be removed from this
country. She wanted to protect her position and, as she saw
it, the position of the children. On 25 July 1997 the mother
issued an application in this country for a prohibited steps
order to prevent the farher taking the children to the
United States. She also sought leave to remove the children
to Germany. An ex parte order was originally made by Sumner
J prohibiting the father from removing the children from the
United Kingdom.

004 On 4 August 1997, the United States and the father
issued a summons seeking to dismiss the English proceedings
because of immunity from the jurisdiction of these courts.
On 7 August 1997, the mother’s application was dismissed for
want of jurisdiction and the order of Sumner J was set
aside. The mother’s application for leave to appeal and a
stay was refused. On 8 August 1997, the father was posted
back to the United States and the mother and the children
also returned there.

005 The mother has petitioned the court in Virginia for an
order for the return of the children to the United Kingdom
on the basis that the children had been abducted contrary to
the Hague Convention. On 7 November 1997 the mother issued
an originating summons in the United Kingdom seeking a
declaration pursuant to Section 8 of the Child Abduction and
Custody Act 1984 that the removal of the children from the
United Kingdom by the father was a wrongful removal within
the meaning of Article 3 of the Hague Convention. An order
was granted ex parte by Stuart-White J with liberty to the
father to apply. That application was subsequently adjourned
and eventually an order was made for the determination of a
preliminary issue, again as to the question of immunity, in
relation to these proceedings.

006 The preliminary issue was heard by the President, and
on 22 January 1998 he gave a decision. He came to the
conclusion that there was no immunity under the Diplomatic
Immunity Act based on the Vienna Convention, but there was
state immunity based on the State Immunity Act 1978. It was
against his decision (which meant that the application for a
declaration was dismissed) that this appeal comes before
this court. The matter has been expedited so that this court
could determine the preliminary issue, bearing in mind that
the matter is due to come again before the Virginia court on
the 19th of this month.

007 Skeleton arguments in some detail, together with
appropriate authorities, have been placed before this court
by those acting on behalf of the mother, those acting on
behalf of the father and the United States Government, and
also by Mr David Lloyd-Jones, who has, at short notice.
appeared to assist this court as Amicus Curiae, as he
assisted the President in the court below.

008 Although the time available for this court to deal with
the matter was limited, the court would have been able to do
so due to the excellent material in writing which has been
put before the courts by all parties. However, at the outset
of the appeal, the court raised the issue with counsel as to
the appropriateness of our hearing the appeal.

009 This court has been mindful throughout that, quite
apart from interesting and difficult issues considered by
the President in relation to the preliminary issue to which
I have made reference, there are two children involved whose
future has to be determined. The mother’s wish for those
children is that they should reside with her in Germany, not
in this country. The father’s wish is that the children
should not go to Germany. Presumably it is his wish,
although this is not clear, that the children should remain
in the United States.

010 The danger in this case is that the courts, both In
this jurisdiction and in the United States, are going to
become weighed down with issues of complexity and
difficulties arising out of the father’s diplomatic status,
and, as is contended by the father, the diplomatic status of
the mother and the children at the time that they left this

011 The jurisdiction which the court would be exercising,
if it had the right to do so, comes under Section 8 of the
Abduction and Custody Act 1984 which is in these terms:

012 “The High Court or Court of Session may, on an
application made for the purposes of Article 15 of the
Convention by any person appearing to the court to have an
interest in the matter, make a declaration or declarator
that the removal of any child from, or his retention
outside, the United Kingdom was wrongful within the meaning
of Article 3 of the Convention.”

013 Application for the declaration has to be made for the
purposes of Article 15 of the Convention. It reads:

014 “The judicial or administrative authorities of a
Contracting State may, prior to the making of an order for
the return of the child, request that the applicant obtain
from the authorities of the State of the habitual residence
of the child a decision or other determination that the
removal or retention was wrongful within the meaning of
article 3 of the Convention, where such a decision or
determination may be obtained in that State. The Central
Authorities of the Contracting States shall so far as
practicable assist applicants to obtain such a decision or

015 Article 15 of the Hague Convention raises an
interesting point which would have to be determined by this
court if it had jurisdiction, which may also have to be
determined by the United States’ court in Virginia because
of the Hague Convention proceedings taking place there, as
to the impact upon the applicability of the Convention that
when the father was in this country he was here as a
diplomat serving in a senior post.

016 There would also be have to be determined the question
as to whether children who accompany their parents (who are
here because of the diplomatic status of the father) are to
be regarded as habitually resident within this jurisdiction.
Those are not matters which are before this court on this
appeal and would not be determined as part of our
consideration of the preliminary issue. As to the decision
of the President in relation to the preliminary issue,
although we have not heard argument, we can say with
confidence that the points raised by the mother and the
father, to which I will refer, are, at least, arguable.

017 The mother says that the decision of the President, who
granted immunity on the basis of state immunity, was wrong,
but his decision in relation to diplomatic immunity was
right. The father and the United States Government say that
the decision of the President was right on the question of
state immunity but wrong on the question of diplomatic
immunity. It is our view that if this appeal had been argued
to determination there were three possible outcomes:

(1) the President’s judgment would be upheld;

(2) the appeal would be successful and the mother would
succeed; and

(3) the United States Government and the father would
succeed on their cross-appeal on a respondent’s notice in
relation to the issue upon which he and the American
Government were unsuccessful before the President.

018 It is certainly possible that if we had, as we would
have done, given a decision before 19 March, that would not
have been of any help to the court in Virginia because, (a)
the situation is such that there could well have been a
further appeal within this jurisdiction; and (b) it would
only have dealt with the preliminary issue and would not
have gone on to consider, assuming the decision was adverse
to the father, the question as to whether or not this was an
appropriate case to grant a declaration. That would only
come at a later stage. In those circumstances this court
considered whether there was any benefit to be achieved in
these proceedings by us considering the appeal, or whether
out decision was only going to complicate an already complex
situation. We have also considered carefully as to whether
or not, by considering the appeal, there was any useful
contribution that we could make to assist the court which
inevitably is going to have to consider the issue in

019 The conclusion we reached was that we could not provide
any assistance. One advantage that we have over the court in
Virginia in considering the issues involved here, is that
this court could, because of the European argument which Mr
Duffy on behalf of the mother relies to a substantial
extent, have referred the matter to Europe for a decision
under Article 177 of the Treaty. If such a reference had
been made, it would have had the advantage of determining
finally the validity of Mr Duffy’s arguments, which are not
accepted as being correct by Mr Lloyd-Jones in his capacity
as Amicus.

020 However a reference under Article 177 would be wholly
impractical in the timescale of determining the issue as to
where these children were to reside. A substantial period
would elapse before the European court could give us the
benefit of their assistance. As Mr Duffy submitted, the
courts in this country are now more familiar with dealing
with European points than the courts in the United States. I
doubt in this context whether there would be much advantage
to this court considering European points advanced by Mr
Duffy purely for that purpose.

021 There is also a real risk that if we decided that we
had jurisdiction, and if we decided to go on to consider the
merits of granting a declaration, that there could be an
unattractive result produced. This is because our decision
would not be binding an the Virginia court. The Virginia
court could take a different view from ourselves. One could
have a conflict as to the correct approach in relation to
the application of the Hague Convention. The United States
Government has become involved in the Virginia proceedings,
seeking to canvas before the judge in Virginia the very same
issues that arise here to which I have already made

022 In the end it seems to me important that this court
should bear in mind that what is being sought is a
declaration, a remedy which is discretionary. There are
situations where the courts have granted declarations under
Section 8, but they have been granted only in very limited
circumstances. There is certainly, no precedent of which we
am aware where a declaration has been granted under Section
8 where the issue only indirectly concerns this country.

023 As already stated, ultimately, the conflict is as to
whether the children should be with the mother in Germany or
whether they should remain in the United States. The only
purpose of the result of the Hague Convention proceedings is
that the children would be returned to the United Kingdom so
that this country can deal with the issue as to whether the
children should go with the mother to Germany. As to this,
the Virginian court is in a better position than this court
because all the parties arc in the United States. There has
been a previous case under Section 8 considered by this
court, namely Re P (Abduction: Declaration) [1995] 1 FLR
831. In that case, a division of this court presided over by
Lady Justice Butler-Sloss and Millen LJ and Sir Ralph
Gibson, had to consider a situation where a father had made
an application under Section 8. In that case the courts in
California had wanted the help of the English courts, albeit
that there had not been the compliance with the strict
requirements of the Hague Convention. This court said that,
in the circumstances that existed, which did not include the
complication of a German national being involved, as in this
case, there is jurisdiction in this court which is
absolutely right, to make a declaration under Section 8. It
is true to say that the jurisdiction under Section 8 may be
more extensive than that under Article 15, at least to the
extent that it is not confined to a situation where Article
15 has been complied with where the court can make a
declaration under Section 8.

024 However, in her judgment, my Lady said at page 835:

025 “Should such a declaration be made? Section 8
presupposes that this court will tread the path which will
also be trodden by the Californian court and we would not
presume to do so unless asked.”

026 In saying that, as I understand it, my Lady was
regarding the request as having been made by the Californian
court although the correct procedure had not been carried
out. She went on to say:

027 “The purpose of Art 15 goes to the obligation of the
State to comply with the request. In a situation falling
directly within Art 15 the requested State may have made a
firm or provisional finding or made an assumption that the
habitual residence is English. In the present appeal the
request is at an earlier stage where the Central Authority
of the USA faced with the 1992 English order and a
complicated matrimonial history seeks our assistance before
placing the application before the judicial authorities. In
the interests of comity it is proper for us to assist when
called upon to do so. In the general run of cases on such a
request made before them is a decision or an assumption by
the requested State as to where is the habitual residence of
the child, it would be preferable for the English court, if
the facts permit, to make a declaration upon the assumption
that the habitual residence is in England, rather than
making a specific finding on an issue still in dispute in
the other State. The issue properly to be the concern of the
English court under the Convention, is whether an applicant
parent had rights of custody according to English law at the
time of the removal.”

028 Millett LJ also gave a judgment, which is very helpful
in giving guidance as to the circumstances when it is
appropriate for an English court to make a declaration.

029 I would not go so far as to say that there can be no
situation, where you have a father who is of one nationality
and a mother who Is of another nationality and neither are
nationals of this country, where it would be appropriate to
make a declaration under Section 8 (at least if asked to do
so by a foreign court). However, I am quite satisfied that a
declaration in these proceedings has no contribution to make
to the proceedings in the United States. I strongly suspect
that if we were to grant a declaration that would not do
other than delay the proceedings in the United States, and
would be contrary to the interests of the children.

030 Accordingly it would serve no purpose, indeed it would
be contrary to the interests of the children which the Hague
Convention procedure is designed to assist, if we were to
proceed with this appeal. It would only result in
examination of legal issues which, in any event, will have
to be examined in the States, even if, which is by no means
certain, we were to come to the conclusion that the courts
of this country have jurisdiction.

031 Accordingly I would at this preliminary stage dismiss
this appeal notwithstanding the attractive arguments
advanced by Mr Duffy and Mr Setright suggesting that it
would be appropriate for us to continue with the appeal.


032 I respectfully agree with the judgment of the Master of
the Rolls. This application for a declaration under Section
8 is ancillary to the proceedings which are going ahead in
Virginia. The situation which arises before this court is
entirely different from that in the case of Re P to which my
Lord, the Master of the Rolls, has referred. In my judgment
also, this court has nothing to contribute on any of the
issues which fail directly to be decided by the Virginian
court. I agree that this appeal should be dismissed.


033 I agree that this appeal should be dismissed for the
reasons given by my Lord.

Order: Appeal dismissed. No order as to costs. Legal Aid
Taxation of mother’s costs. Leave to appeal to House of
Lords refused. Liberty to apply to this court to restore
the appeal if the United States Court decides to return the
children to this country under the Hague Convention.