UK – RE M AND J – 1999(return ordered) (Judicial Collaboration) (Undertakings) Re M and J. Great Grandmother files for the return of the two children to the US. The judge, by collaborating with the American DA and courts, was able to order the return of the children while safeguarding the welfare of the children. Note: Bill Hilton, “This is the second known case under the Convention where judicial collaboration has been used. The first being Diab vs Benoit (Canada 1996)”
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Re M and J (Abduction: International Judicial Collaboration)[1999]
High Court of Justice CA 86 of 1999
11 International Abduction [UK 1999]
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IN THE HIGH COURT OF JUSTICE
CA 86 of 1999
FAMILY DIVISION
PRINCIPAL REGISTRY
IN THE MATTER OF THE
CHILD ABDUCTION AND CUSTODY ACT 1885
AND
IN THE MATTER OF THE SUPREME COURT ACT 1981
Re M and J
(Abduction: International Judicial Collaboration)
001 THIS IS THE JUDGMENT OF MR JUSTICE SINGER IN THIS CASE
IN THE FORM IN WHICH IT WAS HANDED DOWN IN OPEN COURT ON 16
AUGUST 1999. IT CONSISTS OF 17 PAGES (INCLUDING THIS PAGE)
AND HAS BEEN SIGNED BY THE JUDGE.
002 THE JUDGMENT HAS BEEN HANDED DOWN IN OPEN COURT ON THE
STRICT UNDERSTANDING THAT IN ANY REPORT NO PERSONS (OTHER
THAN THOSE IDENTIFIED IN THE JUDGMENT ITSELF AND SOLICITORS
AND COUNSEL APPEARING FOR THE PARTIES) SHALL BE IDENTIFIED
BY NAME OR LOCATION AND IN PARTICULAR THAT THE ANONYMITY OF
THE CHILDREN AND THEIR FAMILY MUST BE STRICTLY PRESERVED.
003 THE JUDGE HEREBY DIRECTS THAT NO TRANSCRIPT OF THE
JUDGMENT SHALL BE TAKEN AND THAT THIS VERSION SHALL BE
TREATED AS AUTHENTIC.
Signed: /S/ Peter Singer
Dated: 16 Aug 1999
004 The issue in this case has been whether I should order
the return to the United States of America (and in practice
to California) of two children whom I will call M and J. The
course which the proceedings have taken has been unusual but
constructive, and indeed I hope instructive. It is for that
reason that I am after the conclusion of these proceedings
handing down this judgment in open court, upon the basis
that any publication of it shall preserve the anonymity of
the parties and of their respective addresses.
005 M will be eight in October, and J will be two in
September, and both are boys. Their parents (whom I will
call H and W) are both aged 28, and are the two defendants
to the Originating Summons. The boys have lived with them in
England since 2 January 1999 when W brought them here from
the home of their maternal great grandmother (GGM) in
California. GGM is 77, and she is the plaintiff in these
proceedings. As the action for the children’s return is
primarily brought in reliance upon the Hague Convention on
the Civil Aspects of International Child Abduction, as
incorporated into English law by the Child Abduction and
Custody Act 1985, the children are not themselves separately
represented in these proceedings. I did however during the
course of the proceedings invite the Official Solicitor to
carry out investigations into the domestic situation of the
family in England, and received a helpful report to which I
shall refer in due course.
006 The children were brought here by W without any
advance notice to GGM, who thus had not any opportunity
whether to agree or to object. Prior to that removal they
had each lived the whole of their life in America, the
country of their birth and habitual residence.
007 GGM instituted these proceedings on 1 April 1999. Her
solicitors and counsel were initially instructed on her
behalf by the Child Abduction Unit of the Official
Solicitor’s Department acting as the Central Authority for
the purpose of Hague Convention proceedings, pursuant to a
request from their United States counterpart.
008 The return of both children was sought pursuant to
article 12 of the Hague Convention. Alternatively, GGM
invited the court to invoke its inherent jurisdiction to
order the children’s return.
009 The issues of law and fact which arose in the case, as
it initially presented when it first came before me on 14
June 1999 can be summarised as follows:
1. Did GGM have “rights of custody” in the sense
to be attributed to articles 3 and 5 of the
Hague Convention which (in relation to either or
both of the children) she was exercising at the
time of removal or but for that removal would
have exercised?
2. If “yes” in relation to either child, have
the parents under article 13 established any
basis upon which this court is not bound to
order the return forthwith of that child as
article 12 otherwise requires?
3. If in relation to either child article 13
circumstances are established, should I exercise
the discretion thereupon arising for or against
an order for return?
4. If I were to find (as in the special
circumstances of this case I could) that M’s
removal did breach the Convention and was
wrongful in terms of article 3, but J’s was not,
what if any order should I make under the
inherent jurisdiction in relation to J? And how
would his distinct status in those circumstances
impact upon M’s situation?
010 The chronology can be summarised as follows. None of
W’s family has any connection with England. She was brought
up in California. There in her teens she met H. He was born
in the town in England where they now reside, and lived in
England until aged 13. Then with his mother and at least
some of his siblings he moved to California. Until September
1998 there was his home.
011 M was born to the parents in October 1991. For some
months after his birth he and W lived in GGM’s home. At some
point in the first six months of 1992 both parents and M set
up their own separate home. Family life was disrupted for
the first but unfortunately far from the last time when in
December 1992 H was arrested for dealing in amphetamines. W
thereupon left H and moved with M to live with her own
mother (MGM).
012 From his subsequent conviction for that drug offense
in May 1993 until his release in July 1994 H was in prison.
He then went to live with W and M at the home of MGM.
013 The parents married in August 1994. In early 1995 the
family moved to their own apartment but in April of that
year H was for the second time convicted of a drug offense
and imprisoned. The nine months or so between these two
first imprisonments represents the longest period hitherto
during which M has lived with both his parents.
014 In May 1995 W relinquished the day-to-day care of M to
GGM, in whose home he lived continuously from then until his
removal to England in January this year. In September 1995
GGM (jointly with MGM) instituted proceedings in the Los
Angeles Superior Court, seeking appointment as co-guardians
of M. In due course such an order was made without
opposition from the parents. The effect (in terms of
Children Act concepts) is to substitute the guardians for
the parents as those with parental responsibility for M.
015 The extent to which W and (during his periods at
liberty) H thereafter have had contact with M is a matter of
some dispute, not relevant for present purposes, as are the
details of W’s manner of life and movements. H was released
from prison on parole in October 1996, and resumed
cohabitation with W in December 1996. But in March 1997 he
was convicted of an offense of dishonesty which led to his
return to prison for a further spell until mid-October 1997.
016 He was therefore not living with W during the greater
part of her pregnancy with and at the time of the birth on
28 September 1997 of J. And in May 1998, when their younger
child was only eight months old H was again arrested and
imprisoned for a drug-related offense. W herself thereafter
(on her evidence for the first time and uniquely) became
involved in selling drugs. She was arrested for that on 1
June 1998, and as a direct result of that and her consequent
remand in custody J, still just eight months old, went to
live with GGM and his brother.
017 In September 1998 H was deported from the United
States of America and his resident alien status revoked,
Unless upon a discretionary compassionate basis to allow him
to participate in proceedings relating to the children in
Los Angeles he is unlikely for many years to be permitted to
enter the United States of America. He came to live in
England, initially at the home of his father.
018 Towards the end of November 1998 W was released from
prison upon probation and subject to certain conditions. She
moved into the home of GGM and lived there with her two
sons. The extent to which she assumed responsibility for
their day-to-day care is in dispute, but clearly on any view
her acquaintance with the children resumed and strengthened.
019 Then on 2 January 1999 as a result of unilateral and
undisclosed decisions taken by her with H she removed both
boys from GGM’s home and brought them to England. By then H
had obtained separate accommodation, and since then the
family has been re-housed in what would have been expected
to be secure and suitable accommodation for the family. On
his account, H has been in employment since shortly after
his return to this country. The family’s financial
circumstances are adequate if modest. The parents maintain
their firm intention to put their criminality behind them
and to turn over a new leaf There is no evidence to suggest
that thus far they have failed in that intention.
020 When the case opened before me it bristled with
apparent points of law, and some of fact. These latter
primarily related to the strength and underlying thrust of
what were said to be M’s objections to return to the United
States of America, and the question what account if any
should be accorded to them under article 13, having regard
to his age of less than eight and his degree of maturity
which may well be greater than his chronological age would
suggest. As to this I read the report and heard the oral
evidence of Dr Dennehy, a very experienced consultant child
psychiatrist. In accordance with established practice I
heard no oral evidence from either parent, notwithstanding
their availability, nor of course from GGM.
021 It is unnecessary for me for present purposes to trace
the submissions and arguments deployed on either side to
meet the obvious factor that although GGM and MGM (who at
that stage played no part in the proceedings) were
legally-constituted guardians of M, GGM’s claim for J’s
return was based only upon the fact of his residence with
her from June 1998 onwards. From the outset, however, it was
made plain to me on behalf of W that if M’s return was
ordered she would accompany him to Los Angeles and would
take J with her, of necessity leaving H behind. Once there
she would hope to be in a position to make application to
the Superior Court for whatever orders would in that court’s
jurisdiction be necessary to enable and permit her and both
children to return to England and to resume life here and
with H.
022 On W’s behalf it was strongly urged that the
circumstances which the children would face upon such a
return gave rise to grave risk that they would be exposed to
physical or psychological harm or otherwise placed in an
intolerable situation, in terms of article 13(b) of the
Convention, and that I should exercise the discretion thus
evoked and rule against return.
023 In the light of a host of English authorities it would
be a difficult task to establish this defence in relation to
M, whose status as a child susceptible to return under the
principles of the Convention could scarcely be in doubt. For
present purposes I need perhaps only refer to two cases in
the Court of Appeal, both decided this year and both called
Re C. In the first of these, reported at [1999} 1 FLR 1145
as Re C (Abduction: Grave Risk of Psychological Harm), Ward
LJ at 1154A referred to:
an established line of authority that the court
should require clear and compelling evidence of
the grave risk of harm or other intolerability
which must be measured as substantial, not
trivial, and of a severity which is much more
than is inherent in the inevitable disruption,
uncertainty and anxiety which follows an
unwelcome return to the jurisdiction of the
court of habitual residence.
024 In that case, as here, the effect of an order for
return would be to split the family, as the mother’s husband
was unable to accompany her and the child in question. Upon
this Ward LJ observed (at 1156) that:
They left the USA knowing fUll well that the
stepfather was likely to be refUsed re entry.
They should not have embarked on an “Xmas visit”
from which the family could not return intact.
By their own actions they created the adverse
conditions upon which they now seek to rely.
025 Return was ordered in that case, notwithstanding that
potential fragmentation of the family.
026 In the second Re C, as yet not fully reported,
Butler-Sloss LJ referred to the situation created by the
mother in that case as a “self-induced dilemma”. The fact
that the nature of the dilemma in the circumstances of that
case was distinct from that which this mother faces is less
significant than that both are self-created. In his
concurring judgment Thorpe LJ (at page 18 of the transcript)
illuminatingly observed as follows:
In many cases a balanced analysis of the
assertion that an order for return would expose
the child to the risk of grave psychological
harm leads to the conclusion that the respondent
is in reality relying upon her own wrongdoing in
order to build up the statutory defence. In
testing the validity of an article 13(b) defence
trial judges should usefUlly ask themselves what
were the intolerable features of the child’s
family life immediately prior to the wrongful
abduction? If the answer be scant or
non-existent then the circumstances in which an
article 13(b) defence would be upheld are
difficult to hypothesise. In my opinion article
13(b) is given its proper construction if
ordinarily confined to meet the case where the
mother’s motivation for flight is to remove the
child from a family situation that is damaging
the child’s development. Of course the judges of
the Family Division have a highly trained
instinct to protect children from the risk of
harm. They meet the need and the opportunity for
child protection daily, not only in public law
proceedings but equally in private law
proceedings. But that prime responsibility in
the conduct of Children Act proceedings does not
extend to the very special field of child
abduction. In that field the prime
responsibility is to ensure the early return of
the abducted child.
027 A factor in W’s case against return was that as a
result of the infractions of probation committed not least
by her absconscion she would be arrested upon reaching
California. The prospect of arrest of the abducting parent
upon return should not of itself signify an article 13(b)
defence: see Re L (Abduction: Pending Criminal Proceedings)
[1999] 1 FLR 433. In this case, however, that prospect
seemed particularly poignant given what I was told might be
the significant length of W’s imprisonment, and her
inability meanwhile effectively to initiate proceedings
designed to test whether the children’s welfare was better
met by living with GGM in California, or with their parents
in England.
028 The judicial instinct to protect children from risk of
harm goes hand in hand with the desire to secure for them,
if practicable, the selection of the potentially more
beneficial upbringing. As an underlying objective of the
Hague Convention is to ensure that welfare issues concerning
children are decided by the courts of the country of their
habitual residence rather than by the foreign court of a
country to which they have been wrongfully removed, then it
could be argued to be a rather perverse pursuit of principle
to enforce return in circumstances where the admittedly
wrongdoing parent could not in practice put the welfare
issue to the test because of her own long-term
incarceration. This is however precisely the sort of bullet
upon which first instance judges must steel themselves to
bite if we are to comply with the requirements of this
highly-regarded and effective international Convention
which, in a case such as this, can be said to transcend the
otherwise pervasive principle that the child’s welfare is
the court’s paramount consideration. Such is precisely the
point emphasised by Thorpe LJ in the passage just cited.
029 By the time when submissions before me were drawing to
a close it was established that a bench warrant had been
issued for W’s arrest upon her return to California, and
that this would lead to her appearance before a judge who
would decide whether to revoke her probation. It appeared
that her probation officer was minded to recommend that that
indeed should be the consequence of her breach, and that she
should serve the balance of her original prison sentence.
030 The parties had been in some discussion concerning the
children’s circumstances in the event of theft return. It
appeared to be agreed that the parties would be prepared to
accept terms that amongst other matters (but from the point
of the children most significantly) would allow for the
children to remain with W upon arrival in California until
such time as a court in that jurisdiction was in a position
to regulate their lives in proceedings in which all the
adults would have an opportunity of making representations.
The parties seemed at that stage prepared to give
undertakings to the English court to that effect, and to
record them as stipulations or conditions with the intention
and effect that an American court might take appropriate
note of any breach committed after the children’s arrival in
that jurisdiction.
031 So far as the giving of undertakings to the English
court is concerned, it is now well – established by case –
law that such undertakings should not be accepted by the
court save to the extent that they regulate affairs relating
to the children up to but not beyond the door of the court
of the children’s habitual residence. For to attempt to do
otherwise or more would fall foul of the important principle
that the English court in such circumstances should not make
welfare decisions interfering with the discretion of the
court to the jurisdiction of which the Hague Convention
requires return. Similarly, it is now reasonably well –
understood, at least with the Department of State in
Washington (which is the Hague Convention Central Authority
so far as abductions from the United Sates are concerned),
that the acceptance of such undertakings by the English
court should not be regarded as an interference with their
courts’ own appropriate jurisdiction.
032 But the agreement and the then – proposed undertakings
that would leave the children (sensibly, as it seemed to me,
from their point of view) with their mother during the three
or so weeks that it was envisaged might lapse before an
inter – partes hearing could be convened in California were
subject to significant risk of the frustration, over which
the adults had no pre – emptive control, that criminal
process for breach of probation would remove W’s ability to
look after the children during that period. This left unmet
what appeared to me to be the potentially profound and
disturbing (even if perhaps temporary) anxiety and
uncertainty to which W and H and M (and, albeit to a limited
extent because of his limited comprehension, J) would be
prey in what was in any case likely to be the disturbed and
emotional process of preparing for return, making the
journey, and disembarkation. It did not seem to me to be at
all attractive nor in any way in the children’s interest
that uncertainty should reign until that point as to whether
at the airport the mother might be arrested and the children
then placed (as would in those circumstances appear
appropriate) in the care of GGM.
033 In the Court of Appeal decision in Re RB (Abduction:
Children’s Objections) [1998] 1 FLR 422, an exceptional case
which demonstrates how a combination of a Hague Convention
order appropriately made and parental intransigence and
intolerance can wreak havoc for and overwhelm children,
Thorpe LJ suggested (at 427H) that:
it is important … that the court systems in
each jurisdiction should equally act in concert.
Once the primary jurisdiction is established
then mirror orders in the other and the
effective use of the Convention gives the
opportunity for collaborative judicial function.
The Danish judge and the English judge should in
any future proceedings if possible be in direct
communication.
034 Butler – Sloss LJ echoed this, endorsing that
suggestion.
035 In the light of the, as it then stood, best but very
imprecise information available as to what would befall W
upon return to America I suggested to the parties’
representatives towards the conclusion of submissions that
during the two day interval that other obligations imposed
before I could in any event give judgment it would do no
harm and might prove helpful to facilitate enquiries and if
necessary direct judicial communication to clarify this
uncertainty. The parties’ representatives agreed and I
invoked the assistance of the Child Abduction Unit within
the Official Solicitor’s Department. It seemed to me that
such an initiative was within the scope and intention of
article 7, whereby Central Authorities are enjoined to
“co-operate with each other and promote co-operation amongst
the competent authorities in their respective States to
secure the prompt return of children and to achieve the
other objects of this Convention.” The Article continues,
to the extent for present purposes relevant, to specify that
Central Authorities “shall take all appropriate measures …
(b) to prevent further harm to the child or prejudice to
interested parties by taking or causing to be taken
provisional measures” and “(c) to secure the voluntary
return of the child or to bring about an amicable resolution
of the issues.”
036 In consequence, after some initial enquiries made
direct by the Child Abduction Unit proved unpromising, I was
put in touch by telephone one evening with Judge Gary
Ferrari, a Supervising Judge exercising criminal
jurisdiction in the Superior Court of California for the
County of Los Angeles. In anticipation of our conversation
he had familiarised himself with W’s file and had arranged
for the District Attorney to be in attendance and to hear
our discussion. He it was who had issued the warrant, not
backed for bail, for W’s arrest. To him I outlined the
family history, the nature of the Hague Convention
proceedings, the likelihood that the result would be the
return of W with both children to California, the
uncertainties that there awaited her in the light of her
breaches of his court’s orders, and my hope that ultimately
the issues of where and with whom the children should live
might be effectively dealt with by one of his colleagues.
037 Judge Ferrari extremely sensitively indicated that he
would not in any way wish to see frustrated, impeded or
delayed the investigation in the appropriate Californian
court of the welfare issues which would arise if the parents
sought to vary or discharge the guardianship order in favour
of GGM and MGM in relation to M, with a view (if successful)
to the children’s return to England to re-establish family
life with their father. With the assent of the District
Attorney be was able there and then to assure me that he
would recall and quash the warrant; reinstate W’s probation;
minute our discussion upon his court’s record; and take no
further action (in the event of W’s return to California)
until the issues relating to the children had been resolved.
The following day he made an order reflecting precisely
that, and faxed me a copy. It follows that he could not have
been more helpful.
038 In addition he put me into direct contact with Judge
Paul Gutman, the Supervising Judge of the Family Law
Department of the Los Angeles Superior Court. Before I
spoke to Judge Gutman the following evening I circulated the
parties with an account of the discussion I had held with
Judge Ferrari and its outcome and (when available) with a
copy of his order. I then initiated a three-way telephone
conversation between myself and counsel, Mr Marcus
Scott-Manderson for the mother and Mr Richard Harrison for
GGM. With me they agreed that I should discuss with Judge
Gutman whether arrangements could be for a swift
inter-partes hearing after the return of W and children to
California, and what if any orders he might be prepared to
make in advance of that return to regulate the position of
the children pending such hearing and to secure that they
would be separated neither from each other nor from their
mother, if he considered that appropriate.
039 Judge Gutman and I on the first occasion spoke at some
length about the case. I gave him what I hope was a
dispassionate account of the circumstances which had led to
the hearing before me, and of the potential practical
outcomes as they appeared to me to be. I explained my desire
to enable his court, the court of their habitual residence,
to deal with the children’s future welfare, and how that
might have been frustrated if their mother were
incarcerated. I emphasised how concerned I was not to appear
to be interfering in matters within his jurisdiction.
040 The essential outcome of our discussions was that
Judge Gutman would do what he could to ensure that any child
custody proceedings instituted in California would be given
such degree of priority as was consistent with a proper
investigation of the issues raised. He and I were in entire
agreement that all parties and the children needed to know
the eventual outcome with the least delay; and in particular
that if that outcome were to be that mother and children
should return to England then the sooner that could be
achieved the least damaging would have been the combined
effect of their original removal from GGM’s home and the
Hague proceedings. Conversely, of course, if the children’s
future proved to be that they should remain with GGM, then
that too should be resolved as soon as possible after any
return to California. Judge Gutman also indicated that he
was happy with and supportive of undertakings expressed also
as stipulations that would regulate the immediate interim
position upon the children’s return, namely that (as the
parties at that stage seemed to agree) both children should
remain in W’s care notwithstanding the guardianship order
relating to M.
041 As on the previous day I circulated a summary of that
discussion to the parties (and indeed to both judges in
America and to the Child Abduction Unit).
042 I had made it plain to both counsel in the course of
our discussions that I had it in mind at the resumed hearing
on 18 June 1999 to adjourn rather than by judgment to
dispose of the proceedings. That in the event I did,
notwithstanding submissions on behalf of GGM that I should
conclude the Convention case there and then. I recognise of
course that the Convention and indeed domestic rules require
expedition: I had article 11 of the Convention and rule 6.10
of the Family Proceedings Rules 1991 well in mind. But I
also had in mind that, as in Children Act cases purposive
delay can be constructive, so too in some Hague Convention
cases may it also prove so to be. My reasoning was that a
period of delay at this point would enable the adults more
time to consider their and the children’s position in the
light of the very considerable simplification and
clarification resulting from my discussions with colleagues
of the situation which would upon their return await mother
and children. I had also been given some reason to believe
that a degree of communication might be restored between W
and GGM. I hoped that W would appreciate (as I was told she
did) the removal of the threat of immediate imprisonment
even though that very relief removed a substantial plank
from her article 13 defence. I hoped that GGM might be able
to look beyond the battle over whether or not the children
would return to America, to the true issue which would then
need to be decided, namely whether or not they should
thereupon return to England. It seemed to me to be not
impossible that, given some time, the parties might reach if
not overall then at least partial agreement. I also bore in
mind the relatively recent introduction by the Court of
Appeal of mediation as an option in suitable Hague
Convention cases, and my knowledge that research into the
scope for this in the arena of abduction cases will shortly
be underway.
043 I therefore balanced the objective of expedition
against other considerations reflected in the Convention and
in the 1985 Act: article 7(c) imposing (as one of their
obligations upon (admittedly) Central Authorities) a
requirement to “take all appropriate measures … (c) to
secure the voluntary return of the child or to bring about
an amicable resolution of the issue”; and the power given to
the court by section 5 of the Act so that it may “at any
time before the application is determined, give such interim
directions as it thinks fit for the purpose of securing the
welfare of the child concerned …”.
044 So far as the welfare of the children was concerned,
it seemed to me that there was much to be said for enabling
M to conclude or at least approach the conclusion of his
current school term. Judge Gutman had told me that he would
in due course appreciate further reports and information
concerning the family’s activities since their arrival in
England and clarifying their current situation. Finally, he
explained to me that in his view it would be practicable for
W to obtain pro bono representation in California in advance
of her return so that proceedings might be commenced and
perhaps timetabled in the meantime.
045 I therefore adjourned the case to the date when I
would next be available on 12 July 1999 in London. I invited
the Official Solicitor to investigate the home and social
circumstances of the parents and children to the extent
practicable for a report to be produced at that hearing, and
authorised him (although he did not take advantage of this)
to conduct any part of his enquiry via an intermediary such
as the relevant Local Authority. A representative of the
Official Solicitor’s Department had in advance agreed that
it would be appropriate for me to ask for such a report
having regard to the requirement of article 7(d) that
Central Authorities “either directly or through any
intermediary . . . shall take all appropriate measures . . .
(d) to exchange, where desirable, information relating to
the social background of the child.”
046 I communicated the outcome of that hearing by e-mail
to Judge Gutman and to Judge Ferrari, and in due course
faxed a copy of the order to each of them. I should add that
Judge Ferrari’s continuing involvement was extremely
beneficial, in that as a result of a review of the criminal
file he was able to dispel as “completely without merit” the
suspicion emerging from one of the American court documents
that W might have been involved in injuring a child.
047 When the case resumed before me on 12 July we had
indeed moved one important step forwards, but unfortunately
also one back. The parents had unreservedly agreed to
withdraw their opposition to an order for both children’s
return. A draft consent order to that effect had been
prepared, which however also incorporated undertakings
concerning which agreement had not yet been established. The
significant area of disagreement related to a shift in GGM’s
position. She and MGM, having in the interim had an
opportunity to reflect, were no longer prepared to allow
either child to remain in W’s care upon disembarkation but
wished them both to be returned to her physical custody
immediately they reached California. But by now W had
secured legal representation in California. Flights had
provisionally been arranged for the following weekend, and
thus the intervening days were available to attempt to
resolve this impasse.
048 During that time I spoke again on more than one
occasion to Judge Gutman. He was prepared to entertain
representations on an inter-partes basis at short notice on
any day and was, in the absence of any agreement, prepared
to regulate immediate arrangements for the children on an
interim basis, prior ever to their physical arrival in his
jurisdiction. In the event it proved impracticable to
arrange for this to happen before 28 July 1999. But, again,
delay was in my view entirely beneficial. For it averted
potential fracas for W and the children and upset for them
and for GGM the unsatisfactory outcome of which after hot
debate at the airport might have been that GGM took M under
her guardianship order home with her, while W made her way
with J alone to stay, as proposed, with her mother-in-law.
For, in the presence of GGM and both parties’ attorneys,
Judge Gutman negotiated agreed undertakings and stipulations
to be offered and agreed to not only by W and GGM but also
by MGM. Accordingly on 30 July 1999 I made a consent order
for both children’s return, the order incorporating those
undertakings.
049 I believe that the advantages for the whole family,
but particularly for the children, of embarking upon this
process (which admittedly took about six weeks to reach its
conclusion) significantly outweigh the likely consequences
of my having imposed a peremptory order in mid-June, given
the uncertainties and disagreements and potential for
conflict then rife. It is of course essential if such a
process of judicial co-opertion is to be successful, that
the court should as far as possible carry the parties
consensually into the discussions. It is, I suggest,
important that so far as practicable full information
relating to the communications between the judges be made
available promptly to all participants. But it is I hope
clear that in an appropriate case real advantages can be
reaped when judges in different jurisdictions can
communicate and collaborate.
050 I would wish to record my considerable appreciation
for the co-operation with which Judge Gutman and Judge
Ferrari entered into this collaboration. It was clear from
every discussion with each of them that their prime concern
was to secure the best outcome for the children at each
stage. Neither of them for a moment suggested that they
resented what might have been regarded as my interference in
their domestic procedures. Each was clearly pleased to have
the opportunity to contribute to what in the event became a
negotiated result.
051 I must also express my gratitude for the very
considerable support afforded to the court by the Official
Solicitor’s Department. His report prepared within the space
of three weeks catalogues the visit to the home, to the
parents and to the children made by his representative and
the other enquiries pursued. As well as containing much
factual information that may assist Judge Gutman in due
course, the report highlights some areas of anxiety which it
may be necessary for him to investigate and evaluate. The
Official Solicitor’s report concludes with an extremely
helpful suggestion, in the event that the court in
California is minded to permit the mother to return to
England. I record it in full, as potentially of value in
other cases, but also as an indication of imaginative and
constructive originality. It is as follows:
If the mother returns with the children to
California, and if the court there decides that
the children should remain in California, that
will be the end of the matter as far as this
jurisdiction is concerned. It may, however, be
of some help to the court in California if I say
that if it was looking for some form of
safeguard in the event of the mother being given
permission to remove the children from
California permanently to live in the United
Kingdom, it would be possible to provide this
under the wardship jurisdiction of the High
Court in England and Wales. If an indication was
given to me that on the children’s return to
England they should be made Wards of Court I
would be happy to issue an originating summons
on their behalf. I would then act as their next
friend (legal representative), to monitor their
placement and secure their welfare.
I would be pleased to provide a report for the
High Court (which could be copied to the
Superior Court in California) on the children’s
progress after, say, twelve months. In the event
that for some reason the placement broke down,
the High Court could decide whether the
children’s best interest would be served by
their returning to California or by staying in
England. The local social services department
would be given the opportunity to intervene in
the proceedings to protect the children. If the
placement succeeded then after a suitable
interval consideration could be given to the
wardship proceedings being discharged.
052 In short, the procedures adopted in this case have
enabled W to accept her and the children’s involuntary
return to America with far less resentment than might
otherwise have affected the children; have dispelled
uncertainty and anxiety as to the children’s immediate
circumstances upon arrival; have put in place in advance of
their arrival a framework for judicial resolution of the
welfare dispute; and have provided the prospect of
appropriate support for the children in the event that that
decision results in their return to this jurisdiction.
——————————
Comment by Wm. M. Hilton
31 Aug 1999
The views of Justice Singer, a well respected judge of the
English High Court and a judge well versed in The
Convention, as to judicial collaboration exemplifies the
highest standards of the reach of The Convention.
This is the second known case under The Convention where
judicial collaboration has been used, the first being Diab
vs Benoit (Canada 1996) Prov. of Quebec, Dist. of Terrebonne
No 700-04-001386-967, available on Hilton House Web Site as:
http://www.hiltonhouse.com/cases/Diab_cdn.txt
The concept of judicial collaboration should be used when
ever there is any concern about the logistics of returning a
child to his/her habitual residence.
Judicial collaboration can and should be used when ever
there needs to be a seamless movement of children from one
contracting state to another.
The High Court’s use of E-Mail, telephone contact and FAX
are in harmony with Art. 7(h) of The Convention: “. . . to
provide such administrative arrangements as may be necessary
and appropriate to secure the safe return of the child.”
The proper and effective use of judicial collaboration may
also seen by the recent United States Court of Appeals Case
Blondin v Dubois (2nd Cir 1999) — Fed.App.3d —; No.
98-2834; 17 Aug 1999, available on Hilton House Web Site as
http://www.hiltonhouse.com/cases/Blondin_fed_appl.txt
The decision also provides one with useful insights on the
correct use of “undertakings” (stipulations) and, although
not explictly stated, the use of “Safe Harbor” orders.