The parties, an American father and English mother, lived in the United States of America with the two children of their marriage, born in 2007 and 2008. In February 2015, following the breakdown of the parties’ marriage, a Californian court awarded legal and physical custody of the two children to the mother and made an ex parte order authorising her to remove the children from the USA. The mother brought the two children to England. On 15 September 2015 the father applied to the English court under the Hague Convention on the Civil Aspects of International Child Abduction 1980, incorporated into English law by the Child Abduction and Custody Act 1985 (“the Hague Convention”), for the summary return of the children to the USA. On 24 September 2015 the father’s challenge to the Californian order was allowed in part with further proceedings due to be heard in the Californian court in May 2016. Each party acknowledged that, in the circumstances, there was no utility in continuing with the Hague Convention proceedings. The wife contended that they should be struck out or summarily dismissed, the husband, seeking to withdraw his application, contended that the court had no jurisdiction to make such an order.
On the father’s application—
Held, consent order made giving the father permission to withdraw his application. Hague Convention proceedings were, of their very nature, summary; indeed they were required by the Convention and the relevant jurisprudence to be determined within six weeks. The issue therefore was when, if at all, the court should deal with Hague Convention proceedings in a manner which was “ultra-summary” and the answer, upon consideration of the authorities, was “not very often”. Where the basis for the attempt to abbreviate an already summary process was an argument going to the merits (or, more precisely, the asserted demerits of the other party's case) the short point, was that, save perhaps in an exceptional case, such arguments were properly to be dealt with as part of the substantive hearing and not by way of preliminary points. Here, where the Hague Convention proceedings had been overtaken by subsequent events—a change in the family's circumstances or developments in the foreign court—the effect of which was to deprive the proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on, the court undoubtedly had power to bring the proceedings to a premature conclusion. Such cases could be expected to arise only infrequently; the vast bulk of Hague Convention cases would, indeed had to, continue to a substantive hearing in the usual way. Although there was pressing need in the context of Hague Convention proceedings to avoid satellite litigation and the inevitable over-elaborate and ever-elaborating jurisprudence which always accompanied it, the circumstances in which the court could properly adopt an “ultra-summary” approach in Hague Convention cases were very limited and the cases in which it could ever be appropriate to do so were likely to be very few and far between (paras 21–26).
In re G (Abduction: Striking Out Application) [1995] 2 FLR 410, In re F (Relocation) [2013] 1 FLR 645, CA, In re C (Family Proceedings: Case Management) [2013] 1 FLR 1089, CA, AF v HS [2015] EWHC 2968 (Fam) and In re W (Children) (Abduction: Striking Out) [2015] EWHC 4002 (Fam) considered.
Richard Harrison QC (instructed by Lyons Davidson) for the father.
Edward Bennett (instructed by Dawson Cornwell) for the mother.