P (Minors), Re [1998] EWCA Civ 2003 (11 March 1998)

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(SIR RICHARD BROWN, PRESIDENT)

Royal Courts of Justice
Strand
London WC2
11 March 1998

B e f o r e :

THE MASTER OF THE ROLLS
(LORD WOOLF)
LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE SIMON BROWN

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IN THE MATTER OF
RE: P (Minors)

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(Computer Aided Transcript of the Palantype Notes of
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Official Shorthand Writers to the Court)

____________________MR P DUFFY QC and MR H SETRIGHT (Instructed by Messrs Dawson Cornwell & Co, London WC1R 4QT ) appeared on behalf of the Appellant/Mother.
MR C GREENWOOD (Instructed by Messrs Reynolds Porter Chamberlain, London WC1R 4QT and Messrs Clifford Chance, London, EC1A 4JJ) appeared on behalf of the Respondent/Father and Intervenor.
MR D LLOYD JONES (Instructed by the Treasury Solicitor, London SW1H 9JS) appeared as an Amicus Curiae.

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

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

As a result of the marital problems, divorce proceedings were started by the mother in Berlin. The mother was concerned 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 father 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 An ex parte order was originally made by Sumner J prohibiting the father from removing the children from the United Kingdom.

On 4 August l997, 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.

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.

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 l978. 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.

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.

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.

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.

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 country.

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:

“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.”

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

“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 determination.”

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.

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.

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.

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 our 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 Virginia.

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.

However a reference under Article 177 would be wholly impractical in the timescale of determining the issue as to where these children are 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.

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 on 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 reference.

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 are aware where a declaration has been granted under Section 8 where the issue only indirectly concerns this country.

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 are 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 Millett 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.

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

“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.”

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:

“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 there 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.”

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.

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.

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.

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.

LADY BUTLER-SLOSS: 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 fall directly to be decided by the Virginian court. I agree that this appeal should be dismissed.

LORD JUSTICE SIMON BROWN: 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.

 

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