The father was a United States citizen, the mother was a British citizen and also held a permanent US resident card. Their only child, T, was born in the USA and had dual British/American nationality. The mother brought T to England ostensibly for a holiday with her family and was due to return with him. Once in England, she contacted the father and advised him that she regarded the marriage as at an end, and she wished to remain in England with T. In the face of the mother’s apparent refusal to return to the USA, the father issued proceedings in his home-state, Texas, and a “temporary” court order was made which provided, inter alia, that the father had senior parental responsibility for T, that the USA was T’s country of habitual residence and that the mother should return T to the father. T did not return to the USA by the date ordered by the Texas court and subsequently, the father filed an application in the United Kingdom seeking T’s return, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980, scheduled to the Child Abduction and Custody Act 1985. The mother did not file an answer to the application, but her statement of evidence contained multiple grounds on which she intended to defend the application. Those included the need for protective measures to address: (a) the risk of domestic abuse from the father, and (b) her concern that T would be removed from her care on return. Had the mother filed an answer, and had her answer clearly spelled out the exceptions under article 13(b) of the Hague Convention on which she wished to rely, then the father’s legal team might have taken steps to ensure that information was obtained from Texas about the protective measures which were available there, or which could be put in place, to meet the alleged identified risks. That did not happen. During the hearing of the father’s application, in the short adjournment, the parties reached an agreement that the mother would return to Texas with T on certain terms. However, there remained two areas of significant dispute within that agreement: (1) the mother sought protective measures and would only return to the US upon those protective measures being enforced in the US court; and (2) the parties disputed the duration of any of the protective measures. The mother subsequently contended that, since those details had not been finally decided, the agreement was not a complete agreement and therefore should fall. The judge held that, where an agreement was reached on the essential fundamental terms, placed on the court record and approved by the court, as it was here, it should be deemed as so ordered by the court, the details thereafter to be enshrined within the perfected order. She held that agreement had been formed on all core points of issue and dispute and that accordingly the mother would be held to the agreement. The mother appealed.
Held, appeal allowed. (1) Protective measures were those which addressed the issues of grave risk or intolerability raised by the asserted exception in article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980; they were to be distinguished from what had commonly become known as “soft landing” provisions, which were directed more towards facilitating and/or rendering more comfortable a child’s return. A degree of discipline was required to ensure that these provisions were considered and treated separately; it was not helpful if the terms were used interchangeably. That distinction was reflected in the HCCH 2020 Good Practice Guide, which distinguished between protective measures and “Practical arrangements” (the equivalent of soft landing provisions) which, as set out in the glossary, “[were] not intended to address a grave risk and [were] to be distinguished from protective measures” (paras 56–57).
(2) Cases decided in the context of financial remedy proceedings, which discussed the role of the court in reviewing and endorsing an apparent agreement as to division of assets and financial relief, were of limited application to the consideration of an apparent agreement reached in contested 1980 Hague Convention proceedings. Cases in the field of family law where what was at stake was the parties’ marital assets, and the arrangements for post-separate financial support, were more susceptible to the exercise of a broad judicial discretion to find completed and irrevocable agreement, than the case where the future of a child or children was in issue. Prior to any financial dispute resolution meeting “details of all offers and proposals, and responses to them” (rule 9.17(3) FPR 2010) would have been filed with the court, so that when the court gave its indication as part of the neutral evaluation, it was able to see the development of the negotiations. The approach to compromise, which might be appropriate for dividing assets and resolving finances, was unlikely to be transposable to a determination governed by the best interests of a child. The financial dispute resolution process was specifically designed for early neutral evaluation and “for the purposes of discussion and negotiation” (rule 9.17(1) FPR 2010); the very objective of the financial dispute resolution was for the parties to “use their best endeavours to reach agreement on matters in issue between them” (rule 9.17(6)). That was to be contrasted with last minute negotiations at the door of the court prior to, or in the middle of, a contested hearing (paras 60, 72).
(3) It was clear that if the taking party changed their mind on whether to return to the requesting state with the subject child after the return order had been sealed, and therefore wished to apply to set aside the order on the basis of a material change of circumstances, they had to do so in accordance with the rules; namely, rule 12.52A of FPR 2010, supported by PD 12F FPR 2010. In that regard, the bar would be set high to avoid the risk of a party seeking to take advantage of a mere change of circumstances such as a simple change of mind. It was also clear how the court should assess the case of a taking parent who asserted that he or she would not return with the child to the requesting state: see HCCH 2020 Good Practice Guide, para 72. But in circumstances where a parent changed his or her position on return mid-way through the hearing, and before the final order had been made: the court had to consider the changed situation on the new facts, paying close regard to how the new position affected the issue of intolerability for the subject child(ren). In that exercise, the court was bound to need to examine closely the reason(s) why the taking parent had changed their mind in retracting their plan to return with the child(ren); the court should be astute to discern the antics of a litigant on whom there was a dawning realisation of an unwelcome decision; the court should consider, from the point of view of the child(ren), what that now meant to the application for return. While it was acknowledged that a refusal to return could represent an altogether new basis for asserting that the exception to return under article 13(b) was made out, the court would be cautious when considering such a case which the taking parent would have created by their own asserted decision not to return; see HCCH 2020 Good Practice Guidance, paras 65, 72. It followed that the judge’s orders could not stand, since the parties had not in fact reached accord on a core, fundamental, ingredient of the arrangements for T’s return, namely the implementation of the proposed protective measures in Texas. The absence of agreement about that deprived the so-called agreement of one of its essential building blocks and accordingly the case would be remitted to the Family Division (see paras 61–68, 71, 73, 77, 79, 80, 81).
James Turner KC, Maria Scotland and Adal Ibrar (instructed by HAB Law Solicitors, Enfield) for the mother.
Teertha Gupta KC, Paul Hepher and Emma Spruce (instructed by Williams & Co, Edgware) for the father.
Jacqueline Renton and Mani Singh Basi (instructed by Dawson Cornwell) for the intervener, Reunite International Child Abduction Centre.