EA v Appellant (mother) [2010] EWCA Civ 586

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Honourable Mr Justice Mostyn
FD10P00740
[2010] EWCA Civ 586Case No Case No: B4/2010/1045/FAFMFVenue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
EAAppellant (mother)GAFirst Respondent (father)Westminster City Council SecondRespondentSalford City CouncilThirdRespondent
Before
Lord Justice ThorpeLord Justice EthertonMr Henry Setright QC and Edward Devereux instructed by Bindmans LLP for the appellantMotherDavid Williams for the Respondent fatherMr Roger McCarthy QC and Deirdre Fottrell instructed by Creighton & Partners for Westminster City CouncilRichard Tambling instructed by Salford City Council Legal Services for Salford City CouncilHearing date: Friday 21st May 2010

LORD JUSTICE THORPE :

The

[1]Issue This appeal raises a short point on the construction of section 5 of the Child Abduction and Custody Act 1985.[2]The section is in these terms:
"5. Interim Powers where an application has been made to a court in the United Kingdom under the Convention the court may, at any time before the application is determined, give such interim directions as it thinks fit for the purposes of securing the welfare of the child concerned or of preventing changes in the circumstances relevant to the determination of the application."
[3]The question raised in the court below was whether the court's power extends to directing a local authority to provide accommodation for the abductor and abducted children. The History[4]The question arises out of the following history: The parents are of Nigerian origin and have never married. Their two children are J who is eight and K who is six and a half.[5]The mother seems to have led a peripatetic life in recent times, moving between England, Ireland and Nigeria.[6]On 5 th March 2010 the mother removed both children from the Irish Republic, first to Liverpool and then to Salford.[7]Both children were bom in Ireland and, at the date of their births, that fact conferred upon them citizenship. They are accordingly entitled to enter this jurisdiction as citizens of the European Union.[8]The mother entered on a visitor's visa. She has not applied for asylum. She is an illegal immigrant. Her departure terminated her entitlement to Irish welfare benefits. She has no entitlement to benefits in this jurisdiction. She was initially accommodated by Salford City Council and after sojourn of approximately 4 weeks, left by agreement receiving travel costs for the journey to London on the condition that it was a one way trip. The mother was no stranger to London having lived here between October 2008 and April 2009. The P r oceedings Below[9]The husband's summons for a return order under the 1980 Hague Abduction Convention was issued on 1 st April and on the same day Baker J made a standard location order which included a provision that the Boarder Agency should not remove the mother pending the determination of the summons. On 1 st April the whereabouts of mother and children were unknown to the father. The removal of the children was clearly wrongful and a return order would be inevitable unless the mother advanced an article 13 defence.[10]The case was listed before Her Honour Judge Coates on 13 th April, the mother's address having been ascertained on the previous day. The judge gave directions providing for summary disposal or further directions on 21 st April. The same judge gave further directions on 21 st with a further return for disposal or directions on 28 th April.[11]On 21 st the judge, besides giving case management directions, made a highly unusual order under Section 5 of the Child Abduction and Custody Act 1985 requiring the Westminster City Council to accommodate the defendant and children in the interim. I set out the material parts of that order in full:
"UPON HEARING Counsel for the Plaintiff and Counsel for the Defendant. AND UPON the Court indicating that at this stage on the evidence available to it that pending the hearing on 28 th April 2010 it would be inappropriate to separate the children from their Mother. IT IS BY CONSENT ORDERED THAT: 1. Pursuant to section 5 of the Child Abduction and Custody Act 1985 Westminster City Council shall make such arrangements for the Children and Mother to be placed with an appropriate person, institution or body, or otherwise accommodated until the 28 th April 2010; (a) Westminster City Council must forthwith upon allocating accommodation notify the Plaintiffs Solicitor of the address at which the Mother and Children are housed; (b) The Mother must not remove the Children overnight from that address until further order. 2. Permission to Westminster City Council to apply to vary or discharge this order on 1 working days notice to the parties solicitors."
[12]How did that order come to be made? At the outset the plaintiff father was represented by Mr David Williams and the mother was in person. However arrangements were made for a panel solicitor who happened to be in court on another case to represent the mother and she in turn instructed Mr Gupta. Thereafter counsel were in telephone communication with the Westminster City Council legal department, who were made aware of the application for accommodation directions and the ancillary provisions. Westminster neither consented nor opposed the order, no doubt reliant on their permission to apply to discharge the order when they had had an opportunity of taking stock. Despite the recital to the order there was, in fact, no evidence before the judge, only information relayed to her by counsel.[13]The application to discharge the accommodation direction was listed before Mostyn J on 28 th and 29 th April. The primary position of Westminster was that the accommodation direction was wrongly addressed to them rather than to Salford City Council. Thus as well as the parties to the abduction proceedings, both councils appeared to argue which should bear the cost of accommodation. That the judge had jurisdiction to direct that one or other council should bear the cost of accommodation was not in dispute. Westminster accepted:
"Jurisdiction to order it to provide accommodation even though there would be no true protective ingredient to that order."
That concession flowed from the judgment of Singer J in the reported case of Re: C (Abduction: Interim directions: Accommodation by local authority) [2004] 1 FLR 653 .[14]Mostyn J analysed the basis of the judgment of Singer J in re C. He stressed that the case concerned an abducting mother who had gone to ground for four years before being discovered. The risk of further flight and deceit was obvious. To protect against that risk the child had to be separated from her mother and put into a foster family.[15]Mostyn J stressed that there was no comparable risk in the instant case and that therefore the provision of accommodation lacked the necessary protective element. He doubted the wisdom of Westminster's concession. He did not view the broad construction of section 5 adopted by Singer J with any enthusiasm. He noted the statutory obligations imposed on local authorities to care for and house homeless children under section 17 and 20 of The Children Act. Accordingly he discharged the accommodation order under section 5 and concluded:
"The housing of this family will have to, hereafter, be affected under the specific statutory provisions specifically enacted and designed for this situation. I would like to think, and in fact I have confidence, that Westminster will discharge its specific duties to house this family but, in my judgment, it is quite wrong on the facts of this case for me to order them to do so. In view of the importance of this matter I will give anybody who wants leave to appeal, leave to appeal."
[16]The judge's order further provided that the discharge of Westminster's obligation should be deferred until 6 th May to enable the mother to exercise her permission to appeal.[17]The order also provided that the children must not be removed overnight from the City of Westminster unless Westminster chose to provide accommodation outside the boarders of the city.[18]The narrow construction of section 5 favoured by the judge rendered it unnecessary for him to resolve the dispute between Westminster and Salford. In so far as the parents had a contribution to that dispute, the father urged that the mother and children should be held in Westminster whilst the mother expressed a wish to return to Salford. The Appeal[19]The mother's appellant's notice was filed on 5 th May and on 7 th May the order was made by Lord Justice Wilson for hearing on 21 st May before two members of this court with a time estimate of two and a half hours. Achieving the target set by Lord Justice Wilson was only possible thanks to the very full and erudite skeleton arguments filed by Mr Henry Setright QC for the appellant mother and Mr Roger McCarthy QC for Westminster. Mr David William for the father was able to adopt much of Mr Setright's contentions and similarly Mr Tambiing for Salford was able to take advantage of Mr McCarthy's skeleton.[20]Before developing his skeleton Mr Setright introduced a paediatric assessment of K prepared in March 2009 when mother and children had been living in south London. This was an important piece of fresh evidence because it established the nature and extent of K's disability. It establishes that he is a very vulnerable child with very special needs. Within the concluding summary is the following statement:
"K is a five years and five months old overactive boy. He demonstrated intermittent eye contact. He did not seem to have dysmorphic features. His systemic examination was unremarkable. He had no speech and didn't use any gestures. He has some abnormal sensory behaviour, including mouthing, smelling and touching. He has sensitivity to loud noise and he covers his ears. He also has abnormal stereotyped behaviour including spinning and flapping his hands. He is unable to use verbal and non verbal communication to get his need. He is not aware of any social rules and of danger. He has severe global development delay in all skills apart from his locomotor skills. He has severe delay in both verbal and non-verbal skills."
In a subsequent report of May 2009, following investigation in the interim, K's diagnosis was autism. Amongst the recommendations were:
"2. He will need a high level of support at school and as well as at home. 3. K has no awareness of danger. He will need close supervision at all times. .... 5. Any transition may be particularly distressful and unsettling and he will need support and understanding during changes"
These reports had been exhibited to the mother's recent statement setting out the defence to the abduction application. Mr Setright speculated that had it been available to Mostyn J he would have reached a difference conclusion. That must be speculation since we were told that K was in court and behaving disruptively on both the 21 st and 28 th April. Further in paragraph 2 of his judgment, Mostyn J recorded:
"Sadly, K is handicapped. I have not been told the nature of his condition but he is extremely difficult to control and has the profoundest difficulty in communicating,"
[21]Be that as it may, Mr Setright relied on the report to fortify his submission that a child as vulnerable as K should never be homeless nor could he be safe without his mother's care. Accordingly in the exceptional circumstances of this case there was no doubt of his need for protection and that obliged Westminster to accommodate the children and their primary carer. Mr Setright relied on the wide language of section 5 and submitted that without it this jurisdiction would not be compliant with its treaty obligations defined in Article 7B of the Convention.[22]Article 7B is in these terms:
"7. Central Authorities...shall take all appropriate measures: (a) .... (b) To prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures."
[23]The interrelationship of section 5 and Article 7B is obvious.[24]Mr Setright sets out all the relevant passages in the Perez-Vera explanatory report, he relies upon the permanent bureau's practice guide dealing with the function of central authorities and he particularly relies upon similar or stronger statutory provisions that have been legislated in other common law jurisdictions to give effect to the Article 7B obligation. Mr Setright suggests that the construction for which he contends is supported by the provisions of Article 20 of the Brussels II revised regulation as well as Article 8 of the European Human Rights Convention.[25]Mr David Williams, in a well judged oral submission, submits that an accommodation order may be required to:a. Prevent further abduction.b. Perhaps to promote the efficient preparation of the abductors defence to the return application.c. To promote the welfare of the abducted child, particularly if the child has special needs.[26]He further submits that there are four principal grounds for rejecting a narrow construction of section 5 as follows:
"(i) The language of section 5 is unlimited. (ii) The objectives of international instruments must be met. (in) Parallel statutory provisions in other common law jurisdictions (Australia, New Zealand, Gibraltar and the United States) are all as widely or more widely drawn. (iv) Without a wide construction there would be obvious lacunae in the court's powers."
He instances cases in which the abductor is in custody or is about to be arrested. Further a parent in flight from public law orders in another jurisdiction may be ordered to be accommodated by the relevant local authority in this jurisdiction pending collection of the child by social workers from the other jurisdiction.[27]Mr McCarthy also emphasises the importance of the paediatric report although he turns it to a very different use. He submits that on the evidence of the report, K satisfies the criteria of section 17(10)(11). Accordingly the Local Authority has a plain duty to accommodate under the general provision in section 17(1) and the provisions of section 20 of the Children Act 1989.[28]These are the general statutory duties to which Mostyn J referred in paragraph 16 of his judgment. They define the duty to accommodate children in need and it would be superfluous to spell a duty to accommodate out of section 5 of the Child Abduction and Custody Act with its narrow and specific focus. Mr McCarthy relies on the words of Lord Hailsham introducing section 5 to the Upper House when he said:
"Clause 5 confers powers on those courts to make interim orders to safeguard the welfare of a child the subject of any application, and to prevent changes in his circumstances. Such orders would, for example, forbid the removal of the child from the jurisdiction by the alleged abductor."
[29]Mr McCarthy emphasises that in the Perez-Vera report.

(b) as:

"Basically, the provisional measures envisaged are designed in particular to avoid another removal of the child."
[30]Mr McCarthy was critical of the conduct of Salford. He submitted that once they knew of the mother's removal to Westminster (indeed providing the mother with funds to rid itself of her burden) they should have complied with the provisions of section 29 of the Children Act 1989.[31]Mr Tamlm for Salford was content to adopt Mr McCarthy's submissions on the construction of section 5 and wisely declined the challenge to a duel between city councils. Conclusions[32]I begin with a general commentary on the Family Division hearings. On 21 st April the accommodation order was made on the application of the parents but without representation of Westminster, the essential respondent. There was no evidence before the judge and the issue of jurisdiction was not in dispute. The recital to the order suggests the basis upon which the judge exercised her discretion to order the provision.[33]When the application to discharge was listed before Mostyn J, again there was no evidence directly relevant to the exercise of a discretion which naturally flowed from the concession that section 5 conferred on the court the power to order accommodation.[34]The judge, of his own motion, raised the debate as to the court's jurisdiction and concluded that the power to order accommodation was restricted to cases in which the order was necessary to prevent or curtail the risk of a further removal. We have significant fresh evidence which enables us to review the exercise of the judge's discretion.[35]However the primary purpose of this appeal is to address the point of construction. How is section 5 to be construed? If, as the councils submit, it does not in any circumstances extend to the provision of accommodation then the issue of discretion does not arise.[36]If the jurisdiction exists, is it as restricted as Mostyn J concluded?[37]So I will first answer the question: Does section 5 ever permit a direction to a Local Authority to provide accommodation?[38]In my judgment it undoubtedly does. There are many reasons why I reach that conclusion: i) The essential mechanism for the operation of the Convention internationally is the creation of a Central Authority in all participating jurisdictions. In article 21 as well as in article 7 obligations are imposed upon Central Authorities. But Central Authorities do not ordinarily hold or exercise power over others. Thus Article 21 defines a Central Authority duty but does not confer a power on the Central Authority, or indeed on the court, to make a contact order. Jurisdiction is only conferred by domestic statutory provisions and not by the Convention itself. ii) Thus enabling the Central Authority to discharge its responsibilities defined by Article 7(b) it was necessary to create a matching judicial power. That I see as the interrelationship between the section and the Article. iii) Once that interationship is established it is, in my view, significant that the power that section 5 confers is plainly more extensive than the definition of the duty of the Central Authority defined by Article 7(b). I contrast: "To prevent further harm to the child...by talcing...provisional measures" with "the court may...give ...directions...for the purposes of securing the welfare of the child concerned..." iv) The language of section 5 and the construction of that language needs to be extensive in order to achieve the objectives of the Convention and to safeguard the welfare of children whose vulnerability is generally magnified by the effects of abduction. v) Of course the commonest risk against which children must be protected is the risk of further flight. The stable door must be locked before the horse bolts again. The abductor may need to be confined to a particular address, may need to surrender passport, may need to report daily to the police, may even need to be electronically tagged. In some circumstances the abducting parent may be arrested and held in custody and in that case none could doubt the power of the court to order the accommodation of the child. The opportunity of a dangerous parent to re-abduct may need to be curtailed by removing the child into separate accommodation. So much is obvious and was accepted by Mostyn J, albeit as defining the limit of the court's power. vi) In my judgment child protection is but part of safeguarding the welfare of the child. The latter is a wider concept than the former. The child may have welfare needs quite unrelated to the risk of another upheaval. The present case is a good enough example. K has special needs. His welfare can only be secured by meeting those needs. Pending the trial of the application he must have a roof over his head. He should not be separated from his mother who he needs as much as he needs a good lodging.[39]The judge's construction shackles the court from safeguarding the abducted and from fulfilling the objectives of the Convention as well as meeting the obligations which we assumed on ratification.[40]I find Mr McCarthy's submission that sufficient powers are to be found in our general legislation quite unconvincing. Section 17 and 20 confer discretion on the local authority to accommodate children in need which is considerably less satisfactory than a power in the court to order accommodation. Furthermore there are no statutory provisions to ensure the accommodation of the mother and to protect the children from separation. As an illegal immigrant who has made no claim to asylum, Mr McCarthy tells us that she can assert nothing but the common law claim on grounds of humanity now that a claim of destitution can no longer be advanced.[41]More generally, I accept Mr Williams' analysis of the three categories in which an accommodation order is justified. I also accept his four submissions in favour of the wider construction.[42]Mr Setright and Mr Williams succeed without resort to the Perez-Vera report, a commentary on articles 7(b) and not on section 5. Nor does the reliance on article 20 of Brussels II Bis or article 8 contribute more than an extension of the skeleton arguments. I get no aid from the words of Lord Hailsharn and little from statutory provisions in other jurisdictions. The meaning of section 5 is plain on its face and within the context of the Convention and its incorporation into our law.[43]Finally I emphasise how limited is the effect of this decision. The purpose of the statute is only to incorporate one of the most important international family law instruments. It obliges us to apply the autonomous law of the convention. We apply it only to those who abduct or who are abducted into this jurisdiction. There are currently approximately 150 incoming cases a year in which an application for a return order is issued in our High Court. In my experience almost all who abduct into this jurisdiction have a substantial connection with it and do not arrive without assured accommodation or the means to pay for it. The present case and the case of re C are the only reported cases of applications for accommodation under section 5 in the quarter century since the arrival of the Convention within our law.[44]Westminster claim special consideration on the grounds of its size, its diverse population and that the Royal Courts of Justice lies within its bounds. However, Westminster did not respond to the challenging question: How many times in the past have you been ordered to accommodate under section 5? Thus although this appeal has been interesting and very well argued its impact will hardly be far reaching. Guidance[45]An application under the Convention is a hot pursuit remedy and very frequently applications have to be made to a judge in extreme urgency. However, as far as possible, the ordinary discipline of litigation should be observed. An application for an accommodation order under section 5 should be on notice, particularly to the local authority against whom the order is sought, and should be supported by evidence.[46]It will not be uncommon for the abductor to move, as in the present case, from city to city. Disputes between local authorities as to which should bear the burden of accommodation are much to be discouraged. As a generality the burden will fall upon the authority within whose area the abductor is present at the date of the making of the order. If a dispute arises on the facts of a particular case, the choice of which authority is to accommodate must be made in the exercise of the judicial discretion having regard to the welfare of the abducted child and within the context of Convention proceedings. Domestic statutory provisions designed to deal with transition from one local authority to another are not engaged.

Cited in 5 later judgments