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Court offers ray of light in Hague Convention dispute
01/04/2016
Family analysis: Discussing the proceedings in Ciccone v Ritchie, Richard Harrison QC and Jennifer Perrins,
barristers at 1 King’s Bench Walk Chambers, advise that the issue of a 1980 Hague Convention application is
always a serious step to take and such proceedings should not be commenced lightly.
Original news
Ciccone v Ritchie (No 1) [2016] EWHC 608 (Fam), [2016] All ER (D) 189 (Mar)
Ciccone v Ritchie (No 2) [2016] EWHC 616 (Fam), [2016] All ER (D) 201 (Mar)
Briefly, what was the background to the proceedings?
The proceedings concerned an application by the singer Madonna under the 1980 Hague Convention on the Civil Aspects
of International Child Abduction (Hague Convention) for the return of her son, Rocco, to the jurisdiction of New York.
Rocco was aged 15 years and 4 months at the time of the application. At the time of his parents’ separation, the family
had been living in London, and Madonna obtained a consent order which gave her permission permanently to remove
Rocco to live in New York. This was on the basis of defined contact provisions for his father, Guy Ritchie. The order was
then registered in the Supreme Court of the State of New York.
Following an agreed visit to his father in London in November 2015, Rocco was not returned to New York as planned on 6
December. Rocco said that he did not want to go back to live with his mother in the US. Madonna issued proceedings
under the Hague Convention on 18 December, following a period of attempted mediation, which had included Rocco and
his own solicitor. The main issue in the case was likely to be the child objections ‘defence’ under art 13(b).
At the outset of the proceedings, Rocco attended court with his own solicitor and counsel, and applied to be joined as a
party. The first judgment of Macdonald J deals with that application, which was supported by his father but opposed by his
mother. Rocco’s application was successful, and he played a full part throughout the proceedings.
Following the first hearing in London, Madonna issued an application before the court in New York on 23 December 2015.
On that date, Judge Kaplan made an order requiring Rocco’s return to the US. On 2 March 2016, Judge Kaplan confirmed
that order for return, but she did not issue a ‘warrant’ for the father’s arrest, or require Rocco’s removal from school in
England.
By the time of the final hearing in the Hague Convention proceedings on 10 March 2016, Madonna had decided not to
pursue her application. Her stated objective was still to secure Rocco’s return to the US, but her position was that she
wanted ‘to seek his return under the auspices’ of the New York orders.
The somewhat curious situation then arose whereby the applicant wanted to withdraw her application, but the
respondents said that she needed the court’s permission to do so. The father’s position was that the court’s permission
was required, and the test was whether it was in Rocco’s best interests. He also said that the court had jurisdiction to
make, and should make, substantive welfare orders to protect Rocco’s position in England. Rocco’s position was that he
‘welcomed’ the withdrawal of the application, but that certain procedural directions should be made at the conclusion of
the case, in anticipation of any future proceedings in this jurisdiction. During the hearing, the father somewhat adjusted his
position, to seek the same orders as Rocco. Despite this, Macdonald J was still invited to rule on the following three
points:
o
o
Does an applicant applying for relief under the Hague Convention require permission under Family
Procedure Rules 2010, SI 2010/2955, (FPR 2010) , 29.4 before they can withdraw their application and, if
so, what is the test for permission?
Once an application for relief under the Hague Convention has been withdrawn to what extent is the court
able to give procedural directions aimed at any future applications that may be made in this jurisdiction?
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o
What arrangements should be made in respect of Rocco’s passport upon the conclusion of these
proceedings?
Does an applicant applying for relief under the Hague Convention require permission under
FPR 2010, 29.4 before they can withdraw their application? If so, what is the test for
permission?
FPR 2010, SI 2010/2955, 29.4 provides as follows in respect of permission to withdraw an application:
‘29.4 Withdrawal of applications in proceedings
(1) This rule applies to applications in proceedings –
(a) under Part 7;
(b) under Parts 10 to 14 or under any other Part where the application relates to the welfare or upbringing of a child [emphasis
added] or;
(c) where either of the parties is a protected party.
(2) Where this rule applies, an application may only be withdrawn with the permission of the court.
[…]’
Macdonald J held that the words in FPR 2010, SI 2010/2955, 29.4(1)(b) ‘where the application relates to the welfare or
upbringing of a child' are intended to qualify only the words ‘any other Part’, and not the words ‘under Parts 10 to 14’. The
judge was reinforced in this view by the fact that Parts 10 to 14 of the FPR 2010 deal with a wide range of applications
that do not, or need not concern the welfare or upbringing of a child. Hence he decided that the court’s permission is
required for the withdrawal of an application under the Hague Convention, as these proceedings are dealt with in FPR
2010, SI 2010/2955, Pt 12.
This left the question of what test is to be applied on an application to withdraw such proceedings, as they do not ‘concern
the welfare or upbringing’ of a child (Macdonald J rejected the submission by counsel for the father that a Hague
Convention application falls under this description and that the test for permission to withdraw is therefore a ‘best
interests’ test).
Macdonald J went on to hold as follows:
‘Where an application…does not concern the welfare or upbringing of a child the test for permission to withdraw will centre on those
matters set out in the overriding objective at FPR 2010 r 1.1(2), including the need to deal with the proceedings expeditiously and fairly,
the need to deal with cases proportionately, the need to save expense and the need to ensure the appropriate sharing of the court's
resources. That is not to say the court will be prohibited entirely from considering issues of welfare because the overriding objective set
out in FPR 2010 r 1.1 requires the court to deal with cases justly “having regard to any welfare issues involved”. However…this factor is
unlikely to feature heavily, and will in most cases not feature at all, when deciding whether to give permission to withdraw.’
Hence the ‘test’ to be applied is whether permission to withdraw the application should be granted in light of the overriding
objective, taking account of the criteria set out at FPR 2010, SI 2010/2955, 1.1(2).
Macdonald J went on to grant Madonna permission to withdraw her application. He commented that in particular, it was
not proportionate or just to compel an applicant to continue proceedings against their will—and in the context of this case,
with two sets of proceedings and two teams of lawyers involved concurrently, there could be 'positive merits' in simplifying
matters by ending one set of proceedings in this way.
Once an application for relief under the Hague Convention has been withdrawn, to what extent
is the court able to give procedural directions aimed at any future applications that may be
made in this jurisdiction?
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The father and Rocco asked the court to make what were described as ‘anticipatory procedural orders’ aimed at
regulating any future proceedings that might be brought in this jurisdiction. At one stage the father also invited the court to
make substantive welfare orders, but by the time judgment was given this was no longer his position.
The anticipatory directions sought were as follows:
o
o
o
o
that the mother will make no without notice applications in relation to Rocco in this jurisdiction
that notice of no less than seven days will be given of any applications
that the mother will raise no objection to Rocco being joined as a party to any application
that [Rocco’s solicitor] shall be appointed as Rocco’s Guardian in any application that requires him to have a
Guardian
It was also suggested on behalf of Rocco that MacDonald J should reserve to himself any future applications brought in
the jurisdiction of England and Wales.
All parties invited the court to make a determination as to what should happen with Rocco’s passport.
On behalf of the mother it was conceded that at the conclusion of the Hague Convention proceedings the court has
jurisdiction to make orders ‘to give effect to an outcome arrived at in those proceedings’. It was argued that the
anticipatory procedural orders sought by the other parties—which were designed to regulate future proceedings and thus
not directly connected to the instant proceedings—fell outside the court’s jurisdiction.
In the event, apart from reserving any future proceedings to himself, MacDonald J determined that it was not appropriate
for him to give the anticipatory directions sought. He reached that conclusion, without deciding whether he had jurisdiction
to make the orders sought. He also directed that Rocco should be allowed to have his passport to go on holiday and that
thereafter it should be kept by his solicitors.
In the absence of a ruling on the jurisdictional issue, it remains a question for consideration in a future case. The answer
is likely to depend upon
o
o
o
the nature of the order being sought
the existence or absence of another state with primary jurisdiction, and
whether proceedings in England are in prospect
Cases where England and Wales has primary jurisdiction
When Hague Convention proceedings are dismissed or withdrawn it is normally on the basis that the child concerned will
continue to live in England and that the English courts will exercise substantive welfare jurisdiction.
The Hague Convention itself does not afford the court jurisdiction to make substantive welfare orders. However, it is
relatively common for such applications to be issued concurrently with a claim for alternative relief under the inherent
jurisdiction of the court in which the welfare of the child is engaged. A welfare-based claim under the inherent jurisdiction
enables the court to make child arrangement orders by virtue of section 10 of the Children Act 1989 (ChA 1989).
If the inherent jurisdiction has not been invoked the court may make substantive orders if one of the parties gives an
undertaking to lodge an application for such orders. If this procedural route is followed, the court may also dispense with
all of the automatic directions that result from the issue of proceedings (such as the involvement of CAFCASS and listing
a First Hearing Dispute Resolution Appointment) unless it is envisaged that there should be ongoing proceedings.
There is no obvious impediment to the court giving ‘anticipatory procedural directions’ in respect of proceedings that are in
prospect. If one of the parties announces an intention to issue an application, this can be recorded and directions given to
regulate the conduct of that application.
It is more doubtful that the court has a general jurisdiction to give directions governing the conduct of any future
proceedings even though these are not in the present contemplation of either party. As MacDonald J pointed out the FPR
2010 contain a code regulating what is to happen when applications are issued—any deviation from the ordinary
procedure would need to be justified in the light of circumstances prevailing at the time.
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On the other hand, ChA 1989, s 91(14) confers on the court an express power to regulate future proceedings by enabling
the court to prohibit applications of a certain type being made without the leave of the court (albeit the power under this
section arises only when the court acts on ‘disposing of’ an application under ChA 1989). It is at least arguable that in
principle the court ought to have the ability to regulate future proceedings in a less Draconian fashion by providing for
example that any application made within a certain period should be subject to certain directions (such as a listing before
a particular judge, as was directed in this case, or the appointment of a Children’s Guardian, or the filing of particular
evidence).
Cases where England and Wales does not have primary jurisdiction
In some cases Hague Convention proceedings might be withdrawn or dismissed in circumstances where the courts of
another state have jurisdiction over the child. This could be because the child is habitually resident in another state or
because there are ongoing proceedings in that state which have yet to reach a conclusion.
If the state in question is a party to the Brussels II bis Council Regulation (EC) No 2201/2003 or to the 1996 Hague
Convention on Jurisdiction Applicable Law, Recognition and Cooperation in Respect of Parental Responsibility and
Measures for the Protection of Children (the 1996 Hague Convention) the court’s ability to make substantive orders will be
limited—by Brussels II bis, art 20 and art 11 of the 1996 Hague Convention respectively—to the granting of provisional
and protective measures if the case is one of ‘urgency’.
In cases where the alternative state with jurisdiction is not a party to either Brussels II bis or the 1996 Hague Convention
the English court will have greater flexibility about assuming jurisdiction over future proceedings. Where there is a dispute
about which forum should deal with the matter in future, such an issue should normally be considered within the context of
an application to stay ChA 1989 proceedings pursuant to section 5 of the Family Law Act 1986 (which enables a court to
stay in English proceedings if there is another ‘more appropriate’ forum for the issue to be tried).
If, as in the present case, it is accepted that the future litigation should take place elsewhere it is unlikely that the English
court would exercise any jurisdiction over the matter, whether substantive or procedural, other than to address issues
requiring urgent consideration (such as the retention of a passport).
What should practitioners be aware of going forward?
Although the judgment concerns somewhat obscure issues of procedure it contains some valuable lessons for
practitioners.
Risk
The issue of a Hague Convention application is always a serious step to take. Such proceedings should not be
commenced lightly. Once issued they cannot be withdrawn without the permission of the court. Although it is very likely
that permission would be granted, if the court judges that the application has been made or pursued unreasonably an
order for costs may be made against the applicant (see E C-L v D M (costs in Hague Convention proceedings) [2005]
EWHC 588 (Fam), [2005] All ER (D) 187 (Apr)).
Alternative relief
When applications are made under the Hague Convention it is often expedient also to include within the application a
claim for alternative relief under the inherent jurisdiction of the court. This has the advantage of enabling the court to make
a return order in the best interests of the child even if the technical requirements of the Hague Convention are not met
(see, for example, Re KL (a child) (abduction: habitual residence: inherent jurisdiction) [2013] UKSC 75, [2014] 1 All ER
999). It will also afford the court greater latitude as to the making of directions in the event that the proceedings are
ultimately withdrawn or dismissed.
Procedural directions
Ordinarily a court will not give procedural directions governing future applications where such litigation is not in prospect,
particularly where there are ongoing proceedings in another jurisdiction.
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Any other points of interest?
The case is a relatively rare example of a case involving a child being reported without any form of anonymisation. As a
result of the considerable information already in the public domain it would not have been possible to report the case at all
in a meaningful way without revealing the identity of the parties—anonymisation would not have worked. Therefore the
choice came down to whether to allow publication or not. The judge conducted a careful balancing exercise and ultimately
held that the ‘quite exceptional facts…most particularly the extraordinary amount of information already in the public
domain worldwide concerning these matters’ led to the conclusion that the judgment should be published.
Richard Harrison QC is a specialist family lawyer with particular expertise in international children cases and financial
remedy applications. He has been involved in some of the leading child abduction cases in recent years.
Jennifer Perrins practises in all areas of family law relating to children, finance and divorce. She has particular experience
and interest in international children matters, including child abduction and other cases with an international element, such
as leave to remove applications.
Interviewed by Kate Beaumont.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor
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