SC v BH  EWHC 1584 (Fam)
Article courtesy of Family Law Week
The mother’s application for a passport order for the father and child’s passports would be seized upon entry to the UK was granted in circumstances where the US court had granted residence to the father despite the English court having dismissed his application for a return order.
The applicant was the mother of a five year old child (“ACH”) and the respondent was her father. There had been Hague Convention proceedings in 2010, where the father (a US national) had sought the child’s summary return to the USA, the family having relocated to the UK in 2009, after having initially lived in Texas. The father’s application (and subsequent application for permission to appeal) was refused, the court finding that ACH was habitually resident in the UK. The judge was highly critical of the father’s case (which rested on there being a conspiracy that the court found to be non-existent) and of his conduct of the litigation and granted (upon the mother’s application) residence and prohibited steps orders that remained in force thereafter.
In 2013, having had no communication with the mother, the father sought orders in the Texan court. On advice from her US lawyers, the mother did not participate in the proceedings. The father obtained orders stripping the mother of her parental responsibility and naming him as the “sole conservator” of ACH, the effect of which was to give him sole parental “rights and duties”, including the right to obtain a passport for ACH without the mother’s consent.
On confirmation, the orders (which were originally made ex parte) included a warrant purporting to direct all law enforcement agencies to take physical custody of ACH and return her to the USA and to her father.
The mother applied to the High Court for an order that, in the event the father entered the UK, his passport and any passport for ACH should be seized.
King J noted that, although “at first blush” surprising that the Texan courts had assumed jurisdiction, “non return orders” were not always the end of the matter and the High Court had no information as to the Texan arrangements in relation to the exercise of jurisdiction in respect of a child post-Hague. ACH was nevertheless habitually resident and present in the UK and the English court had jurisdiction to deal with all issues.
Before considering the merits of the application, King J dealt with service on the father which had been effected by post, email and attempts at personal service. He was aware of the application (and had had ample time to obtain representation) having twice emailed the court to seek an adjournment (refused initially and then again, by King J).
The applicant’s counsel properly drew the court’s attention to the case of B v A (Wasted Costs Order)  in relation to the potentially serious impact of making Tipstaff orders on a without notice basis and to the need for the court to act with caution as well as to the fact that there had been no direct threat of abduction from the father and for the need for such orders to be proportionate.
Set against that, in support of making the order sought, were the findings against the father, his actions since and the fact that the Texan courts had not accepted ACH’s habitual residence in the UK (and a Hague application made there might not succeed).
King J considered that removal from her mother’s care to that of a father who was a “total stranger” to ACH would be inimical to her welfare. The father should accept the “reality” and start working with the mother and courts to build a relationship with ACH. Until that took place or ACH became of an age where she would no longer able to be abducted, there was a real risk.
Her Ladyship bore in mind the caution urged in B v A and, having taken into account all factors, made the passport order sought.
Full judgement can be found here