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Professor Julian Farrand LLD QC (honoris causa) (1935–2020)

Educated at Haberdashers Askes Boys School (since renamed Haberdashers Boys School) and University College, London, Professor Farrand was a career academic, whose first lectureships were at Kings College, London, Sheffield University and Queen Mary University of London; however his academic career is perhaps best remembered as a Professor of Law (from 1957) then Dean of the Law School at Manchester University in the 1970s. He had become a Solicitor in 1960 which was followed by a period as a Law Commissioner, leading a property law reform team between 1984 and 1989 which coincided with that of the other leading Law Commissioner of the period, later his wife, Baroness Hale of Richmond (at the time Professor Brenda Hoggett) who was concurrently working on the Family Law reforms which became the Children Act 1989 and other associated key Family legislation. They married in 1992.

Professor Farrand was subsequently appointed Insurance Ombudsman (1984) and then Pensions Ombudsman (1989), where he energetically promoted pensioners’ rights, although he is probably better remembered for his role in identifying the crucial property reforms he led at the Law Commission, which Chairman noted at the time of his death were so extensive that they are still being worked on.

He is also remembered for his work on the leading practitioner authority, Emmet on Title (then renamed Emmet and Farrand) and as Editor of the leading property journal, The Conveyancer, which inspired his leadership of the editorial board of International Family Law, Policy and Practice, the Centre’s online journal, which he led from the foundation of its predecessor, International Family Law and Practice in 2009 until his demise in 2020.

However, my first acquaintance with his supreme talent for engaging the reader dates from much earlier than most of the above: this was because when reading for the 1970 Bar Examinations I would have taken his early book on Conveyancing – J T Farrand, Contract and Conveyance, First Edition, 1968 – as my single luxury item on my desert island, since (unlike most conveyancing books of the period and despite having to be read for my first teaching job for the then College of Law’s postal courses) it was so entertaining! Eventually supplementing both academe and life at the Chancery Bar with an appointment as a Lawyer Chairman of the then Residential Property Tribunal in 1996, I was therefore astonished to find that the famous author was, like myself, at the time an RPTS Lawyer Chair although, as a result of our both having the same Lawyer Chairman role, I never had the pleasure of the much sought after positive experience enjoyed by the valuer and professional lay members of sitting with him on our tribunals during all the years of our chairing our separate tribunal hearings.

Nevertheless, during the 15 years in which we both held appointments at RPTS, I did have the benefit of Professor Farrand’s encyclopaedic Property Law knowledge and experience, both in informal discussions outside hearings and at our regular Continuing Professional Development training days, as well as other opportunities in relation to Dispute Resolution, when we both joined RPTS’ mediation service at the time that the Tribunal, upon discovering that there were several qualified mediators amongst its Lawyer and Valuer Chairs, instituted this practical alternative to traditional Hearing determinations.

Professor Farrand was therefore the obvious first choice as the founding Chair of the Editorial Board installed on the original incarnation of the International Centre’s online journal International Family Law and Practice when both Centre and Journal were first set up at London Metropolitan University in 2009, and to continue in this role when the upgraded International Centre for Family Law, Policy and Practice was created as an independent entity, together with the new online journal International Family Law, Policy and Practice at the time of the Co-Directors’ departure from London Met (together with both Centre and Journal) at the time of that University’s reconstruction of their Law Department within their Business School in 2013.

In the 12 years in which he guided the fledgling online journal with all his experience of leadership at The Conveyancer, and his long academic and writing career in the Law, the Centre can only be extremely grateful and appreciative of the time and trouble that Professor Farrand took in the creation and establishment of the Centre’s online journal, a role in which he has been sadly missed since his much-mourned demise, particularly when we have recently been working without him to produce the current year’s issue of the online journal, kindly guest edited in the Covid related absence of our usual global contributors and in an otherwise unsettled and unsettling year by a talented practitioner led team from Vardags International Family Solicitors, in which Professor Farrand’s input as a widely experienced solicitor-academic would have been much valued in polishing this innovative issue.

Dr Frances Burton, Editor International Family Law, Policy and Practice, Co-Director, International Centre for Family Law, Policy and Practice

October 2021.

Anne-Marie Hutchinson, OBE, QC (honoris causa) PhD (Honorary) (1957–2020)

Anne-Marie came from a Donegal family with six children, of which she was the third. There was no legal tradition in her family, her mother being a nurse, and her father a barber who, through his acceptance of a job offer on a US air base in Cambridge, brought the family to live in England when she was two years old.

Anne-Marie had early personal experience of misfortune, and triumph, when she suffered at a young age from osteomyelitis, having to wear a calliper, and then learning to walk again. Crucially, this illness and its recovery meant that she missed out on her final two years at primary school. Unsurprisingly, this was reflected in her initial academic results. She failed her 11-plus examination and, when she was 16 years old, left her secondary modern school in order to work in a bank. However, having done this for two years, she decided to sort things out. She never looked back. She went to college, and gained excellent grades in her ‘A’ levels, before going first onto Leeds University, and then Nottingham University, where she was awarded her law degree. She then qualified as a solicitor in 1985 at Beckman & Beckman where she practised commercial law. From there, she began her work, and to establish her inimitable presence, in the world of international family law. In 1988 she joined Dawson Cornwell and became head of the children department where she taught and fostered many of the current stars in the field.

One of her main spheres of interest was international child abduction. She was chair of trustees of reunite International Child Abduction Centre, a leading UK charity specialising in the movement of children across international borders. It was here that our paths first crossed in around 1992, and our close association continued until the time of her extremely sad passing. She was a great supporter of ICFLPP, and readily accepted our invitation to join the editorial board of its journal where she was characteristically generous in hosting our meetings in the Dawson Cornwell board room. Her contributions to the editorial board were unfailingly creative, stimulating, and ambitious. We shall miss her involvement greatly.

She was a regular presenter at the Centre’s conferences, and a keynote presenter at the last conference which the Centre held in July 2019 where she spoke on ‘The Elderly, the forgotten family members’. She had not had time to do as much in this area as she had in others, but she typically managed to focus people’s attention on this issue at a time when she was already seriously unwell and may have been forgiven for taking an easier topic for her presentation. But Anne-Marie was never one to take the easy route if there was an injustice which needed to be highlighted, and this was no exception. She was truly concerned about injustice, and was motivated to do something about it, particularly where she perceived that those affected by it needed a champion, and that the law could help them.

However, some of her most familiar work centred around forced marriages, honour-based violence, female genital mutilation, abandoned spouses, and surrogacy, and she also campaigned for law reform for LGBT+ rights around the world. Former UK chief prosecutor Nazir Afzal is one of many who has recognised her unique contributions, describing Anne-Marie as a force of nature, to whose work many people owe their freedom.

Anne-Marie was rightly acknowledged and honoured consistently during her lifetime. There are far too many examples to list but they include: being awarded the first UNICEF Child Rights lawyers Award in 1999; receiving an OBE in 2002 for services to international adoption and child abduction; being named Legal Aid Lawyer of the Year for her forced marriage work in 2004; winning the International Bar Association Outstanding International Woman Lawyer Award in 2010; beng named one of the Top 50 Women Super Lawyers in 2013; being made both an Honorary QC in 2016, as well as an Honorary Doctor of Law at Leeds University in the same year.

The point about Anne-Marie, which all who knew her recognised, was that she was able to see through the complexities of any situation directly to the people involved, and find a creative way to use the law to help them through their difficulties. She was dynamic, innovative, and unafraid. If there was a way, she was going to find it. And there often was, and she usually did. She was a very good lawyer, seeing the law as a route to support and help those who need it, and herself as conduit for that to happen. She was also witty, had great observational skills, and was a lot of fun. A great deal has been written and said about her since her death which has clearly affected so many people. We will all, truly, miss her.

Anne-Marie is survived by her daughter, Catherine, and her son, Sam, as well as her granddaughter Emmeline, whose birth brought her great happiness.

Professor Marilyn Freeman, Co-Director, International Centre for Family Law, Policy and Practice

October 2021.

Professor Freeman’s 2020 Conferences

Sadly, due to COVID-19 restrictions, as with almost all other international meetings and conferences in this field, the World Congress on Family Law and Children’s Rights conference, which was due to be held in Singapore in July 2020, did not take place. Professor Freeman was due to deliver at this conference, together with Associate Professor Nicola Taylor, University of Otago, New Zealand, a paper on Child participation in post-separation family dispute resolution: Global developments which would examine the interplay between Articles 3,5 and 12 of the United Nations Convention on the Rights of the Child in the context of post-separation decision-making about children’s lives. The conference was postponed to July 2021 when it is hoped that it will take place, but arrangements are still to be confirmed.

Professor Freeman was invited to participate in the EU-funded Project Workshop for POAM (Protection of Abducting Mothers in Return Proceedings: Intersection between Domestic Violence and Parental Child Abduction) which was due to take place in Milan on 27 March 2020. As this was not possible due to COVID-19, she participated in the virtual postponed Workshop which took place on 19 June 2020, and will take part in the virtual Training Workshop which will be held on Tuesday 15 December and Thursday 17 December.

Professor Freeman will be delivering a guest lecture to the students of the International Children’s Rights LL.M Course at the University of Leiden on Friday 27 November 2020.

Information about other guest lectures and conference papers will be published on these pages as details become available.

Professor Freeman’s 2019 Conferences

In March 2019 Professor Freeman participated in the training seminar for judges, lawyers and other legal professionals involved in child abduction cases at the University of Genoa, Department of Political Sciences, as part of the VOICE project – The voice of the child in cases of international child abduction, co-funded by the European Commission. She subsequently presented joint papers with Associate Professor Nicola Taylor at the African Regional Conference on the Hague Children’s Conventions at the University of Western Cape, South Africa, entitled Child Participation/Mediation and 1980 Hague Convention Proceedings, as well as at the 22nd Annual Family Conference Cross Road 2019 Visionary Development in Child and Family Law in Cape Town in April 2019, entitled Research and Policy Relating to Children’s Interests: The International Perspectives. She was invited to participate in The Parental Child Abduction in Transnational Context: The New Boundaries of the Legal Field workshop in Brussels which took place in May 2019, and presented a public lecture in Tokyo in June 2019 to commemorate the five-year anniversary of Japan becoming a signatory to the 1980 Child Abduction Convention. In June 2019 she was an invited participant at the International Surrogacy Forum at the University of Cambridge which is an event organised jointly by Cambridge Family Law, the American Bar Association Section of Family Law, and the International Academy of Family Lawyers. In July 2019, she ran a Round-Table Meeting for invited delegates at the Academic Center for Law and Science in Israel, together with Professor Rhona Schuz, on The Voices of Children in Abduction Proceedings under the 1980 Hague Child Abduction Convention. She also participated later that month as a discussant in The CRC Implementation Project: Article 5 Colloquium: Children’s Rights: Families, Guidance and Evolving Capacities which took place at the University of Cambridge.

Professor Freeman’s 2018 Conferences

Professor Freeman presented at the three workshops which formed part of the dissemination events for the British Academy project on Outcomes for Objecting Children under the 1980 Hague Child Abduction Convention (see Research page for details).

Professor Freeman presented the findings from her British Academy project on Outcomes for Objecting Children under the 1980 Hague Convention, together with Associate Professor Nicola Taylor, at the 21st Annual Family Law Conference of Miller Du Toit Cloete and The University of Western Cape in Cape Town, South Africa in March 2018, and presented a pre-conference Institute at the Fifth Annual Conference on the Association of Family and Conciliation Courts which was held in Adelaide, Australia in August 2018. She was invited to deliver a Lecture on her research at The 18th National Family Law Conference in Brisbane, 2-5 October 2018.

She also participated in the Panel Discussion on Interparental Child Removal, Domestic Violence and the Voice of The Child at The India International Centre, New Delhi in November 2018.

Professor Freeman’s 2017 Conferences

South Africa March 2017

Professor Freeman spoke at at The 20th Annual Family Law Conference of Miller Du Toit Cloete and The University of Western Cape, “20 Years on Developments in Family Law” in Cape Town, South Africa in March 2017. Her paper at this important international event was on the topic of: “Children: Who would have them?” focussed on some of the areas which have formed the subject of the ICFLPP’s recent interventions in the higher courts of the United Kingdom (for further information about these interventions, see below).

World Congress on Family Law at Dublin, June 2017

She also delivered a paper at The World Congress on Family Law and Children’s Rights in Dublin, Ireland in June 2017 on “Moving on after parental relationship breakdown – what about the children?”, and presented a pre-conference institute at the Association of Family and Conciliation Courts’ (Australian Chapter) conference in Melbourne, Australia in August 2017 with leading child psychologist, Dr. Jennifer Neoh, where they worked with counsellors, therapists and others involved in the therapeutic treatment of children who have been abducted.

Seventh Special Commission at the Hague, October 2017

Professor Freeman attended the Seventh Special Commission on the practical operation of the 1980 Hague Child Abduction Convention and the 1996 Hague Child Protection Convention which took place in The Hague in October 2017. She represented The International Association of Child Law Researchers (IACLaR) which was granted observer status at the Special Commission.

Professor Freeman’s work on the long-term effects of abduction continues to be of significant interest to the international community, and she delivered papers on the research at the conference in Warsaw in October 2017 on Mediation in International Custody Disputes and Child Abduction, and in Antwerp in November 2017 at the Conference on the well-being of Children in International Child Abduction Cases, which was part of the EWELL project. She also presented a paper: Children, Who Would Have Them? at the International Society of Family Law Conference in July 2017 which was held in Amsterdam.

Other conferences in the UK and Europe

Dr Frances Burton attended the following conferences in 2017:

Cambridge University Law School’s Seminar on the impact of Brexit on English Family Law at Trinity College, Cambridge, on Monday 27 March 2017. Many of the papers from this conference have since been published in the CFLQ dedicated issue, September 2017

The Family Law Bar Association’s annual Cumberland Lodge weekend in Windsor Great Park, 5-7 May 2017

The International Society for Family Law’s 16th World Conference at Amsterdam ‘Family Law and family Realities’ 25-29 July 2017, where it was a pleasure to meet in person many contributors to our on line journal IFLPP

The Civil Mediation Council and Family Mediation Council’s joint Academics Conference ‘Compulsory Mediation: Opportunity or Threat’ in London, 13 October 2017, where Frances presented a paper ‘Direct or Indirect Compulsion: The Role of Mediation in the Reform of Civil and Family Justice’. This conference brought together topical comparative contributions from other EU states such as Italy where automatic referral to mediation is extremely successful and from Canada where in the province of Ontario automatic referral has significantly reduced court hearings to a small percentage of former levels. The collaboration of the CMC and FMC in this academic conference was also a significant milestone in the potential advancement of mediation in the reform of civil and family justice.

2018

Frances, who has now moved to Buckingham University, has presented papers at the following:

Manchester Metropolitan University’s 2nd Annual Family Conference, at Manchester, 9 March 2018, where she presented a paper ‘Modernisation of Family Justice: Does the Right Hand Know What the Right Hand is Doing?’. Our ICFLPP Patron Baroness Hale delivered the keynote speech at this conference which is now established as the mid-year meeting of the Society of Legal Scholars, whose annual conference in September is often attended by many of our international friends.

Northumbria University’s Gender, Sexuality and Law Research Group’s Conference: ‘Same-Sex Relationships, A New Revoluntionary Era and the Influence of Legal and Social Change’, at Newcastle, 10 September 2018, where she presented a paper ‘Same-Sex Relationships and the Child Law Perspectives: Another Child Protection Concern or Simply A New Way of Creating the Modern Family?’

Publication by Routledge, Taylor & Francis of a volume of the collected papers, edited by Frances Hamilton and Guido Noto la Diega, was effected in January 2020.

2019

Besides delivering a paper on her 2018 research fieldwork in the Family Court – entitled ‘Modernisation: A Mixed Blessing?’ – at the Centre’s own July 2019 Conference, Frances also attended both the annual Association of Law Teachers’ Conference at Leicester in April 2019 – presenting a joint workshop with Dr Lars Mosesson (Winchester University) on Assisting Students to Develop An English Legal Writing Style – and the annual Society of Legal Scholars’ conference at the University of Lancashire at Preston in September 2019, where she presented a further paper on her 2018 Family Court research fieldwork to the Family Law subject section, entitled ‘What Modernisation Does the Family Court Actually Need?’

2020–21

Owing to the present pandemic all Frances’ planned conference appearances in 2020 have all been cancelled with the exception of the Society of Legal Scholars’ annual conference at Exeter in September 2020, which was held virtually, and where she recorded a presentation for the Family Section and delivered an accompanying written paper ‘Back to the Future: How Shall We Teach Family Law After Brexit?’.

In 2021 it is currently intended that she will present a paper at the Northumbria University Gender Research Group’s next conference, on ‘Marriage’ at which the keynote speech will be delivered by the Centre’s Patron, Baroness Hale. However it is not at present known whether this will be a full conference with presentations in person, or, depending on the progress of the pandemic, whether it may have to be in virtual format. Whichever mode is adopted, it is again intended to publish an edited collection of the papers as before for the 2018 ‘Same-Sex Relationships’ conference.

The Centre’s recent appellate interventions

1. Re C (Internal Relocation) [2015] EWCA Civ 1305

http://www.bailii.org/ew/cases/EWCA/Civ/2015/1305.html

This case concerned the legal test to be applied in internal relocation cases, and whether a distinction existed between that and the legal test to be applied in international relocation cases in view of the different ways in which the law had historically dealt with these two situations. The Centre was given permission to intervene in the appeal, which concerned a key area of Professor Freeman’s research, and was represented pro bono by Mr. Damian Garrido QC and Dr. Rob George, both of Harcourt Chambers, instructed by Dawson Cornwell, again on a pro bono basis. The Court of Appeal, which recognised the Centre’s ‘comprehensive submissions’ at paragraph 25, held that the correct test for internal relocation cases is the same as that for international relocation cases, i.e. welfare. This has been heralded as an important decision because of its clarification of the principles to be applied in such cases. Much has been written about this case and its implications by legal and other practitioners working in this field, as well as families involved in such cases for whom clarity has been extremely welcome.

2. In the matter of J (a child) [2015] UKSC 70

https://www.supremecourt.uk/cases/docs/uksc-2015-0176-judgment.pdf

This case was the first to reach the Supreme Court on the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) which came into force in the United Kingdom on 1 November 2012. It concerned a child who was removed from Morocco without his father’s consent. Although Morocco has acceded to the 1980 Hague Child Abduction Convention, the accession has not been accepted by the United Kingdom.

The father brought proceedings in the High Court for the summary return of the child where the case was treated as being one under the inherent jurisdiction. The court held that the child remained habitually resident in Morocco, and made an order for the child to return there.

The mother appealed to the Court of Appeal and, at this point, the focus became the 1996 Convention and, in particular, article 11. Jurisdiction under the 1996 Convention is based on habitual residence, but article 11 confers an additional jurisdiction on the State where the child is currently present to take any necessary measures of protection in all cases of urgency. The court found that a return order was capable of being a “measure of protection” within article 11, but that this was not a case of urgency as the father could have made an immediate application to the Moroccan court for a return order. Therefore, the court found that there was no jurisdiction to make a return order.

The father appealed to the Supreme Court which, in unanimously allowing the appeal, held that it is open to the English courts to exercise the article 11 jurisdiction in cases of wrongful removal under the 1996 Convention, and stated that: [i]t would be extraordinary if, in a case to which the 1980 Convention did not apply, the question of whether to order the summary return of an abducted child were not a case of “urgency” even if it was ultimately determined that it was not “necessary” to order the return of the child (paragraph 38).

The Centre, which was represented pro bono by Mr. Richard Harrison QC (1 KBW) and Dr. Rob George (Harcourt Chambers), instructed by Bindmans LLP, also on a pro bono basis, raised concerns about the absence of interim contact. Professor Freeman’s research on this issue was referred to at paragraph 43 of the Supreme Court’s judgment.

3. In the matter of B (A Child) (Habitual Residence) (Inherent Jurisdiction) [2016] UKSC 4

https://www.supremecourt.uk/cases/docs/uksc-2015-0214-judgment.pdf

This case concerned a 7-year-old British National girl whose biological mother was a British citizen of Pakistani origin. The child was born as a result of IVF provided to the biological mother and her same-sex partner using donor sperm. The mother’s partner, who undertook most of the child care, did not have parental responsibility for the child. The relationship between the mother and her partner broke down after which the mother’s partner continued to see the child but the separation was acrimonious and contact was progressively reduced by the mother who, sometime later, took the child to live permanently in Pakistan without notification to her previous partner who then began proceedings for shared residence or contact with the child. Such relief was dependent on the child being habitually resident in the jurisdiction. On discovering that the child had been removed, she also applied for wardship and return of the child to the jurisdiction. The first instance judge held that the child had lost her habitual residence in England when she left for Pakistan and, therefore, relief was not available under the Children Act 1989, and that the inherent jurisdiction should only be exercised if the circumstances were dire and exceptional, and this case did not fall within those categories.

The Court of Appeal dismissed the appellant’s appeal. The Centre was given permission to intervene in the further appeal to the Supreme Court in which it was represented pro bono by Mr. Henry Setright QC, Mr. Hassan Khan and Ms. Dorothea Gartland (all of 4 Paper Buildings), and Ms. Katy Chokowry (of 1 KBW) instructed by Dawson Cornwell, again on a pro bono basis. The appeal succeeded under the 1989 Act on the basis that the child remained habitually resident in England as she had not achieved the requisite degree of disengagement from her English environment. Accordingly, the court held that the appellant’s application under the 1989 Act could and should proceed to substantive determination by the High Court. It was therefore unnecessary for the court to decide whether the inherent jurisdiction could be exercised.

4. Re R (Final) [2016] EWCA Civ 1016

http://www.bailii.org/ew/cases/EWCA/Civ/2016/1016.html

This was a case concerning the unilateral removal by the mother of a child from his home in one part of England and Wales to another part of the country and raised issues about whether this amounts to an internal abduction (rather than relocation), and whether there should be a general principle of summary return in these circumstances to the place of former residence in line with the principles of international child abduction. The case is said to be ‘an interesting read for practitioners’, see for example http://www.familylawweek.co.uk/site.aspx?i=ed168323 Reported concerns about practitioners’ lack of clarity in this area in terms of advice offered to clients involved in these issues was one of the reasons that the ICFLPP sought permission to intervene in the Court of Appeal hearing. The court held that there was no general principle in favour of summary return, and such cases were to be decided according to the welfare principle and checklist in S1 Children Act 1989.

A lively post-judgment discussion took place in the practitioners’ peer-to-peer seminar held by Kingsley Napley (pro bono instructing solicitors on behalf of the Centre in this case) on 30th November 2016 where Professor Freeman talked about her abduction research, which included cases which were not international in nature, and counsel which represented the ICFLPP pro bono in the Court of Appeal, Mr. David Williams QC and Ms. Jacqueline Renton (both of 4 Paper Buildings) spoke about the judgment and its implications.

5. Re N (Adoption: Article 15 Transfer) [2016] UKSC 15

https://www.supremecourt.uk/cases/docs/uksc-2016-0013-judgment.pdf

This was a case relating to care proceedings and the planned non-consensual adoption of two foreign national children, and whether England and Wales, or Hungary, should have jurisdiction about the welfare of these two children who were Hungarian nationals but who had lived in England throughout their lives. The Court of Appeal had concluded that the court in England and Wales has jurisdiction to make a non-consensual adoption order for a foreign national child – see N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 . Council Regulation (EC) No. 2201/2203 (Brussels 11a) does not apply to placement and adoption proceedings, but it does apply to care proceedings. Jurisdiction under Brussels 11a is determined by habitual residence (article 8). Article 15, however, allows the transfer of proceedings to a court in another Member State with which the child has a particular connection if it is better placed to hear the case and this would be in the best interests of the child.

The mother applied successfully to the High Court (supported by the father, and the Hungarian Central Authority) under Article 15 to transfer the care proceedings to Hungary. The children’s guardian appealed this judgment unsuccessfully to the Court of Appeal, and then appealed again to the Supreme Court where the issues were about the proper approach to the best interests of the children in an Article 15 application. The court considered that a number of factors will be relevant both to the question of whether a court is ‘better placed’ to hear the proceedings and of whether transfer is in the ‘best interests’ of the child, but that these are separate questions and must be addressed separately (paragraph 57). The answer to the second does not inexorably follow from the first. There is no reason to exclude the short or longer term impact of a transfer on the children’s welfare in determining whether a transfer would be in the children’s best interests.

The Supreme Court held that the first instance judge had been wrong on the facts of the case to conclude that the Hungarian authorities were better placed to hear the case having left out of account the preclusion of one possible outcome which might be in the best interests of the children concerned (see paragraph 45) whereas retaining jurisdiction would allow all the possible outcomes to be considered. The court set aside the request for a transfer of proceedings and returned the case to the High Court. The Centre was represented pro bono in this case by Mr. David Williams QC and Ms. Jacqueline Renton (both of 4 Paper Buildings) instructed by Kingsley Napley, again acting pro bono.

6. In the matter of C (Children) [2018] UKSC 8

https://www.supremecourt.uk/cases/uksc-2017-0135.html

This appeal concerned changes in habitual residence in abduction cases, and the question of whether anticipatory breach/repudiatory retention is recognised under the 1980 Child Abduction Convention. The Court held that repudiatory retention is possible in law. ICFLPP was represented by Stewarts Law, and Mark Jarman, and Christopher Hames, QC, of 4 Paper Buildings.

7. S (A Child) [2019] EWCA Civ 352

https://www.bailii.org/ew/cases/EWCA/Civ/2019/352.html

This Court of Appeal case concerned the proper consideration of the effectiveness of protective measures put in place after undertakings were provided by the father where the order for return was to a country which was not the State of the child’s habitual residence. The return order granted by the first instance court was set aside by the Court of Appeal. ICFLPP was represented as intervener by Henry Setright QC of 4 Paper Buildings, and Mehvish Chaudhury of Harcourt Chambers, instructed by Dawson Cornwell.

8. G (A Child: Child Abduction) [2020] EWCA 1185

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1185.html

The Court of Appeal (Lord Justice Hickinbottom, Lord Justice Moylan and Lord Justice Peter Jackson) considered the situation where tension exists between returning a child promptly under the 1980 Hague Child Abduction Convention, and recognising the obligations under immigration law to avoid expelling or returning a refugee to a country where they may face persecution. In this case the mother and child had come to the UK from South Africa after which the father applied under the 1980 Hague Convention for the return of the child. The mother claimed asylum saying that she was a lesbian and was under threat from her family because of this. The Secretary of State for the Home Department wrongly thought that the child had also applied for asylum. On this basis, the court at first instance stayed proceedings while the asylum claims of the mother and child were determined. The father appealed the staying order at which point it was confirmed that the mother had only applied for asylum for herself and for the chld as her dependent. The father appealed to the Court of Appeal which upheld his appeal (para 184) having concluded that the judge was wrong to proceed on the basis that there was a bar to determining the 1980 Hague Convention application, because (i) contrary to the facts as she had been given them, no independent application for asylum had been made by or on behalf of [the child] and (ii) in any event, there was no bar to determining the application or even to making a return order, as opposed to implementing any such order.

ICFLPP was represented pro bono in this intervention by James Turner QC, Mehvish Chaudhry and Paige Campbell, instructed by Bindmans LLP.

9. B (A Child) (Abduction: Habitual Residence) [2020] EWCA Civ 1187

https://www.bailii.org/ew/cases/EWCA/Civ/2020/1187.html

The family lived in Australia before moving to France on 1 December 2019 as this was where the father came from. The father had a 6 month probationary period in his new job in France, and the mother had left open her job in Australia under January 2021. They decided to spend Christmas with the mother’s family in England. The father returned to France as arranged on 27 December in order to start his new job, and the mother was due to return on 5 January. However, she informed the father on 3 January that the relationship was over, and she was not going to return to France. The father applied for an order that the child be returned to France. Mrs Justice Judd dismissed that application on the basis that the child was habitually resident in Australia, not France, on the date when the mother had unlawfully retained her in England & Wales and so, in her view, the Hague Convention did not apply.

The Court of Appeal (Lord Justice Moylan, Lord Justice Baker and Lord Justice Phillips) decided that this was incorrect, and that the child had been habitually resident in France at the relevant date. However, the question of returning a child to a third State being one which was also in issue in other pending cases, the court went on to consider the general principle of whether power exists under the 1980 Convention to return a child to a state other than the one in which they had been habitually resident. In obiter comments at para 104 Moylan L.J stated his view that this power does exist. He relied on the Perez-Vera Explanatory Report (para 110) to demonstrate the express consideration which was given to this issue at the time of drafting the 1980 Hague Convention when a proposal that the return should always be to the state of habitual residence had not been adopted.

ICFLPP was represented pro bono in this intervention by Christopher Hames QC and Harry Langford, instructed by Freemans LLP.

10. G (Appellant) v G (Respondent) [2021] UKSC 9

https://www.bailii.org/uk/cases/UKSC/2021/9.html

This appeal to the Supreme Court from the Court of Appeal (see intervention 8 above) concerned the relationship between the 1980 Hague Child Abduction Convention (hereafter the Convention) and the law relating to asylum. The facts relate to G, an 8-year old girl, who had been born in South Africa, and was habitually resident there. The appellant, G’s mother, had brought G to England without the father’s consent. G’s father, the respondent in this appeal, applied for G’s return to South Africa under the Convention. G’s mother opposed the return on the basis of article 13(b) of the Convention, i.e. that the return would cause a grave risk of harm to the child or would otherwise place her in an intolerable situation. The appellant stated that after separating from the respondent and telling her family that she was a lesbian, she had been the victim of death threats and violence from them. When she arrived in England she had applied for asylum based on her fear of further violence from her family. G was listed as a dependant on the appellant’s asylum application but G had not made an asylum application in her own right. The question of whether G was protected from refoulement (the unlawful return of a refugee under asylum law) by being a dependant on her mother’s asylum application and, thereby, could not be returned to South Africa until the determination of the asylum application, was considered by the Supreme Court. The Supreme Court summary of the judgment explains the difficulties this may cause for the application of the Convention:

“..this raises the further question of how the 1980 HC proceedings and the asylum claim can be coordinated. An asylum claim can take months, if not years, to resolve, and the 1980 HC requires the prompt determination of an application for the return of an abducted child (which means, in this context, within six weeks). There is therefore a real risk that by the time the asylum claim has been determined, the relationship between the child and the left-behind parent will be harmed beyond repair. There is also a real risk in cases of this type that the taking parent will seek to achieve that objective by making a sham or tactical asylum claim”. https://www.supremecourt.uk/cases/docs/uksc-2020-0191-press-summary.pdf

ICFLPP submitted that it was possible to consider the protection issues in the course of Convention proceedings, thereby avoiding the difficulties set out above. Paragraph 51 of the Supreme Court judgment states:

“The second intervener, The International Centre for Family Law, Policy and Practice (“the ICFLPP”) …acknowledged that the Secretary of State has the sole power to determine applications for asylum. However, it was submitted that an entitlement to protection from refoulement can be asserted and determined within the process of the 1980 Hague Convention proceedings. That was an issue which had not been raised by the father, so at the conclusion of the hearing the court invited written submissions from the parties and from all the interveners in relation to it and in particular to the following question:

In circumstances where an application for asylum has been made by or on behalf of a child and the Secretary of State has not yet made a decision on the application, is there any bar in law to a Family Court deciding in Hague Convention proceedings that the child is not a refugee and making and implementing an order for the return of the child to the country from which he or she has been removed in accordance with the Hague Convention?”.

The Supreme Court decided that the High Court should be slow to stay Convention proceedings. The Convention application may be determined by the High Court but any order for return cannot be implemented until the determination of the asylum application. A child who can be objectively understood to be an applicant for asylum cannot be returned to the country from which (s)he has sought refuge before the final determination of the asylum claim, which includes the conclusion of any appeal. If the asylum application is successful the High Court has the power to set aside its order. The case was remitted to the High Court for reconsideration of the 1980 Convention proceedings on that basis.

ICFLPP was represented pro bono in this intervention by James Turner QC, Mehvish Chaudhry and Paige Campbell, instructed by Bindmans LLP.

The Centre is involved in other interventions, details of which will be added as they become available.

Other Activities

2016

Professor Freeman was delighted to be awarded the Tim Salius President’s Award by The Association of Family and Conciliation Courts (AFCC) at their 53rd Annual Conference, “Modern Families: New Challenges, New Solutions” in Seattle in June, 2016. This award, which Professor Freeman was awarded jointly with, Associate Professor Nicola Taylor of The University of Otago, New Zealand, is presented annually to an AFCC member who has provided exemplary service to the Association, and was awarded on this occasion for the empirical research undertaken by the two recipients in the fields of child abduction and relocation.

The Centre’s extremely successful 2016 trienniel conference “Culture, Dispute Resolution and the Modernised Family” which was held in association with King’s College, London, from 6-8 July was recorded on the websites of many international academic institutions and legal practitioners. For a United Kingdom practitioner’s perspective on the conference by Tom Beak of Kingsley Napley solicitors, see the following link to their website:

https://www.kingsleynapley.co.uk/comment/blogs/family-law-blog/global-and-modern-families-not-bound-by-borders-themes-from-the-culture-dispute-resolution-and-the-modernised-family-conference

And for an example of the conference’s presence on Twitter, see:

https://twitter.com/29bedfordrow/status/750964515471134724

2017

The Centre, in association with Westminster Law School, was delighted to host a lecture on the evening of 12 June 2017 where The Hon. Diana Bryant AO, Chief Justice of the Family Court of Australia, addressed the audience of judges, academics, and practitioners. Her paper title was: “The Abduction Convention in a post-Brexit era: the law will survive the changes to the political landscape”.

The lecture was part of an important abduction event organised by Professor Freeman and the Westminster Law School, in collaboration with the Hague Conference on Private International Law, held at the University of Westminster, London. This included a one-day invitation-only Experts’ Meeting on Issues of Domestic/Family Violence and the 1980 Child Abduction Convention on Monday 12 June. We were assisted in the organisation of the meeting by Associate Professor Nicola Taylor from the University of Otago, New Zealand who acted as rapporteur on the day. This was a timely meeting for key subject specialists to consider the important issues of domestic/family violence and the operation of the 1980 Hague Child Abduction Convention. The practical operation of the 1980 Hague Child Abduction Convention (and the 1996 Hague Child Protection Convention) was next reviewed at the Meeting of the Seventh Special Commission in October 2017. The Experts’ Meeting was followed by a two-day international child law research meeting which was informed by the outcomes from the Experts’ Meeting which, in turn, helped shape the current and future work of the child law research group.