Identifying parties to assist with the recovery of a child in abduction proceedings

Identifying parties to assist with the recovery of a child in abduction proceedings

Family analysis: Adam Wolanski QC, barrister at 5RB, discusses the decisions in RJ v Tigipko, where the court was concerned with the issue of publicity in a case involving the abduction of children to a 1996 Hague Convention country and the circumstances in which publicity would be in the best interests of the children.

RJ v Tigipko [2019] EWHC 448 (Fam)[2019] All ER (D) 117 (Apr)RJ v Tigipko [2019] EWHC 105 (Fam)

What are the practical implications of this case?

This unusual case shows how the court will approach the issue of publicity in a case involving the abduction of a child to a foreign jurisdiction, where there was a reasonable prospect that publicity would prompt the return of the children, and that publicity was therefore in the best interests of the children. Also considered was whether an order postponing publication on the grounds of prejudice could only be made where potential criminal proceedings were ‘pending or imminent’.

What was the background?

In April 2018, Mostyn J refused an application by the mother for permission to relocate her two young children by the father to live with her in the Ukraine (GT v RJ [2018] EWFC 26[2019] 1 FLR 46).

During a subsequent mediation, the parties agreed that the mother would have permission to take the children to Ukraine for the purposes of a summer holiday in July 2018. The mother agreed that she should put up the sum of £1m as security for the father’s legal costs and the incidental expenses of legal proceedings in the event that she failed to return the children.

The day before the mother was due to return the children from Ukraine, she texted the father to inform him that her father (ie, the maternal grandfather) had applied to a court in Ukraine for an injunction preventing the children from leaving Ukraine. The father’s solicitors were then informed that the mother’s new husband had also made an application to the Ukrainian court concerning the children, but that this had been dismissed. It soon transpired that the maternal grandfather’s application to the Ukrainian court had also been dismissed.

On being told that the mother was refusing to bring the children back to England, Mostyn J made an order for the immediate return of the children and for the transfer of the £1m surety to the father’s solicitors pending the return of the children. Despite this, the mother still did not return, and the children continued to reside with her in Ukraine.

The father made an application in Ukraine for the return of the children under 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), but this had an ‘unpromising start’. The father feared that the 1996 Hague Convention proceedings would take months if not years to be concluded.

The father also referred the conduct of the mother and maternal grandfather to the police, who continued to investigate the matter.

In September 2018, having made no progress in his 1996 Hague Convention claim, the father applied for permission to identify the mother and maternal grandfather as being involved in these proceedings. The application was for the relaxation of statutory reporting restrictions imposed by section 12 of the Administration of Justice Act 1960. It was not proposed that the children be named but the information proposed to be released would be capable of identifying them. The father therefore also made an inferential application to identify the children under section 97(4) of the Children Act 1989 (ChA 1989).

The father contended that identifying the mother and maternal grandfather would encourage the mother to bring the children back to this jurisdiction. He claimed that the maternal grandfather, who had a close relationship with his daughter, would be sensitive to the prospect of being named and shamed as being party to a conspiracy to pervert the course of justice. The maternal grandfather was the former vice-president of the Ukraine and a prominent businessman and, said the father, someone who would be highly sensitive to any suggestion to publicity surrounding his alleged involvement in child abduction.

The court appointed a children’s guardian, funded out of the £1m surety, to visit the children in Ukraine and report on whether publicity was in the best interests of the children.

What did the court decide?

The judge granted the father’s application and permitted identification of the mother and maternal grandfather, but not the identification of the father or children. He found that the applicable test was the paramountcy test in ChA 1989, s 1. This was because he was ‘determining a question with respect to the upbringing’ of the children. The court was not carrying out a balancing test in which the rights of the media under Article 10 of the European Convention on Human Rights (ECHR) needed to be balanced against other ECHR rights with no right given automatic precedence. Public interest factors—advanced by a variety of media organisations who made representations to the court—were powerful, but not therefore relevant in determining the father’s application.

The judge considered that it was not necessary to decide, as urged by the father, whether or not the Ukrainian judicial system is inefficient or corrupt. The evidence did not come near the standard that it is necessary to cross for such a decision to be reached. Generally speaking, the starting point and the usual finishing point should be that the judicial and administrative standards of an EU or 1996 Hague Convention state are as good as those in this jurisdiction.

The judge rejected the argument that the proceedings under the 1996 Hague Convention had to be allowed to run their course before he could allow publicity. He did not consider that the observations of Thorpe LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315[2010] All ER (D) 225 (Nov) concerning the undesirability of the threat of a public judgment being used as an aid to enforcement prevented the court from making the order which the father now sought.

Mostyn J concluded that, in light of the ‘profound, long lasting harm’ suffered by the children as a result of separation from their father, he would grant the order. He accepted the case of the father, compellingly supported by the evidence of the children’s guardian, that there was a reasonable prospect that publicity would prompt the return of the children, and that publicity was therefore in the best interests of the children.

Postscript

In a subsequent ruling (RJ v Tigipko [2019] EWHC 448 (Fam)[2019] All ER (D) 117 (Apr)), the judge considered an application by the mother and maternal grandfather for redactions to be made to his judgment pending the determination of any criminal proceedings against them. They contended that those observations, which included highly damning findings concerning their role in child abduction, would prejudice a jury hearing any such future proceedings.

The judge rejected the application. The application could not be made under section 11 of the Contempt of Court Act 1981 (CCA 1981) since the redacted information had not been ‘withheld from the public.’ While CCA 1981, s 4(2) did not strictly apply, the judge considered that the policy underpinning that provision should be equivalently applied where the court is in fact exercising its powers under the inherent jurisdiction. CCA 1981, s 4(2) imposed a statutory threshold that an order postponing publication on the grounds of prejudice could only be made where the criminal proceedings in question were ‘pending or imminent’. Here, there were no ‘pending or imminent’ proceedings—any trial of the mother or maternal grandfather was a remote and contingent prospect.

The Court of Appeal rejected applications by the mother and maternal grandfather for permission to appeal both of the above rulings.

Adam Wolanski QC is a barrister practising at 5RB specialising in media law. Wolanski acted on behalf of the father, instructed by Sears Tooth, together with Ruth Kirby and Michael Edwards of 4PB.

Interviewed by Varsha Patel.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published by LexisPSL Family. Click here to request a free one week trial.

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