P (Minors), Re

A court may decline to determine an appeal concerning a discretionary declaration under Child Abduction and Custody Act 1984, section 8, where the declaration would not materially assist related proceedings abroad. The court should consider comity, the risk of delay or conflicting decisions, the location of the parties and children, and the interests underlying the Hague Convention procedure. Section 8 declarations are exceptional and have been made only in limited circumstances. The fact that jurisdiction might exist does not require the court to determine difficult preliminary issues where doing so would serve no practical purpose.

The mother applied in England for a declaration under section 8 of the Child Abduction and Custody Act 1984 that the father’s removal of the children to the United States was wrongful under Article 3 of the Hague Convention. The father and the United States Government relied on immunity. The President held that diplomatic immunity did not apply, but state immunity did, and dismissed the application.

On appeal, the Court of Appeal questioned whether determining the immunity issue would assist the pending proceedings in Virginia. The central question became whether the appeal should proceed where any declaration would be discretionary, potentially delay or complicate the foreign proceedings, and would not resolve where the children should reside.

1. Appeal dismissed. The court declined to determine the competing arguments on diplomatic and state immunity. Even if the appeal were allowed, the court would still have to decide whether to exercise its discretion to make a section 8 declaration.
2. Section 8 of the Child Abduction and Custody Act 1984 provides a discretionary remedy. Such declarations have been granted only in limited circumstances. The court was unaware of any previous case in which a declaration had been granted where the issue concerned England only indirectly.
3. The court had to consider the practical value of proceeding. The pending proceedings in Virginia involved the same underlying issues, the United States Government was participating there, and the Virginian court was better placed because all parties were in the United States. A decision in England might not bind that court and could produce conflicting approaches to the Hague Convention or further appeals.
4. The decision in Re P (Abduction: Declaration) [1995] 1 FLR 831 was materially different. That case involved an English court assisting a Californian court which had sought assistance. It provided guidance on the circumstances in which a section 8 declaration may be appropriate, but did not require a declaration in the present circumstances.
5. Determining the appeal would not assist the foreign proceedings and was likely to delay them, contrary to the interests of the children. The appeal was therefore dismissed at the preliminary stage. There was no order as to costs. Leave to appeal to the House of Lords was refused, with liberty to apply to restore the appeal if the United States court returned the children to the United Kingdom.

• Court of Appeal (Civil Division): Appeal dismissed. The court declined to determine the immunity issues and held that proceeding would not assist the related proceedings in Virginia.
• Family Division, before the President: On 22 January 1998, the President held that diplomatic immunity did not apply but that state immunity under the State Immunity Act 1978 did apply, and dismissed the section 8 application.