Best v Hesketh

A parent who abducts children in deliberate breach of an injunction cannot rely on that contempt to render the court powerless or to make a return application viable. The court may control the contemnor’s default, including by ordering the wrongful act to be undone.

Where intervening events and delay mean that the children are no longer in the requested state as a consequence of the original removal, the return application may be struck out as an abuse of process. The court with jurisdiction over the children must then determine their welfare. The wider arguments concerning Articles 12 and 16 and section 5 of the Child Abduction and Custody Act 1985 were left undecided because they did not affect the challenged order.

The father sought the return of three children to Spain under the Hague Convention after the mother brought them to England in September 2003. The children had been habitually resident in Spain.

While the application was pending, the father removed the children back to Spain in breach of an English injunction. Spanish and English court orders eventually resulted in their return to England in June 2005. Singer J struck out the Hague originating summons on 15 July 2005, holding that intervening events had made it unviable and that pursuing it was an abuse of process.

The father appealed, arguing that the Convention and section 5 of the Child Abduction and Custody Act 1985 confined the court’s powers. The central issue was whether his own wrongful removal and the subsequent court orders prevented dismissal of the application and required a return determination.

1. Permission and disposition. Permission to appeal was granted, but the appeal was dismissed. The earlier orders made during the father’s absence were not under appeal; the relevant question was the validity of the order striking out the Hague application.
2. Effect of contempt. Lord Justice Thorpe held that it was unreal to allow a parent who had abducted the children in direct breach of an injunction to render the judge powerless. In the face of such a contumacious breach, the court had wide powers to limit and control the contemnor’s default. Those powers included ordering him to purge his contempt by undoing the wrongful act or taking the rightful steps that he had omitted to take.
3. Abuse of process. The High Court was entitled to conclude that the mother’s original removal had been overtaken by the father’s later removal and the orders of the Spanish court. The children were in England pursuant to those orders, rather than as the immediate consequence of the mother’s removal. Given the father’s conduct and the delay, the Hague application had become unviable and its continuation was an abuse of process.
4. Welfare jurisdiction. Lord Justice Wall agreed that the English court had jurisdiction over the children while they were in England, both to deal with the existing Hague application and, if it was dismissed, to conduct a welfare inquiry under the Children Act 1989. The court did not need to decide the wider arguments on Articles 12 and 16 or section 5 of the Child Abduction and Custody Act 1985. The habitual-residence observation referring to Baroness Hale’s speech in Mark v Mark [2005] UKHL 42, [2005] 2 FCR 467 was not separately determined.
5. Final orders. The appeal was dismissed. The parties’ publicly funded costs were subject to detailed assessment, and no reporting restrictions were imposed.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 1380, permission to appeal was granted but the appeal against the order striking out the Hague application was dismissed.
• High Court of Justice, Principal Registry of the Family Division: Singer J struck out the originating summons on 15 July 2005, holding that the application had become unviable and was an abuse of process.