Jones (No 2), Re

When asked to make an injunction whose compliance is said to be impossible, the court must assess the likelihood of futility. It should make the appropriate order unless satisfied that it will be futile. The possibility that children may frustrate compliance despite the respondent’s best endeavours does not automatically justify withholding relief.

In Hague Convention proceedings, the court must have regard to the United Kingdom’s international obligations and its positive obligations under Article 8 of the European Convention. Enforcement measures against a defaulting parent may be appropriate, and sanctions against children are not wholly excluded where unlawful parental behaviour is involved.

The parents had separated after having five children. Following earlier Hague Convention proceedings, Hedley J ordered the return of four children to Spain: [2012] EWHC 2955 (Fam). The mother did not comply, and two children remained in Wales with her.

Theis J later declined to make a further order requiring their return, considering that enforcement might polarise the family and hinder reunification: [2013] EWHC 88 (Fam). After a separate committal application failed, the father renewed his application for an order implementing Hedley J’s extant order. The central issue was whether the order should be made despite the asserted likelihood that the children would refuse to cooperate.

1. Application granted. The court made an order requiring the mother to return, or cause the return of, Jessica and Tomas to Spain within a period anticipated to be between seven and 14 days. Supplementary injunctions were also to prevent their removal from their current home in Wales pending return, with possible default dates.
2. The court had to reconcile two principles. It should not ordinarily refuse an injunction merely because the respondent says that it cannot or will not be obeyed. Compliance and any asserted impossibility can ordinarily be examined later if the order is breached. However, the court must not make a futile order.
3. The correct approach was to evaluate the degree of likelihood that the order would be frustrated, despite the mother’s best endeavours, by the children’s obdurate opposition. The relevant question was the present position, not how that position had arisen. The court was not satisfied that the order would necessarily be futile, since there remained a prospect of compliance in relation to at least one child.
4. The court also had to consider the United Kingdom’s international obligations under the Hague Convention and its positive obligations under Article 8 of the European Convention. Those obligations required all reasonably practicable steps to facilitate enforcement. Shaw v Hungary [2012] 2 FLR 1314 illustrated that coercive measures against children were undesirable but that sanctions could not be wholly ruled out where the parent’s conduct was unlawful.
5. A final Hague Convention return order could not be set aside, stayed or discharged by a further application to the High Court. Such relief had to be sought from the Court of Appeal, as explained in Re M (A Minor) (Child Abduction) [1994] 1 FLR 390 at 397. Hedley J’s order therefore remained in force.

This was a first-instance application to implement an extant return order. The judgment records earlier decisions in the same litigation, including Hedley J’s return order, [2012] EWHC 2955 (Fam), and Theis J’s refusal of a further order, [2013] EWHC 88 (Fam) . It also refers to the court’s earlier committal judgment, [2013] EWHC 2579 (Fam) .