Rodwell, Re

In Hague Convention child-abduction proceedings, jurisdiction requires a sufficient connection with England and Wales. Actual presence or habitual residence may provide such a basis. British citizenship alone is an extremely slender and residual foundation for orders concerning children who are neither present nor habitually resident in England and Wales. The court should not compel relatives resident in England to attend under a penal notice where it lacks jurisdiction over the children. Solicitors stand in a different position as officers of the court. They may be required to attend so that the court can hear representations and decide whether any disclosure should be ordered, having regard to legal professional privilege and jurisdiction.

The father, resident in Portugal, commenced Hague Convention proceedings after the mother disappeared with the parties’ two youngest children. An earlier without-notice location order had been made on information suggesting that the children might be with their maternal grandmother in England.

By the present hearing, information from the Tipstaff indicated that neither child had entered the United Kingdom since disappearing. The father sought orders requiring the maternal grandparents and other relatives to attend court and give evidence about the children’s whereabouts. He also relied on contact between his solicitors and a solicitor apparently acting for the mother. The central issues were whether the court had jurisdiction to compel the relatives and whether the solicitor could be required to attend to address possible disclosure.

1. Jurisdiction over the children. The court held that the factual position had materially changed since the earlier location order. On the balance of probabilities, neither child was present in the United Kingdom, and neither was habitually resident in England and Wales. The two realistic bases for jurisdiction—habitual residence and actual presence—were therefore absent. British citizenship did not provide a sufficient basis for the proposed orders.
2. Orders against relatives. Although relatives in England are often required to attend court in abduction cases, that practice presupposes that the children were living and habitually resident in England and Wales, so that the court has a continuing jurisdiction over them. That situation did not exist here. Compelling the maternal grandparents, or other relatives, to attend under a penal notice would be an exorbitant exercise of jurisdiction. The court declined those orders and left the earlier orders unvaried.
3. Solicitor’s attendance. The position of the solicitor was materially different. Solicitors are officers of the court and may, in an appropriate case, have to attend to assist the court. The court made a carefully limited order requiring the named solicitor, or a fully informed and authorised partner or employee, to attend before the High Court in Liverpool. The purpose was to enable the court, after hearing representations, to determine what evidence, if any, should be disclosed concerning the mother’s or children’s whereabouts.
4. The order did not decide that any disclosure was required. Legal professional privilege and the court’s jurisdiction would have to be considered at the further hearing. The solicitor and firm were prohibited from disclosing the existence or terms of the order to the mother or anyone connected with her.