D (Children : Child Abduction: Practice) V

Hague Convention proceedings are inherently summary, but an “ultra-summary” disposal is permissible only in very limited circumstances. Arguments going to the merits, including delay and settlement, should ordinarily be dealt with at the substantive hearing and not as preliminary strike-out points. Exceptionally, proceedings may be brought to a premature conclusion where subsequent events have deprived them of continuing utility and no obvious benefit would result from continuing. The court’s broad family case-management powers apply in that situation. The fact that a child has not been heard does not prevent summary disposal where no substantive order is being made.

An American father applied for the summary return of his two children to the United States under the Hague Convention. The children had been brought to England by their English mother while Californian proceedings concerning custody and relocation remained ongoing. Subsequent orders of the Californian courts permitted the mother and children to remain in England pending further hearings.

By the hearing in England, both parties accepted that continuing the Hague proceedings had no utility. They differed on whether the father should be permitted to withdraw the application or whether it should be struck out or summarily dismissed. The central issue was the circumstances in which Hague proceedings may be concluded before a substantive hearing.

1. The application was permitted to be withdrawn. Had withdrawal not been sought, the proceedings would have been summarily dismissed because subsequent developments in California and the family’s circumstances had deprived the Hague proceedings of continuing utility.

2. Hague proceedings are inherently summary and are ordinarily required to be determined within six weeks. The court must therefore be cautious before applying domestic case-management approaches too freely to proceedings governed by an international Convention. An “ultra-summary” approach is appropriate only very rarely.

3. Where the proposed abbreviation is based on the asserted weakness of the other party’s case, including delay or an anticipated settlement defence under Article 12, the issue should ordinarily be dealt with at the substantive hearing. Preliminary points may themselves cause the delay they seek to avoid. Strike-out on that basis is generally inappropriate, save in exceptional circumstances such as those identified in Re G (Abduction: Striking Out Application).

4. Where subsequent events have overtaken the application, so that the Convention proceedings no longer serve any continuing purpose or provide an obvious benefit to either parent or the children, the court has power, applying the family case-management principles in Re C (Family Proceedings: Case Management), to bring the proceedings to a premature conclusion.

5. The requirement to give a child an opportunity to be heard does not disable the court from disposing summarily of Hague proceedings without making a substantive order. The court should also avoid satellite litigation and artificial taxonomies distinguishing different categories of exceptional case.