Ciccone v Ritchie (No 2)

Permission is required under Family Procedure Rules 2010 r 29.4 to withdraw proceedings under the 1980 Hague Convention. The rule applies disjunctively to applications under Parts 10 to 14, whether or not the application concerns a child’s welfare or upbringing. Where the proceedings do not concern welfare or upbringing, permission is determined by the overriding objective, including fairness, proportionality, expedition, expense and proper use of court resources. Welfare may be considered but will usually have little significance. The court should not generally make anticipatory case-management directions for proceedings that have not been issued. Publication decisions require a proportionality balance between privacy and freedom of expression, with the child’s best interests as a primary consideration.

The mother applied under the 1980 Hague Convention for the return of her 15-year-old son to the United States. Parallel proceedings were continuing in New York. She sought permission to withdraw the English proceedings. The father and child no longer opposed withdrawal but disputed whether permission was required and sought procedural directions concerning possible future applications. The court also had to determine arrangements for the child’s passport and whether the judgments should be published, with or without anonymisation.

1. Withdrawal. Permission was required to withdraw the Hague Convention proceedings. Family Procedure Rules 2010 r 29.4(1)(b) was to be read disjunctively. The words concerning the welfare or upbringing of a child qualified applications under any other Part, not applications under Parts 10 to 14. The Convention proceedings were governed by Part 12.
2. Because Hague Convention proceedings concern the child’s location pending determination of the substantive issue, rather than the child’s upbringing, the welfare principle in s 1(1) of the Children Act 1989 was not the test for permission. The applicable test centred on the overriding objective in FPR 2010 r 1.1, including fairness, proportionality, expedition, expense and appropriate use of court resources. Welfare issues remained relevant to the extent required by that objective.
3. Permission was granted. Continuing parallel proceedings in England and New York created unnecessary complexity, hindered settlement and increased expense. It would be very difficult to identify circumstances in which an applicant should be compelled to pursue a Hague Convention application that the applicant wished to withdraw.
4. Anticipatory procedural directions were refused, save that future applications in this jurisdiction concerning the child were reserved to the judge. The rules and existing case law already governed matters such as without-notice applications, notice and possible joinder or appointment of a guardian.
5. The child’s passport was to be released for Easter travel and thereafter held by his solicitors if agreed, or retained by the child pending determination by the New York court.
6. The judgments were ordered to be published without anonymisation, subject to limited redactions and the continuing reporting restriction order. The court applied the proportionality balance between Convention rights under Articles 8 and 10. The child’s best interests were a primary consideration, but there was no presumption that publicity would inevitably harm him. The decision was expressly confined to the exceptional facts, including the extensive information already in the public domain.

First-instance decision in the High Court (Family Division). The judgment refers to the earlier judgment in Ciccone v Ritchie (No 1), [2016] EWHC 608 (Fam), concerning the child’s joinder, but this judgment determined the later withdrawal, procedural, passport and publication issues.