This is the first full final hearing in a High Court case that we have attended and reported on as legal bloggers. It raises interesting issues about international abduction; the aftermath regarding international contact; and the differing perceptions of two parents of their autistic child.
After a brief summary, I’ll explain the case, report on the hearing, and then discuss my experience of legal blogging. If the judgment is published, we will add a link to that.
Summary
Charlie (not his real name) is aged seven; he lives in England with his mother (who I’ll call Millie) and has regular Facetime contact with his father (who I’ll call Frank), who lives in the US. Frank has been visiting the UK about twice a year to see Charlie. Charlie was born in the US but, when he was two, Millie left the US and disappeared with Charlie for two years. Frank applied under the Hague Convention on international abduction for Charlie to be returned to the US. Millie pleaded a defence under Article 13b of the Convention, which was accepted by the High Court in 2021. Frank then applied for a ‘spend time with’ child arrangements order, to include visits by Charlie to the US. Millie resisted this application because she was convinced that there was a danger Frank would keep Charlie in the US (if that holiday went ahead) and, more generally, she did not believe Frank could meet Charlie’s particular needs as an autistic child. A final hearing was held this summer before Mrs Justice Arbuthnot, who made a very detailed order, recognising the complexities of the child’s needs and his parents’ mistrust of each other.
Background
Millie and Frank met in the US and had a relatively short marriage, separating before Charlie was born. Millie and Charlie have dual US and UK nationality; Frank has US nationality. Millie has family here in the UK but Frank and his immediate family all live in the US. Shortly after Charlie was born, Frank applied in his home state for a divorce and there appears to have been some kind of joint custody order. While Charlie lived mainly with Millie, Frank also spent time with him until he was about two years old, when Millie sent Frank a message that she had gone to England with Charlie. There were a few online calls between Millie and Frank but Frank became worried and applied to his local court for Charlie to be returned and then applied to the High Court in England and Wales under the Hague Convention on the basis that the US was Charlie’s country of habitual residence and Millie had wrongfully removed him.
The calls stopped and Frank didn’t know where Charlie was, or anything about his welfare, for two years. He reported the matter to the authorities in the US and the FBI began an investigation into what was termed a kidnapping. Millie eventually appeared at a High Court hearing and contested Frank’s application for return. It seems that she thought the two-year period that Charlie had been in the UK would establish ‘settlement’ here and be a defence, but this was a mistake on her part.
The way the Convention works is that children who are removed by one parent from their own jurisdiction are usually ordered to be returned for the matter to be settled in the court where the child was living before they were removed. This is a summary process i.e. the court here did not look at the dispute between Millie and Frank in full, because they only needed to decide whether Charlie should go back for the US court to resolve matters. It’s possible to defend such an application under Article 13b of the Convention, although notoriously difficult, as argued by the Hague Mothers campaign. Article 13b says that the state (the UK in this case) is not bound to return the child to his state of habitual residence (the US) if it’s established that there is:
a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
In Charlie’s case, Millie argued that she herself could not go to the US because she would be isolated, penniless, and probably arrested and imprisoned for the alleged kidnapping. The judge at the Hague hearing in London believed that she would not return even if he ordered Charlie back, and that consequently a return order would separate mother and child. A jointly-appointed child psychiatrist advised the court that if Charlie were separated from Millie, the effects on him would be ’disastrous’ and ‘catastrophic’. The judge therefore concluded that a return order would cause Charlie harm and Millie succeeded in her defence. Frank did not appeal.
The psychiatrist observed that Charlie (then four years old) met the criteria for an assessment for autism, although she did not go on to diagnose him as autistic. This became a major theme throughout the proceedings I observed.
Proceedings before Mrs Justice Arbuthnot
As the “left-behind parent”, Frank was able to apply under Article 21 (‘Art 21’) of the Convention for the UK authorities to assist him in ‘enjoying access rights’ i.e. to make a ‘spend time with’ application under section 8, Children Act 1989. There had been some Facetime contact during 2021 but Millie was refusing any direct contact between Charlie and Frank.
I was surprised to learn that a party in Frank’s’ position is entitled to full legal aid that’s not means or merits tested. A left-behind parent, even one who lives in the US, has all their representation here (where the child is) paid for by the Legal Aid Agency, regardless of the facts in the case or how wealthy they are. Charlie had a Rule 16.4 Cafcass guardian, and they of course had full legal aid. Millie also had legal aid on the basis that she was dependent on welfare benefits (so met the means test) and had alleged domestic abuse by Frank (which meant she was within scope for legal representation and not subject to the standard restrictions on legal aid in private law). So, the entire High Court case, including a multi-disciplinary team and two individual expert witnesses, was publicly funded.
Proceedings before Mr Justice Poole and then Mrs Justice Arbuthnot (neither of whom had made the original Hague decision) began in early 2022 and by the time I started observing hearings in July 2023, Arbuthnot J was understandably determined to resolve the case as soon as she could. There were, however, further delays, including (unsuccessful) applications by Millie for permission to appeal some of the interim orders, and a change of guardian when the original person went on sick leave.
There were interim orders for contact between 2022 and 2024, including Facetime calls between Charlie and Frank several times a week and visits by Frank to England up to four times a year when he and Charlie stay together in a hotel for a few days. Frank has an older daughter, who he was able to bring on some of the visits. The Facetime meetings sometimes included her and sometimes included Frank’s parents. One of the reasons Frank was anxious for Charlie to visit the US was that his parents were unable to travel to the UK for health reasons. There was a high level of mistrust between Frank and Millie, who communicated only via a co-parenting app. When Frank meets Charlie in England, the handover is facilitated by agreed third parties. Various orders had been made over the months regarding Millie’s and Charlie’s passports (which were held by the Court Tipstaff) to ensure that neither parent tried to take him abroad. There had been other issues about Millie allegedly taking Charlie to therapy sessions which Frank didn’t agree with, and this had led to a prohibited steps order (PSO) restricting Millie from taking Charlie to any counselling, therapy or treatment (other than standard GP or emergencies) without Frank’s written consent.
During the Hague hearing, Millie had referred to her relationship with Frank as being abusive, saying he had exerted coercive control over her. These allegations were not however the basis of her Art 13b defence and weren’t adjudicated on at that time. During the proceedings before Arbuthnot J, Millie twice applied for a fact-finding hearing to be held but this was refused both times. By the time I started observing hearings last year, Frank had been having contact with Charlie under the interim orders for about a year; the applications for fact finding were refused on the basis that the outcome would not have any impact on the court’s final decision on contact. This follows the authority in K v K [2022] EWCA Civ 468. Mrs Justice Arbuthnot commented at a directions hearing last year that she had accepted Millie’s anxiety, ‘whatever has caused it’. So, she didn’t need to investigate what Frank’s conduct toward Millie had been when they’d been living in the US.
Although the domestic abuse allegations were not treated as a barrier to contact, Millie was still entitled (as a complainant) under the court rules to special measures in the court building to ensure that she was kept separate from Frank and could give her best evidence. These included her sitting behind a screen (with her solicitor and a supportive family member) while Frank sat in the courtroom. When she gave her evidence (not screened), Frank listened to this in a separate room with his solicitor. There were separate consulting rooms meant to be available for both parties, although this didn’t seem to have been entirely successful, with much discussion about keys. It also seemed quite difficult to ensure that the parties could always leave the Royal Courts of Justice building separately.
Interestingly – in the context of recent debates about the use of intermediaries – Millie applied for an intermediary to be appointed for the final hearing, which the judge refused. Of course, it’s difficult as an observer to know how effective an intermediary would have been, but I could see why the judge believed Millie didn’t have communication difficulties. In the judgment, Arbuthnot J confirmed that this had been the right decision. The judgment also sets out the judge’s application of Practice Directions 3A and 12J relating to vulnerable parties and allegations of domestic abuse.
In the very last directions hearing a couple of weeks earlier, the judge had questioned whether it was necessary for the parents to give oral evidence at all – she has read so much of their evidence over the years that she doubted that they had anything to add. However, she was persuaded that she should hear from them and a strict timetable was drawn up to include evidence and cross examination of the experts, the parents, and the guardian. Frank came over to London for the hearing and was due to have a contact visit with Charlie once it was over.
Expert evidence
A psychologist, Dr Hessell Willemsen, had been jointly instructed to assess the family dynamics and relationships. After some back and forth with the Legal Aid Agency, the court was subsequently able to direct a full autism assessment of Charlie by a multi-disciplinary team from MIND, which resulted in a diagnosis in June 2024. This report was pivotal because Millie had previously claimed that Frank would not accept that Charlie needed assistance to manage this condition. Commissioning the report also provided an opportunity for the PSO to be varied so that work could begin on a local authority Education Health & Care Plan (EHCP) with Charlie’s school. A specialist family law attorney in the locality where Frank lives was instructed to give advice about the relevant US law. (There is a restriction on identifying this expert for geographical reasons.) Dr Willemsen and the US attorney both gave evidence via video link. There were some questions and challenges for both of these experts, but as things transpired, the MIND team were not required to give oral evidence. Everyone agreed their report had been, as the judge put it, ‘full of good advice’.
I was struck by an aspect of the MIND assessment – they had administered a test which was a questionnaire to each parent designed to identify autism traits in their child. Frank had scored only 22/150 while Millie had scored 135/150. I didn’t see the report so I don’t know how this discrepancy was interpreted by the MIND team. While Millie’s lawyers argued that the scores reflected Frank’s lack of empathy, his lawyers argued that he had not been given sufficient opportunity to get to know Charlie and fully understand his needs. MIND had recommended a range of resources for both parents to learn about autism in children, and some further resources had been identified by the guardian e.g. an online course run by University of Kent.
Psychologist
Dr Willemsen is described on his own website as a psychoanalyst, psychotherapist and clinical psychologist. He was jointly instructed by all parties to undertake an assessment for the court. Despite that original joint instruction, Millie must have been unhappy with his report because her barrister spent a good deal of time trying to undermine his credibility. Dr Willemsen had put forward two alternative hypotheses: either (1) Millie had been a victim of domestic abuse or (2) she hadn’t been a victim, but she believed she had because she had ‘paranoid anxiety’. Either way, she needed protective measures in place. Millie’s barrister took issue with Dr Willemsen’s description of paranoid anxiety, which he explained was a term used in psychoanalysis but Millie’s lawyers argued was not a recognised diagnostic disorder. Dr Willemsen’s report suggested that the removal of Charlie from the US followed by two years without access to support services may have caused him emotional harm. He described Millie as overly focused on ‘neurodevelopmental adversity’ rather than ‘environmental adversity’.
Dr Willemsen had observed Charlie to be happy in Frank’s company and said that more frequent in-person contact would help immensely with developing a lasting attachment, so that, in time, Charlie could go to the US. At the point Dr Willemsen had met them, there was an imbalance in both parents, with Millie unable to see any benefit to Charlie from contact and Frank saying Millie was using Charlie’s neurodiversity to leverage Charlie away from him. This was reported prior to the autism assessment.
US lawyer
The independent US attorney had been sent a list of questions, including details of what remedies Millie would have if Frank did retain Charlie in the US. She suggested that a financial bond be lodged by Frank to provide Millie with a potential litigation fund. She advised that the final order to be made by Arbuthnot J could be registered (‘enrolled’) in the US court quite rapidly. It was put to the US attorney that although Frank had agreed to get his sole custody order discharged he had instead applied to replace it with a joint custody order. She was asked about the implications, and explained that a joint custody order would cover parental decision making until the High Court order was in place (when this temporary order would cease); neither parent could make a unilateral decision; it made no difference to where Charlie should live. Once the High Court order was enrolled, there was 30-day time limit on appeal. There is a possibility of a party pleading duress and asking the court to reconsider an agreed order, subject to a time limit of two years. This fitted with discussion of Charlie visiting the US in 2026. However, the attorney said a duress plea would be very difficult to pursue and that there was unlikely to be any change to the temporary order being replaced by the enrolled order after the 30 days period.
The order drafted by the guardian’s barrister included provisions for the US attorney to assist with security matters (e.g. holding passports) for any future visit to the US.
The father’s case
Frank was consistent in his evidence for the most part. He had not attempted to appeal against the Hague decision and he accepts that Charlie now lives in the UK with Millie; if Charlie were able to visit the US, he would not try to keep him there beyond the agreed holiday dates. He wanted to reassure Millie that he would return Charlie from such a visit. He said that Millie had done a good job of bringing Charlie up to be a ‘wonderful young man’; ‘a smart sincere young man, well-mannered and respectful’. He had also now accepted the autism diagnosis by MIND and said he intended to complete all the courses on autism that had been recommended. He would ensure that he would be sensitive to Charlie’s needs during the time they spent together.
However, where Frank’s case appeared contradictory was that he’d agreed in 2022 to discharge the US sole custody order he’d obtained back in 2019 (during Millie’s absence from the US), but instead of simply doing that, he’d applied for it to be replaced by a joint custody order. The language used in that application was questioned by Millie’s barrister because Charlie had been described as having been ‘ripped away’ from Frank for two years and his application was explained as a result of Millie ‘using the London courts to coerce’ him. Millie’s lawyers challenged Frank that he had not genuinely tried to discharge the sole custody order but instead was trying to keep the US jurisdiction open and laying a paper trail to be in a future position to claim he had made applications under duress. The judge commented toward the end of the hearing that Frank had received bad advice on this. The wording of the application sounded like over-heated lawyer-speak to me – but Frank had signed those papers so had to take responsibility for that tone.
In 2023, Frank had proposed to the court that he be allowed to take Charlie on holiday to the US in summer 2024, preceded by a short trip to Europe to get Charlie used to the idea of airports etc. and to know that after trips with his dad, he would be returning home. By the date of the final hearing, Frank was asking for an order that he see Charlie four times a year. He was asked a series of questions by all the lawyers on his finances (which he appeared to answer frankly) because he had earlier indicated to the guardian that he could only afford two visits a year and, of course, a US visit by Charlie would involve Frank in four flights, and six air fares.
The mother’s case
There were also some contradictions in Millie’s evidence. She described Frank as having been uninterested and unsupportive during Charlie’s birth and infancy but at the same time as interfering and controlling. She confirmed that she now agrees with Charlie having a relationship with his father but she was not able to describe anything positive about Frank’s parenting nor identify anything Frank could offer Charlie. She said that Charlie didn’t enjoy the time he spent with Frank, who was not able to provide Charlie with the regulated environment he needed. She described how she has to help Charlie recover at the end of each school day and how much he needs secure patterns and routines to cope with the challenges of his autism. Clearly, the idea of a journey abroad (which might for some children feel like an adventure) was daunting to Charlie and Millie.
The major issue was that although the Cafcass guardian had recommended a series of very strict conditions to be fulfilled by Frank to reassure Millie that a visit to the US would be safe, Millie told the court that there was nothing that could reassure her now that Charlie could make the visit within a two-year timescale. She couldn’t see any benefit to Charlie of being taken on holiday to the US – although maybe it would be possible when he was older. However, on the second day of her evidence, she modified this a little under questioning by Frank’s barrister, and said that she and Frank could work together to get Charlie ‘in a better place’ before planning overseas visits. She was concerned about rushing thing now by trying to predict Charlie’s progress two years away; she wanted to wait to see how contact in England progressed first. When then asked by the guardian’s barrister whether she was opposed to any contact in the US because of the risk of reverse abduction (i.e. now Charlie is habitually resident in the UK), Millie replied we were going too fast and that a US visit was a question to be revisited.
Millie’s lawyers advised the court that there were no authoritative judgments on Art 21 applications succeeding after an Art 13b defence was established. However, I think this could be explained by the fact that such applications are normally referred to a circuit judge in the Family Court, who is unlikely to publish and would not in any event set precedent. Arbuthnot J said that Art 21 applications were common, so presumably she has sent some down to the lower courts.
The guardian’s recommendations
The guardian was in the witness box for almost an entire day. She described Charlie as a delightful child, and reported that his school had recorded his achieving the expectations for his age in reading, writing and maths. He was a full member of class although had been receiving some support with sensory issues, before his autism diagnosis. The guardian had met Charlie three times, once with each parent and once at school.
Charlie had a good understanding of who was who in his family and was aware of his cultural heritage. He knew that ‘his brain worked a bit differently’ to other people. He needs a plan and structure around him to feel secure, and to know he can access sensory aids and have space and quiet times. He felt secure with his mother and his maternal grandmother. He felt uncomfortable on Facetime when his grandparents in the US asked him lots of question and told him to make eye contact. He felt unhappy about visits if his father didn’t seem to have a plan or gave him a surprise, or didn’t give him quiet spaces during their time together. The guardian said that MIND had concluded that both parents need support in meeting Charlie’s needs.
The guardian reported that she had considered ‘alienation’ because Charlie expressed wholly good and wholly bad views of Millie and Frank respectively. However, she put this down to Charlie’s ‘concrete thinking’ rather than parental influence. Charlie needs to develop trust in Frank which can only be achieved by Frank showing Charlie he is learning to meet his needs and Millie being positive with Charlie about that progress. Frank had suggested at earlier stages that Millie was over-medicalising Charlie and taking him to unnecessary health appointments, to which Millie responded by accusing Frank of trying to exert control over her. The guardian was anxious that both parents move on from those positions to enable the EHCP to be implemented. She had observed Charlie to be happy and relaxed with his father, although she acknowledged Millie’s concerns about ‘masking’ (camouflaging autistic difficulties and differences). Risks of masking would be reduced by Frank undertaking the recommended training in autism. The guardian was concerned that Frank hadn’t had a solid plan in place for the contact visit she’d observed, and said that this approach has to improve. When she shared her recommendations with Charlie, he wasn’t positive about them because he didn’t feel Frank plans their time together and doesn’t understand how his brain works.
The recommendations, described as ‘stepped’ by the guardian, included protective measures to minimise the risk of Charlie being retained in the US and the risks of Millie and Charlie fearing that this might happen. These recommendations were:
- Video calls to take place twice per week
- Two four-day stays in the UK in the next year, during school breaks
- Both parents to complete the training as recommended by MIND; Frank to be re-referred for ‘together for children and families training’. This work would take one year to complete and embed alongside speech and language support in the EHCP.
- After a year, Frank would be able to demonstrate changes to his parenting style. He could then take Charlie to a destination in Europe by plane.
- In summer 2026, Charlie travel for ten days with his father to America. This must be carefully planned so that Millie can support Charlie to feel secure about travelling there and that he will return.
- The ongoing pattern from then on would be one visit in England in the winter for four nights and ten nights in America during the summer.
The guardian and her barrister drafted and re-drafted a final order during the hearing to incorporate many conditions regarding passports; port alerts; Frank lodging a financial bond etc. so that Millie could feel reassured.
In her oral evidence, the guardian explained that she recommended an order for only two contact visits per year because she was not confident Frank could afford four, and if he let Charlie down by not visiting as scheduled, that would be harmful. Once trust had built up, the parents could agree extra trips, if Frank could afford them. Asked about Millie’s proposal that contact in the US remain aspirational until she could agree to it, or it could come back to court, the guardian replied that the proceedings needed to end at this point. Ongoing litigation would only feed into the conflict and mistrust between the parents. The terms of the draft order would safeguard Charlie now and in the future.
The court’s decision
A decision had been taken by the High Court back in 2021 that it was in Charlie’s welfare to spend time with Frank. That conclusion wasn’t being revisited. While the Facetime contacts and the hotel stays hadn’t been without problems and were subject to conflicting reports by the parents, the big question since Charlie’s autism diagnosis is whether Frank can do the work that will reassure Millie that he can care for Charlie for the duration of a US holiday. Millie didn’t give any indication that she would ever feel she could travel to the US herself, even though the guardian had recommended a series of detailed pre-conditions to be included in the order, before Frank could take Charlie abroad.
By the end of the barristers’ closing submissions on Day 3, I was pretty certain the judge was going to make what would be a final order in the terms the guardian’s barrister was constantly re-drafting, even though its terms were conditional and extended two years into the future. In other words, ‘final’ in the sense of bringing the proceedings to an end, rather than setting matters in stone from the day of the judgment. However, the judge then warned us all that she wasn’t going to limit face-to-face contact to twice a year (as recommended by the guardian). That won’t be enough and these parents won’t agree to build up to more contact than is set by the court as a minimum, she said.
Judgment was reserved at the end of three intense days. A timetable was set for this to be handed down and I received a copy a few weeks later. This explained why the judge had differed from some of the guardian’s advice.
Facetime contact was reduced to twice a week because Frank had missed quite a few scheduled sessions for work reasons and Charlie needs predictability. There should also be extra sessions for Frank’s parents and daughter, if possible. There will be a gradual build-up of direct contact – sudden increases would do Charlie harm.
The judge concluded that both Millie and Frank were capable of caring for Charlie but Millie needed to accept that, even with improved communication, Frank will have a slightly different approach to parenting. Although Millie did not believe Frank could care for Charlie during contact, all the evidence said he was, and he had made a commitment to complete the recommended training. However, Frank must realise that it is in Charlie’s best interests for him to mirror the routines Millie and Charlie follow, as much as he can. Such an approach is important for any child being brought up in two different homes, but particularly so for Charlie with his diagnosis.
The order would be for three direct contact periods a year. The guardian was recommending a visit to the US quite soon, but Millie wanted no such visit to be ordered. The judge was concerned that Millie’s fears (as I could clearly see from her evidence) meant she couldn’t envisage supporting a US visit. The judge concluded that the parents need an extended period of time out of proceedings to build up some trust and co-parenting before Frank takes Charlie abroad. When he is ten i.e. in three years’ time, Frank can take Charlie on a flight to Euro Disney. He should not be taken to the US before mid-2028.
Charlie will thrive on predictability, continuity and sameness and any significant changes should be introduced gradually.
My experience of legal blogging
Although this was an interesting case to observe and I think it is in the public interest to report on, it highlighted some challenges to reporters. I was able to attend the directions hearings held online (because Frank was abroad). If they’d been in person, it would only be practical to attend if a blogger lived in London. The judge, her clerks, and all the lawyers accepted my attendance and there were no objections by the parties. I successfully applied to the court for permission to see a case summary and court orders up to March 2024. Fortunately, I was able to arrange to be in London for the three days in summer when the final hearing was listed and, by this point, I did want to see it through.
Although I’m allowed to attend a High Court hearing, it’s not a Reporting Pilot court so I would have had to apply to the judge to lift the standard section 12 reporting restrictions. I suggested that it would be more efficient if I drafted a Transparency Order (‘TO’), based on the Reporting Pilot template and the judge was happy with that idea. She gave the lawyers a reasonable deadline to respond to my draft. That date passed, so I thought all was well but some minor amendments were put forward by the lawyers about a week later. At the date I travelled to London, I still didn’t know for certain that the judge would make the TO and I still hadn’t had all the documents allowed by my draft TO. I began to wonder if, after all, the lawyers didn’t want me there, but it transpired that some of them were still drafting documents the Sunday before the hearing began on a Monday morning. I don’t know how common it is for nearly everyone to miss the judge’s deadlines but in this case, Arbuthnot J did not make any criticism of anyone. I was eventually sent all the copies I’d asked for, as well as a sealed copy of the TO. I’m grateful to the lawyers and the judge’s clerk for being so co-operative when they had so much else on their plates.
Video links had been set up for two of the expert witnesses, so in theory a journalist or blogger could ask to join by video, but there were quite a few technical glitches and non-functioning microphones. Although these all had to be overcome to hear the witnesses, it’s highly unlikely proceedings would have been delayed to accommodate a mere observer. The hearing was on a very tight timescale to fit in so much evidence and argument. Catering to a reporter online would understandably not have been a high priority. There were other advantages to in-person attendance in my being present in the court room throughout, such as managing the occasional question in a break to a professional in a rare moment they weren’t busy with their clients.
Conclusion
Some aspects of this case were typical of situations where the resident parent can’t see any benefit to their child of having direct contact with an ex-partner who has subjected the resident parent to trauma. However, it’s unusual in the mother’s perceived risk not explicitly being the non-resident parent as violent to the child but more that he would take advantage of circumstances to seize the child. That prospect would be horrific in any circumstances but especially where the child has particular needs for stability and structure. Having read many documents and sat though several hearings, I feel that Frank now knows he hasn’t got the capacity to meet Charlie’s needs as a full-time task. However, I don’t know if Millie will see anything differently than she did before this judgment. The psychologists, guardian, and judge obviously think there is a prospect of co-parenting. I hope they are right.