A Non Hague Convention country

by Martine Wernsen | Feb 12, 2023

What can be done if your child has been abducted in a non Hague Convention country?

High Court of Justice, London, UK

2 December 2022, EWHC 3465

The facts

The mother is Algarian. The father British and Algerian and the boy (2 years old) has both nationalities. The boy is born in England, where they lived as a family. On 30 November 2021, the family went to Algeria for a holiday. Once in Algeria, the father filed for a divorce in Algeria. And he decided to retain the mother’s and the boy’s travel documents, including their passports.

The mother was able to travel back to London on 1 February 2022 (with assistance from the Brittish Embassy), but the Algerian border patrol stopped the boy from travelling. He staid with the mother’s family in Algaria until the father took him away. The father returned to London at the end of April and left the boy with the paternal family in Algeria. The father filed criminal charges against the mother in Algeria. The mother was sentenced to 6 months in prison for the abandonment of the boy.

Orders to return the boy to England

The boy was made a ward of court in May 2022, meaning a guardian was appointed for him. Because the boy had his habitual residence in England, the court found that it had jurisdiction to make decisions about his welfare. The father was ordered to bring the boy back to the England jurisdiction no later then 15 July 2022, then 25 July 2022, then 2 August 2022, then 4 September 2022 and then 19 October 2022. There had also been given a location order: the father and an other person served with this order must hand over to the Tipstaff (for safekeeping until the court makes a further order) all passports that the boy could use to leave England and all passports that the father could use to leave England. Another order prohibited the father from applying for or obtaining any other passport that he or the boy could use to leave.

It became clear that the father travelled from England to Algeria on 16 September 2022, using a passport that spelled his first name as ‘Sid Ali’ in stead of ‘Sidali’, therefore the port alert was not effective and Tipstaff was not alerted.

Commital of the father

The mother then seeks the commital to prison of the father, based on several breaches of court orders. The father did not appear in court, nor was he represented. The court had to decide if it could continue and make a decision without having the father present. The court refers to R v Jones (2003) 1AC1, R v Purvis (2001) QB 862 and decides to give it’s decision in this procedure.

Suspended imprisonment

The court then must decide what sentence to impose on the father for the breaches. The court refers to Bailey v Bailey (Commital) (Rev1) (2022) EWFC, Hale v Tanner (2000) EWCA Civ 5570 and Thorpe v Thorpe (1998) 2 FLR 127. The court must decide on what kind of sentence, for how long and whether or not to suspend the imprisonment. The court emphasized that the primary concern is to secure the return to their jurisdiction of the court’s ward, this boy. The court gave the father an 18 months’ imprisonment, to be suspended for a period of 2 years, offering the father a last chance to return the boy to England.

Non Hague Convention country

If Algeria was a Hague Convention country, the mother would have been able to file a return application for the Algerian court and ask for a return order for the boy, which order would then be excecuted by the Algerian authorities. According to the Convention this procedure should take only a few months. But since Algeria is not a Hague Convention Country, this is the best the London High Court could do for the mother and the boy.

This was a case of mr Mani Sing Basi (barrister at 4bp), counsel for the mother, instructed by her solicitors from Dawson Cornwell.