Court: High Court of Justice, Family Division, Royal Courts of Justice, London WC2, United Kingdom. Number: CA 122/89 Applicant: Mother and Respondent: Father Date: 23 Feb 1989 ================================================================= IN THE HIGH COURT OF JUSTICE No. CA 122/89 FAMILY DIVISION Royal Courts of Justice London WC2 Thursday, 23rd February i98' Before: MR. JUSTICE WAITE Re BATES (Minor) MISS P. SCOTLAND and MR. D. M. THOMPSON (instructed by Messrs Malkins Cullens & Sumption) appeared on behalf of the plaintiff MR. L. SWIFT QC and MR. N. CARDEN (instructed by Messrs Sheridans) appeared on behalf of the defendants Tape transcription by C. H. Blackwell & Partners 283 Croxted Road, London SE2l 8NN (01-670 9927) JUDGMENT (As approved) Thursday, 23rd February 1989 JUDGMENT MR. JUSTICE WAITE: This is an application under the Child Abduction and Custody Act 1985 giving effect to the 1980 Hague Convention on the civil aspects of international child abduction. It relates to a young girl, aged two-and-a-half, of Anglo-American parentage. Last Thursday week, 9th February 1989, she was removed by her English nanny from the care and control of her American mother in New York and brought by air to this country. The abduction took place with the knowledge and approval of the child's English father, who had telephoned his authority to the nanny from the Far East, where he is temporarily working. On discovering the child's disappearance the mother acted with great promptness. The police and federal authorities were alerted during the night of 9th/10th February, as a result of which the central authority for the purposes of the Convention in New York sent immediate notification to the equivalent central authority in England, which is the Lord Chancellor's Department, via the United States Embassy in London, to the effect that the child had been wrongfully removed within the meaning of article 3 of the Convention; removed, that is to say, from the State of New York, as her habitual residence, in breach of rights of custody attributable under New York law to, inter alios, her mother. The Lord Chancellor's Department gave immediate authority to the mother's English solicitor to take proceedings under the Act and an originating summons joining the father and the nanny as defendants was issued at once. These arrangements had all been completed by about noon on Friday, 10th February. While they were in progress the mother had set off in hot pursuit of her child, catching a Concorde flight to London. Nanny and child had arrived only a few hours ahead of her at Heathrow, where they were confronted by the airport police and the mother's English solicitor. As a result of discussions which took place at the airport the child and the nanny were allowed temporarily to stay with the child's paternal grandparents, who live near Birmingham. Thanks to the speed of modern communications and the time difference between the two countries, everyone concerned except the father was either in England or about to land there by lunchtime on that Friday. The lawyers in the case seem at that point to have decided to do their best to match the slow and dignified processes of the law to the speed of Concorde. The result was a flurry of activity in this building that Friday afternoon. The father's London solicitors, acting on his instructions from the Far East, had already issued an originating summons making the child a ward of the English court. In temporary ignorance of that fact, the mother's representatives applied in the early afternoon ex parte to the applications judge, Ward J., for a peremptory order under the Child Abduction Act for the child's immediate return, notwithstanding that no hearing of the originating summons under the Act had yet taken place or, so far as I am aware, been arranged. The judge made an immediate order giving the mother custody of the child and leave forthwith to remove her from the jurisdiction, making it plain, however, that he expected notice of his order to be given at once to the father's solicitors. That was not difficult to arrange because by then the father's solicitors were in the process of giving, or had already given, notice to the mother's solicitors of their wardship proceedings; to which the immediate response of the mother's lawyers was to find another judge, Mr. Nicholas Wall, Q.C. (sitting as a deputy judge of the High Court) from whom they obtained an immediate order summarily dismissing the father's wardship proceedings on the ground that to have allowed their continuance would have frustrated the peremptory return order which Ward J. had just granted. That left the father with no recourse but an appeal, and late that same afternoon an urgently convened appeal court, Kerr and Balcombe L.JJ., made a holding order in the form of an interim care and control order in favour of the mother pending an inter partes hearing of her application for a peremptory order under the Convention, which the court directed to be held on a date between l3th and l7th February 1989. That hearing duly started before me on Wednesday, 15th February. It has proceeded by agreement as in effect the hearing of the originating summons. A considerable body of affidavit evidence had been sworn on both sides in time for the hearing, and the father's counsel, Mr. Swift, who appeared with Mr. Carden, did not ask for any adjournment. The father, although in regular touch with his solicitors by telephone and fax, has not himself supplied any evidence by affidavit or otherwise. He has relied to a considerable extent on his co-defendant, the nanny, to maintain his case against the mother and support it with her oral and affidavit evidence. Such is the procedural background to the family history, to which I now turn. The mother is 29 and the father 26. They were married in August 1984. Tatjana, their only child, was born on 23rd August 1986. The mother is a tall, elegant young woman born and brought up in the United States of America. In her late teens she developed addiction to amphetamines which was only cured after a long spell of voluntary hospital treatment. There has been no recurrence of that problem. She is a forceful and also an emotional person. She admits to a strong temper when roused or thwarted. She is devoted to Tatjana, as many observers have agreed and as can readily be seen from photographs of mother and child together and the detailed diary which the mother has maintained of the little events in her daughter's life. The mother is still determined, despite the upsetting events of recent days, to keep her marriage together if she can, for everyone's sake and particularly for Tatjana's. The father I have not seen. He was born and brought up in England. I accept the unchallenged evidence of a friend of both parents that he is of a less forceful personality than his wife and tends in many ways to be dependent on her. For most, if not all, of the parents' married life the father has experienced phenomenal, almost legendary success as a pop musician. He is a member of a musical band that enjoys international renown and very high earnings, but which moves at the feverish pace of those performers who share with their managers the knowledge that a place at the top of the charts is tenuous and transient. An almost ceaseless round of public engagements, rehearsals and recordings means that the father has mostly to work by night and sleep by day and be constantly on the move around the world. The mother, by his express wish and also by her own inclination, has been consistently at his side, sharing the same life. The result has inevitably been that Tatjana, for the whole of her young life, has been in the day to day care of a nanny, who has perforce been her primary carer. Unfortunately it has not always been the same nanny. There have been four of them so far, consecutively. Tatjana has become attached to each of them in turn and they to her. It is too early yet to judge the influence of cause and effect and to assess how far Tatjana's difficulties are innate or due to the circumstances of her unusual life, but it is common ground that her development has been slow. She has speech difficulties and her vocabulary is deficient for her age. Both parents acknowledge that she needs therapeutic help to overcome these problems. Her life until now must have been the most nomadic almost, ever to have been experienced by any child of her age. She has accompanied her parents in rented apartments and numerous hotel suites on both sides of the Atlantic, and on stays with her English and American grandparents in Worcestershire and Florida. The father owns a house in London and if the family can be said to have a base anywhere it has been in that house. It has been the home to which they have returned after overseas tours and during such brief respites as the father has enjoyed from his professional engagements and it has been occupied during such periods as he has been professionally engaged in this country to the limited extent that his financial advisers have so far deemed fiscally prudent. The parents' marriage has for some time been under a strain imposed partly by the unusual life they are forced to leave and partly by clashes of temperament. There have been rows and reconciliations and even now there is hope that the strong attachment they still feel for each other will keep them together. Tatjana's nanny for the first months of her life was an experienced maternity nurse, Miss Wilson, in her forties, who is acknowledged to have been admirable in every way. The three more recent nannies have been younger women, more of the parents' own age. They seem to have been treated with an easy familiarity which made them a close confidante of both parents, of the mother in particular, and left them with an ascendancy unusual in the employment relationship. This has been particularly true of the most recent nanny, Miss Bernadette Grant. She was employed by the parents as Tatjana's nanny from mid-July 1988. The events giving rise to the current application began in the Christmas period of 1988. The family was staying with the father's parents in England. The paternal grandmother told me that she made this the occasion of a good talking-to for both parents, telling them she thought they were being selfish in putting the demands of their own unusual lifestyle with its hectic professional and social commitments above the needs of their child. To their credit, both parents took that to heart, but it unfortunately tended at the same time to sharpen their differences, because of their diverging views as to how the problem was to be resolved. The father's band was at this point due to embark on a world tour which would take in first the United States of America and then the Far East, ending with a stay of as yet undecided length in London from the middle or end of April 1989. As part of those plans the parents had arranged to rent or borrow a New York apartment temporarily from a fellow member of the father's band. The family moved into it towards the end of January 1989, after spending some time in a New York hotel and also a spell in Florida, part of which was passed with the maternal grandparents who live in that state. Earlier that month the mother had consulted a speech therapist in New York, with whom she had discussed arrangements for sessions which would also be attended by the mother. Plans to finalise those arrangements with the speech therapist were frustrated by Tatjana's eventual removal to England. On 2nd, 5th, 6th and 7th February 1989 the mother, Tatjana and Miss Grant accompanied the father on engagements in Los Angeles (California), Portland (Oregon), Vancouver (British Columbia) and Seattle (Washington). During this period an acute difference arose between the parents. The father was due to leave shortly for the Far East. He said he wanted Miss Grant and Tatjana to go to the London home and await his return there in April. The mother was free at her choice, he said, to accompany them or join him for a spell in the Far East. The mother was adamant that she wished to remain, during the father's Far East tour, in New York with Tatjana and her nanny. the father in the end reluctantly agreed to that course. In doing so he made it clear, however, that he regarded Miss Grant's presence as being essential to look after his interest, to maintain surveillance and to report back to him. He told Miss Grant privately that if the mother was, as he expressed it, "mean" to her, she was to report to him straight away. Very shortly after the father's departure for the Far East there was a furious row between the mother and Miss Grant. It was started, or at least escalated, by a statement by the mother that the time had come for her to do what so many people had been urging her to do for so long and devote more of her time to the day to day care of Tatjana . She proposed to act straight away, she said, towards weaning Tatjana from her dependence upon Miss Grant by giving the nanny the coming weekend off and inviting the mother's sister to stay. Miss Grant saw that as a threat to the arrangement which had been approved by the father and as an affront to her own dignity and the view she had by then taken of her authority. She telephoned the father in the Far East in a state of considerable agitation. He authorised her to take Tatjana immediately to England, with the consequences which I have already described. When this hearing began on 15th February Miss Scotland appeared in the dual role which the mechanism of the Convention imposes on all those who represent a party applying for a return order. Their instructions derive in part from a parent who is likely, in the nature of such cases, to be extremely anxious and upset and in part from the Lord Chancellor, as the central authority in England for the purposes of the Convention. He is bound, in the nature of his office, to be principally concerned with the administrative and policy implications of such cases. That imposes on the applicant's representatives a difficult dualism and I am grateful to Miss Scotland and her instructing solicitor for the efforts they have made to combine those functions in the present case. Mr. Swift had warned Miss Scotland before the hearing began that he was proposing to challenge the wrongfulness of Tatjana's removal within the terms of the Convention on the ground that the child was not, as he would contend, habitually resident in New York at the date of abduction. It was also plain from the affidavits that had by then been sworn by Miss Grant and her two immediate predecessors that it was proposed, as a second-string argument, to contend that if the Convention did apply so as to make the removal unlawful, the court had a discretion under article 13 not to make a return order on the ground of alleged grave risk to the child's physical and emotional welfare if returned. Very sensibly and understandably, counsel decided not to take up time on the niceties of onus of proof or the right to begin. Miss Scotland might, strictly speaking, have been entitled to say that, since she had the benefit of a certificate from the central authority in New York addressed to the central authority in England to the effect that the removal had been wrongful within the terms of the treaty and since the onus of proving grave risk under article 13(b) lies undoubtedly on the party alleging it, Mr. Swift ought to be have been made to assume the onus of proof under both heads. As it was, Miss Scotland undertook the opening of the case under both those issues without prejudice to any general issue as to where the burden of proof lay. The case thus proceeded for three days of evidence on those two issues: was Tatjana habitually resident in New York at the date of her abduction; and could Tatjana be at grave risk within the terms of article 13 if she was returned? The father, as I have said, did not give evidence, personally or by affidavit or statement, on either issue. He relied on the phalanx of young nannies, Miss Grant and the two predecessors whom she had contacted on her arrival in Britain and who have sworn affidavits. His mother also gave evidence on her son's behalf, though with obvious reluctance and with understandable distress. The mother gave evidence herself, with the support of the family's London general practitioner and a friend. An affidavit from another friend of the mother was not challenged. Each side made generous use of the opportunity to supplement the affidavit evidence by questions in chief; and cross-examination of the principal witnesses, the mother on one side and Miss Grant on the other, was extensive. Evidence did not close until fairly late in the afternoon on Friday, 17th February and the speech of leading counsel for the father was still by no means concluded when the court rose for the weekend. Unfortunately Mr. Swift was compelled at that point to ask to be released from the case because of other commitments already arranged for this week, and the burden fell on his junior, Mr. Carden, to conclude the argument for the father. He has discharged that admirably and I am most grateful for the able assistance he has given the court, the more so as the burden which he was required to assume turned out to be appreciably heavier than he can ever have expected as a result of the developments which I must next mention. Unknown at the time to this court or to the father's advisers, steps were being taken last week in New York by the mother's English and United States advisers, concurrently with this hearing in England, to obtain a declaration from a judge in New York that Tatjana's abduction had amounted to a wrongful removal within the meaning of the Convention. That would of course inevitably involve an adjudication in New York upon the first of the two issues that were still in the process of being so strenuoulsy contested before myself in England, namely the question whether Tatjana was habitually resident in New York at the date of abduction. There was an ex parte hearing before Judge Elliot Wilk in the Supreme Court of the State of New York on that same Friday, l7th February, upon which we had reached the stage in England of closing speeches. Judge Wilk made two orders. One was a simple and unqualified order (to which it will be convenient to refer as "the unqualified order") in the following terms: "It is hereby ordered and declared as follows: 1. New York was the habitual residence of the child Tatjana Bates immediately prior to February 9, 1989. 2. On February 9, 1989 Tatjana Bates Rhodes was wrongfully removed from New York in breach of actually exercised custody rights of plaintiff mother." The other was an order (which I shall call "the order to show cause") requiring the father, on the following Wednesday, 22nd February 1989, to show cause before the New York court why an order should not be made in the form inter alia of precisely the relief already granted by the unqualified order. The operative part of the "show cause" order declared that the court "had reason to believe" that the child was habitually residing in New York at the material date, awarded temporary custody of the child to the mother, and directed that the order be transmitted to the Family Division in England. Mr. Carden first learned of the existence of these orders at 9.30 last Monday, 20th February, and copies were handed in to me when this hearing resumed at 10.30 that day. Mr. Carden continued with the task of concluding the closing speech on behalf of the father upon the basis of the issues as they had stood at the start of the English hearing. He reserved the right to deal with any submission that might be made by Miss Scotland in regard to the recently obtained New York orders until after she had made clear exactly what those submissions were. In the course of her reply Miss Scotland made a fresh submission, which had not of course been previously open to her, namely that the first issue, habitual residence, was no longer open for determination in England but was concluded by the New York orders. There was obvious force in that submission, but when its implications came to be further argued on the Tuesday morning of his week there was evident doubt as to how final or definitive Judge Wilk had intended his order to be. The unqualified order, standing alone, had all the appearances of a final order, but the simultaneous "show cause" order threw doubt on that and suggested that it must have been intended as an interim declaration pending a final determination at the hearing fixed for 22nd February. Since we were by then at 21st February, I decided that the best thing in all the circumstances would be to adjourn the case for the 48 hours necessary to enable that inter partes hearing in New York to take place. I anticipated, I confess, that the result of that step would be that there would come into being in New York an order sufficiently definitive and final to enable Miss Scotland to further her submission, which clearly involves a general principle of some importance, that when the wrongfulness of a removal has become res judicata in the requesting country, it binds the courts of the addressed country so as to make the issue of wrongful removal res judicata in the courts of both the requesting and the requested state. I gave a reasoned judgment for my decision to adjourn, including a brief outline of the state which the proceedings had by then reached in England, and both counsel helpfully agreed a note of my judgment so that it could be faxed to New York and placed before Judge Wilk for any assistance that it might prove to have for him. It was learned, when the English hearing resumed today, that when the inter partes hearing took place in New York yesterday there was fairly protracted legal argument on both sides. Again the judge made two orders, the detail of which and their interrelation to each other is still confusing, at least to minds unused to the technicalities of New York law. The gist, however, is plain and is comprehended in these words quoted from paragraph 1 of one of the orders of 22nd February. It reads as follows: "This court would be required to hold a factual hearing with witnesses and submissions by the parties in order to make a final determination under article 15 of the Hague Convention, and such hearing could not commence before March 1, 1989." Mr. Thompson of counsel, who in the enforced absence today of Miss Scotland, has come to the court's assistance on behalf of the mother, has made common cause with Mr. Carden in reaching the sensible decision that it would not be in anyone's interest to adjourn this application yet again and await a further-hearing in New York. Counsel are satisfied that it is implicit in Judge Wilk's latest orders that no discourtesy or breach of the spirit of of the letter of the Convention would be involved if I were to proceed here and now in England to decide the issue of wrongful removal on the basis of habitual residence in the light of the evidence which I have heard on that issue. It is implicit in the decision of the Court of Appeal in Re C. of 14th December 1988, so far reported only in The Times newspaper, that the courts in England have jurisdiction, at all events in the absence of any definitive finding of wrongful removal in the courts of the requesting state, to determine an issue of wrongfulness for themselves. It is thus agreed that there is no longer scope in the present case for Miss Scotland's submission as to res judicata. That will have to be determined on some other occasion. For present purposes this case is back, therefore, where it started when it was first opened. I have first to decide the issue of Tatjana's habitual residence, and then (but only of course if that issue is resolved in the mother's favour) the question of grave risk. The eleventh edition of Dicey and Morris on The Conflict of Laws contains the following helpful passages at page 166 and following, on the topic of habitual residence. I will quote two brief extracts. "'Habitual residence' has long been a favourite expression of the Hague Conference on Private International Law. It appears in many Hague Conventions, and therefore in English statutes giving effect to them, but is increasingly used in statutes not based on international conventions. One of its first uses at The Hague was in the context of the custody of children, largely because of the artificiality of domicile as applied to young children. No definition of 'habitual residence' has ever been included in a Hague Convention. This has been a matter of deliberate policy, the aim being to leave the notion free from technical rules, which can produce rigidity and inconsistencies as between different legal systems." Then a little further on: "It is greatly to be hoped that the courts will resist the temptation to develop detailed and restrictive rules as to habitual residence, which might make it as technical a term of art as common law domicile. The facts and circumstances of each case should continue to be assessed without resort to presumptions or pre-suppositions." Although that decision was made in the different context of section 5 of the Domicile and Matrimonial Proceedings Act i9?3, I follow the judgment of Bush J. in Kapur v. Kapur [1984] F.L.R 920 in holding that there is no real distinction between ordinary residence and habitual residence. The governing principle for ascertaining the elements of habitual residence is contained in the speech of Lord Scarman in R. v. Barnet London Borough Council ex parte Shah [1983] 2 A.C. 309, where he says, at page 314: "and there must be a degree of settled purpose. The purpose may be one or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. That is not to say that the propositus intends to stay where he is indefinitely. Indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode, and there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled." When the facts of this case are analysed with those principles in mind, the result, in my judgment, is as follows. The New York apartment was taken on originally as a temporary base for Tatjana while the father was proposing to be in the Far East; it being common ground that the traveling, climate changes and so on would be too unsettling for it to be possible for the child to accompany her father there. The New York plan had acquired a more settled purpose by the time that the parties were in Seattle and Vancouver in the first few days of February, and the father's departure on his Far East tour was immediately imminent. New York had by then become the city in which the mother wanted to stay and in which the father had reluctantly agreed to allow her to stay with Tatjana, at least until the band returned to London in April 1989. The extent to which New York would feature in their lives thereafter would depend very much on the decision which the parents then made about their personal lives, both generally in relation to the future of their marriage and specifically in relation to the problem of reconciling Tatjana's special needs with the demands of the father' working career. In the mean time Tatjana was to receive speech therapy in New York in which the mother would participate. The residence whose habituality has to be established is that of the child. In the case of a child as young as Tatjana the conduct and the overtly stated intentions and agreements of the parents during the period preceding the act of abduction are bound to be important factors and it would be unrealistic to exclude them. I am satisfied that the arrangements that had been agreed, however acrimoniously, before the abduction date between the two parents for Tatjana's care, accommodation and therapy treatment in New York during the period of three months or so that would be due to elapse before the father's return to London amounted to a purpose with a sufficient degree of continuity to enable it properly to be described as settled. I am satisfied, in short, that Tatjana was habitually resident in New York State at the time of her abduction on 9th February. I am satisfied also that her removal by the nanny was in obvious breach of the mother's rights of parental guardianship (jointly with the father) under New York law, and that accordingly the child's removal by Miss Grant was wrongful within the meaning of article 3. I am bound therefore by article 12 to order Tatjana's return to New York forthwith, unless I am satisfied that, for the purposes of Article 13(b), there is a grave risk that her return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Grave risk, as the Court of Appeal accepted in Re A. [1988] 1 F.L.R. 365, means a substantial risk, one which is out of the ordinary. The mother's plans, should she obtain an order for Tatjana's return, would involve her staying in England for a short time to make the necessary arrangements for Tatjana's future care. It will come as no surprise to anyone that the mother would not propose to re-engage Miss Grant; any more, I suppose, than Miss Grant would be willing to accept such an invitation. The mother would like therefore, either to ask Miss Wilson, who is currently working in New York, to come back to her (and she has received some indication from Miss Wilson that this might be possible), or to engage a new nanny to be vetted by the family doctor, Dr. Wheeler, who gave evidence and is a physician in whom both sides have confidence. In deploying the father's arguments that the child would be at grave risk if returned under the various heads mentioned in Article 13(b), Mr. Carden was faced with the difficulty that the father has not seen fit to lay evidence before this court personally or by affidavit affirming his own belief that Tatjana would be at risk if returned to her mother. For this the father's case is dependent virtually entirely on the evidence of the various nannies about outbursts of temper on the mother's part and alleged episodes of her rough or inappropriate handling of the child. I am wholly satisfied that the evidence of the various nannies in this regard was greatly exaggerated and that Tatjana would be under no risk of physical injury, grave or otherwise, if she were to be returned to her mother's care. Under the head of psychological harm, Mr. Carden relies upon the child's speech difficulties and the fact that she is undoubtedly at present nanny-dependent, but I do not consider that really affects the position at all because no one suggests that the speech therapy she would receive in New York is in any way inferior to the equivalent therapy she would receive in London, and she would have a nanny on either side of the Atlantic anyway. Then Mr. Carden wraps all the considerations under the Article together and says that Tatjana would be at grave risk of physical or psychological harm or of being placed in an intolerable situation because the mother is allegedly prone to take cocaine. This aspect of the case was gone into very deeply in evidence, and I am satisfied that the true position is the following. The mother, because of her past difficulties many years ago, is well aware of the problems of addiction. She knows that cocaine is an evil and pernicious drug, capable of ruining her life as much as it is any other's. There have been a few occasions - and I am satisfied that they have been only a few - when the mother has taken a line of cocaine, that is to say, snorted it, when she has been to a late party and perhaps had too much to drink. It is to be remembered that in the circles in which the mother moves cocaine is, most regrettably, all too readily available. I am convinced that the mother has formed a genuine resolve never again to allow herself to be exposed to the least temptation to take hard drugs and I am satisfied also that she will stick to that resolve. She was unwise enough recently to accept an offer of puffs on a marijuana joint from a friend, but it made her feel giddy and she is similarly resolved to have no further truck with soft drugs. I believe the sincerity of that resolve also. I am moreover satisfied that this case, distressing though it has been for her, has shocked her into a dramatic awareness of something that she was beginning to know already, namely that she must plot a new course in the life of herself and her child. She must have earlier nights and fewer parties and play a much more significant role in the ordinary everyday tasks of child minding. In summary, I find that there is no risk, certainly no grave risk, that the child's return would expose her to physical or psychological harm or otherwise place Tatjana in an intolerable situation. That finding means that I have no discretion under the Act. It becomes my duty under article 12 to make an order for the return of Tatjana forthwith. That is not to be understood as standing in the way of the mother's plans to remain in London while she makes her arrangements about the future care of Tatjana, as I have mentioned; nor, least of all, is it intended to prevent her remaining here long enough to try to establish the reconciliation which she still wants with her husband. I hope that it is possible for that to take place. If it does, they will have learned many lessons from the unfortunate events I have described. One of them perhaps will be that nannies, as much as the rest of us, are liable to have their heads turned if they are given too much power, and that it would be wiser in future to stick to a more formal relationship. Before I leave the case there are two comments which I think it might be helpful to make. I wholly accept that the decision not to tell the father's advisers or the court about the proposed application to the New York judge last week was undertaken responsibly and after full and careful consideration. It was nevertheless, in my view, an unfortunate decision. These cases are, in the nature of things, bound to involve a sense of urgency, clients whose feelings run high, and strong apparent advantages in tactical gains. Nevertheless, the smooth and harmonious functioning of the Convention requires that the parties' advisers should, sometimes perhaps against their natural inclination, be scrupulously candid and open in their dealings with their opponents and the court, bearing in mind that they are enjoying the privileges of a fast priority procedure. The second comment is that the fast procedure is one already laid down by the Act and by order 90, and it ought, for most purposes in most cases, of itself to be rapid enough. It should not normally be necessary for either party to attempt to accelerate the procedure yet further by invoking interlocutory proceedings - especially ex parte interlocutory proceedings - in an attempt to obtain final orders on a summary or ex parte basis. The interlocutory process is always, of course, properly available to enable directions to be give (ex parte if necessary) for the care and control of, and access to, the minor in England while the hearing of the originating summons is still pending. The lesson of this case is, if anything, that in the law things can sometimes happen almost too quickly. Had an early date been obtained for the hearing of the originating summons and had the parties been willing to wait until then, there might have been time - who knows - for the dust to settle and for the soothing influence of calm and quiet deliberation to work its way towards the bringing about of an amicable resolution of the issues which it is the duty of the central authority under Article 7 of the Convention to achieve whenever it can. (Discussion as to costs)