Thursday 20th August 2015
Holman J in the recent case of Taukacs v Taukaca (2015) EWHC 2365 has described the current wording of standard location orders in Form 1A as being capable of seriously misleading police officers who are routinely asked by the Tipstaff to execute location orders.
In this case the father in July 2015 issued an application pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction asking for the summary return of his child “M” to Latvia. As is customary in such proceedings the High Court Judge made a location order in Form 1A requiring the Tipstaff to locate the child concerned and delivery up to the Tipstaff of documents.
The facts were as follows. The parents divorced in 2014 and in February 2015 the mother bought her 13 year old son “M” to England from Latvia. The parents had an older child “Z” aged 23 who also lives in England. Following the making of the location order on 29th July 2015, the police as agents of the Tipstaff were asked to execute the order.
On 29th July 2015, three police officers from West Midlands Police attended at the home of the mother with copies of the order in their possession. The mother upon service of the order handed over “M’s” passport and advised that “M” was in fact staying at the home of his older brother “Z”. The mother advised that she handed over her passport, however after noting the contents the police put it back on a table and made no effort to take it with them. The mother notified the police that she was due to travel to Majorca for the purpose of a holiday on 1st August 2015 but had no travel documents as a friend had booked the holiday. The police confirmed that mother could travel advising that the order only restricted the child’s travel. The mother on her evidence subsequently confirmed this with the police at West Bromwich who also advised her that she was able to fly. However when the mother boarded her flight on 2nd August 2015, she was subsequently arrested and detained in custody over the weekend on the basis that 1) She had not surrendered her passport and 2) that she was attempting to leave United Kingdom
The mother was brought before Holman J on 3rd August 2015 who released the mother and in giving judgement confirmed that the standard wording of the location order in Form1A was clearly ambiguous and was capable of seriously misleading police officers who are often asked by the Tipstaff to execute such orders.
At paragraph 2 of the order the respondent, in this case the mother, was required to hand over every passport relating to the child, including any adult passport by which the child is permitted to travel every identity card, ticket, travel warrant or other document to the Tipstaff. However at paragraph 2b, reference is made to the respondent and also the defendant and no specification is given in respect of the wording “defendant”. Therefore a police officer may not necessarily know that the defendant is also the respondent! Furthermore at paragraph 4b of the order, clear direction is given that the respondent must not permit or allow the child to be removed from the jurisdiction of England and Wales. This paragraph clearly only relates to the child and is thus clearly ambiguous when read in conjunction with paragraph 2.
What the case shows is that not only does the wording of the standard location order require redrafting to reduce ambiguity but that also that very clear, specialist advice needs to be given to clients who are served with these orders. In this case it is clear that as a result of ambiguities a terrible injustice was done to the mother. Such was Holman J’s concern over this case, he directed that not only was judgement of this case made as a matter of extreme urgency, but that it was to be drawn urgently to the attention of the President of the Family Division.
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