RJ v Tigipko

In April 2018 (in a judgment at [2018] EWFC 26) Mostyn J had refused an application by a mother, Ganna Tigipko, for permission to relocate two young children by the father, RJ, to live with her in the Ukraine.

During a subsequent mediation the parties agreed that the mother would have permission to take the children to the Ukraine for the purposes of a summer holiday in July 2018. The mother agreed that she should put up the sum of £1million as security for the father’s legal costs and the incidental expenses of legal proceedings in the event that the mother failed to return the children.

The day before the mother was due to return the children from Ukraine she texted the father to inform him that her father (i.e. the maternal grandfather) had applied to a court in Ukraine for an injunction preventing the children from leaving Ukraine. The father’s solicitors were then informed that the mother’s new husband had also made an application to the Ukrainian court concerning the children, but that this had been dismissed. It soon transpired that the maternal grandfather’s application to the Ukrainian court had also been dismissed.

Upon being told that the mother was refusing to bring the children back to England, Mostyn J made an order for the immediate return of the children and for the transfer of the £1million surety to the father’s solicitors pending the return of the children. Despite this the mother still did not return, and the children continued to reside with her in Ukraine.

The father made an application in Ukraine for the return of the children under the Hague Convention, but the application did not have a ‘promising start’. The father feared that the Hague proceedings would take months if not years to be concluded.

The father also referred the conduct of the mother and maternal grandfather’s to the police, who continued to investigate the matter.

In September 2018, the father applied for permission to identify the maternal grandfather as being involved in these proceedings. The application was for the relaxation of statutory reporting restrictions imposed by section 12 of the Administration of Justice Act 1960. It was not proposed that the children be named but the information proposed to be released would be capable of identifying them. The father therefore also made an inferential application to identify the children under section 97(4) of the Children Act 1989.

The father contended that identifying the mother and maternal grandfather would encourage the mother to bring the children back to this jurisdiction. He claimed that the maternal grandfather would be sensitive to the prospect of being named and shamed. The maternal grandfather is the former Vice-President of the Ukraine and a prominent businessman and, said the father, someone who is highly sensitive to any suggestion to publicity surrounding his alleged involvement in child abduction.

The court appointed a children’s guardian, funded out of the £1million surety, to visit the children in Ukraine and report upon whether publicity was in the best interests of the children.

Should the identification of the mother and maternal grandfather be permitted?

The judge granted the father’s application and permitted identification of the mother and maternal grandfather, but not identification of the father or children. He found that the applicable test was the paramountcy test in s.1 of the Children act 1989. This was because he was “determining a question with respect to the upbringing” of the children. The court was not carrying out a balancing test in which the rights of the media under Article 10 ECHR need to be balanced against other Convention rights with no right given automatic precedence. Public interest factors, advanced by a variety of media organisations who made representations to the court, were powerful but not therefore relevant in determining the father’s application.

The judge considered that it was not necessary to decide, as urged by the father, whether or not the Ukrainian judicial system is inefficient or corrupt.  The evidence did not come near the standard that is necessary to cross for such a decision to be reached. Generally speaking, the starting point and the usual finishing point should be that the judicial and administrative standards of an EU or 1996 Hague Convention state are as good as those in this jurisdiction.

The judge rejected the argument that the proceedings under the Hague Convention had to be allowed to run their course before he could allow publicity. He did not consider that the observations of Thorpe LJ in Lykiardopulo v Lykiardopulo  [2011] 1 FLR 1427 concerning the undesirability of the threat of public judgment being used as an aid to enforcement prevented the court from making the order which the father now sought.

Mostyn J concluded that, in light of the ‘profound, long lasting harm’ being suffered by the children as a result of separation from their father, he would grant the order. He accepted the case of the father, compellingly supported by the evidence of the children’s guardian, that there was a reasonable prospect that publicity would prompt the return of the children, and that publicity was therefore in the best interests of the children.

This unusual case shows how the court will approach the issue of publicity in a case involving the abduction of a child to a foreign jurisdiction.

The Court of Appeal rejected applications by the mother and maternal grandfather for permission to appeal.