W (A Child), Court of Appeal - Civil Division, August 15, 2018, [2018] EWCA Civ 1904

Resolution Date:August 15, 2018
Issuing Organization:Civil Division
Actores:W (A Child)
 
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Case No: B4/2018/1218

Neutral Citation Number: [2018] EWCA Civ 1904

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

HIS HONOUR JUDGE BROMILOW

Sitting as a Deputy High Court Judge

HIGH COURT OF JUSTICE

FAMILY DIVISION

FD17P00388

Strand, London, WC2A 2LL

Date: 15/08/2018

Before :

LORD JUSTICE MOYLAN

LORD JUSTICE HOLROYDE

and

LORD JUSTICE PETER JACKSON

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Between:

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Mr E Devereux QC and Mr J Green (instructed by Best Solicitors) for the Appellant

Mr H Setright QC and Mr M Gration (instructed by Dawson Cornwell Solicitors) for the Respondent

Hearing date: 30th July 2018

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JudgmentLord Justice Moylan:

Introduction

The father appeals from the order made on 30th April 2018 by His Honour Judge Bromilow, sitting as a Deputy High Court Judge. By this order the judge set aside the previous order he had made on 30th November 2017 under The Hague Child Abduction Convention 1980 (``the 1980 Convention'') by which he had ordered the mother to return the parties' child to Spain by 28th December 2017. He did so because he considered that there had been a ``sea-change'' since he had made that order because of a significant deterioration in the mother's mental health. He made a number of directions leading to the proposed rehearing of the father's application.

I gave permission to appeal largely because this case appeared to provide the opportunity for this court to consider whether the High Court has jurisdiction to set aside a final order made under the 1980 Convention. This is an issue which has been referred to in previous Court of Appeal decisions but never determined: see, for example, Black LJ (as she then was) in In re F (Children) (Return Order: Appeal) [2017] 4 WLR 4, [26] and [27]. However, following the hearing, I have come to the conclusion that, for a number of reasons, it is neither necessary nor appropriate for this court to address this issue in this case. The reasons for this can be briefly summarised.

First, at the conclusion of the hearing Mr Devereux QC, for the father, effectively accepted that the substantive application has to be reheard given the circumstances as set out below. In the event of the appeal being allowed, he accepted that he could not stand in the way of this court giving the mother permission to appeal out of time. He also effectively, and in my view rightly, acknowledged that, given the judge's conclusions as to the impact of the new evidence about the mother's mental health on his original decision, we would be likely to allow the appeal and order a rehearing. As a result, the outcome for the parties and B will be the same, whether we dismiss or allow the appeal, namely there will be a rehearing. The appeal has, therefore, in practical terms become academic.

Secondly, the case was listed for hearing on short notice, leading to the parties not being in a position fully to argue the legal questions which the issue identified above raises. Additionally, my further researches since the hearing have led me to conclude that the proper meaning and scope of section 17 of the Senior Courts Act 1981 requires significant additional argument (as I will seek to explain below).

Thirdly, because of delays which have already occurred, this case is now urgent and any further delay, which would be required if the central issues were to be substantively addressed by this court, would, frankly, be unacceptable.

Accordingly, I propose, as a pragmatic way of dealing with the case, that the appeal is dismissed and that the directions given by the judge for the purposes of the rehearing are implemented and the matter listed as a matter of urgency.

However, despite coming to that conclusion, I propose to summarise the parties' respective submissions and make some brief observations about the legal issues raised by the single ground of appeal, which contends that the judge was wrong to decide that the High Court has jurisdiction or power to set aside a final order made under the 1980 Convention. As will be seen, my provisional view is that this submission is not well-founded.

Background

I propose only to set out only the briefest summary of the history.

The mother is British. The father is Spanish. They have one child now aged 8 (who I will call ``B''). The parties met in Spain where the mother had spent a substantial part of her childhood. They were in a relationship until early 2014. Following their separation and with the assistance of lawyers the parties entered into an agreement which was approved by the Spanish court and which provided for B to live with the mother and to have regular contact with his father.

On 12th October 2016 the mother travelled to England with B. It appears to have been accepted that this was a wrongful removal.

Proceedings

As will become clear, the proceedings in this case have not followed expeditiously from the date of the wrongful removal. During the hearing we did not explore the reasons for this but I set out the timetable to explain why the case undoubtedly now requires expeditious determination.

The father did not commence proceedings under the 1980 Convention in England until 27th July 2017. I should make clear that neither the father's legal representatives nor the International Child Abduction and Contact Unit were responsible for any part of this delay. ICACU only received the request on 18th July 2017 and the father's solicitors were promptly instructed on 20th/21st July.

The first effective hearing did not take place until 11th September because the mother was not located and served until 8th September. In her response to the father's application the mother relied on Article 13(b) (a grave risk that the child's return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation) and B's objections (that he objected to being returned to Spain). The final hearing took place on 14th/15th November 2017. At the hearing the judge heard oral evidence from a Consultant Psychiatrist who had filed a report on the mother. Her mental health and the effect on her of returning to Spain were the foundation of the mother's reliance on Art 13(b).

The judge gave judgment orally on 15th November. The subsequent order, which was not made until 30th November, required the mother to return B to Spain by 28th December 2017 on the basis that B would remain in her care.

On 11th December 2017 the mother applied for the order of 30th November to be set aside and for the instruction of the psychiatrist to provide a further report. The substantive application was based on the mother's already precarious mental health having ``markedly deteriorated'' since the hearing (as set out in the statement filed by her solicitor). After a brief directions hearing, the mother's application came back before HHJ Bromilow on 19th December 2017. He gave permission for the further instruction of the psychiatrist to provide a report on the current state of the mother's mental health and the likely impact on her of her returning to Spain. The mother's application for a rehearing was listed for determination on 15th/16th March 2018. We were told that these dates were the earliest that the judge could hear the case in London. In my view this was not sufficient to justify such a significant delay. An alternative means of conducting an earlier hearing should have been found.

As I have already explained, beyond the explanation for the delay until 15th March, we did not explore the reasons for the case progressing so far outside the 6-week requirement. However, it is plainly unsatisfactory, to put it mildly, that a year should have elapsed since the father made his application without it having been finally determined. There is a heavy obligation on the parties and the court to make sure that proceedings under the 1980 Convention are completed expeditiously.

The Judgments

In his first judgment of 15th November 2017...

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