England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs Justice Hogg)

		Royal Courts of Justice Strand London WC2 Tuesday 7th August, 2001

1. LORD JUSTICE THORPE: This is an application for permission and for an extension of stay on orders for the return of a little boy, V S, to Belgium, made by Hogg J first on 23rd July and then varied on 30th July.
2. All the difficulties flow from the mother's reaction to judgment. She was very upset by the order and that was perfectly foreseeable. She was admitted to the South Tyneside District Hospital on 26th July with a suspected heart attack. That led her solicitors to issue an originating summons on the following day seeking stay or variation of the judge's order. That summons came before the judge on 30th July and resulted in her variation.
3. The medical evidence before the judge on that day was a report from Dr Nasser, the consultant at South Tyneside, dated 26th July. In his central paragraph he said that she was admitted with a suspected myocardial infarction. However, the first two sets of tests created uncertainty in the diagnosis. That medical report, supplementing notes in the medical record from Belgium, must have caused the judge to wonder whether this was a real heart attack or whether it was simply a reaction to stress.
4. In those circumstances, it is not surprising that the judge made a relatively tough order extending the deadline for return from 31st July to 7th August, and providing that if that deadline were not met an opportunity for the father to collect V as soon as practicable after the expiry of the deadline.
5. The next series of developments all occurred on 2nd August. On that day the notice of application to this court was filed, Dr Nasser provided a further medical report and the mother was transferred on his advice from South Tyneside to Freemans Hospital in Newcastle.
6. The further report from Dr Nasser shows that subsequent investigation demonstrated that there had not been a myocardial infarction on 26th July. However, subsequent ECGs had suggested myocardial ischaemia and for the investigation of that possibility he had arranged the transfer to Freemans Hospital for urgent coronary angiography.
7. The skeleton argument supporting the application for permission informed the court that those tests would not be completed before 5th August. Upon that basis, on 3rd August I directed this hearing of the application on notice with appeal to follow if permission granted.
8. It is frustrating that today we have no further medical information, beyond a brief letter from the senior lecturer and consultant cardiologist at the Freeman Hospital, Dr Furniss, in which he informs the mother's solicitor that she is undergoing further investigation and that he is unable to give any details in view of the short notice received. The notice was indeed short, since the request came to him only at 2.00pm on 6th August in the form of a three-page solicitor's letter. He was responding to it at 6.30am this morning.
9. Mr Setright QC has said all that could be said in favour of the mother's application. But in the end it seems to me to boil down to little more than this. For the sake of the child this court should step back from ordering collection by the father until such time as the medical uncertainties have been resolved. Obviously if the mother is currently disabled and that disability is only transient, there remains a prospect that she will be the parent to return V to Belgium.
10. These applications will simply stand adjourned to be listed again in seven days. It is very important that the next listing is not aborted as this listing has been aborted. Accordingly, we will ask the Civil Appeals Office to fax to Dr Furniss this afternoon a request for information. We will ask Dr Furniss to answer our request by 2.00pm on Friday. The short questions that we ask him to answer are these: (1) what is the outcome of tests so far completed; (2) are any further tests required; (3) what is his opinion on the mother's cardiac condition; (4) is she presently fit to travel to Belgium, and if no when will she be?
11. It may be my Lord can improve upon the questions to the doctor or add to them.

LORD JUSTICE MANCE: No.

LORD JUSTICE THORPE: That is what I would propose for today. Does anybody want to raise anything this morning, Mr Setright?

MR SETRIGHT: My Lord, a possible fifth question would be: is she fit to take up the care of the child?

LORD JUSTICE THORPE: No, I am not prepared to ask that.

Anything from you Mr Carden?

MR CARDEN: No thank you, my Lord.

LORD JUSTICE THORPE: Thank you both very much. Well, we two will sit in seven days' time and we may or may not see present counsel.

MR CARDEN: Thank you, my Lord.