England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE PORTSMOUTH COUNTY COURT
(Her Honour Judge Bonvin)

		The Royal Courts of Justice The Strand London Thursday 13 December 2001

Thursday 13 December 2001

1. LORD JUSTICE THORPE: There have been ongoing public law proceedings in the Portsmouth County Court in relation to four young children who were born to the appellant and her husband respectively in March 1995, April 1996, August 1997 and May 2000.
2. The proceedings developed to the point where the local authority holding interim care orders was content to return the children to the care of their parents on 5 December 2001. At a hearing before Her Honour Judge Bonvin on 30 November orders were made by consent renewing the interim care order and making provision for the preparation towards a final hearing next spring. Underlying those orders made by consent was the agreement that the children would go home on 5 December.
3. Counsel for the parents then made what was effectively an application without notice for permission to remove the four children from the jurisdiction for a period of 14 days to participate in the Eid celebrations in Morocco with the mother's family. The application was opposed by the local authority and by the guardian ad litem, but granted by the judge subject to certain conditions. All these provisions are to be found in paragraphs 6 and 7 of her order. Those paragraphs read as follows:

"6. That there be leave to the 1st and 2nd Respondents to remove the children from the jurisdiction for the purpose of a holiday for a maximum of 2 weeks to Morocco on condition that:

(a) That the children do not leave before the 14th December 2001.

(b) The parents supply to the applicants, the Guardian and the court the address to at which the children will be staying.

(c) The parents show to the local authority and supply photocopies of the return air tickets for themselves and the children.

(d) That the parents enter into undertakings attached.

(e) That the departure date be no later than 23 December 2001.

7. That there be liberty to the applicants and guardian to apply in respect of paragraph 6 if the passports show that the children have not visited their maternal grandparents on average every 6 months."

4. The undertakings to which paragraph 6 refers were entered into immediately and the solicitors for the guardian holding the passports of the children made an investigation which led to the conclusion that there was no scope for application under the liberty to apply contained in paragraph 7. Accordingly, the local authority, by a notice of application, sought permission to appeal. That was put before me as an urgent application and on 11 December I directed this oral hearing with appeal to follow if permission granted.
5. The parties have helpfully filed skeleton arguments in support and in response, and the guardian ad litem has filed a written submission supporting the local authority in the appeal. That skeleton argument reveals that two of the passports have recently expired. Equally, the skeleton argument filed for the mother reveals that the parents intend an overland journey rather than flights. So we have investigated the practicalities and we have learned from Mr Deighton, who represents the mother, that it is their intention to renew the passports in order to achieve a departure within the timeframe set by the judge. We have also been supplied with the address of the maternal grandmother in a town in the Fez region and we have been assured that the overland journey by use of the ferry from Portsmouth to Santander can be accomplished in approximately 36 hours.
6. So on the basis of those practical developments, we have heard Miss Magee's eloquent submission to the effect that the order made by the judge was plainly wrong. She flirted with the proposition that the judge had no jurisdiction to make the order by virtue of the provisions of section 9(1) of the Children Act 1989, but dutifully drew attention to section 33(7)(b), which in my opinion plainly provides jurisdiction for it reads:

"While a care order is in force with respect to a child no person may ....

(b) remove him from the United Kingdom without either the written consent of every person who has parental responsibility for the child or the leave of the court."

7. Secondly she has submitted that this order was plainly wrong, since these children essentially require the protection and supervision of the local authority under the terms of the interim care order. Their removal, even for a holiday, deprives the local authority of the opportunity to carry out essential monitoring in the early phases of rehabilitation to inform their decision-making as the case develops towards its final listing. She emphasises the risks of the parents abusing this permission, saying that they have demonstrated themselves to be extremely distrustful of the local authority. They regard themselves as victims of authority and accordingly are more vulnerable to flight than they would otherwise be.
8. The submissions that Miss Magee advances are not without force and certainly, were the discretion for us to exercise, would make me hesitate before sanctioning an application of this sort brought without notice. But we do not exercise a discretion. We only review the exercise of Judge Bonvin's discretion. We have an approved note of her judgment which plainly demonstrates her careful weighing of all the relevant factors before reaching a conclusion. There is some criticism of her description of a loss of a week's schooling as "de minimis" when, says Miss Magee, the value of that week of schooling is not so much a week of teaching for the children as a week of testing the parents' ability to deliver the children to school on time and fit for school work. I cannot regard that as a major criticism, particularly on referring to paragraph 6 of the note, where the judge specifically has regard to loss of local authority control.
9. Of course there is a possibility that these parents will take flight and will abuse this permission to escape from the monitoring and protective functions of the local authority. Against that, as Mr Deighton has pointed out in his skeleton, the mother has a settled home in this jurisdiction and enjoys state benefits which she might not match in her home country. I also have regard to the fact that, although Morocco is a non-Convention country, it has recently indicated its intention to accede to the Convention and was strongly represented by a delegation at the Fourth Special Commission in March 2001. Morocco therefore has demonstrated its commitment to regulating the unlawful movement of children and would certainly wish to be seen by existing member states as responsible in collaborating to achieve the return of children wrongfully removed.
10. The judge very specifically weighed the arguments advanced by the local authority against the fact that the Eid festivities are very special for the Islamic communities and that children would have the advantage of being able to enjoy themselves in the bosom of the family. The judge balanced what she described as "the acknowledged risks", and she further recognised the possibility that she might be proved wrong. Nonetheless, she exercised her discretion to grant rather than to refuse the application.
11. It may be that the parents were fortunate. It may be that many circuit judges would have adopted a more cautious, even, perhaps it might be said, a more conventional approach. But I cannot myself see that, where a judge has had due regard to the relevant pros and cons and reached a conclusion which is fully explained and not plainly wrong, there is any room for this court to intervene. So, despite Miss Magee's helpful submissions, I would merely grant permission and, having entertained the appeal, dismiss it.
12. LORD JUSTICE MORLAND: I agree.
ORDER: Appeal dismissed. Paragraph 6(c) of the order varied to substitute for "air tickets", "return ferry tickets". No order for costs save that the respondent's costs be assessed on a public funding basis. (Order not part of approved judgment)