England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR A STAY
(Mr Justice Bennett)

		Royal Courts of Justice Strand London WC2 Thursday, 27th June 2002

1. LORD JUSTICE THORPE: This is a renewed application for a stay which was refused on paper earlier this week.
2. The application arises in this way. Mr Justice Bennett had an application in wardship brought by the father of children for their immediate return to their homeland, India. The application could not be brought under the international Convention because India is not a party to the Convention. Accordingly, the application was bought in wardship. He heard the case. He had before him extensive evidence albeit not all the evidence and he reached the clear conclusion that the order was well justified. He was not impressed by the paper case presented by the mother. He ordered on 26th April that the children should go home forthwith. That order has yet to be executed because the mother exercised her right to renew an application for permission to appeal to this court.
3. The application was the subject of a learned skeleton supplied by Mr David Turner QC and Miss Francis Webber. That combination introduced into the legal team both Mr Turner's extensive experience in the Family Division and Miss Webber's no less extensive experience in immigration proceedings.
4. The application was deemed sufficiently substantial to justify a hearing before the full court. It was possible to constitute a court that included myself and Lord Justice Laws by 28th May. The need to include both a family specialist and an immigration specialist from this court inevitably led to some delay. We heard Mr Turner at some length on the afternoon of 28th May and Mr Setright briefly in response. We also had the advantage of submissions from Mr Qureshi, another member of the Bar experienced in immigration law. The court reached the clear conclusion that the appeal should be dismissed for reasons fully explained in the judgment of my Lord, Lord Justice Laws. Mr Turner made no application for permission to appeal, nor did he make any application for a stay. Accordingly, our order on 28th May simply dismissed the appeal and restored the order of 26th April 2002, that is the order for return forthwith.
5. Apparently, it has been agreed that the children should be handed over as I speak at 4 pm this afternoon. They are due to fly back tomorrow. Application for permission to appeal and for a stay was advanced and was received in the office, as I understand it, on Monday of this week. Inevitably, to put that application before the three members of the court takes a little time. It was not until, I think, 26th June that the order was drawn refusing those applications. I was asked to consider separately the question of stay yesterday and I, without hesitation, refused to grant a stay.
6. Miss Webber exercises her right to renew that application at an oral hearing. She has very helpfully prepared a short written submission for the purposes of the oral hearing. What she says is that if this return is effected tomorrow the mother will, effectively, be prevented from proceeding with a petition for leave to appeal to the House of Lords. She says that that would be contrary to a decision in Thomas v Baptiste [1999] 3 WLR 249. She further says that in her submission the children would not be at risk of any harm if their sojourn in this jurisdiction would be extended for a period of approximately four weeks.
7. What is the justification for this 59th minute of the 11th hour application? It is said in a letter from the solicitors instructing Miss Webber that decisions taken on 28th May were taken by members of the Bar experienced in family proceedings and that in the interim their services have been dispensed with and they have been replaced by members of the Bar experienced in immigration law who take a different view as to the prospects of obtaining permission from their Lordships.
8. I am not impressed by that. As I have already established, Miss Webber has given the benefit of her expertise to this case at an earlier stage, albeit she did not appear at either of the hearings in this court. Furthermore those instructing her have, I suspect, more experience in the field of immigration law than in the field of family law and they have been in this case throughout. It should be well known - and if it is not let me make it plain - that stays in family proceedings are seldom given in this court where it is intimated that there will be an application for permission to their Lordships, unless safeguarded by most stringent conditions. Special arrangements have been made between this court and their Lordships' House to ensure that in children's cases, and particularly in children's cases with an international dimension, any intimation of an intention to apply to their Lordships for permission will be put on a most stringent timetable by this court. A communication will go from Master Venne to their Lordships' House to ensure that the petition will be determined expeditiously. In my experience the petition to their Lordships is usually determined within a matter of days. Mr Turner would have been familiar with that procedure. Had we had application for permission and a stay on 28th May it would have been subjected to that procedure and it would have been determined by now. Failure on the part of the mother to initiate any suggestion for application to their Lordships for permission on 28th May has led to the creation of perfectly clear, concrete arrangements for the implementation of the order of Mr Justice Bennett.
9. As a matter of discretionary exercise, it is unthinkable to accede to an application of this sort at such a late stage.
10. Miss Webber is bold to submit that these children are not at risk of any discernible harm. As a practitioner in the field of immigration law, that may seem a plausible submission. To me, as a family lawyer, it seems to fly in the face of all reality. These children were wrongfully detained in this jurisdiction, the arrangements for their sojourn here having been for a limited summer holiday. Children depend upon routine; children depend upon familiarity of surroundings, familiarity of relations, familiarity of friends, consistency of education. Of all these factors these children have been deprived for far too long as a result of the independent and subjective decisions of their mother, the justification for which has been firmly rejected after investigation by an experienced judge of the Family Division. It is of the utmost importance that the arrangements that have been made for their return should not be frustrated by an application to this court which has as its foundation little more than the suggestion that the refusal of a stay would lead to some deprivation of the mother's rights. I find it hard to discern the deprivation and, insofar as it is discernible, it is, in my judgment, heavily outweighed by the welfare consideration.
11. For all those reasons this application is dismissed.
Order: Application dismissed