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
(NEUBERGER J)

		Royal Courts of Justice Strand London, WC2
		5th August 2005

1. LADY JUSTICE ARDEN: This is a renewed application for permission to appeal from the order of Baron J of 2nd August 2005. It was refused on paper by Lord Justice Neuberger earlier today and Mr Y has come to this Court to renew his application. I should say that as this case concerns a child there are the usual reporting restrictions.
2. Mr Y wrote a letter to the Court saying:

"I am requesting an oral hearing on the grounds that the court is not fully aware of the serious welfare issues the child will undergo once she is returned to the United States."

That is the main basis of this application.

3. I decided that the appropriate course was to hear the application for renewal as a matter of urgency and, if I were minded to grant permission, I would then also consider staying the removal of the child which is expected to take place on Sunday.
4. I am not going to set out the circumstances in full. There is a detailed chronology with the papers and there are two witness statements, one from each parent. There is only a manuscript shorthand note of the judge's judgment and so I have not read in its entirety, but when it is in transcript form, I have no doubt that it will also set out the material facts.
5. Mr Y is the father of a five-and-a-half month old child called S. She was born on 22nd February 2005 in the United States. She is a United States' citizen. Her mother is the defendant, the plaintiff, DRY. The parties are married. They married in 2003. They had known each other in the United States for a short period and for a longer period over the Internet.
6. The mother already had two children, one a girl, L, who is now seven and one a boy called, M, who is now 4. They are the children of the mother and a Kenneth Sexton who is a United States citizen.
7. The family came to the United Kingdom in June 2005. Mr Y is a British citizen. He has assumed responsibility for all three children while the parties have been living together.
8. The intention was that the family would move over here to settle because Mr Y was not making ends meet in the United States. He worked very long hours but was unable to raise enough money to look after the family. The mother did not work. The mother came with a passport simply to visit for 6 months and recourse to public funds was prohibited.
9. Mr Y has addressed the Court. He cites a number of instances of neglect: for instance that the mother bathed S in cold water. He also cites instances of neglect to the other two other children, not instances that he personally witnessed but has heard about from other people, including hitting the children across the head.
10. Those are of course serious points but he does assure me that all these points were brought out in the evidence before Baron J. Both parties were represented by counsel and Mr Y and Mrs Y both gave evidence.
11. There was also, and I have seen this from the statements, evidence that the relationship between the parties had broken down quite seriously and there were fundamental difficulties between them. There have been other proceedings brought by Mr Y against his wife. These proceedings are proceedings by the wife to take the child back to the United States.
12. The judge in her judgment said this, reading from the manuscript note that has been provided to me:

"The mother's case although it may be a possibility wouldn't solve the problems. She accepts she lied to Mr Sexton. She told him it was a short holiday. If Mr Sexton bothered to issue Hague Convention proceedings pretty watertight case for the children's return. She has not tried [I cannot read the next bit]. He started to cause a separation from [S]. Although she loves him and wants a reconciliation she wishes to return. She'd live with a friend of the family. She'll be able to get a measure of employment with her aunt. She'll get State Benefits. She says a cousin will provide a car. Her plans are the best she can devise in the circumstances. She's caught in the poverty trap so far as reality is concerned. It is the land of her birth. She wishes to return to the place where her best support network is. Here she only has the father's family. They have been embroiled in the circumstances. It is sad to meet such a nice young couple, apparently reconciled, can't agree on what the future holds. [I cannot read the next bit] without a clear plan, of where live juvenile. Idea at the end of 16 days was at an end. All I can do is bring reality to the situation. The best thing for this family and particularly for [S], her bests interests re my paramount concern, [S] live in the country. I have jurisdiction in all the circumstances the mother should be allowed to return to United States, if that is what she wishes to do. This is realistic outcome for the case. I am not saying she should do so, she and [L] and [M] are all United States citizen and only been here for 2 months. However difficult the financial circumstances are in the United States, it is not much better here. May take time to obtain council housing here. They won't be living in better circumstances than before. They both need to find paid employment. Today they are in the poverty trap, benefit not enough to pay for things. The more work he did, the less they could get from the State. It's unfortunate for father, that the best of the reasons and he is to be admired for taking on this lady and her two children. He's done his best for the family, I have no doubt that he'll be upset by my decision. I have no doubt, if she'd been living longer asked for permission to go back, she would have got it on a line of authorities."

That then was the basis of the judge's judgment. I just add one more paragraph, the judge added:

"He'll get funding together he says to go there for 2 months reconcile apply for care of [S]."

She also said that she specifically took the view that it was for the United States court to make decisions about the welfare of [S]. Accordingly she declined to make a residence order.

13. Now, as this was a case for the exercise by the judge of her discretion, it would have to be shown on appeal that the judge's exercise of discretion was wrong in principle. No point has been taken of that nature before me. I have asked Mr Y and he has assured me that all the evidence of mistreatment was before the judge, and indeed she heard the witnesses cross-examined so she would have had an opportunity to make findings if she had thought that that was the right course and to decline to order to permit S to be returned to the United States if she thought it was against her best interests. Indeed she would have been bound so to decide. But she did not come to that conclusion. I can only infer that she was not satisfied about the allegations of mistreatment. She decided the case according to the correct principle, which is the best interests of S. She did not know what Mr Y has told me today, that he has now got a job, which starts on Monday, as a security worker. He will be paid £22,000 per year. That has only just happened. But it is not clear that that job will necessarily last for an indefinite period of time. It is also clear that there were other difficulties in this case, evidenced by the witness statements of the parties. Accordingly, I do not think there is a real prospect of arguing that, if the judge had known of that new circumstance (and she must have known of that possibility that employment would be obtained), her conclusion would have been different.
14. Accordingly, I have come to the conclusion that there is no prospect of success on a full appeal against the exercise of the judge's discretion. I must refuse permission to appeal.
ORDER: Application Refused