ON APPEAL FROM HIGH COURT FAMILY DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE COULSON
| Y (CHILDREN)
James Turner QC (instructed by Brethertons LLP Solicitors) for the Respondent (father)
Hearing dates : Tuesday 15th May
Crown Copyright ©
LORD JUSTICE MCFARLANE :
The mother's case before the judge
"A power of the court under these rules to make an order includes a power to vary or revoke the order."
Reliance was placed upon two previous High Court decisions. First a decision in the context of Hague Convention proceedings of Mostyn J in Re F  1 WLR 4375 and, secondly, a decision of MacDonald J in proceedings under the inherent jurisdiction in NVJ (Power to Set Aside a Return Order)  EWHC 2752 (Fam).
The judge's judgment
"I am not satisfied that that opinion given by him, succinct and robust though it appears to be, is a significant piece of material justifying the exercise of the jurisdiction. It is unclear to me upon what basis he certifies that she is medically unfit to travel to Canada. To the extent that he explains that, it is with the following phrase, "she has much less support than in England," nothing in terms of the mother's presentation to him was new. We spent, in September, a great deal of time both looking at the documents and hearing from the witnesses about the mother's psychiatric and psychological functioning. I am not clear whether Dr W is saying that she is at that snapshot on 1 December medically unfit or whether that is a diagnosis or an opinion formed on an ongoing basis without limit of time. It seems to me that such profound opinion needs clear and proper reasoning for it to carry weight. It appears to have been precipitated by the events of the previous week and the referral of the general practitioner. "
"Given the very grave suspicion that has been expressed, I am sorry to say that I have to cast a sceptical eye over the timing and the circumstances in which she was referred to Dr W."
Having reviewed Dr W's evidence, together with such further relevant records as appeared in the GP's notes, the judge stated his conclusion with respect to this material providing any justification for setting aside the final order and re-opening the Hague proceedings:
"In short, I am not satisfied that that material, which is the only material before the court, is of such moment or significance as to be a proper basis for the implementation of a process which would lead to a substantial revisiting of earlier decisions". (paragraph 27)
"It is not, in my judgment, necessary. It is not justified by the underlying medical opinion to which I have already referred but, in any event, would only, it seems to me, retread substantially old ground."
"34. It is, therefore, submitted that I ought to ensure that the original order is properly enforced. I am reminded that this is not an entirely welfare-based jurisdiction but of course there is a strong welfare element involved, given that the reality is that the lives of children are in play. The essential question is one of jurisdiction either in the courts of England and Wales or in Canada and so what Mr Turner says is that unless the mother can point to clear evidence of intolerability so that the exception is made out, the court should, nevertheless, adhere to its original order and ensure that it is carried out.
35. I have sympathy with that submission. I accept of course that the basis, as it is described in the recital, was that the mother would return with the children to Canada and then take whatever step she thought appropriate in that jurisdiction to regularise the position but it seems to me wholly improper for it now to be mother's position that "I will not go" and, therefore, the order simply will not take effect. The question of intolerability, it seems to me, is answered plainly as was shown in his short examples from the evidence of the relationship that exists between the father. It is to be recalled that I was not invited to nor did I have to consider that a return with the father would be unconscionable or intolerable. It was, as the mother put her case at the end, that she was prepared to return. Of course, then, the court dealing with the practical reality rather than the theory, devised the order which I have described. That may be, as has been accepted, the preferable, practical situation but the obverse of that is not that if preferable is unavailable then the alternative is intolerable. That simply does not follow and I am satisfied on the evidence before me that that is the case.
36. Accordingly, since the mother now either will not or she would say, although I have reservations about this, cannot go, then the court has to do something else in order to give effect to paragraph 6 of the un-appealed order which remains, as Mr Turner points out, a clear direction for the return of the children.
37. Equally, as has been submitted, the question of intolerability is a question in relation to the children the subject of the proceedings and not to the residential or either parent. They of course cannot be divorced because the children do not live their lives in compartments but in the wider family but I take that into account in making the decisions that I do."
The mother's appeal
i) The judge was wrong to base his ruling on the mother's set aside application upon the evidence that she had filed prior to the 15 February hearing when the mother's application was for directions including the commissioning of further evidence in support of her application;
ii) The judge was in error in failing to identify the test that he applied when determining the mother's set aside application;
iii) The judge was wrong to refuse the mother's application to instruct a fresh expert;
iv) The judge was wrong to hold that it would not be intolerable for the children to return to Canada without their mother, particularly bearing in mind the evidence before the court at the previous hearing in relation to the situation that the children would encounter in Canada if their mother did not return.
"In short, I am not satisfied that that material, which is the only material before the court, is of such moment or significance as to be a proper basis for the implementation of a process which would lead to a substantial revisiting of earlier decisions."
Lord Justice Gross
Lord Justice Coulson