England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Monday, 26 March 2018

LORD JUSTICE MOYLAN:

Introduction

1. On 8 February 2018, Keehan J summarily dismissed the mother's application under the 1980 Hague Child Abduction Convention ("the 1980 Convention") at the first directions hearing. This appeal, therefore, raises the questions of whether and when it might be appropriate for the court to take this course and, in particular, whether the judge was right to do so in this case. At the centre of these proceedings is a child aged 11 (who I will call M).
2. At this hearing the mother is represented by Mr Devereux QC and Mr Bennett and the father is represented by Mr Anderson. Mr Bennett and Mr Anderson appeared at the hearing before Keehan J.
3. There are three Grounds of Appeal:

(1) The summary dismissal of the 1980 Convention application at a directions hearing was wrong and was not in accordance with the Guidance given by Sir James Munby P in Re D (Children)(Child Abduction: Practice) [2016] 4 WLR 62;

(2) The judge was wrong to conclude on the basis only of the statement from the mother's solicitor that the 1980 Convention was not engaged;

(3) The judge was wrong, at the very least, not to have adjourned the application to enable further evidence to be filed.

Background

4. I propose to give only a brief outline of the background. This is partly because there is limited evidence before the court and also because a number of matters are in dispute.
5. The mother is Irish. The father is British. They lived together in Ireland where M was born. Following the parties' separation, on a date which is not clear, they both continued to live near to each other in Ireland. It is the mother's case that M lived with her whilst it is the father's case that M's care was shared between them.
6. During the summer holidays in 2017, the mother became seriously ill and required an operation. What the parties agreed in response to this is in dispute. The mother says that she and the father agreed that M, who was on holiday with the father, would stay with the father until she had recovered. The father says it was agreed that M would move to live with him on a permanent basis. At or about the same time, the father moved from Ireland to live in North-East England. This is where, as a consequence, M also began living and where he went to school from September 2017.
7. The mother says that, following her operation, she asked the father to return M to her care at the end of October 2017. The father did not do so. M did come to the mother's home at the end of December 2017, again in circumstances which are disputed. The mother's case is that she was expecting to resume full-time care of M. The father's case is that this was just a short visit and that M was due to return to England on 4 January 2018. The mother, on his case, refused to let M do so. On 5 January 2018, the father took M from the mother's home, despite the mother's opposition.

Proceedings

8. On 5 January 2018 the mother obtained an order from the District Court in Ireland prohibiting M's removal from Ireland. That order was not served on the father until some later date. The precise scope of the proceedings in Ireland is not clear.
9. On 12 January 2018 the father began proceedings under the Children Act 1989 in England.
10. On 24 January 2018 the mother completed an application to the Irish Central Authority requesting its assistance under the 1980 Convention. This was transmitted to the English Central Authority which, on 31 January 2018, instructed solicitors to act on behalf of the mother.
11. An application dated 2 February 2018 was duly issued and was supported by a short statement, also dated 2 February 2018, from the mother's English solicitor. This set out a brief summary of the background and alleged that M had been wrongfully removed from Ireland on 5 January 2018. The mother's solicitors gave notice to the father that they intended to seek directions from the court on 8 February 2018. Although we were not referred to it, I note in passing that this took place before Sir James Munby P had issued Practice Guidance on Case Management and Mediation of International Child Abduction Proceedings. That guidance was issued on 13 March 2018.

Hearing on 8 February 2018

12. The mother's counsel, Mr Bennett, prepared a short position statement for the hearing on 8 February 2018 setting out proposed directions.
13. The father's counsel, Mr Anderson, also prepared a position statement indicating that the father's primary case was that M was not habitually resident in Ireland on 5 January 2018. In addition, the father indicated that he would alternatively rely on M's alleged objections to returning to Ireland and on Article 13(b). A number of observations were also made in the written submissions as to proposed directions, including that the final hearing might require two days.
14. Prior to the hearing commencing before the judge, counsel had substantially agreed proposed directions and had prepared a draft order. It was in those circumstances that the hearing began before Keehan J, who was sitting in the applications court. There is no transcript of his judgment but counsel have agreed a note, which has been approved by the judge. I am grateful to them for taking that course.
15. We have been told that not long into Mr Bennett's opening submissions, the judge indicated that he was not persuaded the case came within the scope of the 1980 Convention. After hearing submissions from both counsel, he dismissed the application. This was not a course which had been advanced on behalf of the father in Mr Anderson's written submissions. However, in response to the judge's indication, Mr Anderson made oral submissions supporting the order ultimately made by Keehan J.
16. In a short judgment, Keehan J sets out his assessment of the evidence in the mother's solicitor's statement. I quote:

"It is clear from the statement filed on behalf of the mother that the child had been living with the father with the agreement of the mother and on 27 December the child was going for a visit to the mother but not to permanently return to her long-term care. I am not satisfied that the father abducted or wrongfully removed the child from Ireland on 5 January 2018."

The judge also dealt with the submission made on behalf of the mother that the case should, prior to being substantively considered, be adjourned to enable her to file a statement. The judge said:

"I am asked to adjourn this hearing until the mother files a statement. I take the view that the solicitor representing the mother had, I assume, taken full instructions in so serious an application. In my judgment that statement does not disclose that the father wrongfully removed the child on 5 January. Accordingly, I am in no doubt that this application must be dismissed. There is going to be a hearing in the Family Court to determine whether the child should remain living with the father or whether he should return to Ireland to live with the mother. This is the appropriate forum to resolve this dispute, not this child abduction application."

Submissions

17. I am grateful to all counsel for their focused but comprehensive submissions. I propose only to summarise them in this judgment but I have taken everything they have raised into account when determining this appeal.
18. The mother advances three grounds of appeal as set out above.
19. Mr Devereux rightly acknowledges that the court has a discretionary case management power summarily to dismiss proceedings when justified by the circumstances. However, he submits, relying in particular on Re D that this power should only be used "very sparingly" in cases under the 1980 Convention for the reasons given by the President in that case. Mr Devereux also referred to the one reported case in which an application under the 1980 Convention has been summarily dismissed or struck out, namely Re G (Abduction: Striking Out Application) [1995] 2 FLR 410. He submits that the circumstances of that case were very different from those of this case. Finally, he relies on what Baker J said in Re W (Children)(Abduction: Striking Out) [2015] EWHC 4002 (Fam), namely that, "save in … exceptional circumstances" arguments as to the merits of an application should be considered at the substantive hearing (paragraph 17).
20. Mr Devereux described his essential submission as being that the procedure adopted by the judge in this case was far too summary and was unfair. There were, he submits, a number of issues which required fuller consideration before the application could be properly determined. These included the child's habitual residence, the rights of the father and other matters, including the impact of the Irish court's order and jurisdiction.
21. Mr Anderson submits that the judge's case management decision to determine the application summarily was a decision open to him on the evidence. He accepts or acknowledges that it was a robust decision but submits that it cannot be said to have been wrong. He referred to the overriding objective and, in particular, the obligation to ensure that cases are dealt with in ways which are proportionate to the issues, including by allotting to them an appropriate share of the court's resources. He submits that the judge did not cross the metaphorical line, referred to by McFarlane LJ in Re O (Fact Finding Hearing: Apparent Judicial Bias) [2014] EWCA Civ 918, namely the line between robust active case management and premature determination. Keehan J took the mother's case at its highest as set out in the statement and, Mr Anderson submits, reached a conclusion which was perfectly justifiable on the basis of that evidence.
22. Mr Anderson also relies on Re C (Family Proceedings: Case Management) [2013] 1 FLR 1089, which addressed the court's broad discretion to dismiss welfare proceedings. Mr Anderson submits that this case is one of those cases referred to in Re D. Summary dismissal was appropriate because that would be the inevitable outcome, even if the case had been allowed to proceed.
23. During the course of his oral submissions, Mr Anderson took us through the evidence available to the judge. He emphasised his submission that the judge was entitled, on the basis of that evidence, to decide that it was insufficient to establish even a prima facie case under the 1980 Convention.

Discussion

24. It is right to make clear that the judge was not referred to any authority including, in particular, Re D. This probably occurred because both counsel were expecting a hearing dealing only with the directions required for the progress of the application. However, it meant that the judge did not have the benefit of the guidance given in that case.
25. The President's observations in Re D are obiter but they constitute authoritative guidance. His ultimate conclusion was expressed as follows, in paragraph 26:

"The circumstances in which the court can properly adopt an "ultra-summary" approach in Hague cases are very limited and the cases in which it can ever be appropriate to do so are likely to be very few and far between."

Prior to expressing his conclusion in these terms, the President had referred to the fact that proceedings under the 1980 Convention are by their very nature summary. He also described them as being sui generis and advised caution "before applying too uncritically purely domestic approaches to what are, after all, international cases governed by an International Convention", paragraph 21.

26. The President considered a number of authorities including Re G, AF v HS [2015] EWHC 2968 (Fam) and Re W. He made it clear that he agreed with the outcomes and what had been said in both AF v HS and Re W:

"22 … I have no doubt Baker J was entirely right to decide the case as he did and for the reasons he gave. Where, as there, the basis for the attempt to abbreviate an already summary process was an argument going to the merits (or more precisely the asserted demerits of the other party's case) the short point, as Baker J explained, is that, save perhaps in an exceptional case, such arguments are properly to be dealt with as part of the substantive hearing and not by way of preliminary point. Preliminary points here, as in other jurisdictions, have an unfortunate tendency, unless kept under strict control, to cause the very delay which it is their object to avoid. I would expect cases in which it can be appropriate to follow the course adopted by Connell J in Re G to be most unusual and very rare. As Baker J commented, 20 years had elapsed before the point next arose in Re W.

23 I equally have no doubt that Holman J was entirely right to decide AF v HS as he did and for the reasons he gave. That was not a case where the basis of the application was a challenge going to the intrinsic merits of the Hague proceedings. It was, like the one before me, a case where the Hague proceedings had been overtaken by subsequent events - a change in the family's circumstances or developments in the foreign court - the effect of which was to deprive the Hague proceedings of any continuing utility and to make it unnecessary and inappropriate to allow the proceedings to continue in circumstances where there was no obvious benefit either to the parents or to the children in carrying on. In such a case, in my judgment, the court undoubtedly has power, applying the principles in Re C, to bring the proceedings to a premature conclusion. In the nature of things, I would expect such cases to arise only infrequently. The vast bulk of Hague cases will – must - continue to a substantive hearing in the usual way."

I agree with everything said by the President in Re D.

27. It is also relevant to refer to what was said in Re A (A Child) [2016] 4 WLR 111 about the "forensic context" of applications under the 1980 Convention. The President was there addressing without notice applications but what he said provides, in my view, additional support for the conclusion that the circumstances in which an ultra-summary determination of an application under the 1980 Convention might be appropriate are very limited. He said in paragraph 66:

"I recognise, of course, that when applying these principles and assessing the evidence the court will always need to take into account, in addition to the circumstances of the particular case, the forensic context. In Hague cases this will include the manner by which applications are typically made. The information will have been supplied to our domestic Central Authority ("ICACU") by another Central Authority using standardised forms which have been developed over the years. This information will then be supplied by ICACU to the solicitors instructed on behalf of the applicant and will form the basis of the evidence put before the court. The context in Hague cases also includes the need for expedition."

Determination

28. The judge's decision was based on his assessment of an aspect of the merits of the mother's application, namely whether M had been wrongfully removed from Ireland on 5 January 2018. In my view this was not a case in which it was appropriate for that approach to be taken. As stated by the President in Re D, the merits of an application should invariably be determined at the substantive hearing which by its nature will be summary. There is nothing exceptional about the circumstances of this case which might justify any other approach.
29. Further, taking into account the "forensic context", I also consider the judge was wrong to refuse to permit the mother to file her own statement. The judge's assumption that the solicitor would have taken full instructions from the mother did not, in my view, pay sufficient regard to the process by which applications under the 1980 Convention are transmitted as described by the President in Re A. It is not uncommon for the initial statement to be prepared by the solicitor based only on the information provided by the requesting State. Further and detailed instructions are then taken once the extent of any proposed response is known.
30. I conclude with two general observations. Applications under the 1980 Convention are conveyed by the requesting State's Central Authority to the requested State's Central Authority. Whilst the extent to which such an application will be scrutinised before a formal application is made to the court will vary, every application will have been subjected to a level of scrutiny. The Hague Conference on Private International Law has published a Guide to Good Practice in respect of the 1980 Convention: Part 1 covers Central Authority practice. This detailed, 171 page, document contains a considerable amount of useful and helpful information including guidance as to the roles of Central Authorities based in part on Article 27 of the 1980 Convention.
31. In respect of a requesting Central Authority the Guide states, at paragraph 3.3: "Check the application satisfies Convention requirements." Under this heading it further states: "Central Authorities should carefully scrutinise outgoing applications to ensure they come within the Convention."
32. In respect of a requested Central Authority, the Guide provides that its role includes, at paragraph 4.5: "Check the application to ensure Convention requirements are satisfied." The guide suggests that this, "Should be done quickly", and that "If the application appears, on the face of the documents to come within the Convention, the application should be accepted."
33. Accordingly, the fact that every application will have been processed and considered by both Central Authorities provides an additional and, in my view, powerful reason why a court should not summarily dismiss an application other than, as the President said, in a truly exceptional case.
34. The second general observation concerns the potential consequences of a summary dismissal. There are two aspects. First, Article 11 paragraphs (6) to (8) of BIIa (Council Regulation (EC) No 2201/2003) contain provisions which make clear that an EU Member State with substantive parental responsibility jurisdiction can make an order requiring a child's return following the dismissal of an application under the 1980 Convention by another EU Member State. A summary dismissal of an application under the 1980 Convention is unlikely to assist with that process, in particular because the court of the other Member State would be expecting to receive a substantive judgment, which they would then take into account when deciding what order to make. This is made clear by the provisions of Article 42(2) of BIIa which refer to that court taking "into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention".
35. Secondly, the judge's dismissal of the Hague application did not necessarily result, as he seemed to assume, in the English courts having substantive jurisdiction under BIIa. As Mr Devereux pointed out during the course of his submissions, this would depend on whether the proceedings in Ireland took precedence over the English proceedings under Article 19. For this reason also, a summary dismissal might well not assist in the early resolution of which court should make substantive decisions based on M's long-term welfare interests.
36. In conclusion, I consider that this appeal should be allowed because the judge was wrong summarily to dismiss the 1980 Convention application for the reasons I have given. Accordingly, if my Lord agrees, the mother's application should be restored for further directions. In those circumstances I make clear that nothing I have said in this judgment is intended to give any indication as to the merits of either parties' position.

LORD JUSTICE PETER JACKSON:

37. I agree.
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