Re A
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Sir Stephen Richards,Sir James Munby,President Of The Family Division |
| Judgment Date | 23 June 2016 |
| Neutral Citation | [2016] EWCA Civ 572 |
| Docket Number | Case No: B4/2015/3361 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 June 2016 |
[2016] EWCA Civ 572
PRESIDENT OF THE FAMILY DIVISION
Lady Justice Black
and
Sir Stephen Richards
Case No: B4/2015/3361
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE MOSTYN
FD15P00490
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Edward Devereux (instructed by Greens Solicitors Ltd) for the Appellant
Mr Michael Hosford-Tanner (instructed by A and N Care Solicitors) for the Respondent
Hearing dates: 25th November 2015
Approved Judgment
These two linked appeals concern A, who is a boy of nearly 4 years old. The appellant is A's father and the respondent is his mother. The appeals are against (1) a collection order made in relation to A by Mr Justice Macdonald on 9 October 2015 at a hearing without notice to the father and (2) an order made by Mr Justice Mostyn on 16 October 2015 requiring the return of A to Sweden the following day "unless … a court in Sweden makes an order that the child can remain in the ….father's care until the conclusion of the case". The collection order was executed on 13 October 2015 and A was put into the care of the local authority, which is where he was at the time of Mostyn J's order on 16 October 2015, and at the time of the appeal hearing before us. The return order was stayed pending the appeal.
At the conclusion of the appeal hearing, in order that A's immediate future could be settled as quickly as possible in the Family Division, we announced our decision dismissing the appeal against Macdonald J's order and allowing the appeal against Mostyn J's order, for reasons which would be given in writing later. This judgment sets out my reasons for concluding that the appeal against Mostyn J's order should be allowed. As to the appeal against Macdonald J's order, I agree with the President's reasoning for dismissing it.
A, and his younger sister H, were born in Sweden. Mostyn J proceeded upon the basis that the parents fled from Sweden in March 2014 with the children following the involvement of Swedish social services. The mother said that the family then wandered around the world, ending up in Germany. From there, the father and A came to England. The mother and H returned to Sweden where the mother sought a divorce. She also began proceedings in Sweden in relation to custody of the children. It seems that a hearing had taken place in those proceedings. According to the mother, it was anticipated at the time of the hearing before Mostyn J that the Swedish court would make an order about the children imminently whereas the father's expectation was that there would be a further hearing in November.
In August 2015, the mother took steps to secure the return of A to Sweden under the 1980 Hague Convention 1 through the Swedish Central Authority and the Swedish Central Authority contacted the Central Authority for England and Wales in the normal way. Proceedings were commenced here in the Family Division of the High Court on 9 October 2015 on Form C67 which is headed "Application under the Child Abduction and Custody Act 1985 or Article 11 of Council Regulation (EC) 2201/2003". The mother asserted that A had been abducted forcibly from the place in Germany where the family had been staying, and sought collection and return orders.
The return order made by Mostyn J on 16 October 2015
Before the hearing
The hearing before Mostyn J on 16 October was set up by Macdonald J on 9 October 2015. Macdonald J's order recited, amongst other things, that the mother was seeking
an order for the return of the child "under the Hague Convention", and directed the father to file and serve a concise Statement of Defence "setting out upon which defences (if any) under the Hague Convention he relies" by 14 October. The order directed that the matter be considered further by a Family Division judge on 16 October with a time estimate of 1 hour.It seems that the proceedings first came to the father's notice on 13 October. That morning, A was removed from his care into the local authority's care by police officers. The proceedings were then served on him at 6.50 p.m. by an enquiry agent putting the relevant documents through his letter box. On 14 October, the father instructed solicitors. A statement was drafted for him, dated 15 October, and provided to the court on 16 October. It commenced with an explanation that because he was served on 13 October and was able to consult solicitors only very briefly on 14 October, it was "only a concise statement setting out the reasons why I oppose the return of my son to Sweden and contesting that I have wrongly removed him from the jurisdiction." In it, the father joined issue with a number of aspects of the mother's case, set out his own account of some of the history, and said that the mother had agreed to A travelling to England and Wales. He denied wrongful removal of A and contended that A was habitually resident in England and Wales.
On the morning of 16 October, the father first met Mr Devereux, who was instructed to represent him in front of Mostyn J and also represented him on the appeal. Sometime after 10 a.m., Mr Hosford-Tanner, counsel for the mother, provided Mr Devereux with a copy of his position statement and a paginated trial bundle, neither of which had been made available to the father or Mr Devereux prior to this. In his position statement, under the heading "Order sought", Mr Hosford-Tanner said that it was "difficult to envisage a sensible defence being advanced", commented on the separation of the two children, and asked the court to make "an urgent return order" either on 16 October or at an early final hearing, to be fixed no later than the week commencing 26 October. This was the first time that it had been proposed that the court should make an immediate order for the return of A to Sweden.
Mr Hosford-Tanner also provided Mr Devereux with a copy of an email from a social work team manager from the local authority accommodating A pursuant to the collection order. The email had been sent at 11.38 a.m. on 15 October to the clerk to Macdonald J, copying in the mother's solicitor but not the father or his representatives, so this was the first sight the father or Mr Devereux had of it. It said that contact had been made with the Swedish authorities who were " keen to plan the child's return to his mother in Sweden". It continued:
"A has been separated from his birth family and it is in his best interests to be reunified with his mother as soon as possible. The Swedish Authorities will make arrangement to collect him from the UK, and with your permission, this can be achieved as early as Friday 16 October 2015."
Mr Hosford-Tanner had prepared an addendum position statement in the light of this communication and of the father's statement. In it, he approached the case as an application under the 1980 Hague Convention, although suggesting that the fact that the Swedish court was seised of the matter was a very important factor. He invited attention to what the father conceded and/or what was common ground between the parties factually, and commented briefly on what the father was/may be asserting by way of an answer to the application.
Mr Devereux had also prepared a position statement for the hearing. In it, he said that the father had had very little time to prepare for the hearing and had not yet received any note of the reasons why Macdonald J had made a collection order, but that it was clear that there were factual issues between the parties, at least as to whether the mother consented to A being removed from Germany and as to A's habitual residence. He sought the opportunity for the father to file and serve a more comprehensive statement and an answer, and invited the court to make the usual directions leading to a contested final hearing. He also sought the immediate discharge of the collection order.
The hearing itself
The hearing commenced shortly before 11 a.m. It was very short, lasting (on Mr Devereux's estimate) just over 15 minutes, or (on Mr Hosford-Tanner's estimate) 30 minutes. The transcript of what occurred prior to judgment extends to just over 9 pages. Mr Devereux sought to follow the line he had taken in his position statement. He emphasised that the proceedings were under the 1980 Hague Convention and tried to persuade the judge that they should follow the ordinary path of such proceedings, referring the judge to what he described as the "route map" set out in the Family Procedure Rules 2010 for such cases (see FPR 2010 Part 12, Chapter 6, Section 1). He made it clear that the father wished to contest the mother's case, including challenging the evidence of the social worker and the mother. He asked that the child be returned to the father's care until the court could resolve the issues in the usual way.
Mostyn J's judgment
Instead, the judge proceeded immediately to give a short judgment, determining the mother's application in her favour. After reciting the facts, at paragraph 8 he embarked on his consideration of the substance of the case with these words:
"Whilst it is correct that the proceedings which have been brought before this court are under the 1980 Hague Convention, they are also brought under the Brussels II Regulation. Under the Brussels II Regulation, Article 60, it is stated that the Regulation takes precedence over the Hague Convention 1980."
After a short diversion to consider the Hague Convention of 1996 2 and Article 61 of Council Regulation (EC) No 2201/2003 (hereafter "Brussels IIA"), the judge cited Article 19(2) of Brussels IIA which provides:
"2. Where proceedings relating to parental responsibility relating to the same child and involving the same cause of action are brought before courts of different Member States, the court second seised...
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