C (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Longmore,Lord Justice Leveson |
| Judgment Date | 24 January 2013 |
| Neutral Citation | [2013] EWCA Civ 204 |
| Date | 24 January 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2012/3389 |
[2013] EWCA Civ 204
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY
THE FAMILY DIVISION
(HER HONOUR JUDGE BARON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Longmore
and
Lord Justice Leveson
Case No: B4/2012/3389
Mr Henry Setwright QC and Mr Hassan Khan (instructed by Miles and Partners) appeared on behalf of the Appellant.
Mr Abid Mahmood and Mr Nazmum Ismail (instructed by Fountain Solicitors) appeared on behalf of the Respondent.
In this case there were contested proceedings for a summary return order under the Hague Abduction Convention of 1980. The applicant was the Turkish father being left behind in Turkey. The respondent was the mother who had come to this jurisdiction with the only child of the family. The contested application was listed for hearing before a deputy judge of the division, HHJ Coates, on 26 September 2012. The mother's defence was restricted to the exception provided by Article 13(1)(b) of the Convention. There was no other basis upon which she could resist the return order. She had instructed solicitors, who had in turn instructed junior counsel from a set of chambers specialising in this area of work. Unfortunately, five days before the final hearing counsel originally instructed had to return his brief and the case went to Mr A. He prepared a position statement which was filed with the court. That position statement set out his battle order.
On the day following, considerable discussion between Mr A and his client, he informed the judge that terms had been agreed. The fundamental first term was that the mother would consent to a summary return order providing that protective measures were put in place within the Turkish jurisdiction. Those protective measures were to be expressed in the form of undertakings from the father, which were all set out in a schedule to the consent order. No doubt there was a degree of negotiation between counsel, both as to the nature of the undertakings and as to their precise drafting.
The order provided for return on 21 October. The mother did not comply. Accordingly, on the 26 th the father applied without notice for a warrant requiring the mother to attend to justify her breach of the consent order. That application was returnable on the 30 October in the afternoon.
In the interim the mother withdrew instructions from those who had instructed Mr A, instructed another firm of solicitors, and, on the 30 th, advanced a case which was first that she had been the victim of domestic violence and rape at the hands of the applicant father. That was nothing new, but it was an amplification of her first statement which had been filed on 21 August.
What was a novelty within her evidence of the 30 th was the allegation that at the hearing on 26 September Mr A had subjected her to extreme pressure amounting to duress, and only as the victim of duress did she apparently consent to the return order. That matter was adjourned over for consideration on 9 November.
On the 9 th the case was listed before Mostyn J, who pointed out the possible application of Rule 4.1(6) of the Family Procedure Rules 2010, which reads:
"A power of the court under these rules to make an order includes a power to vary or revoke the order."
So, going down that route, he set up a hearing before a judge of the Division on 13 December.
On 9 November the mother filed a third statement. However, counsel appearing on the 9 th were unable to agree the drafting of the order to reflect Mostyn J's directions, and accordingly the case came into the list yet again on 28 November when Hogg J, amongst other directions, sought a statement from Mr A exhibiting "his attendance note" of the hearing of 26 September. She also provided that the mother should file and serve further evidence by 6 December.
Pursuant to that order Mr A filed a statement to which he exhibited his note of the developments on 26 September. That was not, in a true sense, an attendance note: it was prepared in response to his unexpected reinvolvement in the litigation and the direction of Hogg J.
Mr A filed the statement on 4 December and on the 7 th the mother filed her fourth statement. It is, I think, not unfair to her to say that with each passing statement she has, as it were, amplified her case both in relation to the Turkish history and in relation to her perception of the experience that she had had when represented by Mr A on 26 September.
All this then came before Baron J on 13 December. Hogg J had requested that Mr A should, within his statement, make known his availability on the 13 th. He had indicated in his statement that he had nothing in his diary for the 13 th other than a half hour directions appointment. Accordingly, he was available at the hearing before Baron J. Baron J delivered a judgment at the end of oral submissions granting the mother's application to set aside the consent order and fixing a fresh date for a contested trial of the return order application and the Article 13(1)(b) exception for 28 January with a time estimate of one day before a judge of the Division.
The basis for her so concluding is relatively easily seen from a perusal of her judgment. She referred to the mother's various statements setting out her case, both in relation to her experiences in Turkey and also in relation to her communications with Mr A on the 26 th. She then referred to the statement made by Mr A and said (paragraph 9 of her judgment):
"Those paragraphs in essence chime with the evidence which the mother has placed before this court in her more recent statements. They are of course far more colourful, and I take into account that what she says may well be self-serving to a degree. The indication in her statements is that that advice was pivotal to the decision to consent to a return to Turkey. She is probably correct in that summation because if you are essentially told you have no defence, you have little room for manoeuvre."
Baron J then went on to look to the nature of the mother's evidence in support of the Article 13(b) exception. She had regard to recent cases in the Supreme Court, namely Re E (Children) and Re S (a child) and said:
"I consider that the substance of the mother's Article B defence is less black and white than was portrayed by the attendance note. By that comment I am not seeking to assert that she has a good defence, but I am persuaded that the advice which Mr A gave her was perhaps rather too dogmatic."
Finally she concluded by saying in paragraph 11:
"For true consent to be given the underlying...
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Re H (child)
...Undertakings) [1995] 1 FLR 1021. Dealing with Re C (A child)(Practice: Setting Aside Consent Order in Abduction Proceedings) [2013] EWCA Civ 204, [2013] 2 FLR 1300 and In re F (A Child)(Return Order: Power to Revoke) [2014] EWHC (Fam) 1780, [2014] 1 WLR 4375, upon which Judge Bromilow had......