Re H (child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Longmore,Lord Justice Moore-Bick |
| Judgment Date | 11 October 2016 |
| Neutral Citation | [2016] EWCA Civ 988 |
| Docket Number | Case No: B4/2016/1104 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 October 2016 |
[2016] EWCA Civ 988
Lord Justice Moore-Bick
Vice-President of the Court of Appeal Civil Division
Lord Justice Longmore
and
Lady Justice Black
Case No: B4/2016/1104
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
HIS HONOUR JUDGE BROMILOW (Sitting as a Judge of the High Court)
FD15P00103
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Henry Setright QC & Mr Brian Jubb (instructed by Maya Solicitors) for the Appellant
Mr David Williams QC & Ms Jacqueline Renton (instructed by Freemans Solicitors) for the 2 nd Appellant
Mr Aidan Vine QC & Mr Edward Bennett (instructed by Dawson Cornwell) for the Respondent
Hearing date: 13 th July 2016
These two appeals concern A. He is 10 years old. Until very recently, there was one appeal, brought by his mother ("the mother") against the order made by His Honour Judge Bromilow, sitting as a deputy High Court judge, on 26 February 2016. On 6 July 2016, I joined A as a party to the mother's appeal and also granted him permission to appeal in his own right against various other orders, including the order made by Her Honour Judge Finnerty, sitting as a deputy High Court judge, on 8 July 2015. The other party to the proceedings is A's father ("the father").
An outline of the proceedings
The proceedings in relation to A began when the mother failed to return to Saudi Arabia, where the family had been living, following a visit to this country with A in August 2014. In March 2015, relying on the inherent jurisdiction of the High Court, the father made an application in the High Court for A to be made a ward of court and for his "summary return to Pakistan" to be ordered. Although A had lived in Pakistan in the past, he had not done so since May 2012 when he and the mother joined the father who had gone to work in Saudi Arabia. This was not, therefore, an application for summary return in the conventional sense, that is to say to the country where the child had been living before he was wrongfully taken/kept abroad. The father was seeking a speedy return of the child but, since A's visa for Saudi Arabia had expired and he could not be returned there, the application was for him to go to Pakistan. This feature needs to be kept in mind although I will refer to the father's application hereafter as an application for summary return.
At no stage was A joined as a party to the wardship proceedings, nor was he represented. This is one of his grounds of complaint in his own appeal and it is one of the mother's grounds of appeal in relation to the order of Judge Bromilow.
After various preliminary hearings, the case came before Judge Finnerty for the final hearing on 8 July 2015. A was then, as he has been throughout, a ward of court. The mother's intention had been to argue at this hearing that the court did not have jurisdiction to order the return of A to Pakistan in the light of the fact that she had made asylum claims on behalf of herself and A which were still pending. On the day, she attended with her counsel and solicitor. In the morning, evidence was heard from the CAFCASS officer, Mr McGavin, who had interviewed A. There were then negotiations between the parties. These resulted in the court being informed that the mother had agreed that A would return to Pakistan, accompanied by her. This agreement was to be bolstered by undertakings given by each of the parents, said to be for the purpose of facilitating the return of the child to Pakistan and to secure his welfare until such time as the courts of Pakistan exercised any relevant jurisdiction. On the father's part, they included an undertaking not to remove A from the mother's care save for agreed contact or as ordered by the courts of Pakistan, an undertaking not to assault, harass, pester or contact the mother, and undertakings to make payments to cover accommodation and maintenance costs for A and to institute proceedings about A's welfare in Pakistan immediately upon the child's return to Pakistan. The mother's undertakings included undertakings designed to ensure that she would live in Lahore with A. Importantly, she also undertook to withdraw her own and A's claims for asylum by a certain time on 17 July 2015. Judge Finnerty made an order ("the July order") reflecting the parties' agreement, providing for A to be returned on or before 5 August 2015. The parties' undertakings were recorded in the order.
The mother did not withdraw the asylum claims, nor did she return to Pakistan with A. On 6 August 2015, the father took action in the form of a without notice application to Mr Justice Roderic Wood. Thereafter, everyone proceeded upon the basis that the father was applying for the July order to be enforced, although no formal application was ever filed on his behalf. Within a week, the mother had filed an application for an order that Judge Finnerty's order "be set aside or varied because … she did not consent to the terms upon which it was made" (Application notice B54). In the box on the form in which the applicant is required to set out the information on which he or she relies, there was included a statement that the mother feared persecution if she were to return to Pakistan.
The mother's and father's applications ran into various difficulties and took some time to come on for trial. In the intervening period, there were a number of hearings at which directions were given. A significant development took place on 27 October 2015 when the mother and A were each granted asylum. The mother relied upon this as a change of circumstances which she invited the court to hold justified setting aside the July 2015 order. A four day hearing was fixed to commence on 22 February 2016 which was to consider (according to the order of Hogg J on 29 October 2015):
"a. The mother's application to set aside the order dated 8 July on the basis of duress;
b. The mother's application to set aside the order of 8 July 2015 on the basis of a change of circumstances;
c. The father's application to enforce the terms of the order of 8 July 2015."
The hearing before Judge Bromilow lasted from 22 February to 26 February 2016. The mother was present in court and gave evidence, as did her sister. The father had been unable to get a visa to attend. He was constrained to participate by telephone, hearing most but not all of the proceedings. Evidence was heard from the barrister and solicitor who had represented the mother at the July 2015 hearing, refuting the mother's allegation that they had coerced her into agreeing to the July order. The judge rejected that allegation, decided that there had been no material change in circumstances, and ordered that the "mother's application to set aside the consent order … is dismissed" and that the "father's application to enforce the 8 July consent order is granted". He ordered that A be returned to Lahore forthwith, and in any event on or before 5 April 2016, accompanied by the mother.
The ambit of the appeals for which permission was granted prior to the appeal hearing
In very broad terms, the issues that arise for determination are:
i) Whether A's interests required him to be joined as a party in his own right at any stage in the proceedings in the High Court;
ii) Whether Judge Finnerty was wrong to make the consent order in July 2015;
iii) Whether Judge Bromilow's decision to enforce the July 2015 order rather than setting it aside or varying it was wrong.
The father's proposed appeal: Judge Bromilow should not have entertained the mother's application at all
By his Respondent's Notice, the father sought to uphold Judge Bromilow's order on additional grounds but also to advance two grounds of appeal of his own, namely that Judge Bromilow had, in fact, no power to entertain the mother's application to set aside the July order or, in the alternative, should not have exercised that power.
The argument that Judge Bromilow had no power to entertain the application involved the following propositions:
i) Section 17 of the Senior Courts Act 1981 provides:
"(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.
(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.
(3) [Not relevant]"
ii) The mother's application was for the setting aside of the return order and came within section 17(1).
iii) No relevant rules have been made in pursuance of subsection (2), therefore the mother's application had to be heard and determined by the Court of Appeal; Judge Bromilow was not entitled to hear it.
iv) Alternatively, if he was entitled to hear it, he should not have done.
Counsel for the father referred, in support of this argument, to the financial remedy cases of Gohil v Gohil [2014] EWCA Civ 274, [2014] 3 WLR 717 (Court of Appeal) and [2015] UKSC 61, [2015] 3 WLR 1085 (Supreme Court) and Sharland v Sharland [2015] UKSC 60, [2015] 3 WLR 1070. They also relied on cases in the child abduction field, namely Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89 and Re M (Abduction: 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 relied in deciding that he was...
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