Re M (Abduction: Leave to Appeal)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE BUTLER-SLOSS |
| Judgment Date | 30 March 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0330-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | SLJ 99/5106 |
| Date | 30 March 1999 |
[1999] EWCA Civ J0330-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
(THE PRESIDENT)
Royal Courts of Justice
Strand
London WC2
Lady Justice Butler-Sloss
SLJ 99/5106
MR HENRY SETRIGHT (Instructed by Dawson Cornwell, 16 Red Lion Square, London, WC1R 4QT) appeared on behalf of the Applicant (Plaintiff)
The Respondent (Defendant) did not attend and was not represented
This is a renewed application for leave to appeal under the new procedure of the Court of Appeal where I considered the papers and gave a provisional decision refusing leave in which I indicated I was minded to refuse the application. Mr Setright has renewed the application in open court and with his usual competence and discretion has produced an excellent skeleton argument and a short but, as always, powerful oral submission for which I am very grateful.
This is an application for leave to appeal against the refusal of the President, Sir Stephen Brown, to return a child under the Hague Convention to South Africa, the mother having acted unlawfully in removing the child from South Africa contrary to the Convention. As the President has pointed out, Article 12 would bite and the child would have to return unless any of the provisions of Article 13 were found to apply. The President found on the facts of this case that Article 13(b) did apply and consequently in the exercise of his discretion, having found the facts consistent with Article 13(b), he came to the conclusion that he ought not to order the return of the child to South Africa.
The child is a little boy aged 21/2, being born on 22 September 1996, of mixed parentage—his mother being English and his father being a South African Zulu. It appears to be, according to Mr Setright, the first case with these particular circumstances applying, that is to say between the United Kingdom and South Africa.
The evidence before the judge was unusual. It was unusual in this respect, that the judge heard oral evidence both from the mother and from the father. That unusual circumstance, which ought not to occur in the majority of cases, was the turning point for the judge because he heard the oral evidence of the mother, the oral evidence of the father and he also heard some evidence from a consultant psychiatrist. There was also a considerable bundle of supporting evidence from the mother. The President accepted that there was a considerable degree of violence by the father against the mother and in particular that evidence of the mother was corroborated by the affidavit evidence of other witnesses, including an independent witness, a social worker in...
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