Re M (Abduction: Peremptory Return Order)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE WAITE,LORD JUSTICE SCHIEMANN |
| Judgment Date | 14 November 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J1114-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Pro-form |
| Date | 14 November 1995 |
[1995] EWCA Civ J1114-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION (LEEDS)
Mrs Justice Bracewell
Before Lord Justice Russell Lord Justice Waite Lord Justice Schiemann
Pro-form
MR D MAIN-THOMPSON (Instructed by Thorpe & Co, Scarborough, North Yorkshire, Agents for Berrymans, Dubai) appeared on behalf of the Appellant/Mother
MRS S CAHILL (Instructed by Cranswick Watson & Co., Leeds) appeared on behalf of the Respondent/Father
I will ask Lord Justice Waite to deliver the first judgment.
In form, this is a mother's application for leave to appeal, but it has been dealt with this morning as a full appeal, from a Peremptory Return Order made by Bracewell J, in Leeds on 9 November 1995 directing that Y and K aged 10 and 2 1/2 be returned forthwith to the United Arab Emirates.
Their father is a native of Dubai, where he is now well established. Having formerly served in the armed services, he is at present a successful business man. He married the children's mother, who is British born, at a ceremony in Dubai in 1984 performed according to the rites of Islam. The family have lived there ever since, for approximately 11 1/2 years. Y was attending school there and was intending to go on to senior school in September 1996. The mother has two sisters who are also married to citizens of the United Arab Emirates and are living in Dubai.
It was a regular pattern for the mother to bring the children to England in the summer for a holiday and to see relatives and friends in this country. She came here ostensibly for that purpose in June of this year (1995), with the full approval of the father. In fact, she had secretly made plans and arrangements not to return. Shortly after her arrival in England, she petitioned for divorce and applied in family proceedings for residence. She obtained an Interim Residence Order in those proceedings on 28 July 1995.
The father was extremely distressed by this development. He obtained compassionate leave from his work and came to this country to seek a reconciliation, which the mother was not prepared to grant. He issued an application within the family proceedings for what has come to be called a Peremptory Return Order; that is to say an order made without investigating in depth the general merits of the parents' dispute over the future care of the child, but after making sufficient inquiries to establish that they have been wrongfully removed from the jurisdiction of the country of their habitual residence and should be returned there so that the dispute can be determined in the courts of that country.
The rationale for such orders was explained by this court in Re F (A Minor) (Abduction:Jurisdiction) [1991] 1 FLR 1 and Re M (Abduction Non-Convention Country) [1995] 1 FLR 89. It involves applying, by analogy, to non-convention cases the underlying philosophy of the Hague Convention that it is in general in the best interests of all children to have their lives subjected to the minimum of upset after parental breakdown, by ensuring that disputes as to their future should be disposed of in the courts of their country of habitual residence, and also by dealing at the same time, peremptorily, with attempts by one parent to abduct the children to a country which may be supposed to offer a better chance of securing the outcome preferred by that parent. The judge regarded the present case as being within those principles and made the return order accordingly.
It should be noted that the order was not, however, made without safeguards. Undertakings were obtained from the father to pay the fares for the return of the mother and children; to provide a separate home for the mother and children in Dubai where he would agree to the children remaining in her care subject to his rights of frequent contact; to maintain her and them; to provide funds for her independent legal representation in proceedings in Dubai regarding the children's future; and to register all those undertakings at the Foreign Office in London and the British Embassy in the United Arab Emirates. The undertaking to maintain and provide a home for her was limited in duration until such time as the financial affairs of the parties...
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