Re M (Abduction: Undertakings)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN,SIR TASKER WATKINS |
| Judgment Date | 15 July 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0715-6 |
| Docket Number | No: FC2 94/6278/F |
| Court | Court of Appeal (Civil Division) |
| Date | 15 July 1994 |
[1994] EWCA Civ J0715-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MR Justice Kirkwood)
Before: Lord Justice Bulter-sloss Lord Justice McCowan Sir Tasker Watkins
No: FC2 94/6278/F
FC2 94/6280/F
MR A. ULLSTEIN (instructed by Reynolds Porter Chamberlain, London WC1V 7HA) appeared on behalf of the Appellant.
MR P. MUNDAY and MISS I. RAMSAHOYE (instructed by Margaret Bennett, London WC1A 2LX) appeared on behalf of the Respondent.
Friday, 15th July, 1994
LORD JUSTICE BUTLER-SLOSS: This is an appeal on a Hague Convention application. The applicant father is Israeli, and he seeks the return to Israel of his two children, a boy born in October, 1991, so now two and three quarters, and a girl born in December of 1993, now seven months. Both children were born in Israel and are Israeli citizens. The mother is English.
She met the father in Israel and married him in 1989 and settled in Israel. By 1993 the marriage was no longer a success. The mother was pregnant again and she left the father. There was an application by the mother to the domestic court in Israel for custody of the elder child, the younger child not then having been born. An order was made by the Israeli judge in the domestic court on the basis of an attempt at reconciliation, and it would appear to me that it is similar to an interim order. There was an unsuccessful attempt at reconciliation between the parents.
On 23rd February 1994, the mother secretly left Israel and flew to London with the two children to stay with her parents in North London. On 15th April 1994, Kirkwood J. heard the application under the Convention made by the Central Authority on behalf of the father. The judge found that the mother had taken trouble to conceal from the father that she was leaving the country. There is no argument that the habitual residence was Israel. The decision of the 15th April, 1994, is subject to the first appeal to this court. The judge ordered that both children should be returned, despite the arguments of the mother that the removal of the two children was not wrongful, that there was consent by the father, and that under Article 13(b) there was a grave risk of an intolerable situation if the children were returned.
However, the judge required certain undertakings to be given by the father before the return was ordered; that there should be the airfares paid for the children, the provision of a flat, maintenance for the children, and nursery fees for the elder child. Those undertakings took to the beginning of June for the father to comply with them, and there was a further hearing before Kirkwood J. for clarification of the undertakings.
On 20th June there was a hearing before Johnson J. on an application by the mother to set aside the decision of Kirkwood J. on the basis of new evidence relied upon by the mother as vitiating the earlier decision to return the children. Johnson J. declined jurisdiction, and that is the second appeal to this court.
In fact, there are four matters before this court: the appeal against the order of Johnson J., extension of time to appeal the order of Kirkwood J., leave to adduce further evidence, and the appeal against Kirkwood J. if leave is granted.
With the agreement of Mr Munday, QC for the father, the court gave leave to appeal against the April decision and allowed the additional evidence to be adduced.
We have considered both judgments and the issues raised on the procedure and on the merits. There remain two issues on the appeal: One, whether the order of Kirkwood J., directing the return under Article 12, was an interlocutory order or a final order, and Johnson J. should have considered the merits of the application to set aside, or whether it was a matter for the Court of Appeal. Secondly, whether Kirkwood J. was wrong to find that Article 13(b) did not apply.
The mother no longer suggests that the father gave consent, nor that the removal was not wrongful. It is clear that the removal of the baby was wrongful, and there is a question as to the status of the order for custody of the elder boy, and it appears, as I have already said, that it was an interim measure.
The expert evidence of the father's expert on Israeli law is that, despite the interim custody order, both parents retained rights of guardianship. This was accepted by the trial judge, and I can see no reason to disagree, and the contrary has not been pursued by counsel for the mother.
Turning, therefore, to the first issue; is this order interlocutory or final? Mr Ullstein, QC for the mother, has argued that a Hague Convention order was analogous to custody, access, etc., and treated as other proceedings in O59 R1A (6)(y), which the wording is:
"An order relating to an access to or custody, care, education or welfare of a minor, whether in matrimonial, wardship, guardianship, custodianship or any other proceedings, or a certificate under section 49 of the Matrimonial Causes Act, 1973".
In paragraph (6)(y), all orders are treated as interlocutory.
He invited our attention to a number of decisions as to whether orders are final or interlocutory. I do not feel it necessary to set them out in detail. He has also sought to persuade us that the order made by Kirkwood J. is interlocutory, since its implementation depended on the fulfilment of undertakings by the father. So long as the undertakings are not complete, the order is not final. He has also argued that there is an inherent jurisdiction in the Family Division to hear matters concerning children, and it is for the Family Division judge to vary or set aside the order and not a matter for the Court of Appeal. If it is to go to the Court of Appeal, he argues, there are great disadvantages of procedure, delay and additional evidence which may be disputed.
On the last point, in a recent case entitled
"M Minors", decided on 30th March, 1994, by this court, Waite LJ said at page three:
"It is of the essence of the jurisdiction to grant a peremptory Return Order that the judge should act urgently. That means the court has no time to go into matters of detail. The case has to be viewed from the perspective of a quick appraisal of its essential features. Any risk of injustice suffered by the abducting parent of limiting the scales of the survey in the interests of speed as a result is minimised by the adoption of the Court of Appeal of a policy which, whilst discouraging appeals that attempt to re-argue the merits, allow some relaxation of the rule in Ladd v Marshall. That relaxation is applied to the extent necessary to enable this court to determine whether there are any matters not dealt with at first instance which might have materially affected the Judge's decision, had he been aware of them."
I respectfully agree with what Lord Justice Waite said, and in this case we accepted the additional evidence and took it into consideration.
Hague Convention cases are a special type of proceedings in which this country adheres to an international Convention which we are duty-bound to observe and to implement. The procedure is summary, and intended expeditiously to deal with the mischief of wrongfully removing children from the jurisdiction of their habitual residence. By Article 11 of the Convention, speed is of the essence. It is an entirely different procedure from internal proceedings concerned with making orders based upon the principle of paramountcy of the welfare of the child. Article 13, if invoked, deals with specific instances where the welfare of the child may inhibit an order for return under Article 12. Article 13 has to be raised as a defence to the Convention application, and a court has to be satisfied that the matters raised are so important as to displace the prima facie requirement to return the child under Article 12 upon proof of wrongful removal or wrongful retention under Article 3.
The order to return, or not to return, is final in the Hague Convention proceedings brought by the Central Authority, and disposes of those proceedings. Any proceedings dealing with the custody, residence or other needs of a child are between different parties, with considerations wholly different from those relevant to a Convention application to return the child.
Now I have heard further argument on the issue, I am not persuaded that my earlier view that a Hague Convention order is a final order is wrong.
In another Re M [1994] 1FLR 397e, I said:
"A decision to return children made on an application under the Convention procedure is, in my view, a final order not capable of variation, save as to the implementation such as already happened earlier. In the absence of full argument on the point an application to set aside an order to return the children under the provision of the Convention should, in my view, be by way of appeal to...
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