Re S (A Child)
| Jurisdiction | England & Wales |
| Judgment Date | 26 March 2018 |
| Neutral Citation | [2018] EWCA Civ 1453 |
| Date | 2018 |
| Year | 2018 |
| Court | Court of Appeal (Civil Division) |
Abduction – Application for return under 1980 Hague Convention – Summary dismissal on court’s own motion on basis that Convention not applicable – Whether summary dismissal on merits appropriate – Potential for Hague process to impact on evidence available to court – Potential impact of summary dismissal on Brussels IIa procedures.
The Irish mother and the British father lived together in Ireland, which was where the child was born. Following the parents’ separation, the couple lived near one another. According to the mother, the child lived with her; according to the father, care of the child was shared between the parents.
In 2017, during the summer holidays, the mother became seriously ill and required an operation. According to the mother, it was agreed that the child would move to live with the father until she had recovered; according to the father it was agreed that the child would move to live with him on a permanent basis. At about the same time, the father moved to the north-east of England and the child started school in England in September 2017. The mother claimed that she asked the father to return the child to her care at the end of October 2017, following her operation. The child did not in fact return to the mother’s home until the end of December 2017; the mother claimed that this was intended to be a full-time arrangement but the father claimed that this was intended as a short visit only, with a return to England planned for early January. On 5 January 2018, the father removed the child from the mother’s home, despite the mother’s opposition. On the same day, the mother obtained an order from the Irish court, prohibiting the child’s removal from Ireland; this was not served on the father until a later date. On 12 January the father began English proceedings concerning the child. Later that month the mother applied to the Irish Central Authority for assistance under the 1980 Hague Convention; the case was promptly transmitted to the English Central Authority, which instructed solicitors to act on behalf of the mother. An English Hague Convention application for the child’s summary return, dated 2 February 2018, was duly issued, supported by a short statement from the mother’s English solicitor, setting out a brief summary of the background and alleging that the child had been wrongfully removed from Ireland on 5 January 2018.
Prior to the directions hearing listed for 8 February 2018, counsel substantially agreed proposed directions and prepared a draft order.
However, during opening submissions, the judge indicated that he was not persuaded that the case came within the scope of the 1980 Convention. After hearing submissions from both counsel, the judge went on to dismiss the application summarily, although the father had not argued for this. In the judge’s view, the statement filed by the mother’s solicitor did not disclose that the father had wrongfully removed the child in January. The judge refused to grant the mother an adjournment to enable her to file a statement of her own, taking the view that the solicitor representing the mother would have taken full instructions already. He expressed the view that a hearing in the father’s Children Act proceedings was the appropriate forum to resolve the dispute.
The mother appealed, arguing that the judge’s summary procedure had been wrong and not in accordance with the guidance given in Re D (children) (child abduction: practice)[2016] EWHC 504 (Fam) (not referred to the judge during the hearing); that the judge had been wrong to conclude on the basis of the statement from the mother’s solicitor that the 1980 Convention was not engaged; and that he had been wrong not to have adjourned the application to enable further evidence to be filed.
Held – (1) The President’s observations concerning the court’s power summarily to dismiss Hague Convention proceedings in Re D (children) (child abduction: practice)[2016] EWHC 504 (Fam) were obiter but constituted authoritative guidance. Quoting from Re D: ‘The circumstances in which the court can properly adopt an ‘ultra-summary’ approach in Hague cases are very limited and the cases in which it can ever be appropriate to do so are likely to be very few and far between.’ The court agreed with everything said in Re D. Comments in Re A (a child) [2016] 4 WLR 111 about the ‘forensic context’ of applications under the 1980 Convention were also relevant, as, although the President had there been addressing without notice applications, his comments about the transmission of the relevant information between the Central Authorities using standardised forms provided additional support for the conclusion that the circumstances in which an ultra-summary determination of an application under the 1980 Convention might be appropriate were very limited (see [25]–[27], below).
(2) It had not been appropriate for judge to dismiss the proceedings based on his assessment of an aspect of the merits of the mother’s application, namely whether the child had been wrongfully removed from Ireland on 5 January 2018. Applying Re D, the merits of an application should invariably be determined at the substantive hearing, which, by its nature, would be summary. There was nothing exceptional about the circumstances of this case which might justify any other approach (see [28], below).
(3) Taking into account the ‘forensic context’, the judge had, further, been wrong to refuse to permit the mother to file her own statement. The judge’s assumption that the solicitor would have taken full instructions from the mother did not pay sufficient regard to the process by which applications under the 1980 Convention were transmitted: as described in Re A, it was not uncommon for the initial statement to be prepared by the solicitor based only on the information provided by the requesting State. Further and detailed instructions were then taken, once the extent of any proposed response was known (see [29], below).
(4) Applications under the 1980 Convention were conveyed by the requesting state’s Central Authority to the requested state’s Central Authority. Whilst the extent to which such an application would be scrutinised, prior to a formal court application being made, would vary, every application would have been subjected to a level of scrutiny. The Hague Conference on Private International Law Guide to Good Practice in respect of the 1980 Convention made it clear that both the requesting Central Authority and the requested Central Authority were required to check the application to ensure that Convention requirements were satisfied on the face of the documents. The fact that every application would have been processed and considered by...
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