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Home > Judgments > 2010 archive

M (A Child) [2010] EWCA Civ 1295

Child Abduction: Appeal of order for return of a 4 year old child to Estonia. Appeal dismissed with amendment by way of slip rule to duration of the order. Matter to return to a Family Division judge for implementation.

The subject child was a 4 year old girl. Her parents cohabited in Estonia briefly until their relationship foundered in 2009. The child continued to reside with the mother and contact arrangements were agreed with the father. When this arrangement became difficult he obtained an order for contact from the Estonian court. In May 2010, the mother, her new husband and the child came to the UK. This was viewed as an abduction by the father who engaged the central authority in Estonia who engaged the central authority in London who issued proceedings under the 1980 Convention leading to a final hearing on 24 September 2010. Estonia and the UK as member states are both bound by Regulation Brussels II bis.

It was the mother's case that her arrival in the UK was for the purposes of a summer holiday no more. She challenged the label of abduction but offered no shield to an order for a peremptory return. No defence within the strict limits of exceptions that are recognised under Articles 12 and 13 was even asserted let alone made good, and the judge's order was compassionate to the mother to the extent that the judge allowed her an extra week to get ready for return.

In the event the mother had made no arrangements to travel back to Estonia. Without legal advice the mother appealed with only a bare appellant's notice without grounds of appeal and skeleton.

The Court of Appeal (Thorpe, Stanley Burnton, Tomlinson LLJ) held that:

1. No pertinent submissions were made by mother in respect of the order below.

2. The order at first instance was not well drafted since it failed to specify, in the event of the mother's failure to return to Estonia, a time when the mother should render the care of the child to the father in the UK to facilitate the travel back to Estonia. The problem of implementation would be dealt with by a judge in the Family Division within the next hour.

3. Any ne exeat provision in relation to the child after her return to her habitual residence should be made by the Estonian court, not by a UK judge. To the extent that this was included in the first instance order, this would be amended by the slip rule by limitation to the effect that the order run only for a very brief period pending the first return to the court in Estonia which was already seised with the welfare issues.

Summary by Alfred Procter, barrister, 1 Garden Court
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Case No: B4 / 2010 / 2352
Neutral Citation Number: [2010] EWCA Civ 1295
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY, FAMILY DIVISION
(MRS JUSTICE MACUR)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 14th October 2010

Before:
LORD JUSTICE THORPE
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE TOMLINSON
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IN THE MATTER OF M (a Child)

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(DAR Transcript of
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The Applicant mother appeared in person.

Ms Ruth Kirby (instructed by Freemans Solicitors) appeared on behalf of the Respondent father.

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Judgment
(As Approved by the Court)

Crown Copyright ©

Lord Justice Thorpe:
1. The parties to this application are the parents of a little girl, M, who is four years of age.  They did not marry but they cohabited in Estonia relatively briefly until their relationship foundered in 2009.  Thereafter arrangements were made for the father, the plaintiff in the court below, to have contact with his daughter, and when the voluntary arrangements became difficult he seised the Estonian court in Tallinn and various orders were made which ran so long as both parents and child were within that jurisdiction.

2. However, in May 2010 the mother, with her husband and the very young child of her marriage, came to this jurisdiction.  That inevitably was viewed as an abdication by the father.  He engaged the central authority of the Estonian state who engaged the central authority here in London who issued proceedings under the 1980 Convention, an originating summons being filed on 16 August.  Case management orders were made on that day, on 23 August and on 27 August resulting in a final hearing before Macur J on 24 September last.

3. It is to be noted that the jurisdictions engaged, Estonia and the United Kingdom, are both European Member States and therefore both bound by Regulation Brussels II bis.  By Article 11.3 of that Regulation, the obligation on the court engaged is to conclude proceedings within 42 days of issue, so this is a good example of the London court acting expeditiously to meet the obligation imposed by Article 11.

4. The applicant had appeared with her husband in person before the judge on one of the case management hearings, but for the purposes of the trial before Macur J she had solicitors and a specialist junior counsel, Mr Devereux, who has a lot of experience and expertise in this field.  The statements before the judge consisted of the mother's statement in answer of 8 September and the father's statement in reply of the 20th.  An examination of those statements reveals that the mother's case before the judge was that her arrival in this country was simply for the purposes of a summer holiday, because she asserted that the school age in Estonia is seven, and that in any event the summer holidays are long, leisurely holidays and so she was here for the summer and no more than that. 

5. So she was asserting a case that challenged the label of abduction but offered no shield to an order for peremptory return.  The summer, which she asserted was the purpose and duration of her visit, was spent, and so for the judge her plain duty on the husband's application, scarcely resisted by the wife, was to make a return order in due regard to our Convention obligations as an acceding state.

6. So the order below was inevitable.  No defence within the strict limits of exceptions that are recognised under Articles 12 and 13 had even been asserted let alone made good, and the judge's order was compassionate to the mother to the extent that the judge allowed her an extra week to get ready for return.  The father had pressed for return on the 7th but the judge gave her till 12 noon tomorrow, the 15th.  The judge imposed an obligation on her to notify in writing the father's solicitors of the flight that she had bought in order to comply with paragraph 1 of the order.  That obligation, the paragraph 4 obligation, was not fulfilled and perhaps the mother felt and indeed may reasonably have felt that she had escaped compliance because on the previous day, the 6th, she had lodged an appellant's notice here which was sealed on 8 October.

7. So the next point that I emphasise is that although the regulation does not specify a period within which an appeal must be determined, the practice in this court is to put any application for permission in a Hague case before one of the supervising Family Justices at the earliest date.  So the mother's notice, sealed on 8 October, was considered by Wilson LJ three days later on the 11th and he, having read the notice, ordered that the application be listed today for two hours before three members of the court as an application on  notice with appeal to follow if permission granted.

8. Sadly the inevitable advice given by Mr Devereux on 24 September led to his discharge.  He was plainly accepting before the judge that the only issue to be considered was not whether a return should be ordered but how a return should be effected, the practicalities, when, in what manner; and that realistic approach was obviously unpalatable to the mother and led to Mr Devereux's discharge.  However, her solicitor remained throughout the proceedings below.  She has had no legal advice in relation to proceedings in this court.  We have only a bare appellant's notice.  We have no grounds of appeal.  There is some indication of her intended deployment in Section 9 of her appellant's notice but no grounds and no skeleton.  She speaks no English, she is here today with an interpreter and we have endeavoured to focus her submission on the relevant provisions of international family law and to emphasise to her the role of this court not as a court of trial but as a court of review.  It is very hard to distil from the mother's words this afternoon, spoken through the mouth of the interpreter, anything that could be classified as a pertinent submission, a proper attack, a sustainable attack on the judgment below. 

9. I understand the applicant's distress, desperation, determination to avoid the consequences of the order below, but the reality is that this is the end of the line.   This is the end of her appellate right.  There is now nothing that remains but the processes of enforcement and implementation which lies still principally with the High Court, with the Family Division judge, Mrs Kirby is going to make an application this afternoon to the applications judge in the Family Division for further directions as to implementation and enforcement.  The order as drawn below is not well crafted in the first paragraph in that it simply directs the return by not later than noon tomorrow, but then provides:

"In the event that she is not returned by this time, the mother shall give [M] to the care of her father to return with him from England to Estonia on 17th October 2010 [Sunday]."

10. We are told that his flight departs at 16.50 in the afternoon.  The deficiency within the sentence that I have cited is that there is no precision as to when the mother shall render M to the care of her father.  Plainly there is no intention in the applicant to comply with paragraph 1 of the order.  She has not complied with paragraph 4.  When asked this afternoon what arrangements she has made for travel tomorrow we were told that none had been made.

11. So there is a real problem of implementation.  Nobody would wish to see implementation and enforcement proceed to the point where M was separated from her mother.  Her mother is primary carer, has always been primary carer and it really is a step of last resort to separate M from her mother.  But that will happen if there is continuing defiance of the order of the judge, and it may be that professional agencies would have to be engaged (such as the Cafcass service in the Thomas More Building, such as the relevant local authority) to ensure that if M is to be separated from her mother it is done with maximum professionalism to minimise the damage to the child.

12. But all that can be considered by a judge in the Family Division within the next hour.  The only last word I add is that I support the applicant's criticism of paragraph 3 of the order, which does seem as written to be exorbitant.  Any ne exeat provision in relation to M after her return to her habitual residence should be made by the Estonian court, not by a London judge, and it seems to me that it is necessary to write into paragraph 3 of the order below by way of amendment under the slip rule a limitation to the effect that that order runs only for a very brief period pending the first return to the court in Estonia which is already seised with the welfare issues. 

13. So I would simply refuse this application for permission

Lord Justice Stanley Burnton: 
14. I entirely agree

Lord Justice Tomlinson: 
15. So do I.


Order: Application refused