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C (A Child) [2012] EWCA Civ 1144

Appeal by the child to set aside an order under the Hague Convention 1980 to which she had originally consented. As no issues had been previously adjudicated on the matter the proceedings were remitted to the Family Division.

The child, C, was the subject of proceedings brought under the Hague Convention 1980 by her father. The applicant father sought the return of the child to Canada. The matter was initially resolved consensually as C (aged almost 15 at the time) had stated that she was keen to return to Canada. The judge, Roderic Wood J, therefore made a return order by consent and did not investigate the issues raised by both the mother and father as the parties were all agreed as to the way forward.

C, however, changed her mind regarding her return to Canada and so this appeal was brought. C was requesting that the order for her return be set aside and the father's originating application under the Hague Convention 1980 be dismissed as the proceedings were having a negative effect on C. C's counsel also directed the court to the observations of the Canadian judge, Leask J, in proceedings before him who had stated that he would not make an order without giving consideration to C's wishes. However, Thorpe LJ stated:

"The order [C] seeks is not just a strong order, it is an incredibly rare order for this court to make. The court can only make an order as far from the ordinary path that it follows if it is demonstrated that the outcome of any remission is so plain that it would simply be abusive to put the parties and the trial judge through the process."

These proceedings were having a detrimental effect on C's health and the parties were encouraged by the court to reach an agreement through mediation rather than pursue lengthy litigation; but the court did not direct mediation under the court appeal scheme as it was recognised that the father had previously refused this; further, with the father in Canada, it would be difficult to facilitate such mediation and such a direction could delay matters further which would not be in C's best interests.

As there had been no completed process of trial, it would be necessary to have the matter remitted to the Family Division for trial, Thorpe LJ stating that, if possible the matter should be heard by Roderic Wood J, as soon as practicable.

Summary by Akta ChipalkattyChurch Court Chambers


Case No: B4/2012/1553 + (A)
Neutral Citation Number: [2012] EWCA Civ 1144

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 11th July 2012

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(DAR Transcript of
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Mr Harrison QC and Mr Tatton-Bennett (instructed by Lyons Davidson) appeared on behalf of the Appellant Child

Mr Turner QC and Miss Perrins (instructed by Anthony Louca) appeared on behalf of the First Respondent Father

Miss Martin (instructed by Lemon & Co) appeared on behalf of the Second Respondent Mother

Mr Gration (instructed by Cafcass) appeared on behalf of the Third Respondent Guardian
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(As Approved by the Court)
Crown Copyright ©

Lord Justice Thorpe:
1. These are unusual proceedings brought under the Hague Convention of 1980 which came before Roderic Wood J in May.  It was thought that there was going to be a good old battle about return of the only child in issue; then almost 15, now 15.  Surprisingly, however, the judge was informed that she was keen to go back.  Her father was the applicant and it was thought that she would be not with him but possibly with her sister, maybe even in some kindly foster care.  The judge accordingly made a return order consensually and without investigating or determining the issues raised by the applicant and the issues, more substantial, raised by the respondent mother in her defence.

2. Within a week Nicole was stating both clearly and firmly that she had changed her mind and accordingly the whole foundation of the order evaporated.  When the matter returned to the judge on 15 June he was able to see that he had to send the matter here, concluding that he had not himself the power to set aside his previous order.  He had had a meeting with Nicole and he was clearly worried, because at the end of his judgment he said:

"It seems to me that this is an unusual case where given the age, intelligence and maturity of this child it would be profoundly worrying to me as a judge to return her ostensibly against her will."

3. The matter comes here therefore with very full representation: Mr Harrison leading Mr Tatton-Bennett for Nicole, Ms Martin for her mother, Mr Gration for her guardian and Mr James Turner QC leading Ms Perrins for the father.

4. Mr Harrison says that this is such a plain case that this court should not only allow the appeal but dismiss the father's originating application of the 2 February.  He says that it is perfectly apparent, on evidence which has come in since the hearing in front of Roderic Wood J, that Nicole is suffering not just emotional turmoil but physical illness in consequence of the stress which she is currently experiencing.  He refers particularly to the report at bundle C, page 6, paragraph 28, which shows her to be in a bad way.  He points to the recent application that the father has issued in Canada seeking a return order under domestic Canadian law and particularly observations of the judge, Leask J who has had these welfare proceedings in front of him for some time, that he would not dream of making an order under the law of British Columbia without giving the greatest consideration and weight to the wishes of Nicole.  Mr Harrison has referred to the passage from the judgment of Roderic Wood J on 15 June that I have already cited and finally he refers to paragraph 37 of his skeleton argument in which he stresses Nicole's objections and the exercise of this court's discretion on the facts now known.

5. The order that Mr Harrison seeks is not just a strong order, it is an incredibly rare order for this court to make.  The court can only make an order as far from the ordinary path that it follows if it is demonstrated that the outcome of any remission is so plain that it would simply be abusive to put the parties and the trial judge through the process.  It would be a completely futile and sterile direction. 

6. Mr James Turner in his address raises all sorts of considerations which he says demonstrate that it is very far from cut and dried.  What is the true position of the mother?  Is her refusal to return purely strategic?  What are Nicole's real wishes and feelings?  Might she not shift again?  Is she perhaps something of a weather vane in relation to her future country of choice? 

7. He identifies for us four options. The option which obviously has the greatest chance of success is to set aside the return order but remit the case for rehearing, or rather for first hearing in the Family Division.

8. Before recording Mr Turner's submissions I should have recorded that Mr Gration for the guardian not only adopts the submissions of Mr Harrison, as does Ms Martin, but he points to the consideration that if return were ordered in London it would be entirely pointless because it would lead to a successful relocation application in British Columbia, and he points us to the difficulties that Nicole has experienced both in Canada and more recently in this jurisdiction.  She is a fragile child and prospects for her would be further clouded were she put through the process of continuing litigation with other visits to court.  Equally she would be fragile indeed if returned to Canada without the moral and emotional support of her mother. 

9. The resolution of these conflicting submissions is not particularly easy.  It seems to me that this is a case in which the pursuit of rights in litigation is likely to be at the expense of Nicole's well-being and the prospect of a successful outcome for the father is not for me to judge.  That would be the responsibility of a trial judge.  But what I could comment upon would be the prospects of enforcing a return order.  It seems to me extremely unlikely that the return order would be, practically speaking, enforced if Nicole remains as she is in her present emotional state.  The prospect of Nicole's future is on any evaluation fragile unless these two parents can combine to work together to try and help Nicole through the next three or four years, in particular adolescent vulnerability.  If they cannot, if they only litigate and draw her into the litigation arena, her prospects for successful graduation, which is her ambition, must be diminished.  It of course open to this court to direct mediation within the court appeal scheme.  However, against that any mediation would have to be child inclusive.  It has already been offered within the Reunite Scheme and refused by the father or not accepted by the father.  So to repeat the offer would only risk prolonging the course of this unfortunate case.

10. Furthermore, it seems to me that mediation would be considerably impeded or handicapped if the father is on the other side of the world, unless the mediator had the opportunity of getting the parents and the child together under one roof and with no time pressure.  It would seem to me that the prospects would not be sufficient to justify the inevitable delay.

11. So in the end I come to the reluctant conclusion that Mr Turner has demonstrated that there are potential issues which render it impossible to declare that the outcome of remission is so overwhelming obvious as to render remission futile.  Mr Turner, if his instructions are as they are, cannot be denied a process of trial, there having been no completed process of trial in the court below.

12. I would urge the parents to seize what may be a last opportunity to talk to each other about the near crisis in which their daughter presently exists, understanding that it is only by jointly supporting her in what is best for her will she have the highest prospects of successful development.

13. In remitting the case to the Family Division I would particularly ask the Clerk of the Rules to consider making Roderic Wood J available for the retrial before the end of this term. Should that prove impossible, then I would request the Clerk of the Rules to endeavour to list before another judge of the division before the end of this term. If that is also impossible I would request the Clerk of the Rules to list the case at the earliest possible date in the vacation. 

14. It is of great importance that, if there has to be a trial, it is completed at the earliest possible date.  So in fixing the first priority must be judicial availability.  This is not a case in which counsel's availability should be allowed to sway the fixture.

Lord Justice Sullivan:
15. I agree.

Lord Justice McFarlane:
16. I also agree.  I would particularly endorse what my Lord has said about the need for the two parents to share the decision about Nicole rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking.  The father, in particular, would be wise to step back and look at the situation that now confronts the family with the potential for contested proceedings.  Accepting, as I do for the present, Mr Turner QC's characterisation of Nicole as being a young girl in her mid-teens who changes her mind from time to time and accepting that that might well be the case, I suspect that now that she has made her position plain as it currently is, it is not the moment for it to be met by the robust deployment of an application pursued in legal proceedings. There is surely a need for the father to consider whether that course will do more damage than good to his relationship with Nicole.  A better course may be for the parents to agree arrangements and allow Nicole, as she develops in maturity, to make up her own mind as to where she goes and if that is to Canada no doubt the father will be very pleased to renew his relationship with her there on that voluntary basis.

Order: Remitted to Family Division