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Re H (Children) [2006] EWCA Civ 871

Appeal against refusal of application for summary return of children to Dominica allowed, and originating summons revived to enable full trial of issues.

Court of Appeal: Thorpe and Hallett LJJ and Bennett J (29 March 2006)

Summary
Appeal against refusal of application for summary return of children to Dominica allowed, and originating summons revived to enable full trial of issues.

Background
The parties met in 1992 and moved to Dominica in 1994; they had three children, aged 12, eight and six at the time of the hearing. They divorced in 2001 under Dominican law – which applies the Matrimonial Causes Act 1973 but not the changes introduced by the Children Act 1989 – and the father obtained an uncontested order for custody of the children.

In 2003, the mother applied for variation of the order to permit her access; she applied again in 2004 and, by consent, an order was made for custody to remain with the father, but the mother to have unrestricted access. On neither occasion was there any suggestion or allegation of mistreatment or abuse of the children by the father.

In June 2005, the mother obtained British passports for the three children without the father's knowledge; and, during the course of an access visit in December 2005, wrongly removed the children to the UK. The father issued an originating summons in January 2006: by paragraph 2, he sought an order for the summary return of the children to Dominica (which is not a party to the 1980 Hague Convention); and, by paragraph 3, he sought an order for the return of the children to Dominica in any event (in case the application for summary return failed).

Shortly before the trial, the mother filed an affidavit, in which she made various allegations against the father; the father was given the opportunity to file an affidavit in reply, and it appears that he managed to swear it by the required time in Dominica but, by the time it arrived in England, it was too late to be considered by the judge. As a result, the father's only evidence before the court was a brief and formal affidavit filed a week earlier which, in any event, was sufficient to support an application for peremptory return. The judge also heard evidence from a CAFCASS officer, who had interviewed the two older children on the morning of the trial; the children said they feared for their personal safety if they were returned to Dominica, and described incidents of beatings, by their father and other adults, and corporal punishment at school.

In the light of the CAFCASS officer's evidence, the judge refused the summary return application, and dismissed the originating summons in its entirety. The father appealed.

Judgment
Held, allowing the appeal, that the judge had been wrong to dismiss the originating summons in its entirety, believing that to be the appropriate course. Accordingly, the originating summons would be revived to enable there to be a full trial of all the issues raised by paragraph 3 of the originating summons.

The court recognised that the judge had been disadvantaged by not having received the father's substantial affidavit in time for the trial, and criticised counsel for the mother for categorising the hearing as a full welfare hearing, since it was really no more than a rejection of the application for peremptory return. The court also considered that an appropriate course would have been for counsel for the father to suggest a middle way to the judge, namely the peremptory return safeguarded by undertakings that the children would remain in the exclusive care of their mother until there could be a merit investigation in the Dominican court.

Digest prepared by Peter Smith, Barrister

Read the full text of the judgment