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E (A Child) [2009] EWCA Civ 1103

Application for permission to appeal, with appeal to follow, decision to return a child to Spain under Hague Convention proceedings on the ground that return would be intolerable. Application refused.

The proceedings arose out of the father's application for return of the couple's child to Spain under the Hague Convention. The mother had removed the child to England in December 2008. In the High Court, the trial judge, while setting various undertakings, declined to accept the mother's defence that a return would be intolerable even though the mother acknowledged that the child had been wrongfully removed.

In refusing the application, Thorpe LJ rejected the mother's arguments that: i) the child would claim that England was her home; ii) that the judge had been wrong to assume that the mother would receive benefits in Spain and iii) that the monthly sums negotiated below would be insufficient.


Case No: B4/2009/2042

Neutral Citation Number: [2009] EWCA Civ 1103
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 7th October 2009


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(DAR Transcript of
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Ms S Phillimore (instructed by Messrs Motley and Hope) appeared on behalf of the Appellant mother.

Mr E Devereux (instructed by Dawson Cornwell) appeared on behalf of the Respondent father.
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Judgment (As Approved by the Court)
Crown Copyright©
Lord Justice Thorpe:
1. This is an application for permission to appeal with appeal to follow if permission granted.

2. The hearing was set up by my Lord, Wall LJ on 30 September, and he directed a hearing today, 7 October.  The judgment below was given on 3 September, and so this case illustrates the priority which is given to appeals brought under the 1980 Hague Abduction Convention.  I add that the case only entered this court on 18 September when the mother filed her notice as a litigant in person.  So effectively this court has received the application, put it in front of one of the judges of the court and listed it for final hearing all within a space of about 21 days.

3. The application under the Convention was brought by the plaintiff father in July this year, hardly hot pursuit given that the mother’s removal from Spain had taken place on 11 December 2008.  However, the father reacted to that removal by initiating proceedings in the relevant court in the Spanish jurisdiction; namely, the first instance court number 8 in Santa Cruz, Tenerife.

4. The application under the Convention was listed for interim orders and directions before Coleridge J, and it was supported by an affidavit made by the father’s London solicitor, an affidavit made by the defendant mother and an affidavit by the father himself.  It was not a case where any contemplation of oral evidence would have been appropriate and so the respective cases were summarised by specialist counsel, Mr Devereux for the plaintiff and for the mother Miss Papazian.  Miss Papazian’s position statement indicates that the issues before the judge fell within an extremely narrow compass. 

5. The early paragraphs of the position statement recorded the mother’s desire to mediate a resolution invoking the specialist services of Reunite, and accordingly in paragraph 6 Miss Papazian stated:

“The mother seeks an adjournment to allow the parties to attend upon such mediation as may be facilitated by Reunite.”

She continued in paragraph 8:

“In the alternative, she seeks an extension of time to allow for her to file an affidavit setting out inter alia a) the basis on which she would submit to a voluntary return and b) outlining the undertakings she would seek from the Father.  She submits that the Father should file a short statement outlining the support he could offer to facilitate a return.”

Miss Papazian ended by saying that if not agreed the ultimate hearing would not last more than  an hour as “the only issues are likely to be the terms of an orderly return to the Kingdom of Spain”.

6. From the transcript of judgment below we can see that the mother’s position must have stiffened to some extent because the judge in paragraph 4  stated the issue thus:

“The mother concedes that the habitual residence was in Spain.  She concedes that the removal of [L] by herself was wrongful within the terms of the Hague Convention; in other words, she removed [L] from the jurisdiction of Spain without the father’s knowledge or consent.  She resists a return and seeks to  claim under Article 13(b) that if she were to return her position and that of [L] would be intolerable.”

7. I should interpolate that L’s date of birth was 20 December 2003, that her parents had an unsettled relationship and that during the first five years of her life she had periods of habitual residence sometimes in this jurisdiction, sometimes in Spain, overall dividing her life roughly equally between the two jurisdictions.

8. To continue the review of the judgment below, the judge in the following paragraph set out the detailed proposals that the father advanced to meet some of the ingredients upon which the mother relied in her assertion of intolerability.  The judge concluded, having recorded all the detail in paragraph 7:

“I have to consider whether the case that the mother has raised under Article 13(b) has been made out. Has she satisfied me that [L] would be placed into an intolerable situation if she were to be returned to Spain?  I have already indicated that I do not think she has made out her case.  It is a very high test as to ‘intolerability’.  It may be uncomfortable from the mother’s point of view, and, is certainly contrary to her wishes, but the undertakings are there to ease the return until the Spanish courts can deal with the matter.”

9. That is a classic evaluation of an Article 13(b) defence, a proper recognition that the bar is set very high against those who assert it and a proper recognition of the overriding objective of this international Convention. At the close of this short judgment, the judge dealt with the drawing of the order, Mr Devereux accepting the responsibility to draft and place it before the judge.  She considered the necessary date by which return should be achieved and only moved from 14 to 21 days in recognition of the fact that L had a medical appointment. 

10. It seems that the mother was much upset by a conclusion which was on any lawyer’s view inevitable, and she went to the media.  Mr Devereux tells us that there was considerable coverage in some edition of the Mail on Saturday and that led to a programme on GMTV in which it is said the father participated, indicating that he did not intend to insist on the implementation of the return order.  We have been so informed by Miss Phillimore who appears today to advance the application.  This point can be disposed of shortly.  Obviously if the father has reached the conclusion that he does not intend to seek the enforcement of the order below then any necessary variation can be achieved on the application of the parties.  It is plainly nowhere near the responsibility of this court to investigate that issue further. 

11. So we have only to consider the arguments addressed by Miss Phillimore this morning which are distilled in a very helpful skeleton argument which she settled yesterday.  She says that the judge did not sufficiently consider the chronology of the case, the fact that L has spent at least half her life in England.  From that Miss Phillimore proceeds to submit that it is highly possible that L, if asked, would answer that Spain was her home country.  That may be, but it seems to me it carries Miss Phillimore nowhere.  The test that the judge was applying was not a welfare test, and it seems to me that had the argument been addressed below by Miss Papazian it would have received short shrift.

12. Miss Phillimore secondly criticises the judge from an assumption that benefits, state benefits or welfare benefits, would be available to the mother and L in Spain.  That seems to me to be an assumption that the judge was perfectly entitled to make, and anyway is not directly to the point since the short term was to be covered by undertakings until such time as the court already seised in Santa Cruz could rule on interim issues. 

13. So effectively the endeavour by Miss Phillimore is to reopen the ground covered by the undertakings.  She has suggested that the monthly sum that her client agreed to accept below is insufficient.  None of that is any business of this court.  What was written below was negotiated between experienced counsel and on its face is an absolutely conventional response to the practicalities that arise when it is apparent to all that a return in principle must be ordered.

14. So although Miss Phillimore has done her best and presented her application with skill and charm, it is in reality a hopeless application and it does not even merit the limited progression into appeal.  I would simply dismiss the permission application.

Lord Justice Thomas:  
15. I agree.

Mr Justice Coleridge:  
16. I say only a few words because surprisingly the media seem to have become interested in this case.  I say ‘surprisingly’ because there are about a dozen of such cases before the courts in London every week and the facts of this case make it a paradigm case.  But the provisions of the Hague Child Abduction regime may seem sometimes harsh to the lay public and the media, requiring as they do the immediate return of children to countries from which they have been wrongfully removed save in very narrowly defined circumstances.  In this case the mother concedes she wrongfully removed the child from Tenerife last December, and the evidence in support of her defence under what is called Article 13(b), sometimes called the intolerability defence, comes nowhere near reaching the very high threshold required to be satisfied if her return is not to be ordered.  In the circumstances the court had no option at all but to order the child’s immediate return, and I too would refuse permission to appeal.

Order: Application refused