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Re S [2020] EWCA Civ 515

This case concerned an appeal brought by a mother against a decision of Her Honour Judge Hillier sitting as a Deputy High Court Judge in October 2019.

This case concerned an appeal brought by a mother against a decision of Her Honour Judge Hillier sitting as a Deputy High Court Judge in October 2019. HHJ Hillier dismissed the mother's application for summary return of her three children from Libya (aged between 2 and 5 years old). On appeal, the Court of Appeal considered the findings made and conclusions reached by the judge below and held that the judge had been entitled to reach the conclusions that she did on the evidence before her. This case highlights once again the real difficulty in successfully appealing findings of fact made following a trial (Piglowska v Piglowski [1999] 2 FLR 763.)

The Court of Appeal rejected the mother's appeal against the rejection of her claim that the children had been wrongfully retained in Libya on 9 January 2018 (Article 10 BIIR). The court additionally found that at the time the court below was seised of the mother's application (3 December 2018) that the children were habitually resident in Libya (Articles 8/A16(1)(a) BIIR). On the basis of these findings the Court of Appeal held that the court below had correct in its conclusion that there was no jurisdiction to make an order for summary return of the children to England.

The appeal
The mother's appeal was focused on the judge's assessment of the evidence presented to her during a two-day fact-finding hearing. By reference to particular documents available at the trial judge, the mother argued that the judge's evaluation of the evidence had been flawed and had led to findings that were internally inconsistent and perverse. On this basis, it was argued that the judge had been wrong to conclude that the children had not been wrongfully retained by the father in Libya on 9 January 2018. It was also argued that on the issue of the children's habitual residence that the judge had failed to take a child-centric evaluation of the experiences of the particular children in this case and that she had applied the law in a formulaic way.

The mother additionally argued that the way in which the trial had been conducted – with the mother present in court and the father by video-link from Libya - had been procedurally unfair. Late in the day, the mother also sought to argue that the judge should have investigated whether it was appropriate to exercise the parens patriae jurisdiction in this case.

Using the words of warning to appellate courts of Lewison LJ in Fage v Chobani UK Ltd [2014] EWCA Civ 5 (referenced by King LJ in Quan v Bray [2017] EWCA Civ 405 at [88]) the father urged the Court of Appeal not to engage in the exercise of evidential 'island hopping' in the appeal. On the father's behalf it was submitted that however extensive the archipelago of evidence that the mother may take the appellate court to may be, they would never be able to appreciate the sea of evidence in the same way that the trial judge was.

Court of Appeal decision
The Court of Appeal refused to grant the mother permission to appeal on the parens patriae jurisdiction. The Court of Appeal noted that this point had not been raised by the mother before the trial judge and reminded itself that the English court exercises the parens patriae jurisdiction based on nationality with great caution and relatively rarely (Re B [2016] UKSC 4). The Court of Appeal held that on the facts of this case as the court below found them to be that it was difficult to argue that the judge had been wrong not to deploy the inherent jurisdiction.

The Court of Appeal noted that the mother had not raised with the trial judge any concern that her attendance at court while the father participated by video-link had placed her at a disadvantage. No special measures to enable the mother's participation had been sought in the court below. The Court of Appeal considered that the Judge's judgment evidenced that she was alive to the potential impacts of the domestic abuse that the mother alleged had occurred and of receiving evidence from the father by video-link. The Court of Appeal could not therefore conclude that the process had materially impacted on the outcome.

The Court of Appeal were not satisfied that the "archipelago" of evidence that it was taken to during the appeal hearing provided a proper basis for disavowing the judge's assessment of the credibility of the parties. The Court of Appeal were also not satisfied that the lack of reference to these documents, in part or in full, led to a conclusion that the judge's approach to the evidence was flawed as suggested. The Court of Appeal held that even if these documents were taken at face value that they would not have made any significant difference to the judge's overall conclusion. The judge's finding that the permanent removal of the children to Libya had been done by consent was supported by the evidence and was properly analysed. The finding of the court below that the children had not been wrongfully retained in Libya in January 2018 was based on clear evidence and was in the Court of Appeal's view unimpeachable.

In her appeal against the judge's finding that the children were habitually resident in Libya in December 2018, the mother sought to challenge the judge's use of the phraseology with respect to the children having "some degree of integration". This was rejected by the Court of Appeal. The Court of Appeal noted that this was phraseology borrowed directly from the CJEU decision of Mercredi v Chaffe (Case C-497/10) and endorsed by the English court in cases including Re A (Jurisdiction: Return of a Child) [2013] UKSC 60. The judge had been correct to note that the children's integration in Libya had probably been slowed by their mother being absent for considerable periods of time. This was a factor that Lord Wilson considered might be relevant when assessing the point at which habitual residence was lost or gained in Re B (Habitual Residence) [2016] UKSC 4). The judge had therefore been entitled to reach the conclusion that she did on the evidence before her.

Summary by Rachel Cooper, barrister, Coram Chambers

Read the full judgment of Re S [2020] EWCA Civ 515 on BAILII