B4/2006/0380
Neutral Citation Number: [2006] EWCA Civ 871
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE BRACEWELL)

Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 29th March 2006
 
B E F O R E:
LORD JUSTICE THORPE
LADY JUSTICE HALLETT
MR JUSTICE BENNETT
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IN THE MATTER OF H (CHILDREN)
 
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MR P CAYFORD QC & MRS D TAYLOR (instructed by Messrs Andrew M Ford, 31 Lower Brown Street, Leicester, LE1 5TH) appeared on behalf of the Appellant.

MR J ROSENBLATT (instructed by Messrs Makin Dixon, Sunbridge Chambers, 13/15 Sunbridge Road, Bradford, BD1 2AY) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE THORPE:  This appeal concerns three children, child A aged 12, child B aged 8, and child C aged 6.  They are the children of the parties to the appeal who met in this country in 1992 but moved to Dominica in 1994.  The marriage foundered and proceedings were taken in the Dominican court.  It is the commonwealth of Dominica and the family law that is applied is the family law of England as it was between 1973 and 1991; that is to say, Dominica applies the Matrimonial Causes Act 1973, but has not adopted the legislative changes introduced by the Children Act 1989.  There were divorce proceedings between the parents which resulted in a decree nisi on the father’s petition and an order for custody to the father made on 8 June 2001.  That order went uncontested by the mother.

2.	In September 2003, she issued an application for variation of that order to permit her access.  She supported her application with an affidavit.  The children were interviewed by the court welfare officer and the matter determined without any allegation of any form of mistreatment of the children.  On 29 April 2004, the mother applied for variation.  Again there was a welfare investigation by the Court Service and by consent an order emerged for custody to remain with the father, but the mother to have unrestricted access.  Again, no allegation of mistreatment or abuse of the children by the father was raised within the mother’s evidence.  

3.	On 16 June 2005, the mother obtained British passports for the three children without the father’s knowledge and in circumstances that have not been fully investigated.  She had earlier obtained Dominican passports for the children but during the development of the disputes between the parents, the father had taken possession of the passports, obviously in order to safeguard the order of 4 May 2001.

4.	On 9 December 2005 the mother, during the course of an access visit, wrongfully removed the children to this country without any notice to the father and deliberately deceiving him as to her intentions.  She had represented to him that she was taking the children shopping and that they would be returned to their home the following day.  The father issued an originating summons in this jurisdiction on 16 January 2006.  The form of the summons is of some significance in the light of subsequent events.  Paragraph 2 sought an order for the summary return of the children to the commonwealth of Dominica.  Paragraph 3 sought an order for the return of the children to Dominica in any event.  An originating summons seeking the relief under paragraph 2 was the appropriate issue given that Dominica is not a party to the 1980 Hague Convention.  Paragraph 3 was apt to cover the eventuality that the application for summary return would fail.  

5.	The case came in front of Bracewell J on 6 February 2006 pursuant to directions orders that had been made by either Sumner J or Coleridge J.  In resisting the application for peremptory return, the mother had sworn an affidavit on 1 February.  The order of Coleridge J of 30 January required that to be served by 2 February and allowed the father the opportunity to reply by 10.00am on 6 February, which was of course the intended commencement of trial.  

6.	The mother’s affidavit was served on Thursday 2 February and a substantial affidavit was prepared and sworn by the father.  It seems that he managed to swear it by 10.00am Dominican time on 6 February, but it did not arrive at the offices of his English solicitors until about 3.30pm on 6 February.  They are in Leicester and it was impossible to get that evidence before the court.  

7.	So the judge had before her a case on sworn statements including a substantial affidavit from the mother in which she made all sorts of allegations against the father.  His only evidence had been filed on 26 January and it was brief and formal, exhibiting a number of reports in relation to the children, particularly their school reports in Dominica.  Now that affidavit was sufficient to support an application for peremptory return in a case where all the facts and circumstances pointed towards the grant of the order.  These were Dominican children through and through, arrangements for their care and management following the divorce of the parents had been properly made in the Dominican courts, the Dominican courts had placed responsibility for care and control and for custody on the father.  The mother had removed the children from his care deceitfully and had brought them to this jurisdiction in breach of a clear order of the Dominican court.  

8.	Of course when she filed a substantial affidavit in self-justification and self-defence, the judge’s task became more difficult and evidence in reply was clearly required.  It is unfortunate but perfectly understandable that the reply affidavit came in just too late for the judge’s consideration.  So to that extent, Bracewell J was disadvantaged.    

9.	What was infinitely more influential was the result of the investigation by the CAFCASS officer, Mr Riley.  In accordance with common practice in these cases of international child abduction, arrangements had been made for the CAFCASS officer in this building to interview the children on the morning of the trial.  He had spoken only to the two elder children, and he reported from the witness box the strong impression that they had made on him during the course of an interview that had lasted 1 hour and 25 minutes.  He described the oldest child as being quite sharp, quite observant, forthcoming, and reasonably mature for his age.  

10.	During the course of the discussions, both child A and child B had spoken of their fear of continuing chastisement, were they to be returned to their father in Dominica.  There were descriptions of regular beatings by father, by father’s new partner and by some other adult, and there were some vivid descriptions of corporal punishment at school.  The court welfare officer, in relation to the school, said that the child’s description of bruising to his bottom had been vivid and that he had not been able to sit down for two days after the beating.  He also described an incident in which he had been hit, or perhaps his younger brother described an incident in which he had been hit, on his head with a scrubbing brush.

11.	Now all this emerged between 2.20pm and 2.40pm in the afternoon, the case having been called on at 2.00pm.  So what had been a plain case for a peremptory order was thrown into the balance by the gravity of the report from the CAFCASS officer.  He had particularly reported that child B had threatened to kill himself if he were ordered to return and that child A had said that he would run away if ordered to return.  

12.	Nonetheless, the issue proceeded before the judge without a middle way being advocated on the plaintiff’s behalf.  A possible reaction would have been to say: well, given the anxieties raised by the CAFCASS officer’s report, the peremptory return should be safeguarded by undertakings that the children will remain in the exclusive care of their mother until there can be a merit investigation in the Dominican court.  That course was not run, and understandably, because Mrs Taylor, who appeared below, was in a very difficult position.  She did not have the affidavit in reply from her client and she was not able to take instructions.  So when submissions came to be made at the close of the case, she sensibly put her application forward on the ground that if the judge was against her in the light of the CAFCASS report and was not prepared to order a peremptory return, then what she sought was a direction for the hearing of the application in paragraph 3 of her originating summons, standing the case out for an early substantive hearing.

13.	Mr Rosenblatt vigorously opposed that suggestion.  He submitted that the judge was not conducting simply a hearing of paragraph 2 of the originating summons, because she had heard evidence from the CAFCASS officer.  That, he submitted, elevated the hearing into a full welfare hearing, and accordingly the originating summons should be dismissed in its entirety.  He added a rider, which I am bound to say I find hard to understand, to the effect that if the father wished to apply for leave to remove the children from the jurisdiction, it was necessary for him to issue a C(1) application form under the Children Act 1989.  He said the originating summons does not permit father to make that application and it would be wrong for him to do so.  It would be the incorrect procedure.  

14.	That submission was, in my judgment, plainly unfounded and ignored the reality that the brief hearing on 6 February, lasting some two hours before he court, was certainly not a full investigation of child welfare.  The father had absolutely no idea as to the circumstances in which the children were living.  He had no idea of their address and nor, indeed, did the judge.  On any categorisation, this could not possibly be said to be anything more than a rejection of the application for peremptory return in the light of the CAFCASS officer’s evidence, and without a lesser application for return in the care of the mother having been laid before the judge for her consideration.

15.	So it is perfectly understandable to me that the judge refused the summary return application in the light of the CAFCASS officer’s evidence.  She was wrong to dismiss the originating summons in its entirely, but she was misled by Mr Rosenblatt’s submission that that was the appropriate course.  Mr Rosenblatt has readily conceded this morning that plainly there must be a full investigation on the merits and we have invited him and Mr Cayford QC to agree the appropriate directions to enable such a hearing to take place in this building at the earliest possible opportunity, and insofar as they cannot agree directions then my Lord, Lord Justice Bennett, will decide the detail.  

16.	I would allow the appeal to the extent of reviving the originating summons to enable there to be a full trial of all the issues raised by paragraph 3 of the originating summons.  So the order below which purported to dismiss the originating summons in its entirety will be set aside.

17.	LADY JUSTICE HALLETT:  I agree.

18.	MR JUSTICE BENNETT: I agree.

Order:  Appeal allowed.