Judgment
Published: 13/11/2012
Topics
See also
- N (A Child) [2012] EWCA Civ 1449
Case note, 05/12/2012, free
Share this
Bookmark this
Make a note
Legal Materials Copyright Statement & Disclaimer
-
Case No: B4/2012/2444
Neutral Citation Number: [2012] EWCA Civ 1449
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE HOGG)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 5th October 2012
Before:
LORD JUSTICE THORPE
and
LADY JUSTICE BLACK
- - - - - - - - - - - - - - - - - - - - -
IN THE MATTER OF N (a Child)
- - - - - - - - - - - - - - - - - - - - -
(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Miss Jacqueline Renton (instructed by International Family Law Group) appeared on behalf of the Appellant.
Andrew Tidbury (instructed by Pritchard Joyce Hinds) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
(As Approved by the Court)
Crown Copyright(c)Lord Justice Thorpe:
1. On 4 September, Hogg J granted an application for a return order, under the terms of the Hague Convention 1980, sought by a father resident in Holland in relation to the only child of the parties. The respondent mother advanced only a defence under Article 13(b) of the Convention. She had narrowly persuaded Peter Jackson J on 30 July to permit her to file medical evidence in support of her case, and accordingly there was before the judge a written report from an adult psychiatrist, Dr Bagalkote, who then attended and gave oral evidence. The judge in a brief judgment rejected the respondent's defence, and made the order sought.
2. Black LJ had the application for permission to appeal by Appellant's Notice of September before her on 25 September, when she stayed the order until further information would be available on 28 September. On that day, she directed an oral hearing on notice, with leave to the respondent to file a short skeleton argument in response.
3. So today we now have Ms Renton, who appeared below, to pursue her application for permission, and Mr Tidbury, who stands in for Mr Hosford-Tanner, who had filed a skeleton argument which I would hesitate to describe as short, dated 2 October. Ms Renton relies on three grounds, which are very clearly identified in her skeleton argument. She says that really the evidence of the expert precluded her from her primary conclusion that there would be no grave risk of harm were Keira returned to the Netherlands. Ms Renton says to look at the terms of the written report, and she says to look at what he said in re-examination.
4. But it was for the judge to decide for herself what value she attached to Dr Bagalkote's contribution. He had been effectively cross-examined by Mr Hosford-Tanner, and I cannot help but observe that the retrieval operation undertaken by Ms Renton in re-examination consisted of a number of propositions put to the expert in the form of leading questions.
5. So I think the judge was fully entitled to take the view that she did, both of Dr Bagalkote's contribution and of the case of grave risk generally. It needed a broader hearing. The judge was perfectly entitled to look at the history and the respondent's conduct to see to what extent that had contributed to episodes of depression that she had suffered at the ages of 16 and 26.
6. Ms Renton has subsequently charged the judge with misdirection in law in her approach to an Article 13(b) defence. She says that the judge was not on the right track when she said that a depressive episode would not necessarily happen but only might happen, but really she had to focus on the essential question of grave risk. I think that, reading the judgment as a whole, that is exactly what the judge was doing, and she explained quite clearly why she concluded as she did.
7. Ms Renton's third ground is to the effect that the judge was precluded from taking account of protective measures in the Netherlands, given the terms of Dr Bagalkote's written report to the effect that, from a psychiatric perspective, he could think of no protective measures to safeguard her mental health.
8. Two points on that. The first is that, in his oral evidence, he did accept that there were psychiatric services highly developed in the Netherlands which could palliate the onset of another episode. But more important than that, it was for the judge to look at protective measures. She was obliged to do so by the obligation imposed on her by Article 11 of Brussels II Revised. And protective measures are not confined to medical treatment or quality of medical services. She looked, quite rightly, at the practicalities like where would the mother live, how would she be protected by undertakings that the father was proferring and how would she manage financially? I am in no doubt at all that the criticisms made by Ms Renton, made skilfully and perfectly properly, fail to cross the threshold which could justify the grant of permission.
9. Accordingly, the current stay falls, and there is an important question as to what order this court should make for the detail of the child's return, and we have had some assistance on that subsidiary point from Ms Renton, but we need to turn to Mr Tidbury and ask what information he has, and what submissions he wishes to make.
(discussion with counsel)
10. We seem to have strayed into mechanics, and I have not given Black LJ any opportunity to speak.
Lady Justice Black:
11. For the avoidance of doubt, I agree with everything that my Lord said with regard to the permission application.
Order: Application refused.
Published: 13/11/2012