Family Law Hub

R (A Child) [2012] EWCA Civ 1903

  • Case No: B4/2012/3340

    Neutral Citation Number: [2012] EWCA Civ 1903

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY

    FAMILY DIVISION

    (MRS JUSTICE PARKER)

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: Thursday, 20 December 2012

    Before:

    LORD JUSTICE THORPE

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    IN THE MATTER OF R (A Child)

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    (DAR Transcript of

    WordWave International Limited

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    Mr Turner QC (instructed by Sears Tooth) appeared on behalf of the Appellant Mother.

    The Respondent did not appear and was not represented.

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    Judgment

    (As Approved by the Court)

    Crown Copyright (c)

    Lord Justice Thorpe:

    1. On 6 December Parker J made an order requiring the return to Singapore of a child abducted from that jurisdiction to this jurisdiction. The application was brought before her in wardship and pursuant to directions which had been given earlier by Baron J. The judge thought that Singapore had acceded to the Hague Abduction Convention of 1980 without having proceeded to internalise the Convention within Singaporian law.

    2. In that respect she was in error, an error that went in favour of the applicant mother, for the reality is that on 31 December 2011 Hong Kong acceded to the Convention and this jurisdiction would have recognised that succession had it not been prevented from so doing by a dictat from the European Union claiming external competence in relation to the discretion to recognise new accessions to the Convention. That is a claim in law which is not accepted by the present government and is not accepted by many other European Member States, and there are ongoing negotiations to resolve what is regarded as an exorbitant claim by the European Union.

    3. In those circumstances it is a matter of concern and disappointment to the jurisdiction of Singapore that the Treaty is not, in effect, operational between Singapore and the United Kingdom. They would naturally expect the United Kingdom to recognise accession almost immediately and almost automatically, considering the very strong ties between our two jurisdictions.

    4. In those circumstances I am of the opinion that a judge who has an application, which in those circumstances can only be framed in wardship, is entitled to treat that as being a technicality and to treat it as though it were an application, a return application under the Convention.

    5. I fear the mother advanced unsuccessfully an Article 13.1(b) defence, and so the judge's order was for summary return; the return date is 23 December and the circumstances surrounding the return are dealt with in the judge's order.

    6. So it was on 19 December, with four days to go, that this court received an appellant's notice, and, as a result of representations which Mr James Turner QC made on the applicant's behalf, the court set up an oral hearing today, the 20th, and Mr Turner has, with his usual robust skill, deployed the applicant's case as best he can. He says that the proceedings below were altogether too superficial; that in order to do justice to his permission application it would have to be subject to the much enlarged skeleton; wide areas of the material that were either admitted or refused admission would have to be surveyed.

    7. It seems to me that there is a traceable strategy in the preparation and presentation of the applicant's case throughout. She has had the most experienced family lawyers that London can offer. Baron J had to decide whether the wife was entitled to a full wardship hearing for which she sought or whether there should be a purely summary procedure, a Convention approach, as the father sought. She decided something in between the two; she set out a summary hearing restricted to one day; she very tightly confined the evidence and effectively said each parent plus one witness each.

    8. The response from the mother's team seems to me to have been pretty strategic. They tested the boundaries of that direction, at every point pushing the boundary, trying to get in, as well as the mother plus one, a report from a psychiatrist who had been instructed, a report from an orthopaedic surgeon or physician which had been obtained. That attracted the criticism and perhaps even the irritation of Parker J, who felt that the response of the applicant's team had in many respects failed to observe not just the letter but very much the spirit of Baron J's direction, and one can see the reason why. It was self-evident that the mother had a very difficult litigation position because this was a flagrant and planned abduction.

    9. The only hope was to try and get in as much material as possible prejudicial to the father to establish the Article 13 offence against the background of a turbulent relationship which had often degenerated into abuse and violence. The reality was that, whoever was responsible for that violence in cohabitation, there was before the abduction some relatively plain evidence that the parties had, as it were, accepted the end of the marriage and commenced a process of separation which at least removed or reduced the pressures that flared into violence.

    10. The judge quite rightly analysed the foundation of the mother's case to be the evidence of the psychiatrist. She did not like at all the manner in which the psychiatrist had been instructed. She did not like at all the way his subsequent report had been made available to the father's team. She did not like at all the fashion in which the expert had been so one-sided and so unbalanced in his investigation and in his acceptance of assertion as though it were fact. So in the end she discounted his contribution.

    11. That consequentially meant that she discounted the asserted grave risk. She accepted that protective measures could perfectly well be put in place in Singapore; she recorded undertakings, and all that is the foundation of her order. Despite Mr Turner's eloquence this morning, I am in no doubt that the judge was perfectly entitled to assess the mother's defensive case as she did and, having made that assessment, then a return order almost inevitably followed, given the variety and quality of protective measures that were either proposed or could be made available.

    12. So I would refuse the application for permission and refuse the consequential or the suspended application for stay. There is a subsidiary point, which has, in my opinion, greater validity, and it is Mr Turner's criticism of the judge's order for costs which appears in paragraph 19 of her supplementary ruling when in paragraph 23 she said, "I order the wife to pay the costs thrown away of £4,022."

    13. Mr Turner attacks her reasoning for that order, but paragraphs 17-22 inclusive explain her discretionary decision. Given the width of that discretion, given the reasoning that was presented, I do not see that an order in principle that the mother should contribute to the father's costs in one area is open to appellate review. The tiny point that bothers me commences with a draft order which was submitted by Mr Scott QC. The final paragraph states:

    "A schedule has been prepared which shows the costs thrown away at £4,022. This will be sent separately to the court."

    Mr Turner tells me that that schedule was filed with the court but was not served on the applicant or her team. I move from there to Mr Turner's draft order, which in paragraph 42 stated:

    "Finally, even if [sic] a Wasted Costs Order was to be made, the quantum should be the subject of detailed assessment, because it is not yet known to the mother's side how the sum claimed is calculated."

    14. It is manifest to me that a judge cannot make a summary assessment without giving the party against whom the order runs the opportunity to comment on quantum. Without that opportunity Mr Turner was entirely principled in saying that he was entitled to detailed assessment, and so it does seem to me that the form of order should have been that the wife is to pay the identified costs wasted, to be assessed in default of agreement.

    15. Accordingly, on this one narrow point of costs, I will say that the applicant for permission to appeal the cost order in principle is refused, but that the form of order should not preclude the wife's solicitors from a detailed assessment if they are advised to take that path.

    Order: Application refused

Judgment, published: 17/02/2013

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Published: 17/02/2013

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