Re B (Children)

In Hague Convention child-abduction proceedings, uncertainty about the jurisdiction to set aside or revisit a final return order, and the criteria governing that jurisdiction, may justify placing the matter before the full appellate court, particularly where the issue materially informed the original majority decision. A child’s objections may be placed before the court through participation where participation is not harmful to the child’s welfare and exclusion may cause significant harm. Applications to adduce fresh evidence should ordinarily be determined by the court hearing the case. The court may also arrange a further meeting with the court welfare officer where updated information would assist the court and the children’s welfare.

This was a directions hearing in child-abduction proceedings concerning three children. On 19 December 2000, the Court of Appeal, by a majority, ordered that the children return to New Zealand. They had not returned. The father sought enforcement and had arranged travel, while the mother applied to set aside or revisit the order.

The court also considered whether the oldest child, K, who strongly opposed returning to New Zealand, should participate in the proceedings. Mr Justice Singer had refused to order return at first instance. The central questions were the scope of any jurisdiction to revisit the final order, K’s participation, the admission of fresh evidence, and whether the children should again see the court welfare officer.

1. Revisiting the return order. The court recognised that the father accepted that some jurisdiction existed in relation to implementation of a final order made in Hague Convention proceedings. The precise scope of that jurisdiction and the criteria for exercising it remained uncertain. The issue should be considered by the full court because the existence of such jurisdiction had materially influenced the reasoning of the original majority, including its conclusion that return would not cause grave hardship or create an intolerable situation. The merits were left undecided.
2. Participation by K. K had consistently opposed return and was nearly 15. Her objections should be placed before the court so that it had proper information about them. Lady Justice Hale considered that permitting participation would not damage K’s welfare, whereas refusing it could cause considerable damage. K was therefore permitted to intervene, make her own application concerning the Court of Appeal’s order, and have Alison Burt appointed as her guardian ad litem.
3. Fresh evidence. The court hearing the case should decide whether fresh evidence was admissible. Such evidence was more likely to be admitted in a case involving children, but Lady Justice Hale declined to grant leave herself. Any application to the full court was to annex the proposed evidence, including evidence from K, either parent, or concerning protective measures available in New Zealand.
4. Further welfare evidence. If practicable, the children should see the court welfare officer again. The full court would decide whether to admit any resulting report and what orders to make.

The matter was listed before the full court on 25 April 2001. Costs were reserved.

1. Court of Appeal (Civil Division) (this hearing): gave directions for the mother’s application to revisit the order, permitted K to intervene, and reserved questions of fresh evidence and enforcement to the full court.
2. Court of Appeal (Civil Division) (19 December 2000): by a majority, ordered the return of all three children to New Zealand.
3. High Court: Mr Justice Singer had declined to order the return of any of the children.