S (Children), Re

A stay in family proceedings, particularly an international children case, will rarely be granted merely because a party intends to seek permission to appeal further. The Court of Appeal may impose stringent arrangements to ensure that any further application is determined quickly. A very late stay application, especially after the court has already dismissed the appeal and arrangements for implementing the return order are in place, is ordinarily unacceptable. The children’s welfare remains central. Disruption to routine, familiar surroundings, relationships and education may constitute real harm, and that consideration may outweigh any asserted interference with the applicant’s procedural rights.

The father obtained an order from Mr Justice Bennett on 26 April 2002 requiring the children’s immediate return to India in wardship proceedings. India was not a party to the relevant international Convention. The children remained in England while the mother pursued appellate remedies.

A full Court of Appeal hearing on 28 May dismissed the appeal and restored the return order. No application for permission to appeal to the House of Lords or for a stay was made then. Shortly before the proposed handover, the mother renewed an application for a stay, contending that return would impede a further petition and that the children would suffer no discernible harm. The issue was whether a stay should be granted at that late stage.

The application for a stay was dismissed.

1. Discretion to grant a stay. In family proceedings, stays are seldom granted where a further application for permission to appeal is merely intimated, unless protected by stringent conditions. In children’s cases, particularly those with an international dimension, arrangements exist to ensure that any petition for permission is dealt with expeditiously.
2. Effect of delay. The mother’s failure to raise the possibility of a further appeal when the appeal was dismissed on 28 May had allowed clear arrangements to be made for implementing the return order. A renewed application made at the last moment was an unacceptable exercise of discretion and it was described as unthinkable to grant it in those circumstances.
3. Welfare considerations. The submission that the children faced no discernible harm from remaining in England was rejected. Children depend upon routine, familiar surroundings, familiar relationships and consistent education. The children had already been deprived of those features for too long by their wrongful retention in England, after the mother’s justification had been rejected by an experienced Family Division judge.
4. Balancing rights and welfare. Any arguable deprivation of the mother’s rights was heavily outweighed by the welfare considerations supporting prompt implementation of the return order.

The order dismissing the application was made, and the order for the children’s return forthwith was left effective.

• Court of Appeal (Civil Division): On 28 May 2002 the full court dismissed the appeal and restored Mr Justice Bennett’s order of 26 April 2002 requiring the children’s return forthwith. The renewed application for a stay was subsequently dismissed.
• High Court: Mr Justice Bennett ordered the children’s immediate return to India in wardship proceedings.