E-B (Children), Re

In wardship proceedings concerning the unilateral removal of children to England, a party did not require the prior permission of the judge to file expert evidence on foreign law and practice. Such evidence may be relevant where the presumption in favour of peremptory return could yield to an exceptional risk of persecution, discrimination or other overt harm in the state of habitual residence. It may also be relevant to ensure that a respondent is not disadvantaged compared with a respondent raising an Article 13B defence under the Hague Convention. The court should nevertheless control the evidence so that the urgent proceedings are not delayed.

The mother brought two Lebanese children to England. The father sought their peremptory return. At a directions hearing, Bracewell J refused permission for expert evidence concerning Lebanese law and practice, relying on Re E [1992] 2 FLR 642. She later declined to reopen that decision, also referring to Al Habtoor v Fotheringham [2001] 1 FLR 951.

The mother appealed. The central issues were whether prior permission was required before filing expert evidence of foreign law and practice, whether such evidence could be relevant in non-Hague Convention return proceedings, and how its admission could be reconciled with the need for expedition.

1. Appeal allowed. The court granted permission to appeal and allowed the appeal to the limited extent of substituting a direction that Mr Edge provide a brief written statement on relevant Lebanese law and practice.
2. There was no conflict between the authorities relied on by the mother. Lord Justice Thorpe rejected the suggestion that Re E [1999] 2 FLR 642 was unorthodox or should not be followed. He treated the orthodox post-Hague Convention line as running through Re F [1991] 1 FLR 1, Re S [1994] 1 FLR 297 and Re M [1996] 1 FLR 478. He disagreed only with the suggestion in Re JA [1998] 1 FLR 231 that Re M had been decided per incuriam.
3. Although a presumption may favour peremptory return, it may yield in an exceptional case where the respondent demonstrates a risk in the state of habitual residence of persecution, discrimination or other overt harm. Evidence of foreign law and practice was at least arguably relevant to that issue.
4. Such evidence could also be relevant because a respondent in non-Hague proceedings should not be placed in a worse position than a respondent raising an Article 13B defence in Hague Convention proceedings.
5. The evidence was to be filed and served promptly so that the listed hearing was not jeopardised. The respondent was initially responsible for the expert’s remuneration, subject to the later costs decision. Mr Justice Munby agreed.

• High Court of Justice, Family Division: Bracewell J refused permission to adduce expert evidence concerning Lebanese law and practice and declined to reopen that decision.
• Court of Appeal (Civil Division): Permission to appeal granted and appeal allowed to the limited extent of substituting directions for a brief expert statement. No order as to costs, save for detailed assessment of the applicant’s Community Legal Services Funding costs.