M (A Child), Re

A fair hearing requires the court to understand the case advanced by a litigant in person, allow a proper opportunity to present material evidence, and treat that litigant with appropriate consideration and sensitivity. On an application to vary continuing restrictions on a child's removal from the jurisdiction, the court must consider whether the restrictions remain necessary in light of changed circumstances. It must not confine the hearing to the applicant's conduct concerning one proposed holiday. Where arrangements are agreed, the court may vary the order while retaining destination-specific safeguards where particular risks require consideration.

The father applied to vary an order restricting either parent from removing the child from the jurisdiction without the written consent of both parents, subject to limited visits to Scotland. His application was dismissed by His Honour Judge Morton Jack, who treated the issue as concerned principally with the father's conduct regarding one proposed holiday and ordered him to pay the respondent's costs.

The father, appearing in person, appealed. The central issues were whether he had received a fair hearing and whether the court had properly considered the wider question of whether continuing restrictions remained necessary. During the appeal, the parties agreed revised arrangements for holidays abroad.

1. Appeal and hearing. Permission to appeal was granted and the appeal was allowed. The first-instance hearing had not been fair. The father, who appeared in person, was not given an opportunity to give oral evidence. The judge misunderstood the case and reduced the dispute to whether the father had acted responsibly in relation to one proposed holiday. The judge failed to determine the wider issue of whether continuing restrictions were necessary in light of the passage of time and the father's continuing roots in London. The exchange with the litigant in person was also intemperate, and the judge had not treated him with the consideration and sensitivity his status required.
2. Variation of the order. A rehearing was unnecessary because the parties agreed a conventional arrangement. Each parent was to be at liberty to remove the child from the jurisdiction for a holiday without written consent or permission, provided that the holiday did not exceed 28 days. Holiday plans were to be communicated to the other parent, with contact details supplied.
3. Safeguards. The father, who ordinarily kept the child's passport, was required to place it in the mother's hands at least seven days before her departure abroad. She was required to return it to his safekeeping within seven days of returning. Jamaica remained excluded from the general permission because of the mother's origins and continuing connections there. Any application to remove that restriction required the father's agreement or an application to the county court. Since Jamaica was not a Convention country, the court considering such an application would need to examine the risks and available safeguards carefully.
4. Orders. The orders made by His Honour Judge Morton Jack on 16 September were set aside. The order made by His Honour Judge Callman was varied accordingly. The respondent's publicly funded costs were subject to detailed assessment.

• Court of Appeal (Civil Division) — On appeal, the court granted permission, allowed the appeal, set aside the orders made below and varied the earlier child-removal order by agreement: [2003] EWCA Civ 601.
• High Court Family Division — His Honour Judge Morton Jack dismissed the application to vary the order and ordered the applicant to pay the respondent's costs.