M (A Child)

In proceedings under the 1980 Convention, where no defence within the strict limits of Articles 12 and 13 is asserted or established, a return order is ordinarily inevitable. The Court of Appeal acts as a court of review, not a trial court, and an appellant must identify a pertinent and sustainable challenge to the decision below. Article 11.3 of the Regulation Brussels II bis requires expeditious determination. Any continuing ne exeat restriction after return should ordinarily be made by the court of the child’s habitual residence and should be brief if imposed provisionally.

The father applied under the 1980 Convention after the mother left Estonia for England with their daughter. The Estonian courts had made contact orders while the parties and child were within that jurisdiction. Mrs Justice Macur ordered the child’s return to Estonia, allowing a short period for compliance and making further provision if the mother did not return with the child.

The mother sought permission to appeal. Her appellant’s notice contained no grounds of appeal or skeleton argument, and she had no legal advice in the Court of Appeal. The central issues were whether she had identified a sustainable challenge to the return order and how any return and enforcement arrangements should operate.

Application refused. Lord Justice Thorpe delivered the judgment, with Lord Justice Stanley Burnton and Lord Justice Tomlinson agreeing.

1. Both Estonia and the United Kingdom were bound by the Regulation Brussels II bis. Article 11.3 imposed an obligation to conclude the proceedings within 42 days of issue, and the proceedings had been handled expeditiously.

2. The mother’s case was that the move to England was only a summer holiday. That argument challenged the characterisation of the move but did not provide a defence to return. No defence within the strict limits of Articles 12 and 13 of the 1980 Convention had been asserted or made good. The judge below therefore had a plain duty to order return.

3. The Court of Appeal was a court of review, not a court of trial. The mother’s bare appellant’s notice, without grounds or a skeleton argument, disclosed no pertinent or sustainable attack on the decision below. The return order was consequently not open to challenge through this application.

4. The court nevertheless supported the criticism of the continuing restriction in paragraph 3 of the order. Any ne exeat provision concerning the child after return to her habitual residence should be made by the Estonian court, which was already seised of the welfare issues. If retained temporarily in the English order, it should operate only for a very brief period pending the first return to that court.

5. Implementation and enforcement remained matters for the Family Division. Separating the child from her primary carer was a last resort, and any such step should be managed with professional assistance to minimise harm to the child.

• Court of Appeal (Civil Division) — The mother’s application for permission to appeal was refused. The proposed appeal would have followed only if permission had been granted.
• Principal Registry, Family Division — Mrs Justice Macur ordered the child’s return to Estonia under the 1980 Convention, with directions concerning compliance and handover.