C (Children)

In wrongful-removal proceedings, the court must give effect to the Convention’s objective of securing the prompt return of children. It should not permit an open-ended adjournment for local police investigations where primary responsibility for investigating past concerns and protecting the children lies with agencies in the state of habitual residence. The court must avoid being drawn into a general welfare inquiry. An Article 13(b) defence based on the conditions of return should be properly evidenced. Assertions that return entails living in the marital home or close proximity to the other parent should not determine the application without adequate evidence and an opportunity for responsive material.

The mother appealed from the judgment of Wood J dated 18 November 2010. The children had been wrongfully removed from Ireland, and the mother relied on an Article 13(b) defence arising from the circumstances that had led to her flight and the alleged conditions of return. Wood J adjourned the application to allow police investigations to be completed and directed the mother to file a statement supporting submissions made on her behalf, without permitting a responsive statement from the father.

On appeal, the father conceded that the open-ended adjournment was inconsistent with the jurisdiction’s Convention responsibility to return the children promptly. Fresh evidence was admitted, and the central issue became the appropriate disposal and directions for a final hearing.

Lord Justice Thorpe delivered the judgment, with Lord Justice Longmore and Lady Justice Black agreeing.

1. Disposition. Permission to appeal and permission to admit fresh evidence were granted. The appeal was allowed. The application was remitted for trial at a final hearing, subject to the agreed directions as amended by the court.
2. Convention responsibilities. Although Wood J had directed himself by reference to relevant authority, the purposes and objectives of the Convention, and his obligations under Brussels II Revised Article 11.4, his open-ended adjournment did not sufficiently respect the Convention’s objective of prompt return. The primary responsibility for investigating the past and protecting the children’s future lay with the child-protection agencies in Ireland, where the children were habitually resident.
3. Proper scope of the return application. The court hearing a return application should not be tempted into the more familiar role of pursuing child welfare where that displaces the Convention framework. Local police investigations did not justify treating the English authorities as primarily responsible, rather than as agents for the Irish services.
4. Article 13(b) evidence. The defence rested substantially on the assertion that return required a return to the marital home or close proximity between the children and their father. Those matters required proper evidential examination rather than reliance principally on submissions. The further statements and the father’s response provided a proper basis for directions leading to a final hearing.

• Court of Appeal (Civil Division) — [2010] EWCA Civ 1610, 17 December 2010: permission to appeal and admit fresh evidence granted; appeal allowed; application remitted for a final hearing subject to amended agreed directions.
• Principal Registry, Family Division — Wood J, 18 November 2010: application adjourned to permit completion of police investigations in the context of the mother’s Article 13(b) defence.