R (Children), Re

A seemingly wrongful unilateral removal of a child from a primary carer ordinarily calls for an immediate without-notice application for a peremptory return order. The application should be made to a court able to deal with it promptly. An application for peremptory return and an interim residence application are cumulative remedies and may be pursued together. Where no immediate return application is made and weeks pass before judicial investigation, the ordinary approach loses force and the child’s current welfare becomes central. Family courts require sufficient flexibility to expedite deserving cases. Allegations of domestic violence do not automatically require a split hearing; an all-in hearing may be appropriate where urgency justifies it.

The father, who lacked parental responsibility, applied for parental responsibility and residence in respect of two boys living with him on the Isle of Wight. The mother removed one child, T, to Dorset. The father’s subsequent application for interim residence and immediate return was refused by the Family Proceedings Court. His appeal to Bournemouth County Court was dismissed by His Honour Judge Bond, although the proceedings were retained there.

The father sought permission to appeal and argued that the lower court had misunderstood Re H (Children). The central issues were the appropriate procedural response to unilateral removal, the effect of delay, and whether the existing proceedings should be expedited.

Thorpe LJ gave the leading judgment. Etherton LJ and Baron J agreed.

1. The court could not order T’s return on the interim application. It had no information about the child’s life during the six months since removal, and making a return order in those circumstances could disregard welfare considerations.
2. A seemingly wrongful removal from a primary carer ordinarily requires an immediate, without-notice application for a peremptory return order. It should be issued on the same day, or at the earliest opportunity on the following day, in a court able to make an immediate order and arrange an inter partes hearing within days.
3. A peremptory return application and an application for interim residence pending determination of the main application are not exclusive. They may be issued and pursued simultaneously. Failure of the interim application does not remove the need to press for expedition of the previously issued main application.
4. Where no immediate return application is made and weeks pass before judicial investigation, the ordinary approach is unlikely to apply with equal force. The force of Re H (Children) had dissipated to some extent, and the court had to address the child’s intervening welfare circumstances.
5. Busy family courts should retain flexibility to give exceptional priority to cases involving possible harm or separation of siblings. Allegations of domestic violence do not automatically require a split hearing. In an urgent case, a single hearing addressing fact-finding and welfare may be preferable, with the CAFCASS investigation commenced promptly.

Thorpe LJ stated that he would dismiss the appeal but invited HHJ Bond to reconsider the timetable. The recorded order nevertheless states that the application was granted and the appeal allowed.

• Court of Appeal (Civil Division): Permission was granted. Thorpe LJ stated that the appeal should be dismissed, while the recorded order states that the appeal was allowed.
• Bournemouth County Court: On 18 February 2011, HHJ Bond dismissed the father’s appeal against refusal of the interim return application and retained the proceedings in the county court.
• Family Proceedings Court: The interim application for T’s immediate return was refused on 29 November 2010.