J (Children)

Fresh evidence must bear on the correctness of the original decision before it can justify appellate review. Later difficulties in implementing or enforcing a return order are matters for the trial court, which is better placed to make pragmatic decisions. Hague Convention return proceedings exist to secure the summary return of children so that welfare decisions can be made by the court of habitual residence. Once that court has determined welfare issues on the merits, the Hague proceedings have greatly diminished relevance, subject to any appeal affecting enforceability. Enforcement should be approached sensitively, including consideration of whether the judge should explain the order and its consequences directly to the children.

The mother brought the children from Spain to Wales. Hedley J ordered their return to Spain on 8 October 2012. Following non-compliance, Roderic Wood J made enforcement and collection orders, refused applications to stay implementation, and directed the local authority to accommodate two children pursuant to section 5 of the Child Abduction and Custody Act 1985. The mother sought permission to appeal the return and enforcement orders, relying principally on events said to constitute fresh evidence. By the hearing, a Spanish court had dismissed both parents’ welfare applications on the merits. The central issues were whether the later events justified appellate review and what continuing relevance the Hague proceedings retained.

The Court of Appeal refused the mother’s application for permission to appeal. Lord Justice Thorpe gave the substantive reasons, and Lord Justice Elias agreed.

1. Fresh evidence and enforcement. The mother accepted that the return order made on 8 October was correct, or at least within the ambit of the judge’s discretion, on the evidence then available. The material relied on as fresh evidence arose afterwards and concerned difficulties in implementation and enforcement. It did not undermine the original conclusions or require the evidence to be reinvestigated. A clear distinction had to be maintained between fresh evidence capable of founding appellate review and unforeseen enforcement difficulties. Enforcement remained the responsibility of the trial court, which was better placed to make pragmatic decisions about the next step. No arguable ground for permission was established.
2. Effect of the Spanish welfare decision. The proceedings involved two European jurisdictions and were subject in priority to Brussels II Revised. The Spanish court had made a welfare decision on the merits after both parents were represented. The resulting order appeared enforceable under Article 22, with narrowly drawn exceptions to automatic enforcement. The purpose of Hague return proceedings was to secure summary return so that welfare decisions could be made by the court of habitual residence. That purpose had been achieved, substantially reducing the continuing role of the proceedings in Wales. If an appeal in Spain delayed automatic enforcement, the English return order and its enforcement would regain practical importance.
3. Children’s involvement in enforcement. The court endorsed the general force of the submission that enforcement might be assisted by greater sensitivity and by engaging the children. A judge could consider seeing the children to explain, in ordinary language, what was being ordered, why it was ordered, and the distressing consequences of resisting it. That meeting would be for explanation and assistance with implementation, not for gathering evidence on enforcement.

Order: Application refused.

1. Court of Appeal (Civil Division) — On 7 November 2012, refused the mother’s application for permission to appeal. A separate application by two children for permission to appeal refusal of party status was also refused.
2. High Court, Family Division — Hedley J ordered the children’s return to Spain on 8 October 2012. Roderic Wood J subsequently refused applications to stay implementation, made enforcement and collection orders, and on 19 October directed accommodation under section 5 of the Child Abduction and Custody Act 1985.