MA & Anor (Children : return : protective order)

In proceedings concerning the return of children, the court may proceed to determine the matter where a respondent, despite service and orders to attend, fails to engage meaningfully with the process. The court may draw adverse inferences from deliberate non-attendance, skilful avoidance of cooperation and an unimpressive or procedurally defective statement. It must then assess the evidence available, including oral evidence from the applicant, and make findings on the balance of the competing accounts. Where the evidence is coherent and consistent, and the children’s timescales require an expeditious decision, the court may prefer that evidence and reissue an existing return order.

The mother applied for the summary return of her twin children, MA and ME, and sought protective orders concerning a younger child, MS, who remained in her care in the United Kingdom. An earlier order required MA and ME to be returned to England. The matter was listed for a determinative hearing after further directions and orders requiring the father to attend and provide evidence. The father asserted diplomatic immunity, did not attend, and filed a statement giving a substantially different account of events. The central issues were whether the court should adjourn for further written evidence, leave the existing orders in force, or hear oral evidence and determine the matter immediately.

1. The court proceeded to determine the application expeditiously. The father had been served with orders requiring attendance, had failed to attend successive hearings, and had not meaningfully cooperated with the process.

2. In those circumstances, the court was entitled to draw adverse inferences against the father’s case. His asserted diplomatic protection had also circumscribed the court’s enforcement procedures, but did not prevent the court from determining the application on the evidence available.

3. The mother gave oral evidence. Her account was found to be congruent, consistent and coherent. Where it differed from the father’s account, the court preferred hers with little hesitation.

4. The court found that MA and ME had been forcibly separated from their mother by the father for more than a year. That finding was made to stand in the proceedings.

5. The existing order requiring the children’s return remained in force. For the avoidance of doubt, following the findings made at the hearing, the court reissued the order for the children’s return.

The judgment describes prior procedural steps but does not state an appeal:

• High Court (Family Division): an earlier return order was made by Sir Peter Singer on 5 September 2014.
• High Court (Family Division): His Honour Judge Heaton QC, sitting as a deputy High Court judge, listed the matter for a determinative hearing on 24 October 2014.
• High Court (Family Division): Mr Justice Hayden determined the application on 31 October 2014 and reissued the return order.