J (A Child), Re

Where a court makes an order without notice while unaware of a critical stay granted by another court, the order must be set aside to the extent that it is inconsistent with that stay. The error is material regardless of how the non-disclosure occurred. Relief enforcing an earlier, separate obligation may nevertheless remain appropriate if the stay does not affect its basis. Relief directed to the stayed obligation is premature while the stay remains in force.

Pauffley J had ordered the mother to return J to the United States. The Court of Appeal refused permission to appeal but granted successive stays, ultimately extending the stay until 12 June 2015. The father’s solicitors, and subsequently the President of the Family Division, were unaware of the final stay when the father made a without-notice application.

On 29 May 2015 the President ordered the child’s return and made consequential passport orders. After the final stay came to light, the central issue was whether the order should be set aside in whole or in part, and whether the passport orders could properly remain in force.

1. The return order was set aside in part. When the order of 29 May 2015 was made, the court was unaware that King LJ had stayed the order of Pauffley J until 12 June 2015. That fact alone required the provisions requiring J’s return and the related relief to be set aside, because they were inconsistent with the subsisting stay.
2. The result did not depend on criticism of the father’s solicitors or counsel. The Court of Appeal Office’s email of 26 May 2015 stated that permission to appeal had been refused without mentioning the continuing stay. In the circumstances, the solicitors were entitled to assume that no stay remained. The President likewise had no reason to appreciate that a stay had been granted.
3. The passport order and the provisions consequential upon it remained in force. Their basis was the mother’s non-compliance with an earlier order of 20 March 2015 requiring her to lodge her passport with her solicitors. That obligation, and the need for enforcement in the circumstances, were not affected by the stay of the later return order.
4. Had the stay been known, the court would have made the passport order but would not have granted the other relief. Granting enforcement of the stayed return obligation would have been premature while the stay remained in force.

The order of 29 May 2015 was therefore set aside save for paragraphs 12, 13, 16, 17 and 18 and the Tipstaff passport order. The parties were given permission to apply on short written notice to the urgent applications judge of the Family Division.

• High Court (Family Division): Pauffley J ordered the mother to return J to the United States: [2015] EWHC 1160 (Fam).
• Court of Appeal: King LJ refused permission to appeal and granted a stay, later extended until 12 June 2015.
• High Court (Family Division): The President set aside the inconsistent parts of the order of 29 May 2015 and maintained the passport-related provisions.