B4/2006/1368
Neutral Citation Number: [2006] EWCA Civ 1115
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE CHARLES)
 
Royal Courts of Justice 
Strand 
London, WC2 

Wednesday, 28th June 2006
 
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE DYSON
LORD JUSTICE HALLETT
- - - - - - - - - - -

IN THE MATTER OF E C (A CHILD)

- - - - - - - - - - -

(DAR Transcript of 
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
  - - - - - - - - - - -
MR H SETRIGHT QC and MR K COLLINS (instructed by Messrs Reynolds Porter Chamberlain LLP, LONDON, E1W 1AA) appeared on behalf of the Appellant.

MISS J DODSON QC and MR T GUPTA (instructed by Messrs Attiyah Lone, LONDON, W6 0QP) appeared on behalf of the Respondent.
- - - - - - - - - - -
J U D G M E N T
1.	LORD JUSTICE THORPE:  The family whose affairs we consider in this appeal are truly international.  The parents are both of Scottish origin but it seems their relationship began in this jurisdiction and certainly their only child, E, was born in this jurisdiction on 29 February 1995.  At some date which the appeal has not ascertained, the parties married in that year and also moved with E to their Scottish homeland.  From there they moved in September 1998 to Moscow, where the mother found employment teaching English.  They separated in August 2001, the father moving to England, mother and child remaining in Russia by agreement.  Proceedings for divorce were issued by the father in this jurisdiction in 2004.  We have not seen the petition but we must assume that the residential qualification was twelve months of habitual residence immediately preceding the issue.  A decree nisi was pronounced in April 2005 and in September 2005 mother moved with E to Budapest with father’s agreement.  She had found a one-year contract of employment to teach English there.  Father, following the move, has had access to E thrice in the United Kingdom and once in Hungary.  Financial issues were resolved by a consent order entered in January 2006, and within the terms of the order was a provision for the payment of continuing periodical payments for E.  It seems, for reasons unexplained, that the application for decree absolute was only issued in March 2006.  

2.	On 13 April, E came to England for a short holiday visit over the Easter weekend.  She was due to return on 18 April, which I believe was the bank holiday Monday.  Without any notice or warning, on the day of E’s arrival the father took E to his solicitor and signed necessary papers to support an application under the Children Act 1989.  On the day of E’s planned return, the father issued those proceedings in the Wandsworth County Court and we are told that his core application was for a residence order. The mother’s first indication of trouble came when she met the plane at the airport in Budapest and E did not disembark.  Extraordinarily, on the following day she issued her originating summons in this jurisdiction, seeking E’s summary return under the provisions of the 1980 Convention and our 1985 Statute.  

3.	I assume that that must have been an issue by solicitors instructed on her behalf by the Central Authority.  But the effect of the issue was to impose a stay on the municipal proceedings and directions were given on 26 April, including a direction for a report by a CAFCASS officer.  That was relevant and necessary, given that the only defence raised by the father was that E objected to return, a defence open to him under Article 13 of the Hague Convention.  The case was ultimately heard by Charles J, who delivered an ex tempore judgment on 10 May ordering E’s return to Hungary forthwith.  He made it absolutely plain additionally that Hungary was the primary jurisdiction for the determination of any disputed issues as to the welfare of E.  Given that the father had not contested that E’s retention in this jurisdiction was wrongful, it followed that E was a child habitually resident in Hungary, and it further followed that Hungary is the primary jurisdiction for determination of welfare issues.  

4.	Charles J had also to deal with the proceedings that had been issued in the Wandsworth County Court since they had subsequently been transferred to the High Court.  He stayed those proceedings and sought and obtained an undertaking from the father that he would not issue any further proceedings within this jurisdiction in relation to E.  However, he made a highly unusual order, lifting the stay for one day to enable him to make detailed provisions for a three-day hearing, in the High Court in August 2006, of any disputed welfare issues between the parents.  The order was to this effect, that the papers filed in the English proceedings should forthwith be made available to the appropriate court of competent jurisdiction and to the parties’ legal representatives in Hungary, including also the judgment that the judge had delivered.  

5.	Further provisions were made for the filing of evidence by the parties and for the commissioning of a report from a CAFCASS officer to be filed by 2 August.  The direction also authorised the CAFCASS officer to visit the child, her school and her mother in Hungary and gave her liberty to apply for further directions.  Mr Setright QC has told us this morning that, in the event, the CAFCASS officer has requested the mother to attend his office in London and to bring E to the office in London for interview.  

6.	It is only to those provisions that the Notice of Appeal was issued on the mother’s behalf in this court on 20 June.  It is very important in these international cases that any step within the litigation should be taken expeditiously.  The decision to delay the issue of the Notice of Appeal until the receipt of Charles J’s approved judgment was, in my opinion, erroneous.  The curious nature of the order he had made must have been immediately understood by those acting for the mother, and it would have been more helpful if the Notice had been issued in this court, certainly within the twenty one days given by the rules, and towards the commencement rather than the expiration of that period. The sooner the Notice of Appeal is received, the sooner arrangements can be made for an expedited hearing.  

7.	Fortunately, it was possible to find a listing within a week of issue of the notice as a result of the settlement of another case, and so we are hearing the appeal very quickly and we are grateful to Mr Setright for his preparation and equally to Miss Dodson QC, who was able to file her skeleton in response yesterday.

8.	Now it is, I think, necessary to establish the basis upon which the judge reached his primary decisions.  He recorded in paragraph 23 the circumstances in which the father had wrongfully retained the child and had then issued proceedings in this jurisdiction.  He seems inferentially to have regarded the issue of proceedings in this jurisdiction as, to some extent, mitigating the father’s wrong.  That is not an approach that I share.  It seems to me that the father compounded his wrong by issuing an application for a residence order in this jurisdiction.  A more aggressive issue it would have been hard to conceive, and must inevitably have increased the sense of threat overhanging the mother, who was not only obliged to invoke the Hague Convention, but also to respond to an attack upon her primary care of E.  

9.	The judge records that the mother had effectively had to abandon her teaching responsibilities in Hungary to come to this jurisdiction to pursue her application and resist the father’s.  Importantly, the judge noted from the objective evidence of the social worker who had given evidence to the judge in the Wandsworth County Court, and of the CAFCASS officer giving evidence to the High Court, that E’s difficulties with settling into the new life in Hungary all related to schooling and this is paragraph 52 of judgment: 

“In her view the key objection was that the child was not able to participate and enjoy school to the full.”

10.	The judge continued: 

“But the thrust of both reports is that the key issue relates to the problems the child is asserting relating to schooling.”

11.	In a later paragraph the judge recorded that the mother had made investigations as to schooling, had identified a school that would teach E in English, but that was at a cost which she could not afford without contribution from the father.  The judge continued : 

“Suffice it to say that it would appear common ground that the father did not engage in discussions as to where his daughter should be educated in Hungary and as to the language problems that would exist in respect of her education.”

12.	The judge also remarked that E’s school report gives marks for achievement in subjects and in relation to behaviour.  The judge continued: 

“It is fair to say from that, that even if the child is unhappy at the school because of problems with, or with aspects of, school life, she is still getting excellent marks for commitment and behaviour at school.”

13.	The father’s case below was presented by Miss Lucy Theis QC, leading Miss Cabeza, and she ran what argument she could. She asserted that Article 12 of the Brussels II Revised Regulation was engaged, since the proceedings for the dissolution of the marriage had been in this jurisdiction.  She therefore questioned whether Hungary was indeed the primary jurisdiction.  She also sought to argue that the judge should additionally invoke Article 20 of the Brussels II Revised Regulation to make provisional or protective measures in relation to E, pending a welfare investigation in London. 

14.	The judge did not accept those submissions, although he did consider hypothetically what would be the consequence of accepting Miss Theis’ submission that Article 12 was engaged and fixed primary jurisdiction in England.  He analysed the nature of the father’s case and concluded that since the only dispute was as to schooling and since there had been no effort to resolve any schooling problems by the proper channel, namely parental discussion and cooperation, there was therefore no foundation on which an application for a residence order could possibly succeed.  The judge also recognised, indeed emphatically held, that plainly Hungary was the court of primary jurisdiction and that welfare issues were to be determined there following the order for peremptory return.

15.	So given all those classic findings, which have not been criticised by anyone, how was it that the judge came to make the curious appendage using a device lifting the stay for a day and then making extensive directions leading to an expedited welfare hearing in the forthcoming summer vacation?  His explanation is to be found in paragraph 92, where he says : 

“However, to my mind that does not mean that international cooperation and comity would lead to a conclusion that this court should be doing nothing through the period in which the Hungarian court has the opportunity to decide whether or not Art 15 would warrant this court dealing with the substantive issues. What I propose to do at this stage, therefore, is to continue the stay of the Children Act proceedings and if I do not receive an undertaking from the father, order that he do not issue any other proceedings related to seeking relief in England as to the upbringing of the child.  I will give directions within those proceedings, either on the basis that (1) they will be relevant to the English court making substantive decisions either (a) at a later stage having heard views from the Hungarian court by determining that it has and by exercising its jurisdiction under Art 12 rather than taking my view that at this stage the Hungarian court should have the first bite of that cherry, or (b) simply exercising its jurisdiction because the Hungarian court has exercised its jurisdiction under Art 15, or (2) if the Hungarian court decides that it will not remit the case to this jurisdiction, then (a) the steps that the English court has taken would probably provide or help to provide the Hungarian court with relevant information, or (b) would enable the English court, if it then thought fit to plough on on its own train lines relating to jurisdiction.  That last course seems to me to be an unlikely course for the English court to take for the reasons I have given.”

16.	Now Miss Dodson’s response to Mr Setright’s compelling arguments is to this effect: she would seek to uphold the judge on the grounds identified under paragraphs 1a and 2a of the paragraph which I have cited.  In short, the discretionary decision is justifiable upon the basis that this court might sensibly make arrangements to guarantee an expedited hearing in the event that Hungary might exercise its discretion to export the case under the terms of Article 15(i).  Alternatively, if the Hungarian court does not, then the material garnered in this jurisdiction would not be wasted because it might well be extremely helpful to the Hungarian judge.  

17.	Article 15(i) is a considerable novelty as far as the Civil law jurisdictions are concerned.  It provides under the heading “Transfer to a Court Better Placed to Hear the Case”: 

“1. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court of another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4; or (b) request a court of another Member State to assume jurisdiction in accordance with paragraph 5.”

18.	That is an import into the regulation of the forum conveniens concept, which has more resonance for common law jurisdictions than for civil law States.  It is a provision negotiated for the comfort of those jurisdictions who have reservations about the introduction of a strict lis alibi pendens rule into family litigation.  I know of no case in which an order has been made under Article 15 to date, although it may be it has been invoked.  I suspect that as far as the Civil Law jurisdictions are concerned, it will indeed be a truly exceptional case before they invoke Article 15. 

19.	So what possibly could arouse the thought that a subsequent discretionary decision by a Hungarian court to return the case to England was a possibility and not simply a theory?  Of course it is fair to observe that the divorce proceedings had been here and the father is resident here and both parties have English as their first language. Against that, the only issue in dispute is as to E’s schooling in Budapest and most obviously a Hungarian court would be better placed to decide any dispute than would a London court.  Furthermore, what seems to me of the greatest significance is that there were no outstanding proceedings in Hungary.  Plainly the mother was unlikely to engage in litigation in Hungary. The father had not issued proceedings and although in Miss Theis’ skeleton there was a suggestion that he might do so, the judge was not taking any steps to test the father’s resolution in that area.  

20.	So as a matter of plain logic there could be no possibility of a Section 15(i) transfer unless and until the Hungarian jurisdiction was engaged by the issue of proceedings.  It seems to me very significant that since the judgment below, the father has not taken any steps to issue proceedings in Hungary; that is understandable, since he strategically invests all his hopes in the possibility that he will gain the advantage he sought by the issue in Wandsworth as a consequence of the arrangements for expedited trial made by the judge.  

21.	As an exercise of discretion by the judge, it seems to me quite insupportable; indeed, I regard the arrangements that he made as close to unprincipled.  It is very important in these cases that there should be no orders made in London that might be said inferentially to challenge the primary jurisdiction of another member State or to suggest that London is in a superior position to resolve welfare issues.  The more likely practical consequence of the course for which the judge elected is not that the steps that he was ordering would go to the aid of Hungary but more realistically that they would simply be wasted. CAFCASS is under huge burden, particularly in the London area, and to require the CAFCASS officer to prepare a report that might only possibly be of use to a London judge is, in my opinion, not wise, unless the London judge is preparing for a fixture which will almost inevitably stand up.  It is simply an extravagance to require a full report from a CAFCASS officer with possible visits abroad to view foreign schools. 

22.	So in my judgment the directions that the judge gave were exorbitant.  His reasoning does not support the exercise of discretion, and the orders must be set aside and any work into progress immediately abandoned.  I would, however, like to emphasise that the judge’s conduct of the trial on the 10 May was impeccable.  He arrived at impeccable conclusions on all the primary issues.  It is only in this one ancillary area that I take issue and I would also want to emphasise that the Charles J had no desire to given an extempore judgment on the day but felt driven to do so, as he put it, “given the hour and given the listing that faces me between now and the end of the week”.  So I am in no sense critical of Charles J and, as I emphasise, differ from him only on a narrow point.  

23.	The setting aside of the orders for further progress in the London proceedings leaves only an ultimate question: what order should we put in their stead?   Mr Setright in his skeleton argument had asserted arguably that:

“Acceptance of this fundamentalist approach is unnecessary to determination or success of this appeal – where there is a Hague Convention return any proceedings in respect of the determination of welfare issues relating to the returned child are inconsistent with comity and the Hague Convention and should simply stand dismissed.”

24.	That is a proposition which does not, in my judgment, go beyond the arguable.  There will be circumstances in which it is open to a judge to prefer to impose a general stay on the municipal proceedings rather than to dismiss them outright.  It is not difficult to manufacture examples of circumstances in which the secondary jurisdiction may well need to be activated at some future date, and in such circumstances a stay would be preferable to a dismissal.  

25.	However, on the facts of this case, I am quite satisfied that there is no basis for maintaining the life of the London proceedings in a frozen state.  For all the reasons that I have already given in relation to the primary orders, it seems to me that the London proceedings should be plainly dismissed.  

26.	That gives two messages.  The first is that the issue of this sort of strategic application to try to justify or gain advantage following a wrongful removal or retention is to be deprecated.  The second message is that this court fully recognises that this case belongs to another member state, namely the state of the child’s habitual residence. 

27.	So those are the orders I would propose: granting permission, allowing the appeal and dismissing the English proceedings.

28.	LORD JUSTICE DYSON: I agree.

29.	LORD JUSTICE HALLETT: I too agree.

Order: Application granted.  Appeal allowed.