Opposing return of children to jurisdiction

The Court of Appeal recently ruled in an appeal in which two members of chambers appeared. Marianna Hildyard QC and Kieran Pugh represented the mother and successfully appealed against the decision of a Section 9 Judge who had ordered the return of a child lawfully removed from the jurisdiction. 

See Re: S (A Child) [2010] EWCA 465

Appeal on behalf of the mother following a peremptory judgment (in the PRFD) in which the s9 Judge warded and ordered the return of a child to the UK who had been lawfully removed from the jurisdiction, to Spain, by her mother days after the Local Authority’s contested application for an Emergency Protection Order was refused.

The matter was brought before the Court of Appeal and fully argued within 6 days of the Order being made. Ward LJ stated “I would, if I may, like to congratulate counsel on the very full preparation which they have managed to achieve in a very short space of time.”    

The case sets precedent that a Court may, in the light of the speed with which proceedings needed to be pursued, proceed on the basis that it has jurisdiction because the child was habitually resident or if the removal was lawful then the only basis upon which this child could be returned to the jurisdiction of England and Wales was by wardship; and therefore subsection (a) of Section 100(2)(4) applied. 

However, with regard to the welfare decision that A should be immediately and peremptorily returned to the UK, Wall LJ concludes that this is a case in which

'a child has been taken by her mother, exercising parental responsibility, to live with her father and her father's relations.  There is a powerful case for saying this therefore is not a case within the Hague Convention; it is not a conventional kidnap and, moreover, when one comes to balance welfare issues  ….. the welfare equation, in my view, is not so stark as to require the immediate removal of the child from Spain and her immediate peremptory return to England.  That seems to be a welfare decision which ought to be taken on proper evidence, with evidence from the parties and no doubt with a report from the local social services.'

Wall LJ therefore upheld the order of the judge insofar as it made the child a ward of court, but set aside the order for peremptory return until such time as the court had determined the application for interim care.

Date Added: June 17th 2010