UK – RE M – LONDON TIMES – 1994 (Return of the children affirmed) (Undertakings) The Court of Appeals upheld the decision of the lower court that had ordered the return of children to Israel. The court stated that “Undertakings attached to an order for return of a child under the Convention were designed to protect the child for the limited period before the foreign court took over and were not to be used to fetter or delay the enforcement of the decision to return the child”
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In re M (Minors) (Child abduction: Undertakings)Court of Appeal
[The London Times – Law Report – 15 Aug 1994]
Before Lord Justice Butler-Sloss, Lord Justice McCowan and Sir
Tasker Watkins
Judgment 15 Jul 1994
A Hague Convention order for the return of a child to the country
of his habitual residence was a final order and any application
to set it aside had to be made by way of appeal to the Court of
Appeal.
Undertakings attached to an order for the return of a child under
the Convention were designed to protect the child for the limited
period before the foreign court took over and were not to be used
to fetter or delay the enforcement of the decision to return the
child.
The Court of Appeal so held in a reserved judgment, dismissing
the mother’s appeals against (i) the order of Mr Justice
Kirkwood, on April 15 that her two children be returned to Israel
forthwith, pursuant to The Convention on the Civil Aspects of
International Child Abduction 1980 as enacted by the Child
Abduction and Custody Act 1985 and (ii) the decision by Mr
Justice Johnson on June 20 to decline jurisdiction to hear the
mother’s application to set aside the order.
Mr Augustus Ullstein, QC and Mr Timothy Scott for the mother; Mr
James Munby, QC and Miss Indira Ramsahoye for the father.
LORD JUSTICE BUTLER-SLOSS said that it had been argued for the
mother that a Hague Convention order was analogous to custody and
access and was to be treated as interlocutory. Accordingly, it
was for a Family Division judges to vary or set aside the order
and not for the Court of Appeal.
The procedure in Hague Convention cases was summary and intended
expeditiously to deal with the mischief of wrongfully removing
children from the jurisdiction of their habitual residence.
Under article 11 speed was of the essence.
It was entirely different from internal proceedings, concerned
with making orders based upon the principle of the paramountcy of
the welfare of the child.
Article 13, if invoked, dealt with specific instances where the
welfare of the child might inhibit an order for return.
Article 13 had to be raised as a defense to a Convention
application and a court had to be satisfied that the matters
raised were so important as to displace the prima facie
requirement to return the child upon proof of wrongful removal or
wrongful retention.
The order to return or not to return was final in the Hague
Convention proceedings brought by the central authority and
disposed of those proceedings.
Any proceedings dealing the custody, residence or other needs of
the child were between different parties with considerations .
wholly different from those relevant to a Convention application
to return the child.
Now that Her Ladyship had heard further argument on the issue she
was not persuaded that her earlier view that a Hague Convention
order was a final order was wrong (see In re M (a Minor): (Child
abduction) [1994] 1 FLR 390, 397E)) and Mr Justice Johnson had
clearly been right to refuse to entertain an application to set
aside the order of Mr Justice Kirkwood which was a matter for the
Court of Appeal.
It was perhaps helpful to remind those involved in Hague
Convention applications about position of undertakings or
conditions attached to an Article 12 order to return.
Such requirements were to make the return of the children easier
and to provide for their necessities, such as a roof over their
head, adequate maintenance, and so on, until, and only until, the
court of habitual residence could become seised of the
proceedings brought in that jurisdiction.
The court had to be careful not in any way to usurp or to be
thought to usurp the functions of the court of habitual
residence.
Understandably, the requirements made in this country must not be
so elaborate that their implementation might become bogged down
in protracted hearings and investigations.
Undertakings had their place in the arrangements designed to
smooth the return of and to protect the child for the limited
period before the foreign court took over, but they must not be
used by parties to try to clog or fetter or in particular c;
delay the enforcement of the paramount decision to return the
child.
It would be helpful if realistic time limits for the compliance
with the undertakings were included in the orders to return the
child. In the absence of a specified time clearly the court
would consider a reasonable time and not allow the case to drag
on with repeated applications to the court.
Lord Justice McCowan and Sir Tasker Watkins agreed.
Solicitors: Reynolds, Porter, Chamberlain
Margaret Bennett & Co, Bloomsbury.