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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Children), Re [2001] EWCA Civ 578 (11 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/578.html Cite as: [2001] EWCA Civ 578

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
IN THE MATTER OF THE CHILD ABDUCTION
AND CUSTODY ACT 1985
AND IN THE MATTER OF THE SUPREME COURT ACT 1981

		Royal Courts of Justice Strand London WC2 Wednesday, 11th April 2001

1. LADY JUSTICE HALE:This is a directions hearing in child abduction proceedings relating to three children. Those proceedings culminated in a hearing before this court on 19th December 2000, at which the court, by a majority, ordered that all three children return to New Zealand. They have not yet returned. The claimant father has applied for the order to be enforced and has made arrangements for them to travel to New Zealand on 28th April. In the meantime, the mother has made an application for the order to be set aside.
2. There is a difficulty about the extent of any jurisdiction either to set aside or in some other way to revisit a final order made in Hague Convention proceedings. The claimant acknowledges the existence of some such jurisdiction in respect of the implementation of such an order, but there must be doubt about its precise extent and the criteria which would justify its being exercised. I wish to say as little as possible about the reasons put forward for suggesting that the court should now revisit its order, but it seems to me that this is a clear case in which the matter should go before the full court, if only because the existence of that jurisdiction played a not inconsiderable part in the reasoning of the majority which led them to the conclusion that the return of these children to New Zealand would not cause them grave hardship or put them in an intolerable situation.
3. It is for that reason that I have directed that this matter be listed before the full court for hearing on Wednesday, 25th April. At that hearing it will be necessary to consider the scope of this jurisdiction, the merits of the mother's application, the father's proposals for implementation and, if the court thinks it appropriate, any proposals for enforcement of the order, bearing in mind the delay that has already taken place and the arrangements already made by the father.
4. Also before the court is an application that the oldest child, K, who will be 15 in two months' time, should take part in these proceedings. K has always expressed a firm opposition to returning to New Zealand. Mr Justice Singer, who heard the case at first instance and did not order the return of any of the children, would have overridden her objections on the basis that they may have been based on a false premise. I, in the minority in the Court of Appeal, would not have overridden her objections.
5. The stage has been reached at which her objections should be placed before the court, so that the court has proper information about them. I do not think that there will be any damage to K's welfare in permitting her to participate to that extent, and I can foresee considerable damage to her welfare if she is not so permitted. I will therefore give her permission to intervene in the proceedings. I will appoint her solicitor, Alison Burt of Messrs Bindman & Partners, to be her guardian ad litem, and I will give her permission to make her own application in respect of the Court of Appeal's order.
6. As far as evidence is concerned, my understanding of the usual practice for fresh evidence is that the court which hears the case will determine whether or not to admit fresh evidence, although obviously it is much more likely to do so in a case involving children than it is in other cases. Therefore, I am not myself going to give leave to adduce fresh evidence, but such application should be made to the full court. For that purpose, of course, the notice of application should have annexed to it that fresh evidence which it is desired to adduce: that is, whether by K or by the mother or, indeed, by the father, should he wish to do so. The mother may wish to include other information that could be of interest to the court, perhaps more directly relevant to the reason why Lady Justice Arden and Lord Justice Laws considered that it might be proper to revisit this case. This has to do with the steps that could be taken in New Zealand to protect her should she return.
7. The other application that has been made is that the children should see the court welfare officer once more. If this can be arranged, it seems to me that it would be in their best interests for them to be seen again. They might otherwise find it extremely difficult to understand why they were seen before the previous hearing but not before this hearing, which I have little doubt, however undesirable it may be, they will know all about. It again will be for the Court of Appeal at the hearing to decide whether or not it wishes to admit the report of the court welfare officer and what orders it wishes to make, but it would be wrong for the court not to have the fullest possible information as to the circumstances which now pertain.
Order: matter to be heard by the full court on Wednesday, 25th April 2001; costs reserved; child K given permission to intervene in proceedings and Alison Burt of Messrs Bindman & Partners appointed her guardian ad litem and given permission to make her own application in respect of the Court of Appeal's order; arrangements to be made, if possible, for children to see court welfare officer again.