Thursday, August 23, 2012

C (A Child): An incredibly rare order

Lord Justice Thorpe
C (A Child) [2012] EWCA Civ 1144, reported today on Family Law Week, concerned Hague Convention proceedings and the unusual circumstance of a child changing her mind about returning to live with her father in Canada.

The short judgment of Lord Justice Thorpe in the Court of Appeal does not go into detail as to the facts, but they appear to be essentially as follows.

The family, comprising mother, father and daughter now aged fifteen resided in Canada. The mother brought the child to this country and the father sought her return under the Hague Convention.

As Lord Justice Thorpe put it, it appeared that there would then be 'a good old battle' about the child's return, but she indicated that she was keen to go back. Accordingly, the judge made a return order consensually and without investigating or determining the issues.

However, within a week the child was stating "both clearly and firmly" that she had changed her mind, and the matter was returned to court. The judge concluded that he did not have the power to set aside his previous order, and the case was therefore sent to the Court of Appeal.

Counsel for the child argued that not only should the appeal be allowed, but that the Court of Appeal should also dismiss the father's application, because of the views now expressed by the child and because it was "perfectly apparent" that the child was "suffering not just emotional turmoil but physical illness in consequence of the stress which she is currently experiencing". Lord Justice Thorpe described the order being sought as "an incredibly rare order" which could only be made "if it is demonstrated that the outcome of any remission is so plain that it would simply be abusive to put the parties and the trial judge through the process".

Naturally, counsel for the father opposed the making of such an order and, among other unspecified options, proposed that the return order be set aside and the case remitted for rehearing.

Lord Justice Thorpe found that the resolution of these conflicting submissions was "not particularly easy". However, whilst it seemed "extremely unlikely" that the return order would be enforced if the child remained in her present emotional state, he came to the "reluctant conclusion" "that there are potential issues which render it impossible to declare that the outcome of remission is so overwhelming[ly] obvious as to render remission futile". The father could not "be denied a process of trial, there having been no completed process of trial in the court below."

Accordingly, the case was remitted to the Family Division, although both Lord Justice Thorpe and Lord Justice McFarlane, giving a concurring judgment, expressed the wish that the parents try to resolve matters between themselves, "rather than expect a rather blunt legal process to be deployed and come up with an answer which they as parents have responsibility for taking".

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