Case No: B4/2012/2765 
Neutral Citation Number: [2012] EWCA Civ 1511
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY
FAMILY DIVISION
(MR JUSTICE HEDLEY and MR JUSTICE RODERIC WOOD)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday 7th November 2012
Before:

LORD JUSTICE THORPE
LORD JUSTICE ELIAS
and
LADY JUSTICE BLACK
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	In the matter of J (children)		

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Mr C Hames (instructed by the Bar Pro Bono Unit) appeared on behalf of the First Applicant mother.
Mr D Williams (instructed by Brethertons) appeared on behalf of the Second and Third Applicant children.
Mr H Setright QC and Mr E Devereaux (instructed by Dawson Cornwall) appeared on behalf of the First Respondent father.
Mr R Harrison QC (instructed by Lyons Davidson) appeared on behalf of the Second Respondent child.
Mr M Chisholm (instructed by Carmarthenshire County Council) appeared on behalf of the Third Respondent local authority.
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Judgment
Lord Justice Thorpe:

1.	This is an international child dispute which has a long history and there have been proceedings in this jurisdiction and in Spain since 2008.  That litigation history is long and quite complex but I see no need to record it for the purposes of deciding the application before the court today.  

2.	I start with the commencement of proceedings under the Hague Convention for the return to Spain of children brought to this jurisdiction by their mother. It is the Welsh part of the jurisdiction, for there is the mother's home.  Directions orders were given in London by deputy judges in August and September with a view to a final hearing before a judge of the Division at the beginning of this Michaelmas term.  It was Hedley J who took the case on 8 October and delivered judgment on the following day, having considered his position overnight. 

3.	He granted the father's application for the return of the subject children to Spain.  He fixed the detail by saying that the mother should hand the children over to the father at Cardiff railway station on Friday 12 October.  The mother did not comply with the court's order and there were therefore applications, communications flurrying about, and when the duty judge was finally contacted it was not until late in the evening of the 12th and he wisely set the matter over for a hearing on 15 October with a direction that the mother should attend.  That hearing came before Roderic Wood J when the mother was represented by Mr Hames and, following argument, the judge robustly rejected all the applications on behalf of the mother to stay the implementation of the terms and brought in all available domestic resources including social services and police, to ensure the vigorous enforcement of the order.  The judge made a collection order to the police but unfortunately there was some delay in the police acting upon it and during that period of delay the mother absconded with the children.

4.	So Roderic Wood J, when learning of this sad development, brought in the press and asked for their assistance in the location of the children.  In the usual way the full details were made available to the press, including photographs of the children, and there was a good deal of coverage both in the national newspapers and on national television. 

5.	That resulted in the discovery of mother and children at a bed and breakfast accommodation.  The mother and her partner were arrested and placed in police custody and the children were taken into foster care where they have remained.  

6.	On the following day the father, and one of the children who had returned to Spain of her own volition in August, arrived to pick up the children and return them to Spain by a flight from Cardiff leaving early afternoon.  There was a sad scene which was observed by the relevant social worker and recorded in her report.  The upshot was that the father returned to Spain with two of the children, leaving two behind.  

7.	There was then a hearing before Roderic Wood J on the afternoon of the 18th. The judge released the mother from police custody and thereafter resumed the hearing in chambers to resolve the next step.  The hearing ran over to the 19th when the judge trenchantly refused the application advanced by counsel and solicitors on behalf of the two children in this jurisdiction to be joined as parties.  He refused permission to appeal that refusal.  He directed the local authority to accommodate those two children, J and T, pursuant to Section 5 of the Child Abduction and Custody Act 1985, he stayed the return orders until 29 October, refused permission to appeal the return order that he had made on 15 October and he made consequential orders in anticipation of any applications to this court.

8.	There were two applications, one of the 29 October when Mr David Williams on behalf of J and T sought permission to appeal the order of 19 October refusing party status (that application we refused this morning); earlier in time the application of the mother filed on 26 October in which she sought permission to appeal the orders of Hedley J of 8 October and the orders of Roderic Wood of 15 and 19 October.  The mother's application to this court was advanced most skilfully by Mr Hames who has throughout presented a difficult case as attractively as it could be put, not only before us today but I have no doubt on earlier occasions to judges of the Division.  

9.	However, he faces huge hurdles.  The first in the sense that it is of greatest relevance to this court, is that he endeavours to persuade us that these orders should be open to appellate review on the grounds that fresh evidence has emerged which shakes their very fundamental core.  Well, the difficulty for Mr Hames is obvious.  None of the material that he asserts constitutes fresh evidence of fundamental import arises prior to the delivery of judgment on 8 October.  He quite rightly and sensibly accepts that the order was correctly made, or was certainly within the ambit of the judicial discretion on the evidence before the court on 8 October, and his endeavour to get up a fresh evidence appeal is really fatally flawed because there is nothing within it that undermines the conclusions or calls for the reinvestigation of evidence upon which Hedley J relied.  All the difficulties are in implementing that core order and a clear line has to be drawn between fresh evidence that is properly admitted as a foundation for review in this court and fresh evidence which only relates to unforeseen difficulties in implementation or enforcement. Enforcement is and remains the responsibility of the court of trial.  The court of trial is infinitely better placed to deal with such difficulties and to make pragmatic decisions as to the next step.  

10.	So I would simply refuse this permission application on the simple ground that Mr Hames has not demonstrated any ground that requires further consideration by grant of permission to appeal.  

11.	The second point that I would emphasise is that this case is unusual in that the two jurisdictions engaged by the Hague Convention application are European jurisdictions and are accordingly bound in priority by the provisions of Brussels II Revised.  Very unusually in this case all welfare issues have been determined by the relevant court of first instance in Spain that conducted a hearing on 13 October and issued a judgment which is dated 2 November.  Both parties were represented before the court.  The father was seeking a variation of the custody order in his favour in the area of contact and the mother was seeking a variation of that order to commit the custody of the children to her in variation of the earlier order committing the custody to the father.  The judge dismissed both applications and explained his decision in a reasoning which might seem abbreviated in the context of litigation in this jurisdiction but is fully compliant with the obligations of the trial judge in Spain.  He emphasises that on two occasions the mother had been directed to bring the children to the Spanish court to enable him to comply with his obligation to hear the children. On both occasions she has not complied and, accordingly, as he said: 

"...the examination was withdrawn.  The matter was ready for judgment."

12.	The judge emphasised that the mother's application was doomed to failure unless she could show a change of circumstance within the definition of the jurisprudence in the Spanish court, the judge specifically citing the case that settled the necessary standard.  He also recorded that there had been an assessment by the relevant welfare service in response to his direction and there was nothing within that report which indicated that either application before him should succeed.

13.	So there would appear to be a fully reasoned welfare decision for the future of these children made on the merits in the court of primary jurisdiction.  That has the consequence that the resulting order is enforceable under Article 22 of Brussels II Revised and the exceptions that might enable the mother to resist automatic enforcement are very narrowly drawn and it would be hard to see any prospect of her getting within that Article.

14.	So I have to question what is the continuing relevance of the Hague proceedings in this jurisdiction?  The whole purpose of the Hague application is to  achieve the summary return of children wrongfully removed or retained in order to enable the court of the children's habitual residence to take any welfare decisions arising out of parental conflict.  That has now been achieved in Spain.  Accordingly it seems to me that the role of this court is much diminished. 

15.	The only respect in which I can see a continuing relevance of the Hague proceedings is if the mother exercises her right to apply in writing within 20 days after notification for an appeal against the order of the judge in Lleida.  In that event the prospect of automatic enforcement under Article 22 may recede into something of a distance given the experience that we have of the time that it takes to get a case decided by the appellate courts in Spain.  In that scenario the order of the 8 October and its enforcement resumes crucial importance and obviously the next stage in the enforcement of that order must be for the decision of the judge of the Division now that these permission applications are to be dismissed.

16.	Mr David Williams in his submissions this morning, unsuccessful in outcome, nonetheless made what I thought was a good point, namely that the frustrated endeavour to enforce in Cardiff might have been avoided had the whole process been approached with greater sensitivity and had the children themselves been more engaged in the enforcement proceedings.  Mr Williams made the submission which I think is of general force that in these situations a powerful weapon in the hand of the judge is to meet the children and to explain to them what the court is ordering, why the court is so ordering and the distressing consequences of endeavouring to swim against the tide of a judicial order.  And so when this case returns to a judge of the Division I would simply hope that the parties would canvass with the judge the possibility of him seeing the children and trying to explain to them in ordinary language both  what was the reality and also  the inevitability of their return to Spain.  I would emphasise that by his skeleton argument of 6 November Mr Setright on behalf of the father for the first time advanced a proposal to support the mother should she decide to return to Spain with the children and to reside there pending the outcome of proceedings either in the local court of first instance or in the regional court of appeal.  

17.	That seems to me to be an important concession and one that should ease the task of the judge in trying to complete the process of implementation and enforcement.  I would refuse this application for permission.

Lord Justice Elias: 
18.	I agree. I would only add that it must be recognised that if the judge does see the children in this case the focus of that would not be for him to gather any evidence with regard to the issue of implementation but merely for the purposes to which my Lord has already referred.

Order: Application refused