E-B (CHILDREN) [2002] EWCA Civ 1771

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE BRACEWELL)
[2002] EWCA Civ 1771Case No B1/2002/2196Venue Royal Courts of Justice, Strand, London, WC2, Monday, 25th November 2002
Between
E-B (CHILDREN)
Before
Lord Justice ThorpeMr Justice MunbyMR J TURNER QC (instructed by Messrs Miles Preston & Co, London EC4A 3DQ) appeared on behalf of the ApplicantMR H SHAW (instructed by Messrs Jeremy Fisher, London W1K 5SG) appeared on behalf of the RespondentDate 25 November 2002

LORD JUSTICE THORPE:

Mr

[1]Turner QC appears this afternoon pursuing an application for permission to appeal an order of Bracewell J of 10th October. His application was received by me on 20th November and directed in for hearing on notice, with appeal to follow if permission granted today, 21st November.[2]The point is clearly arguable and we have effectively granted permission at the outset and heard the appeal.[3]The background can be summarised briefly. The dispute is between parents of two children who are now aged five and three. The family is Lebanese and the mother brought the two children to this jurisdiction unilaterally earlier this year.[4]The father issued an originating summons for an order for peremptory return on 17th September. That summons came before Bracewell J for directions on 10th October. On that occasion the mother was represented by junior counsel, Mr Charles Atkins, who applied for permission to instruct an expert as to the law and practice of the Lebanon. The expert suggested was Mr Ian Edge. Bracewell J having heard submissions in opposition, referred to the decision of this court in Re E [1992] 2 FLR 642 and reached the conclusion that the guidance given in the judgments in that appeal militated against the grant of permission. Further, she said:
"I anticipate that, if there were to be expert evidence, it would lead to delay and would not be in the welfare of the children, because there would have to an instruction of a joint expert, there would have to be agreement, and such an expert would have to report. In any event, I cannot see the purpose of having expert evidence in this case, particularly when the mother herself has submitted to the jurisdiction of the Lebanon."
[5]Subsequently the mother's funds were exhausted and she was obliged to change solicitors. As a publicly funded litigant Mr Turner was able to appear for her on 25th October, when he effectively asked the judge to change her mind. Not surprisingly, she declined to do so. She referred also to the decision in this court in Al Habtoor v Fotheringham [2001] 1 FLR 951 , and said that that case made it clear that comity is to be respected. In those circumstances, she said that she was not prepared to allow the matter to be reopened.[6]In fact on the previous day Mr Turner's instructing solicitors, or perhaps their predecessors, had filed notice of application with this court for permission. It is that notice that came to me, albeit regrettably slowly, on 20th November.[7]I have every respect for the approach of Bracewell J, which seems to me to be alive to relevant recent case law and which emphasises the importance of ensuring that the husband's strong case is not delayed in its progress to judgment by any strategy. These applications for peremptory orders in cases which do not engage the 1980 Hague Convention are equally deserving of prioritised preparation and determination. However, from my first reading of the papers I questioned and still question the obligation on a party to wardship proceedings to seek the prior permission of the judge before filing a statement of foreign law and practice from a duly qualified expert practising within this jurisdiction. The point was not really taken at all on 10th October, when counsel representing the mother implicitly accepted the need for permission. I do not think that Mr Turner really adopted a materially different line on 25th October. He has since filed a very full skeleton in support of this application, but it is not until the reader reaches paragraph 72 that this submission is even sketched in.[8]Mr Shaw has done his best. He asserted that the Family Proceedings Rules imports Part 35 of the CPR, but without notice or opportunity for research he was not able to make that good. Subsequently he conceded that that provision only applies to ancilliary relief proceedings.[9]Mr Turner says that the evidence of Mr Edge would be relevant on three bases. The first is that he asserts that the authorities in this court demonstrate a clear conflict between two streams. The first stream he identifies has its origin in a decision in the case of Re R , which was decided in this court as long ago as 7th July 1981. It seems to me that that case is the last word in a line of authority developed, particularly in the 1970s, to control the unilateral movement of children across international frontiers. The classic case in that stream of authority is perhaps the decision in Re L [1974] 1 WLR 250.[10]Mr Turner is inclined then to say that the direct heir is the decision of this court in the case of Re JA [1998] 1 FLR 231. He submits that the later decision of Re E [1999] 2 FLR 642 conflicts with these prior decisions and is accordingly not to be followed.[11]First of all, I want to make it plain that I do not accept for one moment that analysis of the relevant authorities. My only disagreement with the judgment of Ward LJ in the case of Re JA is as to the status of the prior decision of this court in Re M [1996] 1 FLR 478. In Re JA Ward LJ suggests that the judgment of Waite LJ in Re M was delivered per incuriam . That, as I made plain in my judgment in Re E , I simply cannot accept. It seems to me that the judgment of Waite LJ in Re M is an entirely orthodox application of the prior decision of this court in Re F [1991] 1 FLR 1. So for me the orthodox stream of authority post the arrival of the 1980 Hague Child Abduction Convention is Re F , through the case of Re S [1994] 1 FLR 297, through the case of Re M (already cited). In so far as I have any other criticism of the judgment of Ward LJ in Re JA , it is only that he does not seem to have regard to the link between Re F and Re M , namely the decision in Re S.[12]So, for the possible benefit of whoever deals with the case on Monday next, I have dealt in some detail with Mr Turner's primary submission. In sum, I do not accept the conflict. I do not accept that the decision of this court in Re E is an unorthodox decision and I do not think that expert evidence is necessary in any way in determining Mr Turner's characteristically ingenious submissions.[13]But I am impressed with his second foundation, for he says that surely even if the decision of Re F is given primacy, still the Master of the Rolls there recognised that a presumption in favour of a peremptory return may yield in an exceptional situation, where the respondent has demonstrated a risk in the jurisdiction of habitual residence of persecution or discrimination or some other overt harm. Mr Turner's fallback position is to contend that his client lies in that exceptional class. It does seem to me that it is at least arguable that evidence as to the law and practice in the Lebanon could be relevant to that submission.[14]His third foundation is to say that his client should be in no worse a position than would be a respondent to an application in a Hague Convention case. In such cases where an Article 13B defence is asserted, it is common enough for the respondent to adduce expert evidence of the law and practice in the state of habitual residence, perhaps to demonstrate that on return the respondent would be exposed to criminal process or otherwise denied access to the family justice system.[15]So on those latter two grounds, it seems to me that evidence as to the law and practice of Lebanon is arguable relevant and admissible.[16]One thing that I would support to the hilt is Bracewell J's determination to avoid delay. My preference then would be to allow the appeal to the extent of putting in place a direction that Mr Ian Edge be instructed to submit a brief written statement as to such issues of law and practice in Beirut as arise from the statements filed by the parties in the proceedings and in the written submissions prepared by counsel for the purposes of this afternoon's argument. I would make it plain that that statement needs to be filed with the court and served on both parties by 4.00pm on Friday to ensure that the fixture on 2nd December, or perhaps it is 3rd December, is not jeopardised.[17]The obligation to remunerate Mr Edge as the court's expert lies in the first instance on the respondent, who seeks the admission of his expertise. That obligation is, however, of course subject to whatever judgment may follow on the costs of the originating summons. By that I mean, obviously, that the direction as to remuneration made by this court is only to ensure that the work is not delayed for want of funding. Who ultimately pays will be determined not by anything that I have said this afternoon, but by the judge's decision on the costs of the originating summons after judgment has been delivered.[18]But to that limited extent, I would allow this appeal and make a different direction to that made below.[19]MR JUSTICE MUNBY: I agree that this appeal should be allowed for that reason, and agree with the form of order proposed by my Lord.

ORDER

Application for permission to appeal granted; appeal allowed; no order as to costs, save for detailed assessment of the applicant's Community Legal Services Funding costs. (Order not part of approved judgment)

Cited in 1 later judgment