Civil procedure – Practice directions – Trial bundles – Sanctions for non-compliance – Identification of defaulters in open court

Re X & Y (bundles): Fam Div (Mr Justice Munby): 22 August 2008

Giving two examples of family cases where Practice Direction (Fam Div: Family Proceedings: Court Bundles) (2006) 1 WLR 2843 had not been followed, the court commented on practitioners’ general failure to comply with the practice direction. In one case, the hearing bundle prepared by experienced family solicitors had lacked a reading list and skeleton argument, and the chronology and index were virtually useless. Most of the key documents were scattered through the bundle without chronological or thematic order. In the second case, a bundle had been delivered to the court on the morning of the hearing, leaving no time for pre-reading. The index stated the wrong date and court, and two orders which should have been included in the bundle were not. The hearing had to be re-listed. These were two examples out of many instances of the practice direction not having been followed.

Held: Far too often the requirements of the practice direction were not being observed. That was unacceptable. Paragraph 12 of the practice direction warned of sanctions penalising those who failed to comply with its requirements. Orders for costs could be made against either the party in default or against the defaulting lawyers. Cases could be put to the end of the list or adjourned to a later date. In particularly egregious cases, defaulters could be publicly identified in open court.

The court’s comments were to be taken by the professions as fair public warning that the sanction of public exposure was available and could be applied in appropriate cases.

Statement issued in open court.

Allocation of jurisdiction – Residence – Settlement – Hague Convention on the Civil Aspects of International Child Abduction

M v (1) F (2) J & MJ (by their guardian ad litem JS): Fam Div (Mr Justice Black): 20 August 2008

The applicant mother (M) applied for the return of her children (C), aged nine and six, to Poland.

M and the respondent father (F) had been resident in Poland. Following their separation, C lived with M but continued to see F. F later wrongfully retained C in England and sent the older child to a school and the other child to a nursery. By that time, proceedings were already issued in Poland to establish C’s place of residence, and M obtained a Polish order that C should stay with her for the duration of those proceedings. M subsequently instituted proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, which culminated in a consent order for the return of the children to Poland. Thereafter, M obtained an interim order prohibiting F from leaving Poland with C for the duration of the Polish proceedings. C’s passports were cancelled. F, however, returned with C to England without M’s knowledge or permission.

At a further hearing in Poland, F apparently gave the impression that he and C were living in Poland rather than England. F was ordered to return C to M but he did not comply. The Polish authorities unsuccessfully attempted to locate C in Poland. M also attempted to locate C and made the instant application after she found evidence of C’s whereabouts. C’s guardian was of the opinion that their wishes to stay with F in England had been influenced by him, that they did not have sufficient understanding of their situation and that it could not be said that they had fully settled in England. F opposed the application on the grounds of settlement and C’s objections. F submitted that as it was no longer possible to secure the swift return of C envisaged by the convention, the exercise to determine whether settlement of C had been established involved a more child-focused consideration than was often the case in a Hague application. F further submitted that the jurisdiction in the matter was transferred to the English court, and that M should have known of C’s whereabouts much earlier in view of her own knowledge of the type of person he was and from his repeatedly declared wish to have C live with him in England.

Held: (1) C had not had a seamless period of residence in England of over two years as F had attempted to suggest and there was no doubt that the periods that C were deprived of contact with M were damaging to them. C had been subjected to influence from F, which was not consistent with a climate in which C could be expected to settle into a normal pattern of life in England. The eldest child at least was not wholly committed to his life in England. C had done well in school and had learned to function adequately in English. It was also material that the eldest child had been in the same school while living in England, the youngest had been in the same school for about a year and their accommodation had been stable. However, notwithstanding the links that the family had made with their local area in England, settlement was not established within the meaning of article 12 of the convention, Cannon v Cannon [2004] EWCA Civ 1330, [2005] 1 WLR 32, Re M (Children) (Abduction) [2007] UKHL 55, [2007] 3 WLR 975 and Mark v Mark [2005] UKHL 42, [2006] 1 AC 98 considered.

(2) As regards C’s objections for the purposes of article 13 of the convention, there was no doubt of the considerable influence of F upon C’s views. His approach to them in that regard would have prevented them from maturing in the normal way, at least in relation to their feelings about their future and possibly in other ways as well. In those circumstances, while for the vast majority of the time they had said that C wished to live in England with F, no weight could appropriately have been given to those views in determining whether C should be returned to Poland. F’s case under article 13 was not made out.

(3) Under article 10 of regulation 2201/2003, the Polish courts retained their jurisdiction in a child abduction case unless various conditions were met. The provision, which F relied on, was applicable where, among other things, a child had resided in another member state for a period of at least one year after the person having rights of custody had or should have had knowledge of the whereabouts of the child. However, M had not had knowledge of C’s whereabouts for the requisite period and nor should she have had that knowledge. M, the Polish court and other Polish authorities were actively searching for F and C, and it could not be said that M should have known their whereabouts any sooner than she did. It followed that jurisdiction remained with the Polish courts who were in the middle of their consideration of the matter.

Application granted.

Nicholas Anderson (instructed by Lyons Davidson) for the applicant; Alison Ball QC, Stuart Fuller (instructed by Rowberry Morris) for the first respondent; Melanie Carew (instructed by CAFCASS Legal) for the second respondents.