Summary
The proceedings were concerned with a child, Eva, who was born in England in 1995.
The parties to the proceedings were both Scottish. They separated in 2001. The father came to England; the mother stayed in Russia and subsequently moved with the child to Budapest.
The child came to England on 13th April 2006; Eva was due to fly back to Hungary on 18th April 2006. The mother sought the return of her child to Hungary.
The English proceedings under the Hague Convention were initiated on 19th April. On 10th May 2006, Charles J ordered for the child to return to Hungary where it was habitually residing.
Also, the judge had to deal with a father’s residence order application which had been initiated on 13th April 2006, and then transferred to the High Court. Although the Hungarian courts had jurisdiction over the welfare issues, the judge “made a highly unusual order, lifting the stay for one day to enable him to make detailed provisions for a three-day hearing, in the High Court in August 2006, of any disputed welfare issues between the parents.” [4]
The mother appealed, and the case reached the Court of Appeal.
The mother’s appeal was allowed, and the Court of Appeal dismissed the English proceedings for residence order. Lord Justice Thorpe held:
“21 As an exercise of discretion by the judge, it seems to me quite insupportable; indeed, I regard the arrangements that he made as close to unprincipled. It is very important in these cases that there should be no orders made in London that might be said inferentially to challenge the primary jurisdiction of another member State or to suggest that London is in a superior position to resolve welfare issues. The more likely practical consequence of the course for which the judge elected is not that the steps that he was ordering would go to the aid of Hungary but more realistically that they would simply be wasted. CAFCASS is under huge burden, particularly in the London area, and to require the CAFCASS officer to prepare a report that might only possibly be of use to a London judge is, in my opinion, not wise, unless the London judge is preparing for a fixture which will almost inevitably stand up. It is simply an extravagance to require a full report from a CAFCASS officer with possible visits abroad to view foreign schools.
22 So in my judgment the directions that the judge gave were exorbitant. His reasoning does not support the exercise of discretion, and the orders must be set aside and any work into progress immediately abandoned. I would, however, like to emphasise that the judge's conduct of the trial on the 10 May was impeccable. He arrived at impeccable conclusions on all the primary issues. It is only in this one ancillary area that I take issue and I would also want to emphasise that the Charles J had no desire to given an extempore judgment on the day but felt driven to do so, as he put it, “given the hour and given the listing that faces me between now and the end of the week”. So I am in no sense critical of Charles J and, as I emphasise, differ from him only on a narrow point.” [21-22]