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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> H (Child), Re  EWCA Civ 988 (11 October 2016)
Cite as:  EWCA Civ 988,  2 FLR 527,  1 FCR 121
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ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
HIS HONOUR JUDGE BROMILOW (Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
Vice-President of the Court of Appeal Civil Division
LORD JUSTICE LONGMORE
LADY JUSTICE BLACK
|Re: H (child)|
Mr David Williams QC & Ms Jacqueline Renton (instructed by Freemans Solicitors) for the 2nd Appellant
Mr Aidan Vine QC & Mr Edward Bennett (instructed by Dawson Cornwell) for the Respondent
Hearing date: 13th July 2016
Crown Copyright ©
Lady Justice Black:
An outline of the proceedings
"a. The mother's application to set aside the order dated 8 July on the basis of duress;
b. The mother's application to set aside the order of 8 July 2015 on the basis of a change of circumstances;
c. The father's application to enforce the terms of the order of 8 July 2015."
The ambit of the appeals for which permission was granted prior to the appeal hearing
i) Whether A's interests required him to be joined as a party in his own right at any stage in the proceedings in the High Court;
ii) Whether Judge Finnerty was wrong to make the consent order in July 2015;
iii) Whether Judge Bromilow's decision to enforce the July 2015 order rather than setting it aside or varying it was wrong.
The father's proposed appeal: Judge Bromilow should not have entertained the mother's application at all
i) Section 17 of the Senior Courts Act 1981 provides:"(1) Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.(2) As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.(3) [Not relevant]"
ii) The mother's application was for the setting aside of the return order and came within section 17(1).
iii) No relevant rules have been made in pursuance of subsection (2), therefore the mother's application had to be heard and determined by the Court of Appeal; Judge Bromilow was not entitled to hear it.
iv) Alternatively, if he was entitled to hear it, he should not have done.
Asylum: the factual position
"In the light of the above, it is accepted that the claimant has a well-founded fear of persecution for a convention reason due to her being a member of a particular social group. It is considered that there is a reasonable degree of likelihood that the claimant would be at risk on return and that there would be a real risk of her and/or her son being subjected to serious harm contrary to Article 3 of the ECHR."
Asylum: treatment by Judge Finnerty and Judge Bromilow
"36. …. A's claim [for asylum] was made on 26 [sic] June 2015. All parties knew about this on 8 July 2015. It was actively considered during the course of discussions and the prospect of an adjournment was considered. The court heard oral evidence from the High Court CAFCASS officer about A. I have taken account of the decision of Mr Justice Wilson (as he then was) in the case of Re H . In that case, the mother's asylum status was under consideration as opposed to that of her eight year old son. In my judgment, the grant of asylum to A is not a reason for setting aside the order. Accordingly, the second limb of Mrs Khan's application to set aside the order of 8 July 2015 fails.
37. Mr Jubb addressed me about A's welfare. He was right to do so. Indeed, I have been keen to learn much more about A. It has not been my task to investigate what is best for him in terms of welfare as measured by reference to s. 1(3) of the Children Act 1989. However, I observe that, notwithstanding the allegations made by these parents and the state of the father's relationship with his son, these educated parents with specialist legal advice reached an agreement about their son on 8 July 2015. More than seven months have now elapsed. That is a significant period of time in this child's life. The best people to provide for a child's welfare are his parents. I urge them to do so promptly. The order of 8 July 2015 stands and it must be enforced by way of a prompt return to Pakistan…."
Asylum and welfare: discussion
"Having regard to the rule as to the paramountcy of the child's interests under s 1 of the Children Act 1989, I would respectfully suppose that a family judge would at the least pay very careful attention to any credible suggestion that a child might be persecuted if he were returned to his country of origin or habitual residence before making any order that such a return should be effected."
"43. … In the event I propose to pay significant regard to the decision of the Secretary of State that the mother has a well-founded fear of persecution in Pakistan; for I take the view that it would be unrealistic for me to divorce the mother's situation in Pakistan from that of [the child]. Nevertheless more relevant than the grant of asylum to the mother is the material presented by her which underlies it: I must look independently at it; note both that it is largely disputed and that I cannot resolve the dispute; and consider the probable efficacy of the raft of protection which is now volunteered."
i) Is A's refugee status an absolute bar to the family court ordering his return to Pakistan?
ii) If so, by what process can the father challenge the refugee status, given that he denies the allegations of violence by the mother and A upon which their asylum claims were based? By virtue of paragraphs 338A and 339AB of the Immigration Rules, a grant of refugee status shall be revoked where the Secretary of State is satisfied that the person's misrepresentation was decisive for the grant. The question arises as to how the determination is made that there has been a misrepresentation. Normally this would be a matter for the Secretary of State alone, but where the family court needs the issue resolved in order to decide what is in a child's best interests, can the family court determine it itself? Is it necessary for the Secretary of State to be joined in the proceedings, in those circumstances, not least with the intent that the family court's determination should be binding upon her too? Is it necessary for the grant of refugee status to be formally revoked by the Secretary of State prior to a return order being made or is some lesser process sufficient?
iii) If the family court determines whether there has been a misrepresentation, on what basis does it do so? Is the usual process of making findings of fact on the balance of probabilities appropriate or is it necessary to take the sort of approach taken by the Secretary of State to the determination of asylum claims?
iv) If A's asylum status is not an absolute bar, how should it be taken into consideration in the family proceedings? Once again, the question arises as to how the court should resolve the factual debate between the parties.
v) Does it make any difference that, strictly speaking, A probably has humanitarian protection rather than protection as a refugee?
The July 2015 order
i) A and the mother were both making allegations that the father had been violent to them;
ii) The mother's case was that her own and A's safety was threatened if they returned to Pakistan;
iii) A and the mother both had pending asylum claims.
"30. I cannot be confident, having heard only negative things about him, that I obtained a rounded picture of his father. That said, the scenarios that A described of alleged abuse, some demonstrated physically, had the ring of authenticity about them, and if true, give good reason for his antipathy towards his father. It was notable that there was some balance in what A had to say notably his positive comments about his school in Lahore."
As for the CAFCASS officer's oral evidence to Judge Finnerty, although there is no transcript of his evidence, from the note produced by the father's representatives, he does not appear to have diverged materially from what he said in his report.
i) The last minute nature of the mother's agreement to the father's application, notwithstanding what she had said about the risk that he posed to her and A in Pakistan;
ii) The fact that A had his own asylum claim pending and, tying in with this, the fact that he had made his own serious allegations against the father which the CAFCASS officer considered had the ring of authenticity about them;
iii) The fact that in returning to Pakistan, it appeared that the mother was depending on the undertakings offered by the father, but there was no evidence at all as to whether these would be effective in Pakistan or as to how the Pakistani courts would approach issues relating to the child's welfare once the parental dispute was put before them.
A's participation after the July 2015 order and in particular before Judge Bromilow
Lord Justice Longmore:
Lord Justice Moore-Bick: