This is the third part of a series of articles following ongoing international proceedings concerning enforcement, Hague Convention applications, and the ever-complex issue of contact arrangements. The first two parts can be found here (Part 1, Part 2), and, as with any unfolding case, they are best read together.
An application for permission to appeal was duly made. It was not without difficulty, a number of administrative hurdles arose along the way, but the application was ultimately filed within the required time limits.
In response, the mother’s legal team submitted a position statement suggesting that the appeal was aimed at the entirety of the orders made at the final hearing. That was not correct. The father’s position had been clearly set out from the outset: the appeal concerned one paragraph only – the refusal to order the return of the children. A paragraph which, in our view, had been determined without proper consideration of the available evidence.
And so, we waited.
The decision, when it came, refused permission to appeal. The reasoning was brief: it was said to be an appeal against a consent order. That, however, was not true.
Upon reviewing the order again, the issue became apparent. A simple but significant error in numbering had resulted in the refusal of the return order appearing as though it had been made by consent. In reality, it had not. The sequence of events suggested an administrative oversight: the judge had added a recital before the order was sealed, but the numbering had not been adjusted accordingly. The consequence was more than cosmetic; it altered the very character of the order.
It is often said that a case is not over until it truly is.
An application was therefore made to amend the order under the Slip Rule. That application succeeded. With the corrected order in hand, a request for further consideration was made to the Court of Appeal.
One might have expected that to be the end of the procedural difficulties.
It was not.
The application could not be reconsidered. The reason? The amendment, though clearly identified on the face of the order, had not been marked in red throughout the document. The front page indicated that an amendment had been made, in red, but the amended text itself appeared in black. On that basis, the application could not proceed.
Another administrative obstacle, and another delay.
The order was returned to the High Court with a request for the amendments to be clearly and consistently marked. This time, the issue was addressed, and a corrected version, with the necessary amendments properly highlighted, was provided. The application has now been re-filed and awaits further consideration by the Court of Appeal.
And so, once again, we wait.
Behind the procedure and the paperwork, however, lies the human reality of the case. At its heart are two children who, over the course of three years, have seen their father in person only twice. A father who has invested not only significant resources, but unwavering effort, in attempting to maintain and rebuild that relationship and had been refused this opportunity – not only by the mother but also by the legal systems.
This is precisely the type of situation the Hague Convention 1980 was designed to address. Its purpose is clear: to protect children from the harmful effects of international abduction and wrongful retention, and to ensure their prompt return.
Yet, in cases such as this, one is left questioning whether that purpose is being fulfilled.
It is difficult, and perhaps unfair, to attribute fault to a single system. This case has moved across jurisdictions, each with its own procedures and limitations. But taken together, the outcome raises an uncomfortable question: what happens when the systems designed to protect children instead allow time, delay, and non-compliance to take hold?
There has been no finding, at any stage, that the father poses any risk of harm to the children. In contrast, there has been a clear finding of unlawful retention. If that is not the very risk the system is intended to guard against, then what is?
For now, the case continues.
And it is, I suspect, far from over.
Disclaimer
This article is based on matters arising from the author’s professional experience. All identifying details have been removed or altered to preserve client confidentiality.
The content is provided for general information purposes only and does not constitute legal advice. It should not be relied upon as a substitute for obtaining advice specific to individual circumstances.
Whilst reasonable care has been taken in the preparation of this article, no responsibility is accepted for any reliance placed upon it.
