In re M (Minors) (Child abduction: Undertakings)
         Court of Appeal
         [The London Times - Law Report - 15 Aug 1994]

         Before Lord Justice Butler-Sloss, Lord Justice McCowan and Sir
         Tasker Watkins

         Judgment 15 Jul 1994

         A Hague Convention order for the return of a child to the country
         of his habitual residence was a final order and any application
         to set it aside had to be made by way of appeal to the Court of
         Appeal.

         Undertakings attached to an order for the return of a child under
         the Convention were designed to protect the child for the limited
         period before the foreign court took over and were not to be used
         to fetter or delay the enforcement of the decision to return the
         child.

         The Court of Appeal so held in a reserved judgment, dismissing
         the mother's appeals against (i) the order of Mr Justice
         Kirkwood, on April 15 that her two children be returned to Israel
         forthwith, pursuant to The Convention on the Civil Aspects of
         International Child Abduction 1980 as enacted by the Child
         Abduction and Custody Act 1985 and (ii) the decision by Mr
         Justice Johnson on June 20 to decline jurisdiction to hear the
         mother's application to set aside the order.

         Mr Augustus Ullstein, QC and Mr Timothy Scott for the mother; Mr
         James Munby, QC and Miss Indira Ramsahoye for the father.

         LORD JUSTICE BUTLER-SLOSS said that it had been argued for the
         mother that a Hague Convention order was analogous to custody and
         access and was to be treated as interlocutory. Accordingly, it
         was for a Family Division judges to vary or set aside the order
         and not for the Court of Appeal.

         The procedure in Hague Convention cases was  summary and intended
         expeditiously to deal with the mischief of wrongfully removing
         children from the jurisdiction of their habitual residence.
         Under article 11 speed was of the essence.

         It was entirely different from internal proceedings, concerned
         with making orders based upon the principle of the paramountcy of
         the welfare of the child.

         Article 13, if invoked, dealt with specific instances where the
         welfare of the child might inhibit an order for return.

         Article 13 had to be raised as a defense to a Convention
         application and a court had to be satisfied that the matters
         raised were so important as to displace the prima facie
         requirement to return the child upon proof of wrongful removal or
         wrongful retention.

         The order to return or not to return was final in the Hague
         Convention proceedings brought by the central authority and
         disposed of those proceedings.

         Any proceedings dealing the custody, residence or other needs of
         the child were between different parties with considerations .
         wholly different from those relevant to a Convention application
         to return the child.

         Now that Her Ladyship had heard further argument on the issue she
         was not persuaded that her earlier view that a Hague Convention
         order was a final order was wrong (see In re M (a Minor): (Child
         abduction) [1994] 1 FLR 390, 397E)) and Mr Justice Johnson had
         clearly been right to refuse to entertain an application to set
         aside the order of Mr Justice Kirkwood which was a matter for the
         Court of Appeal.

         It was perhaps helpful to remind those involved in Hague
         Convention applications about position of undertakings or
         conditions attached to an Article 12 order to return.

         Such requirements were to make the return of the children easier
         and to provide for their necessities, such as a roof over their
         head, adequate maintenance, and so on, until, and only until, the
         court of habitual residence could become seised of the
         proceedings brought in that jurisdiction.

         The court had to be careful not in any way to usurp or to be
         thought to usurp the functions of the court of habitual
         residence.

         Understandably, the requirements made in this country must not be
         so elaborate that their implementation might become bogged down
         in protracted hearings and investigations.

         Undertakings had their place in the arrangements designed to
         smooth the return of and to protect the child for the limited
         period before the foreign court took over, but they must not be
         used by parties to try to clog or fetter or in particular c;
         delay the enforcement of the paramount decision to return the
         child.

         It would be helpful if realistic time limits for the compliance
         with the undertakings were included in the orders to return the
         child.  In the absence of a specified time clearly the court
         would consider a reasonable time and not allow the case to drag
         on with repeated applications to the court.

         Lord Justice McCowan and Sir Tasker Watkins agreed.

         Solicitors:     Reynolds, Porter, Chamberlain
                         Margaret Bennett & Co, Bloomsbury.