Further Court of Appeal case on child’s objection

Case summary

In the recent UK case of M (a child) [2014] EWCA Civ 1519 the Court of Appeal overturned a High Court decision in a Hague Convention case. The case is of interest because the High Court concluded that the child in question had been wrongfully retained in the UK; at the same time it declined to order the return of the child to Hungary because the child was said to object. But for the child’s objection, return would have occurred. In overturning the decision, and ordering the High Court to look at the case again, the Court of Appeal concluded that this was not an approach that was open to the High Court on the basis of the evidence that was available to it.

Factual background

The background facts this time were as follows. The court was concerned with a boy, aged 14, whose parents were Hungarian citizens. The parents were married in 2000 and divorced in 2004. It was agreed that the boy would live with his father; that was the subject of a court order in the Szeged City Court made in early 2004. For the next 8 years, the boy lived with his father and had contact with the mother. The frequency of that contact was initially court prescribed but it became more flexible as time went on.

All was well and good until the father came to the UK in 2012 for work purposes; up until this point, parents and child had only resided in Hungary. The father went alone and left the boy in the care of his mother; again, this arrangement was approved by the Szeged City Court. In August 2013 the father returned to Hungary and re-married. Paternal custody was restored; in doing so, the court noted that the father had found work in Hungary and had, seemingly, returned there permanently.

In October 2013 the father returned to the UK to work. In December 2013 the child also travelled to the UK to join his father. The father made arrangements with the boy’s school in Hungary for the child to be excused from attending until August 2014, giving the impression that the child’s departure from Hungary was temporary and therefore a not a matter of concern.

The mother, however, having had no contact with her son after November 2013, took the matter of contact (as opposed to country of residence) up with the Public Guardianship Office to enforce her right of access that were being interfered with, whether temporarily or otherwise. In April 2014, a Hague Convention application was made for the mother seeking summary return of the child to Hungary. The child’s whereabouts not being known, a location order was made by the High Court. Whilst this was happening, in March/April 2014, the father had decided that he wished to remain in the UK permanently with his (second) wife and sought to regularise the legal position as regards the boy with the Hungarian courts. To do this, it was necessary for father and son to return to Hungary so that the Hungarian court could satisfy itself about the son’s wishes in the light of the father’s application to be allowed to live in the UK with his son. When trying to leave the UK in April 2014, the location order was executed at the airport. The execution of the order had the ironic effect that father and son then remained in the UK pending the outcome of the Hague Convention proceedings that had been instigated by the mother unbeknown to the father.

The case was, as is the procedure, heard first in the Family Division of the High Court. The father resisted the return of his son to Hungary on the basis that the boy did not want to return and because, in any event but slightly surprisingly given the facts, the mother had consented to the relocation.

High Court (Family Division) decision

In the High Court, the single judge quickly rejected the argument that the mother had consented to the removal (whether temporary or otherwise). The issue then became whether the removal/retention was lawful or unlawful. The judge concluded that there had not been an unlawful removal from Hungary as the removal did not form part of a deliberate plan so to do; the relocation plan was, at the time when it was executed, a temporary one. The judge went on to conclude that the boy had been wrongfully retained in the UK because the Hungarian legal position was that, once the removal became permanent, the retention was to be regarded as unlawful as it would frustrate what the Hungarian courts had intended in terms of the access rights of the mother. The father had belatedly but impliedly recognised this by petitioning the Hungarian court to try and make good in the eyes of the law what he had done.

That was not the end of the matter because there was a separate issue over the child’s wishes; given the child’s age, this was something that had to be taken into account and in this case it turned out to be decisive. All things being equal, the boy would have been returned to Hungary – there was no dispute between the parents that Hungary was to be regarded as the country of the child’s habitual residence for the purpose of the Hague Convention – and the High Court judge found that the retention in the UK was unlawful. Despite this, the judge ordered that the child should not be returned to Hungary because the child objected. Article 13 of the Hague Convention provides that, in certain circumstances, a child’s objection to (in this case) returning can trump what would otherwise be an order for return. This conclusion flowed from the evidence of the CAFCASS officer who had, through an interpreter and over the course of 45 minutes only, conducted an interview with the child, subsequently recounted to the judge. The child, in accordance with usual procedure, did not give evidence to the judge.

The High Court judge concluded as follows:

[86] I am wholly persuaded that K has articulated a clear objection to the principle of being separated from the full time care of his father. Despite his obvious distress, I have reached the conclusion that K was anxious to use the interview he had with Miss Jolly [the CAFCASS officer] to convey to me his clear wish to remain for the present in England with his father. It seems to me that I am entitled to take into account in reaching this conclusion the distress he had previously manifested when the location order was served on his father at the airport in circumstances where he believed he might be returned to Hungary against his will…. On balance, I have reached a clear conclusion that this is a rational view which he genuinely holds and one which he has been anxious to have heard in these proceedings.

Court of Appeal (Civil Division) decision

The mother appealed to the Court of Appeal. The Court of Appeal, the lead judgment in which was given by Lady Justice King, concluded as follows (references to K are to the child):

45.  The Learned Judge [deciding the case in the High Court] was in an unenviable situation faced as she was with the limitations in the evidence consequent upon K being a deeply distressed child who was in a wholly invidious position not of his making. No doubt the judge had in mind the caution to be exercised in ‘child objection’ cases in order to avoid applying this highly technical area of the law in such a way that, unless a child is somehow able to expresses his or her views in precise Convention terms, his or her the legitimate and strongly felt views will not adequately be taken into account.

46.  In my judgment however this was not a case where the judge was able properly to interpret what K was saying to Miss Jolly as an Article 13 objection to returning to his country of habitual residence. K was unable to answer that key question in any meaningful way as he was unclear as to whether a return to Hungary meant separation from his father.

47.  Such an understanding on K’s part was critical to an assessment as to whether he objected to returning to Hungary; K had, after all, lived all his life in Hungary, had school and friends there and had only recently come to this country and still had limited English. Importantly also, he was no longer seeing his mother who, until his departure, he had seen regularly and, in respect of whom as recently as September 2013, K had said he wished to carry on having contact. One simply does not know whether or not, if asked, this teenager would have objected to a plan, which meant (if only for the time being), going back to Hungary with his father to resume his old life.

48.  K  was labouring under a misunderstanding as to his father’s intentions; an understanding by K of those intentions was fundamental to an assessment as to whether or not he objected to a return to Hungary and his lack of understanding of this critical matter had the effect of vitiating his views in so far as he was able to express them; as a consequence his voice has not been heard.

49.  It follows that it is not necessary for the purposes of this appeal to consider whether the respective observations of Thorpe LJ in Re K (Abduction: Case Management) [2010] EWCA Civ 1546; [2011] 1 FLR 1268 para [24], and of Balcombe LJ in S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492 at 499, as to the construction of the phrase “the child objects” are inconsistent each with the other.

50.  I  accordingly would allow the appeal on the basis that it has not been established whether or not K objects to a return to Hungary, it follows therefore that the issue of the exercise of the judge’s discretion does not arise.

The case was sent back to the High Court to be re-decided. In so deciding the Court of Appeal rejected an argument made by the lawyer representing the mother that the Court of Appeal should decide the matter for itself. It was argued that it was open to that Court to conclude that the child had not (on the evidence) raised what could properly be described as an objection to returning and that, accordingly, summary return to Hungary could and should be ordered by the Court of Appeal. In rejecting this proposed approach, the Court remarked as follows:

52.  Having considered that matter my view is that to do so would be to fall into the very trap which ensnared the judge [in the High Court]. Where an Article 13 defence based on a child’s objections is properly raised, the court has a duty to ascertain, in so far as it is able, the views of the child concerned. This is done through the medium of the Cafcass High Court Team. In K’s case, his considerable distress prevented any sort of effective interview, leaving the court, as I have found, with no more than an understanding that come what may, K wanted to stay with his father

53.  I remind my myself not only of the requirement found at Brussels II Revised: Article 11(2) that in applying Article 13 of the Hague convention “it shall be ensured that the child is given the opportunity to be heard during the proceedings ” but also of what Baroness Hale said in Re M (Abduction: Zimbabwe) [2007] UKHL 55:

[46]…. These days and especially in the light of Art 12 of the United Nations Convention on the Rights of the Child 1989, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are ‘authentically her own, or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

54.  K’s views have not been heard on the key issue of whether he objects to a return to Hungary as opposed to having a preference to stay with his father. I bear in mind that K is now 14 yrs 4 mths and that the Convention ceases to apply when he attains 16 years (Article 4). In my judgment it would be wrong of this or any court to make an order for summary return without knowing K’s views on a return to his country of habitual residence. Whilst one is always reluctant to order a rehearing, and I recognise the difficulties inherent in such a course, this court, does not have, any more than the judge at first instance had, the information available to determine whether K objects to a return to Hungary and if so whether, in the exercise of its discretion it should decline to order a summary return.

55.  Accordingly the appeal is allowed and the matter is remitted to a Judge of the Family Division to be listed for directions as a matter of urgency.

56.  K has lived with uncertainty as to his future for 10 months, given that it is accepted by all parties that K will continue to live with his father whether in England or in Hungary, it may be that the parents will agree to engage in mediation so as to minimise the inevitable further period of delay and uncertainty for K which will be consequent upon the matter being remitted to the Family Division for a rehearing.

Echoing these sentiments, Lady Justice Arden, in a short concurring judgment, stated as follows:

59.  I also agree that this appeal should be allowed for the reasons given by Lady Justice King and with the order which she proposes. In addition to the reasons which she has given, if this matter is within the scope of European Union law, I would also draw attention to Article 24 of the Charter of Fundamental Rights and Freedoms which strongly endorses the view which the Court has taken. Article 24 provides:

“(1) Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

(3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”

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