In the case of S (A Child) (Abduction: Hearing the Child)  EWCA Civ 1557, the Court of Appeal overturned a decision of the High Court ordering the return of an abducted child to Russia. This was not a Hague Convention case but a case concerning the High Court’s exercise of its ‘inherent jurisdiction’. Russia is not a signatory to the Hague Convention and, following Japan joining earlier this year, is one of the most significant non-Convention countries in terms of population.
The inherent jurisdiction is a judge-made concept. By it, a ‘superior court’ can deal with any matter litigated before it unless precluded from doing so by law or unless the law grants exclusive rights to deal with such issues to another court or tribunal. This ‘catch-all’ jurisdiction is therefore well-suited to non-Convention abduction cases. For present purposes, a ‘superior court’ in the UK means the High Court or above. Civil international child abduction cases are always allocated straight to the High Court. There is then a right of appeal to the Court of Appeal for the losing party.
The parents involved were both Russian citizens. They were married in 2006 and separated in 2009; a divorce was settled in 2010. There was one child of the marriage, a 7 year old girl. In September 2014 a High Court judge ordered the return of the child to Russia under the Court’s inherent jurisdiction. Russia is not a signatory to the Hague Convention so it was not possible to use that procedure. This mother disagreed with the High Court’s decision and appealed to the Court of Appeal. Following a hearing in late October, the judgment in relation to which has only just come out, the Court of Appeal sent the case back to the High Court to be looked at again.
The facts in greater detail were that the child was born in the UK where the parents were at that time living for the purpose of receiving medical treatment. They however then returned to Russia where they later separated. There are pending and fraught proceedings in Moscow concerning who the child should live with. As a holding measure, the Russian court resolved that the child would live with the mother and have regular contact with the father. The mother, however, began a new relationship with whom she later started cohabiting with, along with the child. The person that she had become involved with was politically active and had fallen into disfavour with the Russian authorities because of this. He came to the UK in April 2014 and remains here; he made an application for asylum in July 2014. That application is under consideration still at the Home Office. The mother and child also arrived in the UK in April 2014 but 2 days after the new partner. The reason for the visit was, ostensibly, to give birth to the new partner child, the mother being pregnant. She gave birth and was due to return to Russia in May 2014. She did not, however, go back. The mother, new partner and (now) 2 children live together in London.
Somewhat surprisingly, it was the mother who instigated the proceedings in the High Court. She asked for an order under the Children Act 1989 that the father should not remove the child from her care, nor from the school that the child was by then enrolled at in the UK. The father in Russia became aware of the proceedings and in August 2014 applied to the High Court for the child to be returned to Russia. As indicated above, the High Court ordered the child’s return.
The main challenge brought against the High Court decision arose out of the fact that, in making the return order, no consideration was given to the ‘wishes and feelings’ of the child herself.
The Court of Appeal starts by setting out the leading decided cases concerned with when children should be consulted in family proceedings. Applying those governing principles to the facts of the case, the Court of Appeal considered that, in the High Court, no consideration was given to whether the child should be heard at all. The Court of Appeal did not decide the issue that stemmed from that i.e. as to whether the child (aged 7) was, in fact, of an age and understanding to be heard. There are no hard and fast rules – it is something that has to be decided on the facts of each case. The Court of Appeal found as follows:
The father’s case is powerful. It persuaded [the High Court judge] on the papers and after hearing oral submissions. The impact on [the child] and hence on her welfare of the options available to the judge demanded the classic balance sheet approach of evaluating the welfare factors intrinsic in each option and the benefits and detriments of the same. That approach should include an analysis of the child’s wishes and feelings. Given the matters upon which the child has already expressed a view within the Moscow proceedings and the issues upon which her wishes and feelings might be relevant, there is at least a prima facie case for a judge to consider whether and if so how [the child] should be heard.
An element of the case is missing and that cannot simply be discounted because of the strength of father’s case. It may significantly alter a judge’s perception of welfare. Given that there has as yet been no consideration of whether the child should be heard, I have come to the regrettable conclusion that the order must be set aside to allow that process to be undertaken and for the decision to be reconsidered. I would allow the appeal, set aside the return order and remit the matter for directions and hearing before a different judge of the Family Division of the High Court as soon as possible.