Sir Winston Churchill’s funeral marked 50 years on

BBC

Sir Winston Churchill’s funeral marked 50 years on

BBC News, 30 January 2015

The boat that carried Sir Winston Churchill’s coffin along the Thames in 1965 has made the same journey to mark the 50th anniversary of his funeral.

Members of the Churchill family were aboard the Havengore, which travelled to Westminster in central London.

Earlier, Prime Minister David Cameron laid a wreath in memory of Churchill, who, as prime minister, led Britain to victory in World War Two.

An evening service was held at Westminster Abbey.

“If there is one aspect of this man I admire more than any other – it is Churchill the patriot,” he said.

Mr Cameron said the UK needed to draw on the “courage and resolve” of Churchill to battle “every affront to freedom in this century”.

A procession from the service at Parliament’s St Mary’s Undercroft chapel ended under what has become known as Churchill Arch.

It was rebuilt at his suggestion following a direct hit from a German bomb in May 1941.

Sir Nicholas Soames, Nathania Ewruje, Labour leader Ed Miliband, Liberal Democrat leader Nick Clegg, Prime Minister David Cameron, Baroness D'Souza and Speaker of the Commons John Bercow during a memorial service for Sir Winston Churchill in Westminster Hall, London
Wreaths were laid at the statue of Churchill in the Members’ Lobby of the Commons
The Havengore on the Thames
The Havengore travelled from the Tower of London to Westminster, as in 1965

Tower Bridge was raised as the Havengore retraced its 1965 journey from the Tower of London to Westminster.

The boat then stopped near the Palace of Westminster for a service to be held and for wreath laying in the river.

At the Westminster Abbey service, flowers were laid at the green marble stone memorial to Churchill.

Sir Nicholas Soames said the Westminster events were a “fitting tribute” to his grandfather and a “strong reminder of all he did for his country”.

Emma Soames, Churchill’s granddaughter, added: “To me growing up he was a grandfather, but I came to realise at his death that he was so much more than that.

Randolph Churchill and Celia Sandys, the great-grandson and granddaughter of former Prime Minister Sir Winston Churchill, lay a wreath at his statue on Parliament Square
Churchill’s great-grandson and granddaughter laid a wreath at his statue in Parliament Square

“The family are absolutely delighted that his life is being celebrated and his legacy expanded.”

Randolph Churchill said it was a “proud day” and his great-grandfather would have been “surprised but thrilled” at the commemorations.

Along with Celia Sandys, Churchill’s granddaughter, he laid a wreath at his statue in Parliament Square.

‘Very quiet’

Thousands of people lined the streets of London for Churchill’s funeral procession in 1965.

Journalist Martin Bell, who worked for the BBC as a junior reporter at the funeral, recalled speaking to mourners.

He said: “What I remember is most of all… the sheer size of them, 10-12 deep all along the way.

“Very quiet, very dignified, almost devotional. It would be hard to imagine anybody now, however eminent, drawing that kind of crowd to his funeral.

“It was unprecedented… the entire nation was watching.”

Winston Churchill making a speech
Churchill led Britain to victory in World War Two
The Havengore carrying Sir Winston Churchill's coffin along the Thames
The Havengore has retraced the journey it made in 1965
Crowds lining a London street as the coffin of Sir Winston Churchill passes along
Thousands of people lined the streets of London for Churchill’s funeral procession

Sir Winston Churchill (1874-1965)

Sir Winston Churchill displays a v sign to crowd
  • 1874 – Born in Blenheim Palace on 30 November
  • 1900 – Elected to Parliament for the first time
  • 1908 – Marries Clementine Hozier in Westminster
  • 1915 – Forced to resign from the Cabinet in disgrace after disastrous World War One Gallipoli campaign
  • 1940 – Appointed prime minister with Britain again at war with Germany in World War Two
  • 1945 – Loses the General Election to Clement Attlee’s Labour Party despite leading the nation to victory in the war
  • 1951 – Returns to Downing Street again as prime minister after securing a narrow majority
  • 1955 – Retires as prime minister due to ill health
  • 1965 – Dies aged 90

From Friday, the National Railway Museum in York will display the locomotive – named Winston Churchill – that pulled his funeral train from London to Oxfordshire before his burial.

Churchill began his career in the Army and he also worked as a journalist during the Boer War in South Africa, where he was captured and made a prisoner-of-war but managed to escape.

He served as First Lord of the Admiralty and held various senior government roles before taking over from Neville Chamberlain as prime minister in May 1940, and leading the country to eventual victory over Nazi Germany.

He resigned in 1955, but remained an MP until shortly before his death. He also wrote numerous books, and in 1953 won the Nobel Prize for Literature.

Churchill’s grave is in Bladon churchyard, near his birthplace of Blenheim Palace in Oxfordshire.

Churchill's coffin in a procession passing through Trafalgar Square
Churchill was given a state funeral
People standing on roofs to see Churchill's funeral
Crowded streets forced people to use every vantage point to see the funeral procession
Churchill's coffin being loaded on to a train at Waterloo station
Churchill’s coffin was loaded on to a train at Waterloo station
Pullman carriage which carried the family members of Winston Churchill to his funeral goes on display at the National Railway Museum, York,
The Pullman carriage used at the funeral is going on display at the National Railway Museum

Source:  “Sir Winston Churchill’s funeral marked 50 years on”, BBC News, 30 January 2015

Recent UK-Canada abduction case

The Supreme Court of British Columbia has, in a judgment issued on 12 January 2015, ruled that the son of Omar Allibhoy, Noah, was wrongfully retained in Canada by his mother and accordingly had to be returned to the UK. Allibhoy is a London chef and restaurateur of some standing; he is a Spanish citizen who has lived in the UK for some years.  He and the mother had been married since 2009, although they had known one another for some years before that.  Noah’s mother is a Canadian and Indonesian citizen; she moved to Canada in April 2013 and Noah was born in British Columbia on 11 July 2013.  Prior to this happening, the parents started looking for more suitable accommodation in the UK; this was purchased in August 2014 but did not become habitable until March 2014.  Child and mother returned to the UK, having latterly spent some time in Spain as well as Canada, and moved in with the father.  On 30 June 2014, Noah went with his mother to stay with her parents in Vancouver; this was so that his mother could better re-adjust to her return to work in the UK – and because there was a suggestion that the marriage was in difficulty.  It was agreed that Noah would return to the UK no later than 8 September 2014.  The mother returned to live and work in the UK on or around 14 July 2014.  On 22 July 2014 the parents separated; on 25 July 2014 the father requested that the boy return to the UK by the end of the month.  A booking was apparently made.  On 7 August 2014 the father, on return from a trip, found that the mother had left the UK for Canada and that the boy had not returned; he discovered that Noah’s airline ticket had been cancelled.  The father submitted an application for Noah’s return with the Central Authority pursuant to the Hague Convention.  The mother subsequently confirmed in terms to the father that she intended to stay in Canada with Noah.  An application for return was formally submitted to the Court on 3 September 2014.

The case turned on where Noah’s country of habitual residence was considered to be. The mother accepted before the court that, up until the point of separation in July 2014, the country of habitual residence was the UK.  It was argued on her behalf that, from that point, the UK was not Noah’s country of habitual residence and that the removal was not therefore “wrongful”.  The Court rejected the argument that the mother’s country of habitual residence was the UK only because of the relationship with the father and depended on that relationship continuing to subsist.  The mother had lived in the UK for over 10 years; she remained there during an earlier (pre-marriage) period of separation.  A property had been purchased in the UK and, through maternity leave, the mother had maintained her employment. The UK could not therefore be said to be a short-term home, as was suggested on the mother’s behalf.  The Court dismissed as irrelevant the mother’s view – it was just that – that her settled intention to reside came to an end with the separation.  The parties separated on 22 July 2014.  The father first asked that Noah be returned to the UK 3 days’ later.  The Hague Convention states that what matters is where the “…child was habitually resident immediately before the removal or retention”.  Clearly that would have been the UK on this chronology and so the Court decided.  That Noah was living in Canada on 22 July 2014, the date of separation, was not relevant as that wrongly seeks to focus on events that post-date “…both the point in time when the intention of the parties, as Noah’s parents, were shared and when the parties had already separated.”  In any event, Noah was only supposed to be in Canada on a temporary basis.  The final argument advanced on behalf of the mother was that Noah’s habitual residence was not, from his perspective, the UK as he had become acclimatised to Canada.  The Court concluded that Noah was too young to have the capacity or intention to acquire a separate habitual residence, other than the UK. It was also argued that to return Noah to the UK would amount to “a grave risk of harm” to him so that, even if his country of habitual residence was the UK, he should not be returned. There was some suggestion of recreational drug use – but this was said about both parents.  The Court noted that the grave harm threshold was a high one and was nowhere near met on the facts of this case.

The Court ordered that Noah be returned to the UK forthwith; it had earlier described the mother’s case as a whole as misconceived. This was another one of those cases that, on any rational reading of the facts, the child’s habitual residence was clearly the country from which he was abducted from.  It is unfortunate that parents still try and stave off the inevitable return – but that only begs the question as to why a parent would choose to such as thing as abduct a child in the first place.

Megumi Yokota was abducted by North Korean spies; is she still alive?

Megumi Yokota was abducted by North Korean spies; is she still alive?

The Australian, 17 January 2015

Rowan Callick, Asia Pacific Editor, Melbourne

MEGUMI Yokota was a bubbly 13-year-old when she ­disappeared on a winter night in November 1977, a couple of hundred metres from her home in Niigata, on Japan’s Honshu Island, while her parents and two younger brothers waited for her to join them for dinner.

The family was living in a two-storey house in a quiet, middle-class area of the port city where Megumi’s father, Shigeru, was the Bank of Japan representative. The region around ­Niigata is best known for its rice, fish and sake, for its nuclear power station, and as the setting of Snow Country, a classic 1935 novel about an affair between a Tokyo dilettante and a geisha.

Megumi had been to badminton practice in the gym after school – she was a promising player – and then, wearing her grey and white uniform, she left for home with two friends, walking up a quiet street with few lights. The sun had set. One friend peeled off to the left, the other to the right. Megumi reached the top of the hill, where she would have turned left to reach her home in a couple of minutes. But she didn’t arrive.

When Sakie Yokota realised her always punctual daughter was late, she rushed to the school gym, her hopes raised when she heard voices – but it was a mothers’ volleyball team. She phoned the police, and tracker dogs were brought in. ­Niigata’s police superintendent, Koei Miyamura, says Megumi’s trail was lost at the turn-off. To the left, a short way along the street and then a right turn, was her home. Straight ahead and down a slight descent, past a clump of pine trees guarding a Shinto shrine, lay the grey sea.

“The police were concerned she could have been kidnapped for ransom,” Shigeru says. “They conducted the biggest search ever in the prefecture, but picked up no clues. We contacted our friends at two cities where we had lived earlier. We appeared on five TV networks, showing photos of Megumi. But nothing… People said she was spirited away by ghosts, or by UFOs.”

For 20 years, there was no word. Then a chain of events began that catapulted Megumi onto the front pages – where she remains today, a symbol of Japan’s outrage towards its rogue neighbour, North Korea.

It started in 1997 with a phone call out of the blue from the secretary of a member of ­parliament. “Your daughter appears to have been abducted by North Korea and is ­living in ­Pyongyang,” the official said. When the Yokotas went to the MP’s office they were given a book published the year before containing an article on abduction directives from then North Korean “Dear Leader”, Kim Jong-il. “The writer was asking for help about alleged cases, including one of a 13-year-old girl seized in 1977 or 1978 on her way home from practising badminton,” says Shigeru. “It said that a spy was spotted by her when he was about to leave Japan after accomplishing his ­mission. He took her back because he didn’t want her to report to the police. She wanted to go home. She was told she could go back after mastering the Korean language. After she reached 18 she was warned she would never be able to go home to her country, and she broke down.”

The article appeared in a small-circulation South Korean book published by a research institute, so very few people knew of its claims. The editor had come to Niigata and talked to a small audience, who responded that this must be Megumi. Says Shigeru: “We learnt later that the author had obtained this information from South Korea, and that the Japanese government had discovered it in 1995. But it didn’t do anything because it was then engaged in ‘normalisation’ talks [with North Korea].”

The Yokotas went public with the story. Prime-time TV covered it heavily; there were questions about it in Japan’s parliament, and two months later the government acknowledged that several Japanese people had been abducted. “Some people believed at first that it was a right-wing conspiracy and other such theories,” Shigeru says. “We didn’t have further evidence, we were often ignored, but we persisted.”

Over the next few years, information came in dribs and drabs – a North Korean agent who’d defected claimed Megumi was a teacher at a spy school; a captured hijacker said she taught ­Japanese to high-ranking spies and so has been kept apart; another defector said Megumi knows many secrets which can’t be allowed to get out.

In 2002, five years after the Yokotas’ campaign began and 25 years after Megumi disappeared, then prime minister Junichiro Koizumi went to North Korea for meetings with Kim Jong-il, who admitted agents had been ordered to abduct people from Japan and attributed the actions to “some people who wanted to show their heroism and adventurism”. Megumi had been among those kidnapped, but officials said she had killed herself in 1994 after being told she could never go home.

Diplomat Taisuke Mibae, now director of the abductions office set up by Japan’s current prime minister, Shinzo Abe, accompanied Koizumi to Pyongyang in 2002 and interviewed some of the abductees there. ­Sensationally, he was introduced to a girl he was told was Megumi’s daughter by another South Korean abductee, whom Megumi had married and then divorced. Kim Eun-gyong was then 13, the same age as her mother at the time of her abduction. “I told her that her mother is Japanese,” Mibae recalled. “She must have been taught to stay calm; she just repeated that she loved her mother and her mother loved her a lot. But her mother was dead, she said, although she didn’t know how she had died.” Subsequent DNA tests confirmed the relationship.

Two years later, Japanese investigators went to North Korea and met Megumi’s former ­husband. He handed over a casket of what were said to be her remains. But when the Yokotas had the bones DNA-tested and compared to their daughter’s umbilical cord, which they had kept, the remains were shown not to be hers.

The officials also brought back photos of Megumi’s belongings, including her badminton racquet, and a photo of an adult Megumi. Sakie immediately recognised her natural stance; it was the same as in a photo taken in Kyoto when her daughter was in grade five. In the photo from Pyongyang she was wearing badges with the images of Kim Il-sung and Kim Jong-il. “We were so surprised to see that photo – we last saw her in school uniform. It seemed like a story, a fiction. I still feel that way,” says Sakie. “But I also felt very relieved because she looked healthy. I was imagining so many things in my mind.”

Megumi is one of 17 people the Japanese government recognises as having been abducted by North Korea between 1977 and 1983 (North Korea has admitted to taking only 13; other reports put the real number in the hundreds). Five were allowed to return following the talks in Pyongyang 12 years ago, but the rest, if alive, remain trapped in the world’s most secretive state. They appear to have been kidnapped in order to train North Korean agents to pass themselves off as Japanese so they could carry out plane hijackings, assassinations and other acts of terrorism. Excelling due to her youth and intelligence, Megumi is believed to have been introduced into the circle of the ruling Kim family and to have taught Japanese to the current leader, Kim Jong-un. This gave her entrée to a rare, privileged yet also endangered elite, known as “The Admitted”. If she is alive, she knows too much to ever be released.

Those kidnapped were mostly taken on or near a shore and places with clear landmarks. They were knocked out, tied up, thrown into sacks and then into the holds of high-powered spy-boats disguised as fishing vessels. Five of the 17 were taken from Niigata, where there is a tower visible from far out to sea.

Eight months after Megumi was seized, 20-year-old student Kaoru Hasuike was walking along the shore on a pleasant summer evening with his girlfriend Yukiko Okudo, 22. They were surrounded by agents, knocked out and bundled in sacks into a boat. Each was told the other had been left behind in Japan, but after a few years in North Korea they were brought together suddenly in Pyongyang and allowed to marry, because married abductees were viewed as less likely to escape. They had two children. In 2002 they were among the five allowed to return a month after Koizumi’s visit. Their son and daughter were not permitted to follow them until two years later. Now resettled, the couple have had another child and have become an apparently ordinary family. Hasuike, an academic, has built a second career trans­lating South Korean novels.

Hitomi Soga, then 19, was kidnapped with her mother Miyoshi, 46, from near their home on Sado Island in Niigata prefecture. Hitomi was also released in 2002 but Miyoshi was never seen again. Hitomi married Charles Jenkins, a US army defector to North Korea, and they are living back on the island with their two daughters.

Taisuke Mibae, head of Japan’s abductions office, remains confident that the other abductees North Korea acknowledges, including Megumi, are still alive, “and waiting to be rescued”. When pressed, he concedes that “at least a part of our confidence is from intelligence”. It is unclear whether the abductees were targeted or seized opportunistically. “When Japanese coastguards engaged in more comprehensive surveillance, the abductions ended,” Mibae says. “The North Koreans can justify anything. In their mindset, the abductions are a kind of revenge for ­Japanese wartime sufferings inflicted on them. This helped them legitimise their conduct.”

The issue remains an open wound at the heart of Japan. A popular prime minister, Shinzo Abe has long been a strong advocate of the abductees and their families. When he addressed Australia’s parliament in July last year, he wore a blue-­ribbon badge, the symbol of the campaign to bring the abductees home. North Korea – which was feeling isolated internationally – had recently pledged to establish a “special investigation committee” to examine the remains of “all Japanese”, including of abductees, with Japanese officials granted some access. In return, Tokyo had raised the ire of others dealing with the rogue regime by lifting some sanctions.

A Japanese delegation travelled to Pyongyang in October last year to discuss the abductees, the first such visit in a decade. But despite the recent thaw in relations, the visit proved fruitless. Japan’s powerful chief cabinet secretary Yoshihide Suga said: “There was no report on the results of its probe.” Abe, however, remains committed. “We are placing top priority on resolving the abduction issue,” he said.

Fundamentally, it is the heartbreaking story of Megumi that is intruding so awkwardly into geostrategic issues otherwise handled behind closed doors. There are few Japanese who do not know who she is. Her story has been told in an anime (animated film), in a manga graphic book, and in a 2006 doco produced by Jane Campion.

Twice a year big rallies are staged in Japan, with strong political participation including that of the PM. They are organised by the National Association for the Rescue of Abductees, whose chairman, Tsutomu Nishioka, claims credit for the fact that abductions poll as the top issue about North Korea, even above nuclear weapons and missiles. “We are telling North Korea: If you don’t return the victims while their parents are alive, the Japanese people will never regard the issue as resolved,” he says. If he were to set foot in North Korea he is sure he would be ­captured and executed. “I have received death threats, I guess from agents living here.”

Sakie and Shigeru have given 1400 talks on Megumi’s story around the country. They are familiar figures on TV. They have flown to Geneva to lobby the UN and have spoken to politicians in the US. They wanted retired ­Australian judge Michael Kirby, who recently reported to the UN on human rights abuses in North Korea, to send an investigative team there, but he was barred. “His report encouraged us though,” Shigeru says. “Finally things are starting to move, we think.” Mibae adds: “North Korea never fails to follow what others say about them.”

“Before Megumi went ­missing, it was a special time,” Sakie says. “She was so interesting, even inspiring, and we had begun to talk a lot. She had always been cheerful and active and fun, and liked joking.” She loved animals, picking up stray cats and feeding them, one day wrapping a frog in clothes and playing with it. “The landscape of Niigata has for me been frozen from that moment, when we realised she wasn’t home on time,” says Sakie, who moved to Tokyo with Shigeru and their two sons five years after Megumi’s disappearance. “It’s a beautiful landscape of pine trees and bays, but one I don’t want to recall. When I go there, I’m flooded with emotion, with sad and bitter memories. I almost wanted to kill myself when I was there, I had no idea what I could do to find her.”

Sakie became a Christian in those hard times and “found a meaning for my life, something very solid. I pray with my new Christian friends, many of them, for our children. And for the ­people of North Korea, for that country. That’s how I’ve managed to keep myself stable.”

Sakie says that after Megumi disappeared she and Shigeru “struggled very much as a husband and wife. When our family came to the point where we could lead a normal life, when the children had grown up, we learned about the abduction – and again our life totally changed.”

The issue casts Japan as an international victim for the first time in recent history. But fundamentally it is a human tragedy, a story of a family bitterly robbed. Sakie remembers that in 1977, Megumi had “sent us a postcard when she was away on a school trip at New Year, saying to each of us individually that she would be home soon, please be waiting for me. We keep that card.” It was her father’s birthday the day before Megumi disappeared. She gave him a comb. His determined smile flickers off briefly as he pats the pocket where he carries it every day of his life.

If Megumi is alive, she would now be 50. Japan has no diplomatic relations with North Korea, but through other, unspecified channels, the Yokotas were able to arrange a meeting with their granddaughter, Kim Eun-gyong, in ­Mongolia earlier last year. “She seems very fine and active, and also outspoken like Megumi,” Shigeru says of Kim. “I wonder if she can be that lively without a mother.”

Speed is of the essence now. Shigeru is 82, Sakie is 78. “Other parents of abductees are older than us,” says Shigeru. “They’re ageing fast, in their 90s. My wife is the youngest parent. I’m the second-youngest. Time is running out.”

Source:  “Megumi Yokota was abducted by North Korean spies; is she still alive?”, The Australian, 17 January 2015

First UK Hague case of 2015

The first case decided by the Court of Appeal of England and Wales in 2015 is an international parental abduction case.  The full title of it is Re S (A Child) (Habitual Residence and Child’s Objections) (Brazil) and the judgment is available here.  The judgment was issued on 13 January 2015 following a hearing on 4 December 2014.  There seem to be an increasing number of these cases being processed by the higher courts in the UK now.

Summary

The background to this case was that the child was born in June 2002.  It was a case brought under the Hague Convention 1980 and the High Court’s inherent jurisdiction but the issues were identical. The child’s return to Brazil was sought.  The child objected to this.  The High Court concluded that the child was habitually resident in the UK and that, accordingly, the child would remain in the UK.  The High Court judge who initially dealt with the case went on to consider what would have been the outcome had that judge concluded that the child was in UK in the on the basis of a wrongful retention – the child having come to the UK for a holiday.  This was not strictly necessary to decide because the child’s habitual residence was found to be the UK and, on top of that, the child was content with that outcome.  The judge concluded that, even if the child had been wrongfully retained in the UK, it would not have been appropriate to order the child’s return because of the child’s wishes and feelings.

The mother, a Brazilian citizen who sought the child’s return to Brazil, appealed to the Court of Appeal.  The Court of Appeal dismissed her appeal.  Its reasons for siding with the father/child were different to those of the High Court.

Factual background

The parents met in the UK in the early 1990s and the mother lived in the UK until 2013, as did the child (there was a second child as well but he was not involved in the proceedings).  The parents’ marriage ended in 2011 and they started living separately in 2012 with the father leaving the matrimonial home.  He had begun a relationship with another woman in circumstances that were described by the Court as being “particularly hurtful” to the mother and “difficult” for the child.  Faced with this situation, the mother decided that she wanted to return to Brazil.  In January 2013 she made an application to do so permanently, taking both children.  The father, albeit reluctantly, agreed and an order permitting the return was made in June 2013.  The evidence placed before the Court that made the order was to the effect that the children were willing to go to Brazil “partly because” that was their mother’s wish.

The mother and children left the UK for Brazil on 1 August 2013.  They left behind many of their possessions.  The children were enrolled at a Brazilian school.  In January 2014, the children visited their father in the UK.  They became upset because they missed him and their life in the UK.  There was a financial dispute hearing in February 2014.  This was not successful – it is not entirely clear but it seems that no agreement as to future financial arrangements was made. In March 2014, the mother emailed the father about the financial dispute; she copied in the children to this email.  The child who was to become the subject of the abduction proceedings emailed her father and, amongst other things, complained that he was not making adequate financial provision.  The text of the email included this passage, reproduced in the Court’s judgment:

“I am super happy in my school but when I found out you don’t want to pay for it I felt so upset. This is the first time I feel like I belong, I have made lots of friends and everyone is inviting me to their houses, parties etc….. I never want to change school and if you don’t give mummy money I don’t think I want to see you in Easter [sic] as I will be too angry to see you. If I have to move school I will never see you or talk to you ever again.”

“I am passing all of my tests and I am super happy in my school that I have a smile on my face all the time whether it’s my friends making us laugh or if it’s just that I feel so lucky that I have an aunt who bothers caring for us.”

The father and father’s mother replied to this but the upshot was that there was no contact between the father and this child from late March 2014 until June 2014.  The High Court judge attributed this to the financial dispute. The other child’s contact with the father also dried up and a proposed visit by the father to Brazil in April 2014 was cancelled because he was not sure that his children would see him.  The relationship between the father and children subsequently returned to normal when they saw each other in the summer and spent time on holiday in France.  On 24 July 2014 the child who became the subject of the abduction proceedings told her father, with whom she was with at the time, that she did not want to go back to Brazil.  (After later reviewing the evidence the High Court judge concluded that the child’s position was not so much that she wanted to live with the father, and not the mother, but that she wanted to live in the UK).  She also told the mother – who was in the UK at the time because of the ongoing financial proceedings.  The child did not return to Brazil with the mother, although her brother did.  The mother issued Hague proceedings seeking the child’s return.

High Court decision

The High Court judge’s reasoning was as follows:

“38. I have to ask myself, did she integrate into Brazil? On the surface she seems to have done so. She went to school; she is a compliant, co-operative child, she did well at school, she had friends, she had a social life but her state of mind was that of starting off with reservations, nagging doubts, thinking of home. Home not being where she sleeps but where she felt she belonged. Home was England. She has told her mother and in her own words she made it clear what her feelings were and she has remained consistent to that.

39.  I have come to a clear view that she did not acquire habitual residence in Brazil. I have no doubt the mother has. In this particular case, an unusual case with this child’s strong feelings and sense of being English, is such that she did not acquire integration into Brazil [sic]. Did she lose her habitual residence in England? That has been a question that I have considered and it has troubled me. In many cases people fly off to another country, emigrate and as they fly they automatically lose their habitual residence. This is a child that went because adult decisions had been made and she knew her mother wanted to go but she had reservations. Those reservations prevented her adapting, and feeling at home in Brazil. I do not think she lost her habitual residence in this country. I think she retained it, notwithstanding the mother lost hers. I think she is still habitually resident here and has always been so.”

Court of Appeal decision

At paragraph 33 of the judgment, the Court of Appeal, rejecting the High Court’s assessment on this point, decided that the child’s country of habitual residence had become Brazil.  The Court said:

33. When I take these indicators of the position in the spring and early summer of 2014 together with the whole picture of the move and G’s connections with and life in Brazil, I am driven to the conclusion that Hogg J was wrong to find that G was habitually resident in England throughout. Such nagging doubts as she had did not interfere with the process of integration in Brazil and the position “on the surface” represented the reality. I would allow M’s appeal in relation to habitual residence, set aside Hogg J’s determination on the point, and replace it with a finding that G was habitually resident in Brazil at the material time, namely July 2014.

That was not the end of the matter.  The child objected to returning to Brazil.  The Court decided (as did the original judge) that this objection was a valid one and that, as such, it amounted to an exception operating against the return which was, all things being equal, necessary to put right the wrongful retention that had been found to have taken place.  The core reasoning on this point was as follows (references to G are to the child):

65.  It is clear that the judge considered G’s views to be of central importance in her determination. G’s objections had opened the gateway to the discretion that the judge had to exercise and there was perhaps more than the usual amount of information about her present state of mind because Mr Power [the CAFCASS officer] had had more opportunity to discuss matters with her than is usual in cases like this. What she said to him about her time living in Brazil may have been coloured by subsequent events, but her state of mind since the inception of the current proceedings was something that Mr Power was very well placed to assess contemporaneously.

66.  He told the judge that G’s objections were her own genuine objections, that there was a conviction in her, not just a wish but something deep down inside her to the effect that she wants to be in England. He said she regards England as her home. He said that attention had to be paid to her wishes and feelings and that if she were to be forced to go back, there was a real risk of psychological damage to her. In addition, he said that her relationship with M would be permanently damaged. Furthermore, he thought her threats not to co-operate with a return were real.

67.  The judge expressly accepted that G’s objections were strong and that they were not about returning to M’s care but to Brazil. As I read [42] to [46] of the judgment, she also impliedly accepted the elements of Mr Power’s assessment that she set out in those paragraphs. Furthermore, she accepted, as she was entitled to do, that G had behaved as a mature 12 year old and argued her case in a mature, rational way. Taken together, all of this amounted to a cogent case against return.

68.  The judge set against it the physical separation that there would be from [her mother] and [her brother]. [Counsel for the mother] suggests that it was inappropriate for her to take the view that this was mitigated by the fact that G and [her brother] would, at 10 and 12, increasingly be leading their own lives with their own friends anyway. She also took into account the availability of electronic communications as a way of the siblings keeping in touch. This was, exactly the sort of assessment that a family judge can and often does make and I do not detect any error of approach.

69.  As for the argument that welfare disputes about [G’s brother] and G may be consigned to different courts if G is not returned to Brazil, which in [the mother’s Counsel’s] submission would be undesirable, that may in fact be a problem which, if it exists, is more academic than real, given that there does not seem to be any active dispute about [G’s brother’s] welfare.

Ministerial remarks on child abduction proposals

Last year I wrote here that the Law Commission had published proposals to reform the criminal law in relation to international parental child abduction.  The main change in this area would see the wrongful retention of a child abroad become a criminal offence under the Child Abduction Act 1984.  At present, only the wrongful removal of a child can be a criminal offence.  As the law stands, a person who takes a child abroad with the other parent’s (or a court’s) consent but then stays abroad does not commit a criminal offence as the removal was lawful and criminal liability does not attach to a wrongful retention of a child abroad when that child was free to make the trip abroad in the first place.  There might, of course, still be the possibility of separate civil proceedings under the Hague Convention.

The Government has now made a tentative response to the Law Commission’s proposals as can be seen from this exchange in the House of Commons on 16 December 2014.  The exchange was initiated by the Chairman of the All-party Parliamentary Group on Child Abduction.  The links below have been added.

Stephen Timms (East Ham) (Lab): The international child abduction charity, Reunite, reports that the wrongful overseas retention of children is up by 30% so far this year. We need urgent action to implement the welcome recent recommendation from the Law Commission that wrongful retention should be made a criminal offence. Will the Minister say when the Government will respond to that recommendation, and can he give a date by which we can expect to see the legislation that is needed?

Simon Hughes [Minister of State, Ministry of Justice]: Kidnap and child abduction can have devastating effects on victims and their families. It is vital that the law reflects the gravity of the offences, and that those who commit them are punished accordingly. I pay tribute to the right hon. Gentleman and his colleagues who formed a group in this House to argue for a change in the law. In the past, people could be punished for taking their children out of the country, but not for keeping them illegally out of the country rather than bringing them home. The coalition Government asked the Law Commission to consider the issue. It has reported back and recommended a change to the Child Abduction Act 1984. We are looking at that recommendation actively and I hope that we will be able to make progress in this Parliament.