‘You can’t hug Skype’ – father resists removal of child to Hong Kong

‘You can’t hug Skype’: Father wins legal battle against ex-wife trying to take their two-year-old son to Hong Kong after judge agrees you can’t cuddle over the internet

By Chris Pleasance for MailOnline

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A mother who wanted to relocate to Hong Kong taking her son with her and leaving the father behind in England has had her request turned down because ‘you can’t hug Skype’.

The mother of the two-year-old boy said the child could stay in contact with his father using phone calls, internet video calls, and visits.

However, the man argued that visiting Hong Kong regularly was impractical, and that internet services were often unreliable and didn’t substitute for physical contact. 

And at the High Court today Judge Roderic Wood said the plan was inadequate because ‘you can’t hug Skype’, adding that he did not believe the mother would stick to her commitments.

Mr Justice Wood added: ‘The disadvantages of Skype – as any user will know – are all too often the lack of clarity of image, the sound delay even if short and, as counsel colourfully notes in her closing submissions, “You can’t hug Skype”.’

Rejecting the mum’s case, he continued: ‘This is a case where a father, despite obstacles, has built up a very good and profound attachment to his son.

‘The mother’s proposals to relocate – even if her proposals for visits, telephone calls and Skype calls are carried out – in practice do not make up for these losses.

‘For the avoidance of doubt, I do not believe this mother once in Hong Kong, if given permission, would adhere to the contact regime pre-figured in her case.

‘Even if I am wrong about that and she started the programme, it would, having seen her and heard her, only in my view be a matter of time before this regime faltered and collapsed.

‘I simply did not, in the light of my findings…believe her as to her intentions.’

He continued: ‘Both these parents are capable of raising [the child] physically and of giving him physical care and nurture.

‘It is the mother’s inability to recognise in any real way the value to [the child] of having his father in his life and to facilitate and encourage it which leads me to find that in reality she would let [the child’s] opportunities for continuing and developing his relationship with his father wither or even cease abruptly.’

The decision means the boy will stay in England, where he can have direct contact with his father.

Source:  “‘You can’t hug Skype’: Father wins legal battle against ex-wife trying to take their two-year-old son to Hong Kong after judge agrees you can’t cuddle over the internet”, Daily Mail, 27 February 2015

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Surprising outcome in Spain-UK abduction case

The flow of UK higher court parental child abduction cases has become a torrent. There is now a third Court of Appeal decision on the issue so far this year – issued barely a week into February. There have also been a couple of new decisions at High Court level (where all such cases start) since the beginning of January 2015 as well. These can be read here and here for readers who are interested. At the time of writing, of the ten cases decided by the Family Division of the High Court since the beginning of January 2015, two (or 20%) have been parental child abduction cases.

On the face of it, the latest Court of Appeal decision is a surprising one, troubling even. The case concerned a 14 year old boy. His parents separated when he was about 18 months old. Between 2003 and the summer of 2014 the boy lived in Spain with his mother. He would regularly visit his father in the UK. He traveled to the UK for one such visit on 19 July 2014. He did not return to Spain.

Both the High Court and, on appeal, the Court of Appeal found that the child was not returnable to Spain under the Hague Convention. The reason was that the Article 13 exception (child’s objection) applied. This exception is not an absolute one as the courts could, in the exercise of discretion, have returned the child anyway, if the circumstances as a whole warranted it. That did not however happen in this case. The reasons the courts decided as they did turned largely on the individual facts, and the fairly advanced age of the boy, but of note are the words of Lord Justice Davis, alert to the possibility of this decision being seen as perverse, in the second judgment given by the Court:

49.  The parents in this case had reached a thoroughly sensible arrangement in the English family court proceedings, embodied in a consent order made on 6 May 2003. Their arrangements with regard to E thereafter had been operated by reference to that consent order. When the mother put E on a plane at Madrid in July 2013 for his usual summer holiday with his father in England, she naturally would have expected him to return a few weeks later in accordance with the consent order and the agreed arrangements. E would likewise at that time have expected to return. But this did not happen. Further, the English court has refused to order his return. Imagine her feelings.

50.  One surely has to have some concern about the wider potential implications of such an outcome. If there is to be a perception that children may not be returned, even after a short visit to a parent in England and even after prompt application made, parents may be reluctant even to agree the sensible kind of consent order made in this case in circumstances where consent orders are to be encouraged. Or parents may become increasingly reluctant to abide by the terms of such a consent order. Would the mother have put E on the plane at Madrid had she thought this might happen? She would not.

[…]

52.  The position then is that each such case is fact and circumstance specific. That gives flexibility, in a context calling for flexibility, even if it comes at the cost of certainty. In my view, the judge was, in this case on the evidence before him, entitled to make the findings that he made and to evaluate the evidence as he did. He was entitled to give full weight to the report and evidence of the experienced CAFCASS officer. Whilst Mr Williams’ minute dissection of the evidence and of the judgment operated to confirm, to my mind, that the mother had a powerful case to pursue, I think, with all respect, that ultimately his approach imposed far too great a burden of judicial exposition to be required of first instance judgments in such cases (in what, after all, are summary proceedings). At all events, the judge here dealt with all relevant points. He sufficiently spelled out the reasons for his conclusion and for the way in which he exercised his discretion. The appeal court cannot be used as a vehicle for conducting in effect an entire rehearing in such circumstances.

60th Birthday

Hello Hugo

Your paternal Grandmother turned 60 today.  To mark the occasion, here is a photograph of you being held by her.  It was taken in London on 4 December 2008, when you were 6 days old:

hugo041208-4

Your Grandmother was born in London in 1955.  I came across this article in the Daily Mail late last month – it consists of photographs showing what London looked like back then, a very smoggy city.

You last saw your Grandmother in July 2010 when she came to London with some other members of the family to have lunch with you at this Tapas restaurant in Bromley.

First return order: Osaka High Court dismisses mother’s appeal

On 21 November 2014 I wrote here about the first Hague Convention return order issued by a Japanese court.  A judge in the Osaka Family Court ordered the return of a child to Sri Lanka.  The mother, who had taken the child to Japan, appealed – about which I wrote briefly on 9 December 2014.  It has now been reported that the High Court of Osaka has upheld the original decision and dismissed the mother’s appeal thereby clearing the way for the implementation of the first Hague Convention return order of a child from Japan.  There is a further right of appeal but it is to the Supreme Court so the odds must be very much against the case going any further in the system, all the more so because, as I wrote before, it is difficult to see how the courts could have arrived at any other decision.  It now remains to be seen whether and when the order will be enforced.

There do not appear to be any English language reports of the latest decision available.  I have only been able to find this report of it in Japanese (taken from the Sankei Shimbun and published on 30 January 2015):

2015.1.30 19:40更新

スリランカへ子供の返還命令 母親の即時抗告棄却 大阪高裁

 国際結婚の破綻などで国外に連れ去られた子供の取り扱いを定めたハーグ条約に基づき、スリランカに住む40代の父親が、30代の母親と西日本で暮らす娘(5)の返還を求めた審判の即時抗告審で、大阪高裁(金子順一裁判長)は30日、娘をスリランカへ返還するよう母親に命じた大阪家裁決定を支持し、母親側の抗告を棄却した。

大阪家裁は昨年11月、ハーグ条約に日本が加盟して以来、国内初となる司法判断を出したが、母親が不服として即時抗告していた。

これまでの決定などによると、父母はいずれも日本人。3人は平成25年2月、父親の仕事の都合でスリランカへ渡航し、昨年6月に一時帰国した。再び3人でスリランカに戻る予定だったが、母親が父親に戻る意思がないと伝えたため、スリランカに戻った父親が娘の返還を申し立てた。

金子裁判長は決定理由で、娘が帰国後も現地のインターナショナルスクールに通学予定だったことなどから「居住国はスリランカ」と認定した家裁決定を相当と判断した。「娘がスリランカに行くことを拒んでいる」などとする母親側の主張も認めなかった。

Source:  Sankei Shimbun, 30 January 2015 

UK-Ireland abduction case in Court of Appeal

Before January 2015 was out, there was a second international parental child abduction case decided by the UK’s Court of Appeal.  I wrote about the first one here.  The second case was concerned with 3 children, aged 13, 11 and 6; a further child (aged 17 by the time the case reached the Court of Appeal) was not initially involved (being to old to be returned) but did become involved in the Court of Appeal so that account could be taken of his/her position – on the basis that the initial decision, by then made, regarding his siblings would clearly be of relevance to him/her.

The High Court, originally hearing the case that became the subject of an onward appeal, granted the father’s application for the return of the children to the Republic of Ireland.  The children had been born and brought up in Ireland until being taken to the UK on 12 March 2014.  The mother accepted that the removal was a wrongful one but argued that the children should not be returned because they objected.  The mother, the ‘over-age’ child and the eldest of the 3 other children involved in the earlier proceedings appealed the High Court decision, the 2 children being separately represented.  The Court of Appeal reversed the decision and decided that the children should remain in the UK, where they had been taken their mother.

I will return to the facts of the case at the end of the post.  The case of M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 is of interest for reasons that go a long way beyond the individual facts.

Although not part of the Court’s reasoning, at paragraph 7, the Court draws attention to the fact that, in UK Hague cases, legal aid is only available for parents bringing Hague cases, i.e. not the parent defending them.  It might be said that this inequality of arms is preferable to there being no legal aid at all as that would leave an impecunious father or mother in a difficult position.  The said as follows at paragraph 7:

At the full appeal, the parties were represented by the same counsel as at the directions hearing, save that the children were represented by Mr Hames leading Ms Gartland. Ms Kirby represented the mother pro bono, public funding not having been available to her although it is, of course, automatically available to an applicant for an order under the 1980 Convention. We are very grateful to her for redressing the unfairness that would otherwise have arisen. Thorpe LJ and Munby LJ (as they then were) expanded graphically in Re K  [2010] EWCA Civ 1546 [2011] 1 FLR 1268 upon the disparity in the resources made available to the parties in proceedings such as this and the practical disadvantages at which this can place the respondent parent, see §§33 to 36 and 44 to 46 ibid.

The importance of legal representation in Hague cases was brought home by the same Court in the same judgment but having gone on to another point.  At paragraphs 11, 12 and 13 the Court of Appeal stated that:

11.  In cases under the 1980 Hague Convention, speed is of the essence. The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing. The longer the time that elapses following a wrongful removal or retention, the more difficult it becomes to return the child. In recognition of this, judgment is expected to be given no later than 6 weeks after the commencement of the proceedings (see Article 11(3) of Brussels IIa (Council Regulation (EC) No 2201/2003 of 27 November 2003, hereafter simply “Brussels IIa”) and Article 11 of the 1980 Convention. The procedure adopted is summary.

12.  It may be thought paradoxical that a summary procedure such as this should have generated the quantity of jurisprudence that the 1980 Convention has. Over the years there have been many technical and sophisticated legal arguments about how its terms should be interpreted and a significant number of appeals.

13.  Technicality of this sort gets in the way of the objectives of the Convention. In Re P-J (Children) [2009] EWCA Civ 588 [2010] 1 WLR 1237, Wilson LJ (as he then was) observed, “Nowadays not all law can be simple law; but the best law remains simple law.” In recent times, it has become increasingly apparent that the law relating to child’s objections under Article 13 of the Convention, as it is presently perceived to be, is far from simple law. To judge by the number of applications to the Court of Appeal for permission to appeal on this point, it is not at all easy to put into practice. Does this have to be the case?

In other words, Hague cases are complex and a litigant in person would struggle.

In terms of the law, the case itself was mainly concerned with the correct approach to dealing with objections to return raised by children in Hague cases.  On this, the Court of Appeal stated as follows (references to ‘the gateway’ are references to the ‘age and maturity’ considerations that must be addressed before a child’s views on return can be considered):

69.  In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.

[…]

76.  I now turn to how the law will work in practice. I do not intend to say a great deal on this score. The judges who try these cases do so regularly and build up huge experience in dealing with them, as do the CAFCASS officers who interview the children involved. I do not think that they need (or will be assisted by) an analysis of how to go about this part of their task. In making his or her findings and evaluation, the judge will be able to draw upon the entirety of the material that has been assembled in relation to the child’s objections exception and to pick from it those features which are relevant to his or her determination. The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances. What is relevant to each of these decisions will vary from case to case.

77.  I am hesitant about saying more lest what I say should be turned into a new test or taken as some sort of compulsory checklist. I hope that it is abundantly clear that I do not intend this and that I discourage an over-prescriptive or over-intellectualised approach to what, if it is to work with proper despatch, has got to be a straightforward and robust process. I risk the following few examples of how things may play out at the gateway stage, trusting that they will be taken as just that, examples offered to illustrate possible practical applications of the principles. So, one can envisage a situation, for example, where it is apparent that the child is merely parroting the views of a parent and does not personally object at all; in such a case, a relevant objection will not be established. Sometimes, for instance because of age or stage of development, the child will have nowhere near the sort of understanding that would be looked for before reaching a conclusion that the child has a degree of maturity at which it is appropriate to take account of his or her views. Sometimes, the objection may not be an objection to the right thing. Sometimes, it may not be an objection at all, but rather a wish or a preference.

Returning (more briefly) to the facts of the case under appeal, the Court of Appeal decided that the High Court was wrong to decide that the children were not objecting to a return to Ireland; the High Court’s reasons for so deciding are set out at paragraph 98 of the Court of Appeal judgment (reproducing paragraphs 77 and 78 of the High Court decision):

77. …..Whilst each of the children has said he/she does not wish to return to Ireland, I am entirely satisfied that their wishes in this context flow from a genuine concern or fear that such a return will expose them either to a return to their father’s care or a removal at his instigation from their mother’s care or to a risk of further abuse, physical or psychological, perpetrated by him and directed towards either them or their mother.

78. Given the context of the practical arrangements which I have already addressed in the context of the father’s proposed return of these children to their country of habitual residence (sic), I am not satisfied that the views that they have expressed to the CAFCASS officer can properly be said to amount to a clear objection in Convention terms. Whilst they may wish to remain in the protective bubble of respite which they are currently experiencing in their mother’s care with all that the physical and geographical separation from their father brings, I do not accept that their stated views amount to an objection for current purposes.

At paragraph 102, the Court of Appeal found that this approach was to mis-read the evidence from CAFCASS as this was clear that the children did object and that their objection could not be characterised in any other way.  The Court of Appeal went on, at paragraph 111, to conclude that the two older children involved in the proceedings, were of a sufficient maturity for their views to be taken into account.

The final stage in cases such as this is a discretionary one:  whether, in the exercise, of discretion to order return or not.  Even though the facts may point to a return – in this case the children were born and spent most of their lives in Ireland – a return will not necessarily be ordered.  In this case:

137.  To my mind, having weighed up the various factors that are relevant, there are strong reasons to exercise the discretion not to order the return of J [the eldest child] to Ireland, particularly in light of his age, his fears, the strength of his objections, and his emotional vulnerability. The case is perhaps less obviously compelling in relation to T [the second eldest child], but having reached that conclusion in relation to J, I would not consider it appropriate to exercise the discretion differently in this case in relation to him, particularly when the consequence would be that he would have to leave behind both of his elder brothers to make the return to which he too is opposed. As I indicated earlier, I do not propose to determine I’s [the youngest child] position in the context of her objections. As I have said, it seems to me self-evident that if none of her brothers are returning, it would place her in an intolerable (and to her probably unintelligible) situation if she were to be returned.

At the end of the judgment the Court concluded with remarks about the level of involvement of children in cases such as this – given the relatively late intervention of the child not covered by the Hague proceedings because of age.  The Court remarked:

155.  Children need to know that their views are being listened to and that their particular concerns are not being lost in the argument between their parents but it must be recognised that direct participation in proceedings can be harmful for children. As Lord Wilson said in §48 of Re LC, “[t]he intrusion of the children into the forensic arena….can prove very damaging to family relationships even in the long term and definitely affects their interests”. I therefore contemplate that it may be necessary for a litigation friend to guide and regulate the child’s own participation in the proceedings, just as a guardian would. He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing. In the very unlikely event that an intractable issue arises between the litigation friend and the child, there may be no alternative but to ask the court to give directions, but I would expect such a situation to be extremely rare. What I do not think a litigation friend can do is provide a welfare assessment for the court in relation to the child as a guardian would do. However, where the litigation friend is the child’s solicitor, as I anticipate will be so in the vast majority of cases, he or she will no doubt assess the case and guide and support the child in their approach to the litigation, as any solicitor would do for an adult client.

156.  I end this section of my judgment with a cautionary note. It should not be expected that an application for children to be involved in proceedings, either as appellants or as respondents, for the first time in the Court of Appeal will be received sympathetically. By the time the matter reaches the Court of Appeal, it is usually far too late in the day to address this sort of issue. I have said several times already, and make no apology for saying again, that this needs to be thought of at the very outset of the proceedings. As to how an application made at that stage may fare, nothing that I have said in this judgment is intended to affect the existing jurisprudence on the subject.