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.

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