Summer 2015 case law round up

There have been two child abduction cases of note in the higher courts over the summer, both concerned, in part at least, with objections by children to the making of return orders under the Hague Convention:

High Court

My print out of the High Court (Family Division) judgment in Re F (Abduction: Acquiescence: Child’s Objection) [2015] EWHC 2045 (Fam) runs to 35 pages. I will try and explain it in a much more concise manner below.

The case was about 4 children aged between 13 and 9. Their parents were separated. Up until December 2014 the children lived with their mother in Australia. With her agreement, the children spent their Australian summer holidays in the UK with their father. They were due to return to Australia on 23 January 2015. They did not; the father pre-empting this by, ahead of this date, informing the mother that they could not be returning to Australia on the basis that they wishes to remain.

It was this, the suggestion that the children did not wish to return to Australia, that was central to the determination of this case as the father accepted that his retention of the children in the UK was wrongful, as defined by the Hague Convention.

Given all of this, the issue for the Court was whether the mother acquiesced to the retention of the children in the UK or whether, failing that, if the children objected in a legal sense to their return to Australia, whether the Court should, in the exercise of its discretion, go behind the raison d’etre of the Hague Convention and not order a return of the children because of that.

The Court quickly rejected the suggestion that the mother had acquiesced in the wrongful retention of the children: see paragraph 99 of the judgment. The reasoning for this, set out at paragraphs 87 to 98 draws heavily on the “power imbalance” between the parents arising out of the father’s prior financial support to the mother and children in Australia. Because the father controlled the purse strings, the Court decided that the mother had no alternative to return to the UK but that her actions in doing so could not be regarded as retrospective consent to the wrongful retention.

Recognizing that the case would turn on the issue of whether the children’s “objection” to return amounted to an objection as a matter of law, the judge met with the children prior to giving judgment: see the judgment at paragraphs 60 to 65. See also paragraphs 77 to 81 for the circumstances in which this may occur.

In terms of the Court’s approach to the objections raised by each child to their return to Australia between paragraphs 108 and 115, the Court concluded that none of the children objected, in a legal sense, to returning to Australia; their preference may have been to remain in the UK for the reasons given by them in the evidence before the Court but this did not amount to an objection. Owing to this finding, the Court did not have to decide whether to exercise the discretion it had as to whether, if valid objections had been shown (which they had not), the return of the children should not take place – despite the fact that the father accepted that a wrongful retention had occurred.

In concluding at paragraph 124, the Court found that the father ought to have adopted the “honourable approach” to making an application to the Australian family court to relocate the children to the UK. He did not and in consequence the Court ordered the summary return of all of the children to Australia.

Court of Appeal

Again, there has been only one case of note in the Court of Appeal this summer, that of Re K (1980 Hague Convention) (Lithuania) [2015] EWCA Civ 720. The case was concerned with Lithuanian parents. The mother was appealing against an initial decision made by a High Court judge to require her 11-year old daughter to return to Lithuania under the Hague Convention. The mother accepted that she had wrongfully retained the child in the UK but argued that a return should not occur because the child objected and because there was a grave risk of physical/psychological harm or that the child, if returned, would be placed in an intolerable situation. The father, who resisted return, accepted that the child objected to returning to Lithuania but that, in the exercise of its discretion in this situation, the judge still ought to have ordered return – as the judge did in the High Court. The High Court judge rejected the argument that the child would be at risk of harm or would be placed in an intolerable situation if returned (paragraph 36 of judgment) and concluded that the child’s objection to return was not “determinative” (paragraph 35).

The Court of Appeal upheld the High Court’s decision to order the return of the child, rejecting all challenges brought against the original decision, noting that the judge, Hogg J, had “…enormous experience of Hague abduction cases…” (paragraph 39). The Court of Appeal rejected any suggestion that the High Court judge had made up her mind prematurely or approached the evidence selectively (paragraph 42). The Court concluded that the decision made was one that was reasonably open to the original judge (paragraph 45) and that her concerns about the evidence of the CAFCASS officer – the only person to give evidence at the original trial – were open to her also (paragraph 46). Perhaps the point of more general interest is the approach adopted to the suggestion that the child, in objecting to return, was influenced in that regard by the mother. At paragraph 49 the Court of Appeal, remarking on the approach of the initial judge in this regard, said:

It is certainly correct to say that the question of influence weighed heavily in the judge’s mind. She was bound to consider it because it was relevant to the weight that should be put on [the child]’s views, but it was far from being the only thing she considered. Furthermore, the fact that [the child] had been influenced certainly did not lead her to leave [the child’s] views completely out of account. Instead, she weighed them up critically to see where they took her in deciding whether to order a return.

The Court concluded that the original judge’s conclusion that the child should return to Lithuania despite objecting to this course of action was one that was “undoubtedly” open to the original judge (paragraph 51).

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Scottish abduction case reaches UK’s Supreme Court

On 22 May 2015 the UK’s Supreme Court issued a decision in an international parental child abduction case called AR (Appellant) v. RN (Respondent) (Scotland) [2015] UKSC 35. The issue before the Court was whether or not it should order the return to France of two children who had been living with their mother in Scotland since July 2013.

The situation that had arisen was as follows. The children were both born in France in August 2010 and June 2013. Their father was French and their mother was British and Canadian. Up until July 2013, the family lived in France although they periodically visited the mother’s family in Scotland. In July 2013 the mother and children moved to live in Scotland. According to the father’s evidence this was for the 12-month duration of the mother’s maternity leave, the younger child having just been born. The mother said that the move away from France had intended to be permanent although no plan had been made for the period of time beyond the 12 months that was going to be spent in Scotland.

After the move took place the father would visit his family in Scotland for several days per month. The mother and children visited the father in France for a holiday in September 2013 and again in October 2013. Upon their return to Scotland after this, the mother and children moved into private rented accommodation adjacent to the maternal grandparents, having previously lived with the maternal grandparents, where they continued to live.

The couple, who were unmarried, separated on 9 November 2013 on the basis of the husband’s infidelity. On 20 November 2013 the mother applied for a residence order in relation to the two children. The father, in turn, issued proceedings under the Hague Convention on the basis that the mother’s application for a residence order amounted to a wrongful retention of the children in the UK.

The father succeeded in the Scottish Court of Session, that Court noting, in deciding in the father’s favour, that “[t]his was a French family living in France” and that the stay in Scotland was to be of “limited duration”.

On an appeal against that decision, the Inner House of the Court of Session found in the mother’s favour. The Supreme Court agreed. The original judge was, the Supreme Court found, wrong to focus entirely on whether there had been a joint parental decision to move permanently to Scotland (the original judge finding that the intention to move there was to be, as noted above, of “limited duration”. In approaching the decision on this basis, the Supreme Court concluded that the original judge failed to apply guidance given in earlier decided cases. Parental intentions, whatever these are found to be, are a relevant factor – but they are not the only one. The fact that, as the original judge found, there was no joint parental decision to move permanently to Scotland was not the end of the matter. The Court stated that “[t]he important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent”. The original judge thereby failed to consider the “abundant evidence” relating to the stability of the mother and children’s lives in Scotland and the level of integration that had occurred. The Court found that the children were habitually resident in Scotland.

Usually cases that just turn largely on their own facts in this way will not get anywhere near the Supreme Court so it is interesting that this one did.

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.

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.

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.