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).

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.

Father committed to prison in child abduction case

In the case of Sanchez v. Oboz [2015] EWHC 611 (Fam), judgment in which was given in the High Court on 9 March 2015, Mr Justice Cobb committed a father to prison for 12 months following wardship proceedings.  The father had been ordered more than once to return a child, Isabella, to the UK from Poland, the child having been wrongfully retained in Poland.  He did not.  A fuller description of the facts is available in an earlier judgment in the same case available here.

Not only was the father committed to prison but the child was named and her photograph issued to the media to try and bring about her return to the UK:  it is unusual for any litigant in the UK to be imprisoned for a contempt of court; it is also very unusual for a child to be publicly named in this way in family proceedings.  This just goes to show how seriously the judge took the father’s conduct, as also borne out by the following remarks in the judgment:

7. Isabella is a three-year old child who, until her unlawful retention in Poland in the summer 2014, was (as she still is) habitually resident in this jurisdiction. It is here that she has her home. I had cause to remark in the case of LBTH v Ali [2014] EWHC 856 (Fam), [2015] 1 FLR 205 that untold damage is done to children who are spirited away from one country to another, without warning or preparation; disruption to their routines, the predictability of their lives, their family relationships and social relationships, and to their schooling is inevitable. Parents who remove children from their home environments in this way cannot go unpunished.

8.  I stand by those words. The wilful retention of a child abroad in circumstances such as these is child abduction of the most heinous kind; it is an act of emotional abuse to the child. In this case, Isabella has been deprived of her relationship with her mother who until her unlawful retention in Poland was her primary carer; she has been denied the regularity of an environment which is familiar to her.

9.  The father has been defiant in subverting the English court orders. I am wholly satisfied that he was, and is, fully aware that he has been required to return Isabella to this country; he has chosen to turn his face against the English law. By adjourning today’s sentence I gave the father opportunity to return Isabella &/or to come to court to explain himself &/or to offer some mitigation for his conduct. He has chosen to do none of these things.

10.  I have had regard to the guidance offered by Hale LJ as she then was in Hale v Tanner [2000] 2 FLR 879. I have not assumed that imprisonment is the automatic punishment for breach of a family court order. However, I am satisfied that an immediate sentence of imprisonment is entirely justified on the facts of this case.

11.  A sentence of 12 months imprisonment reflects the intrinsic gravity of the father’s breaches and marks the disapproval of this Court. That is the sentence which I impose. The father, once apprehended, will serve half of that time in custody; he will have the opportunity to come to the court to seek to purge his contempt if he chooses to do so.

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.