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).

Hague Convention in force one year

One year ago the Hague Convention entered into force in Japan.  Drastic, nihilist almost, change is still needed to Japan’s archaic and inflexible “system” of family law if the principles that are enshrined in the Convention are to be properly respected.

The first return of a child to Japan was a case involving the UK, about which I wrote at the time here.  The first return of a child from Japan took place in mid-October 2014.  However, this was, in the end, an agreed return, not a court-sanctioned return.  The threat of the Convention, rather than its actual operation, proved to be enough.  I wrote about it here.  The first court order for the return of a child from Japan was issued in November 2014; the decision was upheld on appeal although it is not clear whether the decision has been implemented.

Although there have been some returns, and even some largely anecdotal indications that abductions have fallen, neither points are, in themselves, especially encouraging.  One year on, two – partially related – concerns remain.

First, there continues to be a large amount of under-reporting.  This is why the statistics in terms of returnees published over recent days need to be treated with great caution. The under-reporting is not limited to the pre-1 April 2014 cases not covered by the Convention.  Paradoxically, taking legal action can be seen as being counter-productive, cutting off the possibility, however remote, of an amicable solution, even if a solution short of return, and can in any event be deeply unsettling to children.  Parents may conclude that it is better to do nothing rather than risk inflaming the situation.  Hope is what keeps many parents going.  In the case of other parents, the arbitrary removal of their child or children from their lives can destroy them; it can render parents incapable of looking after themselves, let alone trying to guard and promote from afar the interests of their children.   Parents, particularly those who have limited experience of Japan and the language, are put off by the daunting prospect of having to deal with the situation in an alien country.  Parents are provided with little if any support from foreign embassies, are regarded as a problem by the police and are traditionally treated with utter disdain by the Japanese judiciary.  The system, particularly the court system, is geared against the foreign/non resident parent.

That brings me to the second point.  As the Convention has only been in force for 12 months, it is too early to draw any firm conclusions as to the approach of the courts in Japan as there have not been enough cases.  However, there are real concerns about the existing approach of the Japanese courts to family law cases.  The starting point in Hague cases is that a child habitually residence in country X will be returned there in the event of a wrongful removal or retention in Japan.  The exceptions are supposed to be applied restrictively – the main ones are acquiescence on the part of the left behind parent, a child’s objection (subject to a test of maturity) and a grave risk of psychological or physical harm to the child were a return to be ordered.  The concern is that these exceptions will offer judges an opportunity to prevent the return of children and to uphold the status quo and, in other words, apply a judicial rubber stamp to the abduction.  The omens are not good as, in disputes over the residence of a child within Japan, the courts rarely interfere with the status quo:  the child stays put, regardless of where their best interests, properly considered, lie.  A further concern is enforcement.  It is not actually clear that any child has actually left Japan as a result of a court order; appeal in relation to the November 2014 case has only just been concluded and it is not clear whether the child has been returned to Sri Lanka or not as yet.  Again, in domestic family cases the courts, even if awarding (usually very limited) contact to a non resident parent, do not follow the order up with sanctions for non compliance.  That makes the family law system an almost pointless process in Japan – and does not bode well for the approach that will be adopted in cases where an abducting parent declines to return a child.  In Japan the law allows legal wrongdoers to benefit from their wrongdoing.  In regard to international parental child abduction, that did not change on 1 April 2014.

What needs to change in Japan is that people there need to stop regarding parental child abduction as acceptable and normal.  It is not.  The notion that one parent, save in exceptional circumstances (which would usually involve serious criminality), could lose all contact, even indirect, is profoundly shocking.  That they could do so at the say-so of the other parent and not a court is also profoundly shocking.  The Hague Convention has, at least, begun to make it clear that such attitudes are not acceptable in international cases; let it not be lost sight of, however, that abductions within Japan, when Japanese parents separate, remain fairly normal and, of course, the Convention has no impact on that.  Where there is a dispute over whether a parent should see a child, or where that child should live, that should be decided by a judge on the basis of a dispassionate assessment of the facts, not by societal norms.

Yet, in Japan, the judiciary is the problem.  The judiciary needs to learn that maintaining the status quo should not be seen as its raison d’etre when justice and evidence demonstrate otherwise; such a non-interventionist approach is not appropriate in cases of such overwhelming importance.  Alarmingly, I am not sure that the judiciary in Japan can be regarded as wholly independent as it seems, unwittingly or otherwise, imbued with the societal approach to parental child abduction.  Western governments need to recognize this, take it up with the Japanese government and set in place arrangements for judicial exchange and training.  This is usually something that only needs to be offered to embryonic or failed states.  Cases must be decided by reference to the principle that it is in general in a child’s best interests to have contact with both parents and for cases to be decided on their facts.

Keeping a child, a person easily influenced and/or unable to make decisions for themselves, away from a loving parent is incredibly selfish.  It is, in most cases, damaging to all concerned, including in the long run the abducting parent who might well have a lot of explaining to do to the child when the wheel has turned a full circle 20-30 years down the line.  The Hague Convention has made clear that children should not be arbitrarily removed from their home countries – but a wider problem as regards Japan’s approach to family law has yet to be addressed.  A year from now, I do not expect the situation to have moved on a great deal so I doubt that there will be a ‘2 years on’ blog post on the subject of the Hague Convention.  Let it be hoped that, by the fifth anniversary on 1 April 2019, when my son will be aged about 11 ½, there will be something more positive to write about.

Update (7 April 2015):  There was in fact a second court ordered return of a child in the course of the first year of operation of the Hague Convention, although I only got to know about it after writing the above:  read blog dated 7 April 2015 for further details.

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.