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 case: an abducted child’s objection

In K (a child) (Hague Convention: child’s objections) [2014] EWCA Civ 1364, a judgment which came out today, the Court of Appeal upheld an earlier decision by High Court Judge Clifford Bellamy, sitting in the Family Division, not to return a child from the UK to Lithuania under the Hague Convention.  The Court of Appeal is, in general, the second highest domestic appellate court.  The case shows that a return can be prevented by the objections of a child even where those objections are based on developments after the abduction complained of took place.

The child concerned, aged just under 11 at the time of the original judge’s decision, had lived in Lithuania with both parents from birth until the summer of 2013. On 25 July 2013, mother and child ‘visited’ the UK, with the agreement of the father.  They did not return.  The parties accepted that the facts as described amounted to a ‘wrongful retention’ for Hague Convention purposes.  The Central Authority in Lithuania made a request for the child’s return, prompting the High Court proceedings in the UK to decide the issue.

After the child and mother were located in the UK, a hearing was arranged. The fact that they had to be located in the first place does not seem to sit well with the mother’s position at court that she had no objection to the child having contact with the father.  The delay in the matter being heard was because of problems with the mother obtaining legal aid – in the end, it seems that she did not get it (at least not for the hearing itself) and she was represented pro bono.  It is not clear whether the father, the aggrieved party, was in receipt of legal aid or not.  He probably wasn’t, despite the overwhelming importance of the case, although it is not clear from the judgment.

The original judge declined to order the child’s return for the reason that the child herself objected and that she was of a sufficient maturity for her views to be taken into account. He based this on article 13 of the Hague Convention which, insofar as it is relevant, says:

The judicial or administrative authority may also refuse to order the return of the child if it finds 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 its views.

Source:  English Text of Hague Convention, Hague Conference on Private International Law

The Court of Appeal, when deciding the appeal brought by the father against the original judge’s decision, noted that much turned on the content of the CAFCASS officer’s report. CAFCASS is an organisation that seeks to portray the views of children in contested family proceedings.  The CAFCASS officer’s position was that this was a case that might be one of the unusual ones which should not succeed under the Hague Convention owing to the objections of the child.  At the same time, however, he expressed concern that the child might have been ‘influenced’.   The original judge, without the benefit of oral evidence from anyone other than the CAFCASS officer, concluded that the child’s objection was ‘authentically her own’ and that there was evidence relating to the father’s post-abduction conduct that gave rise to the child being afraid of him and thereby not wanting to return.  The original judge concluded that the child’s objection was, in this case, determinative.

In upholding the original judge’s decision not to order a return, the Court of Appeal concluded that it could not be shown that the original judge’s reasoning was inadequate. The father did not seek to challenge the fact that the child objected to returning, nor the conclusion that she had sufficient maturity for that to count.  The argument of the decision appealed being inadequately reasoned was based on the way in which the delay in the original hearing taking place.  During the period of the delay the child put down roots etc in the UK – this influenced the original judge’s decision even though this delay was no fault of the father and, more importantly, such an approach would, it was said for the father, undermine the whole reason for the Convention’s existence.  The Court of Appeal rejected this challenge because (as the lawyer representing the father partly came to realise) existing case law indicated that the degree of integration of a child was something that could be considered and the original judge clearly had in mind the policy behind the Hague Convention.  Absent any misdirection as to the actual law, the Court of Appeal was not willing to interfere with the original judge’s exercise of discretion, despite the fact that the original reasons given for it ought to have been ‘spelled out rather more clearly and specifically’.

In cases such as this, irrespective of the area of law involved, when original decision makers direct themselves adequately as to the underlying legal principles and seem to have had in mind all of the relevant evidence, reviewing courts are reluctant to intervene.