COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
Mr Justice McFARLANE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
| Joelle Vigreux
|- and -
|Patrick Jacques Robert Michel
- and -
Pierre-Mathieu Bernard Rene Michel
Mr M Hosford-Tanner (instructed by Percy Short & Cuthbert) for the 1st Respondent
Mr H Setright QC (instructed by Reynolds Porter Chamberlain) for the 2nd Respondent
Hearing dates: 3rd May 2006
Crown Copyright ©
Lord Justice Thorpe:
"Let's be assured of the support of this government of Chirac which is solely surrounded by Jews who suck the blood of humanity, feeding from all racial and political hatred. Let's bump off Chirac and his secret police and get ready."
"In France (the French judges) are bandits and layabouts, small-time poxy revolutionaries, Jews playing the martyr whom you have to make walk over hot coals before they will do anything. I am therefore going to doorstep the family court judge directly this week in Versailles to ask if he personally knows St Peter's successor in his department and whether he has received fresh orders from Goebbels, the former justice minister, from the time of Vichy."
"You must ask them every day at breakfast when you get up, 'let me live with my father. Give me my money and I will leave'. Keep saying that each time they talk to you and say it everyone."
"It's under way. I am waiting. They will see at the end of the current holidays. I told you to instruct a lawyer for the children in Versailles. You have to request the lawyer for the children in writing. I have sent off the request to leave the country for their holidays. You have to take the request from your mother and me to the town hall. You must collect the authorisation to leave the country from the town hall and post it to me. Then you say that you have mislaid it and you ask for another one for them. Then I can come and collect you. Pack a small suitcase and stay in the UK afterwards whilst the request is put before the judges in France. You must write a letter to the children's judge before you leave saying that you want to live with me in the UK and give a copy to the police."
"Why does Pierre prefer to be with his father? The father took three years' paternity leave at his birth to look after him; the mother was working nights in Paris. Consequently, bottle feeds, nappy changes, stories and walks came from the father. The minor Pierre lived in the father's home from his birth until the High Court in Melun ordered a feminist activist called Ratcliffe to prepare a demoralising welfare report. This nationalist Jewess then peppered her report with false litanies and refused to correct her forgery in writing before submitting it to this court. This wicked Zionist mole who in auto-conclave passed a vote of confidence in the custody of Pierre to his mother, a fascist of the same species, turned everything upside down. The Family Judge of Melun, abusively made up of women only, more capable of pronouncing administrative orders than subscribing to a civil contract, plucks away at pending files in massive doses, only re-reading the last line of administrative violence through huge motivation to separate father and children before they go into the extermination camp of legal murder."
"The mother, an out-and-out bitch, has well prepared and planned his kidnapping advance. She is advised by her Jewish in-laws and by the feminist advisers of the Moissy Police."
"Given the particularly conflicting background between both parents and the writings of the father, it is ordered that a psychiatric report be prepared and that judgment be reserved in the meantime as to the other requests which now no longer apply since the child resides in England at present. The father will have to come to France for the purpose of the report."
"(12) The grounds of jurisdiction in matters of parental responsibility established in the present Regulation are shaped in the light of the best interests of the child, in particular on the criterion of proximity. This means that jurisdiction should lie in the first place with the Member State of the child's habitual residence, except for certain cases of a change in the child's residence or pursuant to an agreement between the holders of parental responsibility.
(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision of the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.
(18) Where a court has decided not to return a child on the basis of Article 13 of the Hague Convention, it should inform the court having jurisdiction or central authority in the Member State where the child was habitually resident prior to the wrongful removal or retention. Unless the court in the latter Member State has been seised, this court or the central authority should notify the parties. This obligation should not prevent the central authority from also notifying the relevant public authorities in accordance with national law.
(21) The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required."
Jurisdiction in cases of child abduction
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention;
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.
Return of the child
1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereinafter "the 1980 Hague Convention"), in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.
2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.
3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.
Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.
4. A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.
5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.
6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.
Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child.
Return of the child
1. The return of a child referred to in Article 40(1)(b) entailed by an enforceable judgment given in a Member State shall be recognised and enforceable in another Member State without the need for a declaration of enforceability and without any possibility of opposing its recognition if the judgment has been certified in the Member State of origin in accordance with paragraph 2.
Even if national law does not provide for enforceability by operation of law, notwithstanding any appeal, of a judgment requiring the return of the child mentioned in Article 11(b)(8), the court of origin may declare the judgment enforceable.
2. The judge of origin who delivered the judgment referred to in Article 40(1)(b) shall issue the certificate referred to in paragraph 1 only if:
(a) the child was given an opportunity to be heard, unless a hearing was considered inappropriate having regard to his or her age or degree of maturity;
(b) the parties were given an opportunity to be heard; and
(c) the court has taken into account in issuing its judgment the reasons for and evidence underlying the order issued pursuant to Article 13 of the 1980 Hague Convention.
In the event that the court or any other authority takes measures to ensure the protection of the child after its return to the State of habitual residence, the certificate shall contain details of such measures.
The judge of origin shall of his or her own motion issue that certificate using the standard form in Annex IV (certificate concerning return of the child(ren)).
The certificate shall be completed in the language of the judgment."
"In relations between Member States, this Regulation shall take precedence over the following convention insofar as they concern matters governed by this Regulation:
(e) the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction."
"Pierre told Dr Clarke that he would be sad if he returned to France because he would lose contact with his father with whom he has a lot of affinity. He also stated that if he were to be returned to France he would return to the United Kingdom when he was sixteen."
"Pierre also, in my view, has an objection to France. He is not impressed with the lack of involvement that he had as a young person in the French process. He does not expect, if matters are dealt with in France, that his case will receive a fair hearing. He is concerned that his father will not take part in the process because his father is reluctant to go to France in view of the prison sentence that is hanging over him."
"Helpfully, Mr Sherwin, the mother's solicitor, and Mr Scott-Manderson, counsel, assisted by the English Central Authority, have made enquiries with the French authorities as to what would happen in France were Pierre to go back. Details are still being fleshed out, but it is plain that the public prosecutor, who takes a role in these matters, would inform the French children's judge of Pierre's return. Whilst Pierre would be living with his mother for a short time, the matter would go before the children's judge within two or three days of Pierre's return. No doubt then the French court would give directions for what inevitably be a further interim period whilst the matter was assessed and court time was made available for a considered hearing. There is the potential for the French Social Services to be involved and monitor the situation. The French could would, I am told and accept, look to Pierre being a party to the proceedings and being separately represented, as he has been in this court. Communications show that Pierre could choose his own lawyer, or either parent could choose a lawyer for him. The legal representation of Pierre would be paid out of what would in English terms be Legal Aid."
"However the fact that the father may not take part in the French process is of significance in relation to Pierre. I have already rehearsed the fact that his fear is that there may not be a proper process in France because of the father's actions and his inability to take part in it."
"I take account that Pierre has moved schools four times. He has settled well at the English school and is doing well.
I take account that to move him back to France now would inevitably be a disruption in his life, both physical and, perhaps of more consequence, emotional."
"I am satisfied in this case that Pierre's wishes and feelings should prevail. I am impressed by the mature manner in which he has conducted himself as a party to these proceedings, and indeed during the hearing. That stance and what he says about what he wants and what he feels deserves respect and requires the court to give that aspect of the case considerable weight so that, allied with the education and disruption issues, it outweighs on this occasion the policy of the Convention. The balance therefore comes down in favour of a refusal of the mother's application for a return to France."
"57. Before leaving the case it is right to record the concern I have about this father being Pierre's sole carer. On the basis of the e-mails that I have read and Dr Clarke's considered view, I would encourage the father to co-operate with the obtaining of an adult psychiatric report on his wellbeing. The English court will do whatever is asked of it by the French court in terms of facilitating that. I take the view that it is in Pierre's interests, at least in the short term, to leave some proceedings open but adjourned generally before the English court. I therefore propose to dismiss the child abduction application, but to adjourn generally the application that the mother has made under the inherent jurisdiction of the High Court. That allows the English court, if requested by the French court, to make orders that facilitate assessments over here. It also, I hope, will have the benefit of leaving Pierre's English lawyers available to him in this interim period.
58. I had considered making a direction under section 37 of the Children Act, asking the local authority in Reading to investigate Pierre's circumstances with his father. I do not take the view that that is necessary at this stage. Also it is questionable whether I would have any jurisdiction to make that order in this case, given that a consequence of it would be the potential for proceedings to be started by the local authority in this jurisdiction."
"It is plain that there was an established plan by the father and Pierre immediately to come to England. There was a removal of Pierre on 14th August 2005 from France. Since that time Pierre has resided with his father in England. It is plain that the removal was in breach of the mother's custody rights; it was without her permission and was "wrongful" within the terms of the Hague Convention. The ordinary operation of the Convention is that Pierre must be returned to his country of habitual residence, France, unless the father or Pierre establish one or other of the various exceptions in Article 13, and the court, in the exercise of its discretion, decides not to send him back. Those latter issues have therefore been the focus of this hearing before me."
"The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of the children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requesting State, or to the applicant, as the case may be."
Traps to be avoided and the principles to be applied.
"The judge directed himself fully and correctly as to the law. I have no doubt that he was right to order disclosure of the bundle and the transcripts of the evidence of the medical witnesses. However, I part company with him in the exercise of his discretion in relation to the statements of Mr. and Mrs. C. and such parts of the evidence and judgment as relate to the injuries sustained by S.C. and the causation thereof, including the evidence given by the parents. As I have said, this is a very grave allegation indeed. In my view, on the facts of this case, the judge was wrong to hold that the public interest in encouraging frankness predominated over the other factors which I have identified…. In this case, in my view, it is of prime importance that there should be a full and proper investigation of this killing, with the authorities armed with full and accurate information. In my judgment, balancing all these factors the judge clearly ought to have ordered disclosure of the statements and the evidence of the parents and other members of the family to the police."
"(1) nothing in Brussels II prevents me hearing the application under the Hague Convention and deciding it on the evidence before me and on the basis of established principles of English case-law relating to the Convention;
(2) there is nothing in the policy of the Hague Convention which requires me to apply the provisions of Brussels II to the exercise of my discretion in this case."
" Let me then first express my conclusions on the law and the principles. I would unhesitatingly endorse the approach expressed by Balcombe LJ in Re S (A Minor) (Abduction: Custody Rights  Fam 242 (Re S) and in Re R (Child Abduction: Acquiescence) 1995] 1 FLR 716. Millett LJ's formulation (also in Re R) does not, in my view, sufficiently mark the weight and importance of Convention factors in the exercise of the proportionate judgment. Second, since the point undoubtedly demands decision in the present appeal, I am persuaded that, in the exercise of the discretion arising under art 13 (possibly fortified by art 18), the court must balance the nature and strength of the child's objections against both the Convention considerations (obviously including comity and respect for the judicial processes in the requesting state) and also general welfare considerations. To suggest otherwise seems to me to risk artificiality in judgments in future cases."
"Thus it seems to me plain that Ward LJ was simply drawing attention to a passage from the judgment of Millett LJ in Re R and declining to express more than tentative support for the proposition."
" I think it necessary, particularly in a case such as this, to bear in the forefront of one's mind the principles underlying the scheme of the Convention. My Lord has already cited from what, speaking for myself, I continue to regard as the leading case on the subject, namely the judgment of this court in Re S  Fam 242, At 251. At the conclusion of his judgment Balcombe LJ, giving the judgment of the court, said this: -
"Nothing which we have said in this judgment should detract from the view, which has frequently been expressed and which we repeat, that it is only in exceptional cases under the Hague Convention that the court should refuse to order the immediate return of a child who has been wrongfully removed.
On the facts Re S was such an exceptional case, as was Re T. It is also worthwhile repeating what Balcombe LJ said in the beginning of his section on the exercise of discretion: -
"The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Convention."
The significance of Zaffino.
The exercise of discretion in the instant case.
"The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him. The Convention does not require the court in this country to consider the welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am not satisfied that the child would be placed in an intolerable situation, if the mother refused to go back. In weighing up the various factors, I must place in the balance and as of the greatest importance the effect of the court refusing the application under the Convention because of the refusal of the mother to return for her own reasons, not for the sake of the child. Is a parent to create the psychological situation, and then rely upon it? If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent."
"I do not involve myself in determining any wide issues of welfare here. It seems to me that there are concerns from a welfare point of view about Pierre living with his mother, and there are concerns from a welfare point of view about Pierre living with his father. These things are, in the imprecise detail that I have them, at least neutral, if not evenly balanced. I cannot, and should not, determine them. All I am doing is to determine whether in my discretion Pierre-Mathieu should return to France. "
The Brussels II Revised dimension.
"Looking at the practicalities, however, I must bear in mind that, no matter what order I make, the French court will undertake an appraisal of this case if submissions are made to it, and I anticipate they will be. It will be for the French court to determine the welfare issue. It is not essential that Pierre is returned to France for that to be done."
The chronology of the English proceedings.
" Firstly, and by way of introduction, no one should be surprised at the speed with which these proceedings have moved through the English judicial system. This country prides itself on a proper attempt to implement the intentions of the Hague Convention (to which I will return in just a moment). So an abduction on 21 April 2005 followed by a hearing in the High Court on 26 May 2005 and a hearing in this court before the end of June is entirely appropriate within the time scale of the Convention."