COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
Mr Justice Singer
Strand, London, WC2A 2LL
B e f o r e :
THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE RIX
LORD JUSTICE WILSON
| M (A Child)
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Mr Henry Setright QC (instructed by Reynolds Porter Chamberlain Solicitors) for the Respondent father
Hearing date : Tuesday 27 February 2007
Crown Copyright ©
Sir Mark Potter, P :
The background history
"By taking the child to the UK in July this year, the [mother] made impossible the execution of the Resolution by the Center for Social Welfare [which] stipulated the terms [in which the] relationship was to be maintained between [M] and her father... [The court found that the mother] did not intend to come back with the child and make possible [that] relationship [and that it was therefore necessary] to establish a provisional measure before the proceedings were irrevocably closed."
"I left Serbia with [M] because we are in an intolerable position there. [M] has suffered real psychological harm since our return in February. She is fretful and frightened and afraid of what will become of me and her. The Plaintiff does have a great deal of influence with the local authorities and police, whereas I, as a foreign national, have none. He is able, and has been able to manipulate the court system to avoid the hearing of the case. When he is unsatisfied with the recommendations made [for] M's future care, he has sought to have the person removed from the case. I am a nervous wreck and lived in constant fear of whether I would be arrested or harmed. I now fear for my life. Whilst in Serbia I tried, despite the deeply wounding and traumatising effect on me, to "keep going" for [M's] sake. I can do so no longer." (Para 45)
"[M] objects returning to Serbia. She states that she will not return. Further there are no constraints or provisions that can be put in place to protect [M] and I from the plaintiff. The Serbian system and authorities cannot protect [M] or me. He has threatened and intimidated me and will continue to do so. His actions have had, and will continue to have, a grave impact on [M's] emotional and psychological wellbeing. I am deeply concerned for my safety and that of [M] if we were to return to Serbia. I am her primary carer and if there is any prospect of her losing me as her day to day carer she will suffer grave psychological harm." (Para 49)
Material before the Judge
"This procedure lasts surprisingly long, bearing on mind the complexity of the matter as well as the fact that this subject was twice the subject of complaints before the Court of Appeals (the District Court) due to appeals on the temporary measures."
"According to my estimation, the procedure will not conclude before long, considering that a vast number of evidence should be presented. The circumstances were especially laden when [the mother] discovered white powder (the drug) several times in her own car, which was the reason for the search of her house and the apartment (which I attended) and when she was conveyed to the police and everything took place before M."
The Judgment Below
"I am not in a position to decide which came first, the chicken or the egg, whether it is the father's behaviour towards the mother and the child which has made the child seemingly reluctant to see the father, or whether it is the mother's denigration of the father and her ability to keep alive in the child's mind real or altered accounts of the fathers faults."
"The essential question, as it seems to me, is whether embarking upon oral evidence is likely to be determinative of the issues raised on the evidence. I have to say that in this case it seems to me that I would be unlikely to be able to form concluded views with sufficient clarity and surety to have acceded to the request in any event, irrespective of its lateness. Moreover, it is a consideration that these very same issues are in the course of investigation or have been investigated in Serbia, the country where the primary materials where their truth or falsity are to be found."
"In relation to the period since the mother's return with M in February this year, the mother points to what undoubtedly have been increasing tension and upset on the part of the child, which, I have to say, is entirely what one might expect might well result from the degree of hostility and conflict that there is between the parties in whichever jurisdiction that occurred. She alleges that he has breached his undertakings in a variety of ways of which the most important, it seems to me, is her allegation that he has continued with his campaign of harassment and pressure. Insofar as that pressure has been applied in the form of applications and allegations and assertions made to the court or about the court proceedings, it seems to me that that is a matter which is entirely within the jurisdiction and the capacity of the court and indeed the prosecuting authorities in Serbia to cope with, as I have already stated."
"There is no doubt that, certainly in relation to the three most recent incidents involving drugs that I have referred to, they took place. The father denies that it was anything to do with him. He suggest that the mother is not without support and assistance in Serbia, he raises the question whether these were in fact plants on herself, by herself, in order to found allegations against him. Be that as it may, the fact of the matter is that the mother appears to have found an effective and speedy way of dealing with the planting of drugs in her vehicle, whoever was the cause of the presence of those drugs in that car."
"It is not suggested on her behalf that the authorities in Serbia are impotent to offer protection to the mother and indeed the history of the proceedings in relation to their child thus far shows that she has so far prevailed in certainly the most important aspect of the case from her point of view of retaining the custody of the child."
"I am therefore in a situation where I must indeed consider in a rigorous and unsentimental fashion the position as it will stand if this child is returned by my order to Serbia, bearing in mind the undertakings which it is agreed the father should offer and the mother is prepared to accept as part and parcel of the order."
At that point the transcribed judgment ends and further discussions ensue without the judge articulating the position as to the child on return, though we are told and do not doubt that the judge had made clear in argument earlier that he was intending to make an order for return subject to suitable undertakings to protect the position of the mother and M on return.
Grounds of Appeal
"…the experience and the instinct of the trial judge is always to protect the child and to pursue the welfare of the child. That instinct and experience is sometimes challenged by the international obligation to apply strict boundaries in the determination of an application for summary return. The authorities do restrain the judges from admitting oral evidence except in exceptional cases. The authorities do restrain the judges from making too ready judgments upon written statements that set out conflicting accounts of adult relationships. What the authorities do not do is to inhibit the judge from himself or herself requiring oral evidence in a case where the judge conceives that oral evidence might be determinative. The judge's conduct of the proceedings is not to be restricted by tactical or strategic decisions taken by the parties. However, to warrant oral exploration of written evidence, the judge must be satisfied that there is a realistic possibility that oral evidence will establish an Article 13(b) case that is only embryonic on the written material."
The Child's objections
"(a) 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 – see Re A (Abduction: Custody Rights)  FAM 106 sub nom Re A (Minors) (Abduction: Acquiescence)  2 FLR 14 at p28 per Lord Donaldson of Lymington MR.
(b) Thus if the court should come to the conclusion that the child's views have been influenced by some other person, e.g. the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention. Thus in the case of Layfield in the Family Court of Australia on 6 December 1991, Bell J ordered an 11-year-old girl to be returned to the UK because he found that, although she was of an age and maturity for her wishes to be taken into account, he believed that those wishes were not to remain in Australia per se, but to remain with her mother who had wrongfully removed the girl from the UK to Australia. On the other hand, where the court finds that the child or children have valid reason for their objections to being returned, then it may refuse to order the return."
"Secondly, since the point undoubtedly demands decision in the present appeal, I am persuaded that, in the exercise of the discretion 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."
See also per Wall LJ at paras  - .
"(1) Whether the child objects to being returned to the country of habitual residence, bearing in mind there may be cases where this is so inevitably and inextricably linked with an objection to living with the other parent that the two factors cannot be separated. Hence there is a need to ascertain why the child objects.
(2) The age and degree of maturity of the child. Is the child more mature or less mature than, or as mature as, her chronological age? By way of example only, I note that in Re R (Child Abduction: acquiescence)  1 FLR 716 Ewbank J's decision that boys aged 7˝ and 6 were mature enough was upheld by Balcombe LJ and Sir Ralph Gibson, Millett LJ dissenting. I would not wish to venture any definition of maturity. Clearly the child has to know what has happened to her and to understand that there is a range of choice. A child may be mature enough for it to be appropriate for her views to be taken into account even though she may not have gained that level of maturity that she is fully emancipated from parental dependence and can claim autonomy of decision-making. The child's "right" – and I use the word loosely – is, consistently with Art 12 of the United Nations Convention on the Rights of the Child 1989, to have the opportunity to express her views and to be heard, not a right to self-determination. Article 12, which is often judged to be one of the most important in that Convention, assures to children capable of forming their own views:
…..the right to express those views freely in all matters affecting [them], the views of the child being given due weight in accordance with the age and maturity of the child."
"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 and degree of maturity"
is a principle of universal application. At the same time, she accepted that, in most Hague Convention cases, the most common method of hearing from the child is by means of an interview with a CAFCASS officer
"who is not only skilled and experienced in talking with children but also, if practising in the High Court, aware of the limited compass within which the child's views are relevant in Hague Convention cases".
She went on to state that, whereas in most cases that should be enough;
"In others, and especially where the child has asked to see the judge, it may also be necessary for the judge to hear the child."
"(3) So a discrete finding as to age and maturity is necessary in order to judge the next question, which is whether it is appropriate to take account of the child's views. That requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others:
(a) What is the child's own perspective of what is in her interests, short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate.
(b) To what extent, if at all, are the reasons for objections rooted in reality or might reasonably appear to the child to be so grounded?
(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?
(d) To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence from the abducting parent?"
"[M] has strong feelings about returning to Belgrade. She has deeply negative associations with the place and with her father. Her anxiety is largely connected to fears about her mother's safety and the threat she will become separated from her. This threat is very real and comes from seeing her mother questioned on more than one occasion by the police. I believe that she may be traumatised by these experiences and is finding them very difficult to cope with."
"who is not only skilled and experienced in talking with children but also, if practising in the High Court, aware of the limited compass within which the child's views are relevant in Hague Convention cases." (para 60).
"She comes across as an intelligent little girl. She is quite measured in her responses. She does not easily engage but when she does she thinks about what she is going to say and then talks. I felt that she certainly was a child that is bright for her age and understood why she was there to speak with me."
In her report dated 8 December 2006, Miss Fitch stated:
"I would concur with my colleague that [M] is intelligent and bright for her age. I would assess her maturity as commensurate with her chronological age but she has clearly witnessed and experienced events from which at her age she should be protected."
Article 13 (b)
Lord Justice Rix
Lord Justice Wilson