COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(MR JUSTICE WOOD)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE MOORE-BICK
|IN THE MATTER OF M (Children)|
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Mr M Scott-Manderson QC and Mr David Williams (instructed by Reynolds Porter Chamberlain) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Thorpe:
"56. Each of these parents asserts that the other has sought deliberately to mislead me in their evidence on many of the crucial issues. A combination of an analysis of the written documentation referred to above, and hearing each parent give oral evidence from the witness box has, I believe, given me the fullest opportunity to come to clear conclusions on this subject. In the course of my further consideration of some aspects of the disputed evidence below I shall give specific examples which have led to my conclusions on credibility, but I state now by way of preliminary that overall I found the mother to be devious, untrustworthy, and frequently given to lying, such that I can place little or no confidence in much of what she said.
57. As to the father's evidence, I considered him to be measured, frank (even where his answers were against his interests) and trustworthy. This finding has implications not only for my findings on issues such as consent and acquiescence, but also in what faith I can put in the undertakings which he offers to the court."
The reference in that citation to written documentation takes me back to the judge's earlier record of the material available to him. He said:
"I have been provided with a trial bundle running to three volumes. Leaving aside nearly 50 pages of preliminary documentation prepared by counsel pursuant to the provisions of the President's Practice Direction of 27th July 2006…there were over 550 pages of affidavits (including exhibits); a short section combining material from CAFCASS and from the Home Office; a miscellaneous collection of documentation including the articles from Newsweek and The Economist; letters concerning the immigration position etc., amounting to 125 pages; extracts from Hansard; and two full lever-arch files of Treaties, authorities, and reports from external agencies."
"118. I have set out earlier in this Judgment in the section headed The Law, the relevant principles. I do not repeat them here. I direct myself by them.
119. Having considered the policy of the Convention (to ensure the return of children to the State of origin when I have found them to be wrongfully removed) I have gone on to consider whether or not this case is an exceptional case such that I should exercise my discretion to refuse to order an immediate return, as well as the general discretion in Article 18.
120. Having set out at lengths the facts as I find them to be, I can find nothing in this case which would qualify it as exceptional, and thus decline to exercise my discretion against a return, and in the case of Article 12 (settlement) exercise the discretion in Article 18 to return them.
121. I have considered the nature and seriousness of the wrongful removal, including the many layers of deception deployed by the mother in bringing about that wrongful removal, keeping the children at an address unknown to the father for many months; wrongly refusing to return the children to Zimbabwe when the father so requested (as I have found he did in the missing email); that on the father's proposals the mother (and her new husband) could return to Zimbabwe with the children to care for them; and that even if the mother and or her new husband declined to accompany the children, they would be properly cared for in the home of their father; that their cultural and social roots (including their wider maternal and paternal family) are all still in Zimbabwe. I have also considered the children's objections. Ultimately, there is nothing exceptional about this case on any view. I therefore, even though settlement has been established, have exercised my discretion in favour of an immediate return."
"Ultimately there is nothing exceptional about this case on any view. I therefore, even though settlement has been established, have exercised my discretion in favour of an immediate return."
"Following Re: S, the first question I have to ask myself is, I think: what is it about this case which renders it exceptional and requires the court to exercise its discretion not to return PM to France? I have to say that I struggle to find in the facts any conclusive factor or factors which compel that exercise of the discretion."
"That leaves only the question of whether the objection of M is such that this is one of the "exceptional" cases justifying the court in using its discretion to refuse to order an immediate return. That involves balancing the nature and strength of M's objections against both the Convention considerations (including comity and respect for the judicial processes in Serbia as well, of course, as the policy behind the Convention) and general welfare considerations."
"In considering the court's discretion I have particular regard to: (a) the purposes of the Hague Convention; (b) the mother's wrongdoing; (c) the injustice to the father; and (d) the welfare of [the child]. The Convention serves to discourage child abduction, the removal by a parent acting unilaterally of a child from its home and homeland to another State in a way that is in breach of the other parent's rights of custody in respect of the child. Such action is recognised to be against the welfare interests of the child. Parental disputes about the child must be resolved in the courts of the child's home territory."
"…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…risk artificiality in judgments in future cases."
"If the mother declines to return, I do not consider these children will suffer circumstances which would give rise to a successful plea of an Article 13(b) defence….They would go to the home of a loving father who has cared for them in the past for extensive periods prior to their wrongful removal, the mother consenting thereto, and reinforcing her consent and lack of worry by absenting herself from their lives for a period of two and a half years. Although the children have not seen their father between March 2005 and the brief period of contact on the 22nd June 2007, that contact was accepted by both mother and the father, and is accepted by me, in the light of not only her concession but also the father's brief evidence on the subject, as being a highly successful reunion in which the children showed their immense pleasure at being reunited with him. Although they have expressed reservations/disinclination to be cared for by the father's new partner, I do not consider that the matters they report (even if completely true -- on which I express no concluded view) would amount to circumstances establishing a defence under article 13(b)."
Lord Justice Longmore:
Lord Justice Moore-Bick:
"(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."
Later, at the end of his judgment he said:
"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."
"That leaves only the question of whether the objection of M is such that this is one of the 'exceptional' cases justifying the court in using its discretion to refuse to order an immediate return. That involves balancing the nature and strength of M's objections against both the Convention considerations (including comity and respect for the judicial processes in Serbia as well, of course, as the policy behind the Convention) and general welfare considerations."
"So then, do principle, comity and the balance of justice between the parents require me to order S's return to the USA? The answer to that is no. Article 12(2) says so. This is an extremely unusual case in which the child has settled and got on with her life in a quite outstanding way. The clear conclusion I reach, having balanced all the matters, is that it would be wrong to order her return to the USA. Accordingly the originating application will be dismissed."
"Having set out at length the facts as I find them to be, I can find nothing in this case which would qualify it as exceptional and thus decline to exercise my discretion against a return."
Order: Appeal dismissed.