ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Nicholas Francis QC (sitting as a Deputy Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
|Re F (Children)|
Mr Christopher Hames QC (instructed by Goodman Ray) for the appellant L
Mr Teertha Gupta QC and Ms Mehvish Chaudhry (instructed by Freemans) for the respondent father
Hearing date : 26 May 2016
Crown Copyright ©
Sir James Munby President of the Family Division :
"Whatever the outcome at least I hope she will feel that she has had her full say in the process she needs to be a full participating party with representation."
The father subsequently filed a respondent's notice on 24 March 2016.
"I should say that the father, in his evidence, denies all of the allegations that the mother makes and equally makes allegations against the mother. In the summary process in which I am engaged, I can do no more than observe that these allegations and counter-allegations have been made."
"17 Therefore the question that I have to ask is whether those two defences apply and, if either of them applies, then I have to exercise my discretion in the normal way to decide what orders I should make.
18 It is common ground between the lawyers, and accepted that it is established authority now, that the child objections defence goes as follows: first, it is necessary for the defence to show that the child objects to being returned; secondly, that the child (or children) has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If each of those two limbs, which have been called the "gateway limbs", are established then I have a discretion as to whether or not to order a summary return."
"19 The evidence that I heard from Mr Power was clear and unequivocal it seems to me that the conclusion that I have to reach as a result of Mr Power's evidence is that L does object to being returned to Hungary. I also have to conclude that she has attained an age and degree of maturity at which it is appropriate for me to take account of her views. Of course those findings are not determinative of the decision that I have to make this afternoon. But to summarise just a few of the points that Mr Power dealt with in his evidence, he said that there was no doubt that L really likes her life in England and wants to remain here with her mother, her sister and her brother. He admitted, and accepted under cross-examination, that it probably was true that she had been exposed to conversations with her sister and mother. Mr Power accepted that there may be a degree of emotional encouragement, however subtle, that seeks to support the opinion that has been given. He also accepted that children tend to prefer the education system here to that in East Europe. He said that the children did not go into a great deal of detail about the life in Hungary. The real focus was the life in this country. He observed that L was able to say that she found that the pound went further here than the forint did in Hungary. Having heard from Mr Power, it is clear to me that there are many ways in which L took the view that her life was better here than in Hungary and objected to being returned to Hungary.
20 So far as F is concerned, I am acutely aware of her young age, being only about 6½ years old. I recognise what the Court of Appeal said in Re M about taking into account the wishes of younger children and how the trend is moving towards the ever increasing taking into account of such views. I accept without hesitation what Mr Power told me about L, both in terms of her objections to being returned to Hungary and in terms of her ability to understand what it was that she was saying. So far as F is concerned, it is much more balanced, taking into account how young she is. F had had some health difficulties in Hungary which no longer subsist. For example, she had suffered from constipation which was thought to be the consequence of emotional difficulties. On balance I find that the threshold gateway is triggered insofar as F is concerned as well as L, and that there is an objection which could amount to a defence subject to, as I have said, the exercise of my discretion.
21 In respect of G, who is only 4, I do not think it is seriously contended by anybody that the defence could arise. Accordingly, I do have to exercise my discretion in respect of both L and F."
"These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."
"I have been referred to the mother's statement and also to oral evidence which the mother gave to the Hungarian court which details the circumstances pertaining at the time of their removal from Hungary which placed them at risk of emotional and physical harm. The issues which the mother gave evidence about in those various ways included what she referred to as the father's financial abandonment of her and the children following the parties' separation; the father's controlling and emotionally abusive behaviour towards the mother and his lack of practical support for the children following separation; the consequent impact on the mother's emotional and psychological health; the consequent impact on the children's emotional and psychological health."
"31 My discretion therefore arises out of L's wishes being made out in the way that I have set out and F's being made out, but with the caution that I have referred to already that I must exercise by account of her age. Having regard to the protection, which I am satisfied that the Hungarian court can offer, to the civilised and proper way in which it appears so far to have dealt with the issues relating to the contact and residence of the children; having regard to the fact that the process there is well advanced, with the reports having been ordered; having regard to the father's undertakings and the sophisticated mechanisms that are available in Hungary for the making of financial claims, and having regard to the admission by the mother of the abduction and the payment of the rent in advance, and the other matters to which I have referred, in the exercise of my discretion, painful as I find it, I am satisfied that I should make the order for the summary return of the children to Hungary. I accept all of the father's undertakings that have been offered and carefully crafted and agreed by counsel in advance. When I say "agreed" I mean subject obviously to the judgment that I was going to give.
32 I recognise that the order that I am making will be painful to the mother; that she is making for herself a new life here in England, and that it will be painfully particularly to L. But I also recognise that this is a summary process where my hands are to some extent already tied and I am completely satisfied that, having regard to the principles set out by the Supreme Court and the House of Lords, in the cases to which I have referred, that the proper order is for the return of the children to Hungary."
The grounds of appeal
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".
"1 On the understanding that the mother will allow direct contact between the children and father in Hungary and that she will fully co-operate in ensuring that a final judgment is obtained as soon as possible in Hungary, the father undertakes not to enforce the Hungarian orders for interim custody pending said final judgment.
2 The father undertakes to lodge a consent order in Hungary staying the interim custody orders until final judgment."
Those undertakings will be included in our order.
Process and procedure
"There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge."
I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party)  EWHC 913 (Fam),  1 FLR 263, paras 10, 14.
Lady Justice Arden :