England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(MR JUSTICE HUGHES)

		Royal Courts of Justice Strand London, WC2 Friday, 5th December 2002

Thursday, 5th December 2002

1. LORD JUSTICE THORPE: On 18th October 2002 Hughes J considered the application of a Croatian father for the return of two boys aged 11 and 7 to Croatia under the obligations that this jurisdiction has to the due performance of the Hague Abduction Convention. The case was an unusual one by any standards and an application to this court for permission is fully understood. The difficulty of the case really lies in the history, which I will only summarise shortly.
2. The parents are not married but have had these two boys following the commencement of a relationship in 1990 in Croatia. The relationship was clearly a stormy one and culminated in the mother's return to her homeland on 30th June with both boys. The father initiated an application under the Convention which came before Johnson J on 14th August 2000. The mother, no doubt fully advised, conceded the application and an order was made by consent for return on the foundation of a series of undertakings given by the father to ensure the mother's wellbeing and protection in Croatia.
3. The return was effected on 21st August and was, from the mother's point of view, disastrous. The undertakings proved to be of little, if any, value. The father immediately intervened, overbore her, and effectively took the children from her. He obtained a decision from a competent authority that the two boys should live with him with contact to the mother, that decision being given on 24th of November 2000.
4. On 4th January 2001 the mother was subjected to a serious assault and the consequences of that assault were recorded medically on a brief return to this jurisdiction. However, in Croatia a second instance authority repealed the decision of 24th November 2000 and committed the two boys to their mother's care. A further decision made in Croatia on 24th May provided contact arrangements to the father. The father appealed and his appeal was ultimately dismissed on 5th November 2001. The decision of 24th May 2001 was made final on 6th December. However, on the previous day the mother left with the boys and again came home to England.
5. That resulted in a swift application by the father to the Croatian Central Authority which arrived in London on 22nd January and solicitors were instructed in the following month. The originating summons was issued on 12th March and there were various interlocutory hearings. The children were seen by a Children and Family Reporter on 14th May and her report was filed on the 29th. However, for reasons which are by no means clear to me, this case was not brought on for final hearing until 18th October. That is a serious departure from this jurisdiction's commitment to endeavour to determine an originating summons within six weeks of issue and it is regrettable.
6. When the case came before Hughes J he had a cross-application from the mother for the husband's committal. That application may have been in part strategic but it was clearly well founded. The father was in flagrant breach of undertakings that he had given to this court on 14th August 2000. Those breaches were not justiciable in Croatia and accordingly the first opportunity which the mother had to bring before the court a punitive power was at this hearing. So the judge had the unusual and difficult task of determining two applications, one of which could have been said to preclude the other. It could have been said that since the father was in contempt, his application for return should not be entertained. That submission was faintly laid. As the judge said of Mr Scott-Manderson:

"Mr Scott-Manderson also advanced in his opening -- though did not, I think, press in his closing -- the invitation to me to exercise my discretion not to grant relief to the father because he is a claimant who is in contempt of court, having broken his promises.

7. Mr Scott-Manderson's judgment in presenting the matter in that way is plainly above criticism. It would have been unrealistic to have submitted that the judge effectively had the single function of reviewing the breaches and punishing the father: so the judge first of all considered the application for return and then considered the application for committal. In considering the application for committal he set out at length the nature and severity of the father's breaches. He said that they were of a character to attract the possibility of a lengthy term of imprisonment. However, he decided to adjourn his decision upon the breaches to 5th November. I do not have a transcript of the further hearing but a note, a very accurate note I think, from the mother's solicitors, which shows that the judge on the 5th, having heard submissions from the father's counsel, announced:

"I have been persuaded not to send you to prison although you deserve it. I pay attention to the cost and inconvenience staying here has brought you. However, the real reason is that it is not in the interest of the boys that they were allowed to think they were the cause of their father going to prison but please understand there has to be an end to the arguing with Miss Kinnaird and you getting the better of her. It may not seem like it to you but you are the stronger of the two characters and you for the sake of the two boys must let her get on with her life."

8. So in determining the application under the Hague Convention the judge had to consider both the Article 13 defence and also the defence that a return would be contrary to the wishes of the children and/or would place them in an intolerable situation. The judge in relation to the first offence had a very clear submission from Mr Scott-Manderson. Mr Scott-Manderson put it thus:

"... the grave risk of harm to the children comes from the father's proven track record of inability either to accept decisions or to keep his word. That means that if the children are returned, they will once again be the centre of conflict between their parents. That by itself will or may harm them. Much more, it will be a conflict in which the father will not fight fairly and, because he will overbear the mother's will, her ability to parent the children will suffer and hence there will be grave risk of psychological harm and/or an intolerable situation for them."

9. The judge gave his reasons for concluding otherwise and it is those reasons that are attacked this morning by Mr Setright QC.
10. The second defence was dependent upon the written report from the Children and Family Reporter since there was no other independent evidence of the children's wishes. The judge considered that report but concluded that it did not amount to evidence sufficient to make good the defence and accordingly his order was for the return of the children, again subject to undertakings to ensure the protection of mother and children from a dangerous father and to ensure that the children would not be separated from her care.
11. Mr Setright has advocated this application with his customary persuasion. He makes the overwhelming point, the obvious point that where a volatile, violent father has been once trusted by an English judge and has proved himself unworthy of that trust he should not again be given precisely the same opportunity to reoffend. That, of course, is a powerful submission and it would not have surprised me in any way if the judgment of Hughes J stood as one of the rare examples in which a judge in this jurisdiction finds the Article 13 defence made and refused the order for return: but it was essentially a matter for the judge who had the opportunity in this case, unusually, of hearing the oral evidence of the parties.
12. He said at the outset of his judgment that he would not on a Hague Convention application have gone to that length, but he said that evidence from the parties was inevitably needed, given the application to commit. So having seen and heard the father, the judge might have determined that he was irredeemably dangerous.
13. However, the judge was impressed by developments in Croatia between the month of May 2001 and the mother's removal. He had in evidence the report from the social worker assigned to the family. By October that professional was expressing the opinion that things had significantly improved. She noted that the mother appeared to be resigned to living indefinitely in Croatia. The mother, she noted, was ready to meet the father without fearing aggression.
14. That evidence was challenged by the mother who expressed her disappointment that the professional had arrived at those conclusions, but the judge said:

"They are, however, the observations of a neutral observer and of one whose job it is to deal with families in conditions of dispute and tension."

15. So although the judge did not have any particular confidence in the father (as expressed at page 24 of his judgment where he concluded that the father has a significant difficulty in accepting a decision with which he does not agree, additionally, that he often treats the mother with scant respect and believes that he can dictate to her by a mixture of charm, persuasion, dominance and specious argument) he nonetheless concluded that his treatment and attitude overall did not amount to conduct which he could characterise as severe. He said:

"Neither this situation nor the much more frequent habit of the father of overbearing the mother's will, is in any sense beyond the regular diet of family justice systems in any country, and there is no reason to suppose that the Croatian system is unable to cope with it or with this father."

16. Despite Mr Setright's valiant endeavours, I conclude that these were issues for the trial judge. Having seen and heard the parties, he arrived at a conclusion which was one that could rightly be characterised as a fine one in a borderline case, but the conclusion was for him, and I do not think that any error of principle is demonstrated in either the written skeleton or the oral submissions.
17. So I come to consider the second attack upon the judgment, and that relates to the judge's assessment of the children's wishes. I, hardly contributed: as the younger brother he understandably did not wish to be drawn into the arena. S, equally understandably, was more forthcoming. He said a number of things to the children and family reporter, some of which are extremely worrying. Most particularly he said that his father had been directly violent to him but even more so to his mother, violence which he had witnessed. He said that his father often asked him if he wanted to live with him in Croatia and he usually said "yes" to please his father. He said that above all he could not imagine living away from his mother and that he wanted to live in England with her. He identified the fear that his father might take him away from his mother as being paramount.
18. The judge said of that that the picture was of a boy who expressed the wish to live in England as principally, if not entirely, a wish to be with his mother. He said:

"It is, however, quite clear that the dominant feature of his view is his wish to live with his mother. He does not have a real objection to a return to Croatia in the mother's care."

19. Mr Setright asserts that the judge's summary of the interview is flawed and in particular that the judge failed to note that what the father was asking of S was not if he wanted to live in Croatia but whether he wanted to live with him in Croatia. It is undoubtedly the case that the judge's summary of the report omits those two words from the sentence -- the two words are, of course, "with him" -- but overall I do not think that it can be said of this experienced judge that he unfairly summarised the contents and the thrust of the report.
20. Of course, the judge, having heard no oral evidence from S or from the Children and Family Reporter, is in no better position than I am, but I do not think overall that the criticism made of the judge is sufficiently substantial to found the grant of permission.
21. I accept Mr Setright's general complaint that there is some degree of mismatch between the approach that the judge takes to an evaluation of the father's conduct in determining the application under the Convention, and the evaluation of his conduct when he comes to the committal application. That, I suppose, is an understandable mismatch in that judges, when dealing with litigants in contempt, have a natural tendency, and perhaps a need, to underline the importance of undertakings and the importance that the court attaches to due performance, and consequently the severity with which the court views breach. It might have been better had the judge left the whole issue of committal to be dealt with at a separate and later hearing; but all in all I must record my admiration for a judgment which is clear and coherent and which has throughout proper regard to principles that are to the fore in the determination of any application brought under this international treaty.
22. I recognise that the outcome is for the mother a very hard outcome. I recognise that for her to implement this judgment must seem unbearably difficult, but the question that I have to ask needs any feeling of sympathy for the mother to be stripped from the answer. The question has to be: does this application meet the high test that is set by this court for admitting an application for permission to a full hearing? I have come to the clear conclusion that this application does not meet that standard and it is refused.
ORDER: Application dismissed.