England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE KIRKWOOD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th May 2007

Lord Justice Thorpe:

1. This is an appeal from a judgment delivered ex tempore by Kirkwood J on 3 April. He himself gave permission to the plaintiff father to appeal. Permission was sought because the judge had dismissed the father's application brought under the Hague Convention of 1980 for the return of two of the three children of the marriage to their home and habitual residence in Athens.
2. The facts of the case were neatly summarised by the judge in paragraph four of his judgment when he said:

"The father is Lucas Klentzeris, who is aged 50 and is Greek. By profession he is a consultant obstetrician with a consultant post in Athens. The mother, Anita Vivien, is aged 48. She is English and by profession she is a nurse. The parents married in the United Kingdom in October 1985. There are three children of the union all born in the United Kingdom. The oldest is Danielle, who is now 20 and is outside the scope of these proceedings. These proceedings concern… "Demi", who was born on 9 December 1994. She is now 12 years and three months, nearly 12 years and four months old…Robert who was born on 23 July 1996. He is now 10 years and eight months old."

3. The judge proceeded to establish the essential family history, namely that the father had relocated his professional life from South Wales to Athens in 2003 as a consequence of which the family was separated, mother and children moving to County Durham. In the intervening period the children saw their father only during holidays, either when he visited England or when they visited Greece. However, in the summer of 2005 arrangements were made for the family to reunite in Athens with effect from the 2006 summer holidays. The children had seen their intended school during the August visit to Greece in 2005. In August 2006 Danielle had finished her secondary schooling in England and was about to move on to university.
4. Accordingly the reunion of the family in Athens was essentially mother and the two younger children joining the father in a flat which he had occupied and partially furnished prior to their arrival; as it were, in earnest of his commitment to the reunion. The mother arranged for the home in Durham to be sold and its contents shipped to Athens. It is apparent that the relationship between the parents was extremely fraught after their arrival in Athens and on the mother's evidence there was one episode of violence upon her which resulted in the arrival of the police at the family home and other occasions when she was subjected to relatively low level physical abuse.
5. Danielle visited the family for the Christmas holidays and on 21 January it was she who took the two younger children -- her brother and sister -- from Athens without the knowledge or consent of their father and on the following day the mother took the same flight path. The father's reaction in Greece was swift and perfectly appropriate from his perspective. He apparently issued proceedings for divorce in late January and, on 31 January, instructed the Central Authority in Athens to apply for the return of the children.
6. The originating summons was issued here on 7 February and resulted in a location order made by Kirkwood J on 15 February. The case was then before Bennett J on 22 February when he gave directions which included at paragraph three a direction for a CAFCASS officer to interview Demi and Robert and provide a report by 25 March on the children's objections, if any, to returning to Greece, and whether they had attained an age and degree of maturity at which it is appropriate to take account of their views. The judge also directed the attendance of the CAFCASS officer at the hearing and set the trial for 3-4 April at risk with a time estimate of one and a half days.
7. The mother's defence to the originating summons was dated 1 March and rested on alternate grounds:

"a) a grave risk that any such return would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation, and b) any such proposed return by their father's application results in their now objecting to such a proposed return, the said children themselves having attained an age and a degree of maturity at which it is appropriate to take account of their views."

8. The father's affidavit seems to have followed the affidavits of the respondent on 8 March and of Danielle on 9 March. His affidavit was not filed until 23 March and accordingly when the CAFCASS officer, Mrs Demery, interviewed the children on 27 March she had not seen the nature of the father's case in relation to the defences raised by the respondent. Her report was a little out of time, 29 March, but plainly in good enough time for the case that opened on 3 April. Before the judge the plaintiff was represented by Ms Renton, who appears before us led by Mr Timothy Scott QC. The respondent's case before the judge was put by Mr Jeremy Rosenblatt.
9. The only oral evidence heard by the judge was the oral evidence of Mrs Demery. The report which Mrs Demery filed on 29 March was a report of unusual force and conclusion. She had been particularly struck by Robert's demeanour during the course of their meeting and conversation. He had become very distressed and had started to cry, but then subsequently, when describing his terror of his father, he had what the CAFCASS officer recorded as a panic attack. She advised him to take deep breaths and he regained control. She asked if he wanted his mother but he said he would continue. Subsequently, however, when describing the incident during their brief stay in Athens when he perceived that his father had slammed his mother's arm in the car door, he had what appeared to the CAFCASS officer to be a severe panic attack. She advised him to take deep breaths, asked if he wanted his mother, and he said that he did. When his mother entered the room she was able to calm him down. The report continues:

"His final words were that he would kill himself if he went back to Greece. Mrs Klentzeris told me that Robert has had a number of these panic attacks."

10. Mrs Demery went on to interview his older sister Demi who was, as might have perhaps been anticipated, more controlled in her emotions but still absolutely at one with Robert as to the experiences that they had had during their sojourn in Athens and as to what she would do if forced to return. So it was that in the written report the CAFCASS officer recorded that both children had expressed very strong objections about being returned to Greece. She continued:

"In their different ways, the children have been emotionally damaged by their experiences in Greece. From their account they have witnessed domestic violence and have been physically and emotionally abused themselves. The level of distress that Robert exhibited during our meeting was palpable. When recalling painful events he had difficulty breathing and had a number of panic attacks. However, up until the very end of our meeting he wanted to continue. I have never before witnessed a child having a panic attack during a meeting.

"The children, it would seem, felt hopeless and powerless when they were in Greece as neither parent was able to shield them from the difficulties in their relationship."

11. The report then considers the age and level of maturity of the children. The report describes them both as intelligent, articulate and sensitive. She assessed Demi as having attained a level of maturity beyond her chronological age, instanced by insightful remarks. In her assessment of Robert she concluded that he operated at a level commensurate with his chronological age. In her concluding paragraph 20 she stated:

"In my assessment a return to Greece is likely to be psychologically and emotionally damaging to these two delightful children, and their mother accompanying them would not serve to ameliorate this."

Understandably for someone whose focus is on proceedings in our domestic courts, she went on to say:

"Whilst their habitual place of residence is Greece it makes little sense to Demi and Robert for their future to be determined in that country, where they have lived for only five months of their lives."

12. This was manifestly a most exceptionally strong report and it, as we can see from the transcript, inclined Kirkwood J to suggest to Mrs Renton that she should consider with her client whether really he wished to proceed with his application for return. Mrs Renton took instructions but informed the judge that she intended to continue. Her client was there present for the case and so the judge indicated that he wished to hear at a very early stage from Mrs Demery. Mrs Demery was the only person to give oral evidence and it is transcribed over approximately 15 pages. Mrs Renton put to her the perfectly valid point that when she conducted her interviews she had really only seen one side of the story, namely the affidavits filed by the mother and Danielle. She had not seen the affidavit from the father, which included a lot of material that seemed inconsistent with the case that the mother presented and particularly inconsistent with the account and the demeanour of the children at interview.
13. There was within the evidence (or exhibited to the evidence) many, many pages of happy communications between father and children, particularly birthday cards, and photographs of family life. All of this material preceded the children's exodus, save for a number of photographs that had been taken in 2006. Particularly there are photographs illustrating the family together in Athens at Christmas 2006, photographs that show the flat to be very different in style and extent to the children's description to the CAFCASS officer and photographs of the father with the three children in Athens at Christmas 2006, all of which would suggest a happy family and happy relationships.
14. The CAFCASS officer made some concession that she might perhaps have expressed herself more extensively or less strongly in her written report had she had that material. The judge had given her an opportunity of considering it at court before she went into the witness box. On any view, she did not depart from her headline findings and recommendations at any point in her oral evidence.
15. The extempore judgment of Kirkwood J amply demonstrates his great experience in children's cases, whether in the domestic jurisdiction or in the international jurisdiction. In the first three paragraphs he defines the issues. In paragraphs 4 to 12, from which I have already made citation, he deals with the family and the history. In paragraphs 13 and 15 he directs himself as to the Convention and as to authority, particularly the recent decision of this court in the case of Vigreux v Michel [2006] EWCA Civ 630. He considered very extensively the evidence of Mrs Demery between paragraphs 16 and 21. He cited at some length from her written report and also made reference to her oral evidence. He then came to express his conclusions.
16. I wish to emphasise that at this stage of his judgment in paragraph 22, 27 and 28 he reminds himself of his obligations under the Convention. By way of instance, in paragraph 22 he says:

"I make clear that in doing that I would have attached very full weight to the letter and spirit of the Convention, to its objectives and purposes."

In paragraph 27 to like effect:

"In exercising my discretion I have regard, in particular but not solely, to the letter, spirit and object of the Convention to which I attach very great importance."

Finally, paragraph 28 he says that in weighing the matters he comes to a fine balance, "because of the weight I attached to the Convention itself".

17. There is, I accept, a degree of ambiguity in the judge's conclusion upon the mother's second defence. Mr Scott in preparing his skeleton argument boldly asserted that the judge had found against the mother on that point. I do not so read his judgment. What he in fact said in paragraph 21 is:

"I would have held in mind the father's proposals for the mother and the children to live independently of him except financially in Athens, pending the court being there seized of the case. I may very well have concluded that in all the circumstances and notwithstanding the objections of the children a return should be ordered nonetheless."

18. My clear understanding of the judge's words and of his state of mind was that he was not making any definitive finding in relation to the second defence. He left the point open, indicating that the mother might well have failed. Because he regarded her first defence as being the stronger and made good, it was unnecessary for him to rule on the second defence.
19. So it was then to the first defence that he turned his attention. Given the terms of article 11(4) of the Regulation Brussels II Revised, which states:

"A court cannot refuse to return a child on the basis of article 13(b) 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",

the judge considered very carefully and extensively the proposals advanced by the father to make the family independent both in housing and financially upon return to Athens. He had guidance from Mrs Demery as to whether those safeguards offered by the father would be sufficient to safeguard the children, and he had well in mind her advice that the proposals would not diminish the likelihood of psychological harm to the children. His ultimate conclusion is to be found in paragraph 28, which is worth citing in full. The judge said:

"The state of my mind is that weighing these matters leads to a fairly fine balance, perhaps because of the weight I attach to the Convention itself, but then I am left with the advice that if I order the return of the children to Greece and they go there they are likely to be caused psychological harm, for which the foundation of emotional damage has already been laid. Professionally I feel an uncomfortable tension between my obligation to the Convention and my regard for the Greek judicial authorities on the one hand, and my concern for these children on the other. As a family judge I have great difficulty in taking a course with these children that I have been warned will be likely to cause them psychological harm. It is, in my experience, extremely unusual for a judge to receive so stark a warning. I cannot overlook it and I find that I cannot persuade myself that it is unreal or overstated. It is because of the likelihood of psychological harm in the particular and special circumstances of this case and for that reason alone that I exercise my discretion not to award the return of the children to Greece. In other words, it is that factor which brings the scales of the balance in my exercising discretion down against ordering a return."

20. Given the clarity and rationality of the judgment below, Mr Scott has faced a difficult task in this court. No-one could have put the father's case more resolutely than he has done. He has suggested that the judge has not properly appreciated the very high hurdle that faces any defendant relying upon an article 13(b) defence. He has reminded us of many citations from judges in this court; underlining how serious it is to arrive at a conclusion that the defence has been made out and that this is a harsh jurisdiction requiring judges at trial may have to steel their hearts to do proper service to our Convention obligations.
21. There is not a shred of evidence that Kirkwood J did not appreciate to the full the obligations on him, both in the context of the 1980 Abduction Convention and in the context of the Brussels Regulation II Revised, to order the return of children who had undoubtedly been removed from their habitual residence unilaterally and with a measure of deceit. He appreciated that he was obliged to order a return unless the case fell into a most exceptional category. He was in no doubt at all that the case did fall into such a category, given the extraordinary strength of the evidence of the CAFCASS officer.
22. Despite all Mr Scott's endeavours, it seems to me that there is very little straw with which he can hope to make bricks. Indeed, had Kirkwood J concluded against the mother that her second defence had not been made good I would have expected an appeal to this court from her. The case on children's objections was an exceptionally strong one, given the messages that came from the experienced welfare officer.
23. The judge was at great pains to investigate the CAFCASS officer's qualifications and experience. He was careful to remind himself of the boundaries to her expertise but he was perfectly plain that she spoke well within those boundaries when concluding as she did in paragraph 20 of her report. That, in itself, constituted a challenge for the plaintiff and for the plaintiff's advocate unless it could be in some way undermined or diminished. Nothing transpired in the course of Mrs Demery's oral evidence that in any way required a retreat from her opinion. The judge, in his concluding paragraph, rested himself squarely and rightly on that conclusion.
24. Before I leave the case, I would just like to add the development reported by Mr Scott this morning, namely the issue on 20 April of proceedings before the Court of First Instance of Athens of a petition for emergency measures in relation to the custody of the two children by the father. On the face of the document as translated he seeks, in the first instance, what we would call a residence order in respect of the two children. In the alternative, he seeks an order for their return to be cared for by their mother in independent accommodation. Within the pleading are some pretty extreme assertions that may be simply characteristic of the style of pleadings in the Athens courts. But its relevance rests in the provisions of Article 11(7) and (8) of the Regulations, the effect of which is to empower the court of habitual residence to make a return order notwithstanding the failure of the application before the court of the other Member State. If the court of habitual residence does make such a return order then that is enforceable by the automatic procedures provided in Section 4 of Chapter 3 of the Regulation.
25. I can only express the hope that the judge in the Court of First Instance of Athens, before arriving at any discretionary conclusion as to the welfare of these children, will pay due regard to the written report and the oral evidence of Mrs Demery, and the assessment of that evidence by a judge with the enormous experience and the high specialist expertise of Kirkwood J.
26. If I were to voice even a whisper of criticism of the judge below, it would only be in the discretionary orders that he made consequent on the dismissal of the application. He granted permission but I would question whether, had the issue of permission been referred to a specialist Lord Justice in this court, permission would have been granted. Perhaps of greater significance is the fact that he extended the plaintiff's time for lodging notice of appeal until 25 April. Since he was sitting on the 3 April that was in fact hardly an extension at all, for CPR 52.4(2) now provides for a period of 21 days within which to file a notice.
27. However, I stress, as I stressed in the case of In the matter of M-H (Children) decided on 9 March 2006, that the trial court has discretion either to extend or to abbreviate the period of 21 days provided by the rules. Here the extension was sought by Mrs Renton under the misapprehension that the rules provided only 14 days with the effect that she was gaining eight by the extension. But the general point that I wish to make in relation to all these international family law cases, particularly those that are proceeding either under the Hague Abduction Convention or the Brussels II Revised Regulation, is that the Family Division judge in every case should specifically address the minimum necessary period for the filing of the notice of the application. Article 11(3) of the regulation requires the court, except where exceptional circumstances make this impossible, to issue its judgment no later than six weeks after the application is lodged. That provision clearly has most direct application to the process of trial. However, it is important that any appellate process should be completed in no less a period and if the appellant is given three of the six weeks in which to put in the notice of appeal the prospects of this court achieving completion within six weeks are heavily prejudiced.
28. In the Family Division an application for permission to appeal should be made to the judge at the conclusion of the judgment. But if it is not so made, it may be made to the same judge at a later stage. So it seems to me that it is very important that any judge of the Family Division who is delivering judgment in either a Hague or a Brussels case should enquire at the conclusion whether either party wishes to appeal. If either party then makes an application, the judge should consider at once restricting the period of 21 days for lodging the Notice of Appeal. That period may be perfectly appropriate for the general volume of civil appeals to this court but it is completely inappropriate for international child cases where we have a Convention obligation to complete the case very quickly.
29. So, hereafter, I would reinforce what was said in M v H, and in relation to international cases at least, suggest that the judges of the Family Division should, as a matter of routine, establish whether either party seeks permission and; if refusing or, if granting, make a very clear direction abbreviating the over-generous period granted by the rules.
30. The position in the County Court is somewhat different in that if the application is not made to the judge at the conclusion of the trial, it cannot be advanced to the circuit judge at a later stage but must come to this court. So although international cases are in the main reserved to the Family Division judge, it seems to me that judges in the County Court should also have regard to the importance of establishing at the conclusion of judgment whether a permission application is advanced, and make appropriate directions to see that the inception of the appeal is achieved in the shortest possible time.
31. All that said, I would dismiss the present appeal.

Lord Justice Wall:

32. I find myself in complete agreement with everything my Lord, Lord Justice Thorpe has said, and I add a short judgment of my own only because this is a case of which the provisions of article 11 of Brussels II Revised apply.
33. This jurisdiction has a long and honourable tradition of enforcing the Hague Convention. Both my Lord and I sat many years at first instance hearing these cases. Kirkwood J has been on the High Court bench since 1993; he will therefore have heard many of them himself. Any suggestion from Mr Scott that the judge did not properly direct himself as to the level of proof required for article 13(b) or that he had not properly considered regulation article 11 of Brussels II Revised seems to me wholly belied by the judgment. This is, in my view, an immaculate exercise of discretion by a first instance judge. Paragraph 28, which my Lord has read and which I will not repeat, amply sets out all the factors which the judge had properly to weigh in the equation.
34. In my view, the evidence of the CAFCASS officer amply fulfilled paragraph 2 of article 11 of the regulation and the judge was meticulous in the careful manner in which he dealt with her evidence. Not only was she extensively and perfectly properly cross-examined, but the judge himself questioned her over at least a page of transcript to ensure that he could be satisfied that her conclusions were ones which could properly be reached in all the circumstances of the case.
35. In my judgment, the judge was fully entitled to give full weight to the evidence of the CAFCASS officer in the manner in which he did. Equally it seems to me that paragraph 28 amply fulfils the conditions set out in paragraph 4 of article 11 of Brussels II Revised. The judge was painstaking in his care in ensuring that he had directed himself appropriately as to the likely effect on the children of a return to the jurisdiction of Greece.
36. As to his attitude to the Convention, my Lord has already pointed out the very many references there are in the judgment to the spirit, the letter and the intention of the Convention, all of which the judge knew full well and implemented. In my judgment, this is an exceptional case falling within article 13(b) and speaking for myself had the matter been heard by me at first instance, I think it likely that I would also have found that the children's defence of age and understanding itself was made out. Be that as it may, this was as I say an unimpeachable exercise of discretion, one over which the judge plainly took immense care and one which I commend to the judge dealing with the matter in Athens when the case comes to be considered in that court.
37. Like my Lord, I feel bound to say that had this case come to me on paper as a permission application I think it highly likely that I would have refused permission. Mr Scott has done his very best to build bricks without straw, but as my Lord has pointed out, there is no straw and like him therefore I would dismiss this appeal.

Lord Justice Gage:

38. I, too, agree. As one not as familiar as my Lords with this jurisprudence, I recognise, as did the judge, the importance of the Convention and the high threshold which has to be surmounted before a court can contemplate not returning children to the country of their habitual residence in circumstances such as these. As my Lord, Lord Justice Thorpe has pointed out, the CAFCASS officer described the children as intelligent, articulate and sensitive. It is not challenged that they are not antagonistic to their father and very determined not to go back to Greece. Both have spent all their lives up until August 2006, apart from holidays, in this country. Their elder sister is at university in this country and their parents' marriage has now broken down.
39. It is, as I understand it, the father's case that they had been brainwashed by their mother and elder sister. Mrs Demery's evidence was that in her opinion the children were conveying to her their own experiences and their own feelings. Mrs Demery also spoke of a high level of distress exhibited by the children about their experiences in Greece and the prospect of being returned there. In evidence, she said that she felt that the children profoundly objected to returning to Greece. The judge accepted this evidence. He based his decision on Mrs Demery's opinion, expressed in her written report, that if returned to Greece they were likely to be psychologically and emotionally damaged.
40. In my view, on the material before him, the judge was quite entitled to make this finding. He is, as my Lords have said, a very experienced Family judge. If I may say so, with respect, his judgment and his conclusions are expressed in a balanced careful and fair way. In reaching his decision he was exercising a judicial discretion. For my part, I can find no flaw in his reasoning.
41. For these reasons and the reasons expressed by my Lords, with which I agree, I too would dismiss this appeal.


Order: Appeal dismissed.