England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(LOWER COURT No: FD09P01489)
(MR JUSTICE MOYLAN)

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th October 2009

Lord Justice Wilson:

1. A mother applies for permission to appeal against an order made in relation to her daughter, E, under the Hague Convention 1980 and the Child Abduction and Custody Act 1985. The order was made by Mr Justice Moylan in the High Court, Family Division, on 27 August 2009. The order was that E should be returned to the Republic of Turkey forthwith, albeit subject to a stay of execution until 10 October 2009. On 6 October Lord Justice Wall arranged for the mother's application to be considered at this hearing and on the basis that, were permission granted, the substantive appeal would follow forthwith. He also extended the stay of execution of the order for return until the conclusion of the hearing.
2. E, who was born on 2 June 2007 and who is thus now aged two years four months, is the child of the mother, who is a UK citizen, and of the father, who is a Turkish citizen. E has the advantage of joint citizenship. The parents are married. The mother brought E to the UK on 4 October 2008 and since then has lived, with E, in the home of the maternal grandmother in Essex. The judge held that the mother's removal of E to England on that day had been a wrongful abduction from Turkey within the meaning of the Convention and that, in that none of the other matters relied upon by the mother by way of defence was established to his satisfaction, the Convention required him to order E's summary return to Turkey. From that determination the mother aspires to appeal in order that, subject to any welfare-based enquiry in the courts of England and Wales which either parent may seek, she should be able to continue to live, with E, permanently in England.
3. Under the Convention it is provided, by Article 3, that a removal of a child is wrongful where it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before the removal. The law is clear that it is for the plaintiff who seeks an order under the Convention to establish that matter or, rather, those three matters. For it will be seen that rolled up in those words are three matters which, when translated to the facts of this case, required the father to establish that:

(i) E was habitually resident in Turkey immediately before 4 October 2008;

(ii) rights of custody were attributed to the father under the law of Turkey; and

(iii) the removal of E on that date represented a breach of his rights of custody.

4. In this regard the focus of the mother's challenge before the judge was upon the first of those matters. She did not accept the father's assertion that E was habitually resident in Turkey prior to 4 October 2008: she alleged, by reference to the history to which I am about to refer, that E was habitually resident in England and Wales immediately before the removal. On this application the mother is represented by fresh solicitors and fresh counsel; and they have brought fresh eyes to bear upon the presentation of her case. Difficult though it may be for them to press this court with points which were not pressed on the mother's behalf before the judge, they wish not only to challenge the judge's determination in relation to the first matter, namely in relation to habitual residence, but to raise an argument that the judge should not have proceeded on the basis that the third matter was established, namely that E's removal represented a breach of the father's rights of custody. Specifically they wish to argue that, in the light in particular of the terms of an order of the Turkish court dated 23 September 2008, the removal of the child on 4 October could not be established to be a breach of the father's rights of custody. Indeed the first two of the mother's grounds of appeal filed in this court indicated an attempt, again with whatever degree of difficulty in the light of the forensic history, to argue that the judge was also wrong to have proceeded on the basis that the second matter was established, namely that the father had rights of custody under the law of Turkey. Today however Mr Setright QC, instructed only yesterday to lead Mr Devereux (who did not appear in the court below) on behalf of the mother, tells us that those grounds are no longer advanced.
5. But two other defences, properly so-called, were also pressed upon the judge. They arose out of Article 13 of the Convention. The mother's then junior counsel argued to the judge that, first, following the removal, the father had acquiesced in it and/or that there was a grave risk that E's return to Turkey would expose her to physical or psychological harm or otherwise place her in an intolerable situation. It was accepted on behalf of the mother that, were either of those defences established, the judge would retain a discretion nevertheless to order E's return to Turkey but it was argued that, in all the circumstances, he should decline to exercise it. In the event the judge rejected the defences both of acquiescence and of grave risk.
6. In this proposed appeal Mr Setright aspires to persuade us that the judge's rejection of the defence of acquiescence was flawed. Wisely, in my view, he does not seek to challenge in this court the judge's rejection of the defence of grave risk.
7. To summarise, therefore, the mother now finally puts forward three matters for this court's consideration, namely, if I may use shorthand,
8. habitual residence;
9. breach of the father's rights of custody; and
10. acquiescence.

But the mother does not aspire to persuade this court to go so far as, in allowing her appeal, to substitute for the judge's order a dismissal of the father's substantive application. Her argument is that, with respect to him, the judge's enquiry into these matters was unsatisfactory, in particular because no oral evidence was adduced before him. It was in particular in relation to habitual residence, submits Mr Setright, that the written evidence as to whether, on 4 October, he had a Turkish rather than an English such residence, was so equivocal and unsatisfactory that, in the absence of far greater reasoning for his conclusion than the judge offered in judgment, he needed to have oral evidence from both parties and in particular to have them cross-examined on their affidavits.

11. When I say that a prior direction had been given by Holman J that both parties should attend the substantive hearing in case the trial judge wished to receive oral evidence; that both parties did duly attend the hearing in person as well as by their lawyers; that both parents were represented by experienced junior counsel at the family bar; that there was no application on either side to the judge for him to receive oral evidence; and that, on the contrary, the judge was invited to determine the summons in the manner conventional to these summary proceedings, namely by reference only to the written evidence; then I begin to explain the difficulties which attend Mr Setright's submission. Nor am I prepared to accept, and, to be fair, such was not the express submission of Mr Setright, that the failure of the mother's then counsel to invite the judge to hear oral evidence represented other than a careful weighing on his part of the pros and cons, as he saw it, of the court's receipt of oral evidence, from the perspective of course of the mother's forensic best interests.
12. The mother is now aged 31 and the father is now aged 32. They met in about 1994, when the mother, as a teenager, was on holiday in Marmaris, where the father has always lived. They kept in touch and, from about 2003, the father made various visits to the mother in England and she made various visits to him in Marmaris. In August 2004 they were engaged and in July 2005, in Marmaris, they were married. They had a lengthy honeymoon; and my study of passports made me wonder whether part of it was perhaps taken in India. As the wife said in an affidavit which she swore for the purposes of proceedings in the Ilford County Court in February 2009, "we divided our time between Turkey and England after our marriage and spent most of the winter months living in England". In Marmaris the father is the manager of a bar and it is obvious that his active months of business are in the summer. The couple spent the summer months there. When in England, they lived with the maternal grandparents in Essex. In June 2007 E was born, as it happens in Marmaris. They remained in Turkey for that summer. They resolved to come to England for that winter. On 28 September 2007 the mother arrived in England with the baby. On 13 October the father joined them here. Four days later he obtained a UK residence permit. His evidence was, however, that, conversely, the mother had obtained a Turkish residence permit. On 27 October 2007 they went back to Turkey but on 10 December 2007 they came back to Essex. The three of them remained here until 21 January 2008 when the father returned to Turkey. The reasons why he did so, or gave for doing so, appear to be in dispute. He returned to England for four days between 14 and 18 February 2008; and it is his case that it was at that time that the mother told him that she did not want to return with E to Marmaris, at any rate on a permanent basis.
13. On 13 March 2008 the mother, with E and accompanied also by the maternal grandmother, returned to Turkey, with tickets to enable them to fly back to England on 20 March. There are strong grounds for thinking that by then the mother regarded the marriage as at an end and was proposing to tie up her affairs in Marmaris. She withdrew no less than £6,000 from the parties' joint bank account there. On 19 March there was, apparently, an ugly incident between the mother and the grandmother, who was holding E, on the one hand and the father and members of his family on the other. Although the mother's allegation that the father snatched E from the grandmother appears to be in issue, the fact remains that E was removed by him from the care of the mother. Six days later, in the Civil Court of First Instance, Marmaris, the mother issued proceedings for divorce and for the return of E to her care. The court in Marmaris was quick to make orders in the proceedings which the mother had launched. It made four orders within the first five weeks. The first, on 26 March, was to enjoin the father from molesting the mother for six months. The second, on 8 April, was to invest the interim care of E in the father and to direct that the mother should have interim contact with her on three days in the course of the following weeks. The mother alleges that the father did not afford to her the contact which had been directed. The third, on 25 April, was to provide that neither parent should remove E from Turkey for the following six months. And the fourth, on 29 April, was to provide that E should "be taken from the defendant father and given to the plaintiff mother and left to her care during the course of the proceedings". The court also directed that the father should have contact with E on two Saturdays each month.
14. On 1 May 2008 the father restored E into the care of the mother pursuant to that order. On 3 May his contact began and, notwithstanding complaints by the mother that he was neglectful of E during contact periods, it continued throughout the summer. On 23 September 2008 there was a further substantial hearing before the court in Marmaris. Oral evidence was given by a number of witnesses, in particular in relation to the events on 19 March, and more generally about the deterioration in the relationship between the parents over the years. Mr Setright strongly relies upon the terms of the order then made. It was definitely an interim order. A further hearing was fixed for 27 January 2009 and numerous directions were given in relation to the assembly of evidence for that hearing. Mr Justice Moylan had the benefit of a translation of extensive notes of the proceedings in the court in Marmaris that day. We read that the mother's lawyer, who I believe may have been a woman, sought the discharge of the prohibition dated 25 April against removal of E from Turkey. We read her assertion that the prohibition had caused the mother and her family a great deal of grief. We read her complaint that the father was not adequately maintaining the mother and E in Marmaris. "We request that this measure be repealed," she said, adding that "my client states that she is ready to provide every necessary guarantee to the effect that she will bring the child to Turkey whenever she is required to do so." In the event the court acceded to the mother's request to discharge the prohibition upon the removal of E from Turkey.
15. But there was another important constituent of the order dated 23 September. It was an order for contact between E and the father for ten days every three months with effect from 24 September 2008. It appears that E was to stay overnight with the father during these periods and not just to visit him during the day-time. It is thus clear that the father should have had contact with E for ten days from 24 September to 4 October 2008. It is common ground that he did not do so. On the face of it the mother's evidence in this regard is most curious. In her second affidavit she said:

"On the 24^th September 2008 my Turkish lawyer contacted me and informed me that the Plaintiff's lawyer had asked if the Plaintiff could have contact for 10 days. I was obviously fearful of allowing this having already seen my daughter and family suffer at the hands of the Plaintiff and I asked my lawyer if I had to agree to this. My lawyer made it clear that it was my choice and I did not have to agree. I therefore refused to allow such contact…"

In the light of the court order made on the previous day, that alleged conversation between the mother and her lawyer on the following day seems to make little sense.

16. The removal of E from Turkey on 4 October 2008 was achieved by the mother, accompanied by the maternal grandmother, taking E first to Rhodes by ferry from Marmaris and then to England. As Mr Anelay QC, who appears for the father in this court and leads Ms Dooley who represented him in the court below, has in his skeleton argument stressed, the mother does not suggest that on 4 October she was intending E's removal from Turkey to be only temporary. She expressly accepted in the affidavit to which I have referred that on that date she had no intention of returning to Turkey.
17. Following the removal on 4 October 2008, the mother, with E, began to make her home with the maternal grandmother in Essex. The father must have suspected that the mother and E were, as before, living there; but for months he made no contact with the mother, whether personally or through lawyers. The hearing fixed to take place in Marmaris on 27 January 2009 was adjourned by reason of the mother's non-attendance, as was a further hearing fixed for June 2009. But, on 8 February 2009, the father sent the mother a text message in which he complained that she had not afforded him the contact which was due to him (I expect that he was there referring to his ten days of contact in December 2008) and he asked for contact to take place. By another text message dated 21 February, the father explained that he was in London and, again, he asked to see E. This text appears to have precipitated in the mother a concern that the father might abduct E to Turkey. She thus at once issued proceedings in the Ilford County Court, in which she obtained an injunction against his molestation of her and a prohibited steps order against his removal of E from her care. It appears that, on 29 June 2009, the father was again in London. Solicitors on his behalf wrote to the solicitors who were on record as representing the mother in the proceedings in Ilford and asked that a period of contact, perhaps confined to their offices, could take place prior to his return to Turkey on 3 July 2009. Fearful though the mother may well have been of his intentions, she might, in retrospect, have been wise to accede to the proposal of contact in closely supervised circumstances rather than to seek to insist that the venue be some contact centre in circumstances in which, within those four days, it was of course quite impracticable to arrange that contact take place at a centre.
18. In the event, on 15 July 2009, the father issued his originating summons under the Convention. The letter from the Turkish Central Authority to the English Central Authority, dated 24 June 2009, was the subject of some debate before the judge. The general director of the Turkish authority, in asking the English authority to take proceedings for E's return, wrote:

"According to the article 335 of the Turkish Civil Law, children who have not reached majority remain in the custody of their mother and father. Custody can only be revoked for legal reasons. According to the article 336 of the mentioned Law, as long as the mother and father are married, the custody of children is shared equally between the mother and the father.

In this case, as the divorce proceedings have not been finalized yet, the mother and the father are still married. Therefore, removing the child from Turkey without the consent of the father is in the meaning of breach of the father's rights of custody within the meaning of Article 3 of the Convention."

The second paragraph quoted is clearly expressed too widely, for it takes no account of the order of the court in Marmaris dated 23 September 2008. Removal of E from Turkey, at any rate in some circumstances, had been expressly sanctioned by that court and could not amount to breach of the father's rights of custody. It by no means follows, however, that either the first paragraph about rights of custody was wrong or that the nature of this mother's removal of E from Turkey on 4 October 2008, namely removal on what was intended to be a permanent basis, was sanctioned by the order dated 23 September and thus was otherwise than a breach of the father's rights of custody.

19. I turn first to the issue of habitual residence. Mr Setright strongly challenges the judge's conclusion that on 4 October 2008 E was habitually resident in Turkey (and, inferentially, his conclusion that on that date E was not also habitually resident in England and Wales). The parties were married in Marmaris and E was born in Marmaris. During the marriage, both before and after E's birth, until January 2008, the parties had spent significant periods of time in both countries, mainly -- and no doubt for reasons connected with the availability of work in winter and summer months respectively -- in Essex in the winter and in Marmaris in the summer. The father had acquired a UK residence permit but, conversely, the mother had apparently acquired a Turkish one. It was to the Turkish court that, in March 2008, the mother had understandably turned for immediate relief in relation to E's residence but it was to that court that she also turned in relation to a divorce.
20. In his judgment, delivered ex tempore, the judge referred in particular to the reliance which had been placed by Ms Dooley on behalf of the father upon the record of the mother's complaint to the police on 19 March 2008, when, in apparently ugly circumstances, the baby had been taken by the father from the care of the mother and grandmother. The police record, as officially translated, was that her statement to them was as follows:

"Under normal circumstances, I live at the abovementioned residential address [that is an address in Marmaris] with my husband … There have been family problems between my husband … and me. This is why I decided to go to England for a certain period of time for a holiday. I returned from England to Turkey approximately one week ago. As I mentioned, due to my problems with my husband, we discussed this with him and reached an agreement together. I was going to go to England with our mutual child [E], with his approval, for one month, and then I was going to return to Turkey."

It is unsurprising that, in his determination of habitual residence, the judge should have referred in detail to that presentation by the mother of her residential circumstances.

21. This afternoon, at the very close of his submissions to this court, Mr Setright relayed instructions from the mother that she had never made the statements which are there recorded. There is no doubt that she would have been in a highly emotional state that day but in principle there is no reason to think that her presentation of her background residential arrangements would have been other than truthful. Now it does seem to me, this document apparently being an exhibit to the father's affidavit filed before the judge, that the mother would have had relatively little opportunity to consider it prior to the hearing before him. Nevertheless she would have had some time to consider it. There would have been time in principle for a further affidavit on her part to have been sworn dealing with it; and there certainly would have been time for her to instruct her lawyers that she totally disagreed with the contents of that statement on the basis that she had simply never said those things. Yet, as I have observed, there was no application by her experienced counsel for her to give further evidence, even orally, by way of comment upon this document; and let us not forget that, whereas we are here assembled on 16 October 2009, the judge gave judgment on 27 August 2009 and yet there has been in the interim period, and in particular since the filing of the mother's Notice of Appeal to this court, no further affidavit sought to be placed before this court and to be admitted as further evidence in which she denied that she made the statements here attributed to her.
22. In all those circumstances it seems to me, giving appropriate respect to the instructions relayed so recently by Mr Setright to us, that we must proceed on the basis that the judge was entitled to have regard to that statement as a true presentation by the mother of the background residential arrangements of the family; indeed, so it seems to me, it was consistent with much of the other material. The format of the judge's judgment was to recite the submissions made to him on behalf of the father extensively, to recite the submissions thus made to him on behalf of the mother extensively, and then, fairly crisply, shortly and generally, to indicate his conclusions. Mr Setright says with some force that the judge's conclusions as to habitual residence are not fully expressed. With respect to him, it would have been better, even in an ex tempore judgment, that the reasoning be more fully expressed; but it seems to me clear from the format adopted by the judge that his reasons for his conclusion about habitual residence are to be collected from those earlier passages in the judgment in which, at some length, he recited the submissions in relation to that matter which had been made to him by Ms Dooley.
23. In my view there was sufficient material to entitle the judge to conclude that, at all material times from her birth until 4 October, E had been habitually resident in Turkey and certainly to entitle him not to take the highly exceptional course suggested by Mr Setright to us, namely, that in effect to direct oral evidence to be given to him even in the absence of any application, therefore, on the part of experienced counsel. No doubt, particularly in a child case, there is power in the judge ex proprio motu to call for oral evidence even in the absence of an application therefore by counsel; and I would approve the exercise of that power in cases in which the evidence is so confused or so evenly balanced in converse directions that it is impossible for him or her otherwise to reach a conclusion. But I hope that I have explained why I do not regard the judge as having been in that position.
24. Second, I turn to the question whether the removal of 4 October 2008 could be said to be in breach of the father's rights of custody. In this regard Mr Setright is in precisely the same unenviable forensic position. Let me, again, however, notice the basis of his argument that the father failed to establish breach and that his failure should have been recognised by the judge. Mr Setright's argument is based on the order of the court in Marmaris dated 23 September 2008, in particular, of course, the discharge of the prohibition against removal from Turkey previously made on 25 April 2008. Even though the meaning of the order dated 23 September does not seem to have been deployed before the judge as relevant to whether there was a breach of the father's rights of custody, he did in judgment seek to interpret the order and, in particular, he decided that the discharge of the prohibition made in the previous order did not amount to any permission to the mother to remove E from Turkey on a permanent basis. I am clear that, for three reasons, he was not only entitled but correct to interpret the discharge of the prohibition in that way. First, the mother's lawyer had stated that the mother was ready to provide every necessary guarantee to return E to Turkey whenever she was required to do so. Second, the court was, by its other directions that day, making elaborate provision for the assembly of matters relating to the divorce, and no doubt also to the issues surrounding E, to be considered at a hearing on 27 January 2009. There is every reason in my view to consider that the court expected the mother to be in Turkey in order to attend that hearing (indeed, it was in the light of her non-attendance that it adjourned that hearing) and there is no reason for it to have expected that, were she then to be in Turkey, E would not also be with her. Third, the court, by another order in the raft of orders made that day, granted the father ten days of contact with E every three months, beginning on 24 September 2008. Mr Setright faintly argues that the court in Marmaris might there have been envisaging contact every three months for the father in England as much as in Turkey. I beg to differ. I consider that, in answer to one of the questions posed from London for the purposes of the hearing before the judge, the father's lawyers were clearly correct to interpret the order in the following words:

"The interlocutory injunction that banned the child from being taken out of Turkey was lifted by the court giving the mother the authority to take the child out of Turkey for a limited period of time only. With this decision dated 23.09.2008, (when the Family Court lifted the previous interlocutory injunction banning the child from being taken out of the country), the court also decided that the child should stay with the father for a period of 10 days every three months (the first stay with the father to be on 24.09.2008). After the mother gave the child to the father on 24.09.2008, the child was to stay with the father for 10 days and then if the mother wished to do so she could then take the child out of Turkey. In summary, the court thereby permitted the mother to take the child out of Turkey between the dates of 04.10.2008 and [23.12.2008], three months later."

25. It is for those reasons that I regard the judge as having been amply entitled to conclude that the court on 23 September did not permit the mother to remove E from Turkey permanently, or, being a variant suggested by Mr Setright this morning, indefinitely. When one considers the adjacent order for contact, it was permission to remove E between 4 October and 23 December 2008. And yet the fact is that E was not then returned to Turkey on that date and to date has never been returned. In my view counsel appearing for the mother before the judge was only realistic in deciding not to press an argument that the mother's admittedly permanent removal of E from Turkey on 4 October was not in breach of the father's rights.
26. Third, I turn to the defence that, following the abduction, the father acquiesced in it. In Re H (Abduction: Acquiescence)  [1998] AC 72 the House of Lords made clear that whether the plaintiff acquiesces in a removal is in principle an enquiry into his subjective state of mind; that the only exception thereto is the situation (which at one stage of his argument Mr Setright sought to suggest was analogous to the present) in which the plaintiff has so clearly conducted himself as to lead the defendant to believe that he has acquiesced, in which case he cannot be permitted to try to show that his subjective intention was otherwise; that there is no difference in principle between active and passive acquiescence; that the onus is upon the defendant to establish the plaintiff's acquiescence, in effect by way of inference from his words or conduct; and that any submissions that a plaintiff's attempts to secure a mediated solution of the issue or to arrange contact with the child are evidence of acquiescence should be treated with very great caution. Notwithstanding the absence of any discrete treatment of passive acquiescence, it remains much more difficult for a defendant to establish acquiescence by reference to a plaintiff's silence and inactivity, as opposed to his words and actions. In this case we have a substantial period of silence and inactivity, namely from 4 October 2008 until the first request for contact on 8 February 2009, following which four further months passed until there was, through the solicitors, a further request for contact, closely followed by the issue of the proceedings. Mr Setright is able to add that during that entire period the father must have known the whereabouts in England of the mother and E. On the other hand it appears that, with his lawyers, the father attended the abortive hearings in the court in Marmaris both in January and June 2009; and there is nothing to indicate that he indicated to that court, or has indicated in any other form to any other person, that he accepted that E should thenceforward reside in England. It was the judge's view that the material deployed by her then counsel did not enable her to establish acquiescence on the part of the father to the removal of E to England; and I am unable, with respect to Mr Setright, to discern how we are expected to denominate the judge's refusal to find that fact as plainly wrong.
27. My analysis of this proposed appeal leads me to conclude that it is unarguable and that permission for it to proceed should be refused. Let me, however, end by stating the obvious, namely that the English courts have made no decision in relation to the country in which it would be most in E's interests to reside in the long term. The judge's decision is merely that the court which is already seized of the issues between the parents in relation to E, following (let us not forget) issue of proceedings by the mother rather than by the father, is the District Court in Marmaris. It is for our respected colleagues in Marmaris to determine the optimum long term arrangements for E, in the light in particular of her young age, of the apparent breakdown of the marriage, of the mother's British ethnicity, of her wish to return to her homeland, of the father's Turkish ethnicity, of E's valuable dual heritage and of course, also, of the need in principle for E to grow up with a close relationship not only with her mother but with her father and not only with her maternal family but with her paternal family. The Turkish legal system is much admired here in England and Wales; and the orders of the court in Marmaris in this case to date show, in my respectful view, a close regard for the true interests of E and (indeed, to be fair to her, the mother has not suggested otherwise) a total absence of bias towards the Turkish parent. Were the ultimate decision of our colleagues in Marmaris to be that the mother should be allowed, on a permanent basis, to live in England but on the basis that she should allow the father to have contact with E not only in England but also in Marmaris, the Turkish judges can expect the close cooperation of our courts here in implementing their rulings and in helping to ensure that such contact with the father as they directed to take place, whether in England or in Turkey, did duly take place.

Lord Justice Laws:

28. I agree. In my judgment there was more than sufficient evidence to support all the judge's conclusions. Mr Setright has sought to criticise the learned judge for failing to require additional oral evidence in relation to the issues of habitual residence and foreign law although neither party applied for it. Plainly the judge has an overarching responsibility to ensure that there is sufficient evidence to support his findings, and may call for further and oral evidence on any matter which he considers relevant. However, I would not want to say anything which would encourage greater use of oral evidence in this jurisdiction. It is a jurisdiction mostly exercised in a summary way, and although oral evidence is sometimes deployed it is still unusual. At no time in this case was it suggested that oral evidence was appropriate, and in the end nothing has been said during this appeal which leads me to say it should have been, much less that the judge should have called for it of his own motion, or was disabled from making findings without it.

Mr Justice Coleridge:

29. I agree with both judgments.

Order: Application refused