England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE K BARNETT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd September 2010

Lord Justice Thorpe:

1.  On 24 August HHJ Barnett, sitting as a judge of the High Court, ordered the return of two children under the Child Abduction and Custody Act of 1985, which incorporates the Hague Convention of 1980.  He refused permission to appeal, but granted a short stay to enable the application for permission to be brought to this court.  Wilson LJ extended the stay and ordered the case in for hearing as a permission application with appeal to follow today.  That is the compass of our hearing.
2.  The case concerns a family, the G family.  The parents were born and brought up in this jurisdiction, in the Middlesbrough area.  Their parents, respectively maternal and paternal grandparents to these two children, still live in the Middlesbrough area, where there is a considerable extended family.  The parties to this case married on 3 December 1988, and there are two children of the marriage, E, born on [a date in] 1997 and therefore 13 years of age, and L, born on [a date in] 2001, therefore nine years of age. 
3.  The father's business ran into difficulties in the middle of the last decade, and to escape his financial problems he took employment with a company based in Calgary in Canada.  He left on his own, and lived on his own, for two years until the family was able to join him in January 2008.  Their departure was prepared by the sale of the home in Middlesbrough, and in March 2009 the family bought a home of their own in Canada.  However, by then the marriage was running into considerable difficulties.  The father's contrition on two occasions led him to write notes of apology to the mother for his behaviour, and each recognised that drink lay at the cause of these unhappy episodes.
4.  During the summer of 2009 the girls enjoyed a holiday of about eight weeks with their paternal grandparents in England.  That was supported by both their parents; mother brought them to this country at the beginning of their visit and father collected them for their return to Canada. 
5.  On 19 December 2009 the mother, on a pretext that she was taking the girls to a theatre and overstaying with a friend, in fact abducted them to this jurisdiction.  That, in my view, was a very foolish step.  The bare removal would have been bad enough, but the element of deception that surrounded the removal inevitably further damaged the relationship between the parents and has had sad repercussions since. 
6.  However, it was not until 14 July that the originating summons for the return order under the Convention was filed in this jurisdiction.  The judge described the explanation for the six months of delay as opaque, and such explanation as we have received today is certainly no better.  It is unfortunate.  Of course the Convention permits twelve months for the engagement of the full remedy of the Convention, but that is a policy decision which is much questioned nowadays, and undoubtedly the application of the Convention is much easier when the Convention is engaged swiftly after the wrongful removal. 
7.  The defence that the application attracted relied upon, firstly, acquiescence; secondly, the objections of the children to return; and, thirdly, a grave risk of harm under Article 13B. 
8.  Given the second defence, a judge ordered a CAFCASS report and the case was assigned to Jacqueline Barclay of the specialist division in this building.  She interviewed the girls on 17 August and filed her report on the 22nd in readiness for the trial before HHJ Barnett that commenced on the 23rd.  Ms Faggionato has explained that he heard evidence only from the CAFCASS officer on the 23rd and adjourned in the middle of the day.  On the 24th her asked counsel for further submissions on the law and delivered what was clearly a prepared judgment in the middle of the afternoon of the 24th. 
9.  The judgment is impeccable in its recital of the history and its finding of any necessary fact.  The judge eliminated from his consideration both the first and third defences on the grounds that they were simply impossible to make good, and focussed on the second defence, namely the objections of the children to return.  He had before him statements from the parties and he had the estimation of the CAFCASS officer that the children had a real objection, not just to returning to family life with their father in Canada but to returning to Canada itself.  In a sense that was hardly surprising, given that the vast majority of their early lives and childhood experience had been here in Middlesbrough; that their engagement with Canada had been relatively brief and clearly far from happy.  With their revived attachment to maternal grandparents in this jurisdiction, to the extended family here, to their friends here, to their schooling here, an objection to the country rather than to the specific domestic circumstances was perfectly understandable.  So the judge, having surveyed the evidence, came to the clear conclusion that the children's objection had been sufficiently established.  He came to that conclusion having considered the statements of the children and the report of the CAFCASS officer.  He considered whether the views expressed by the girls were their own views or implanted views; he considered the sufficiency of their maturity and understanding, and had no hesitation in holding that their objections were established. 
10.  He then had to go on to consider whether he should exercise either a discretion or a proportionate judgment to order their return.  That is because the relevant terms of the  Convention (Article 13) are thus:

"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. . . ."

11.  The decisive word in that citation is "may".  That imports the exercise of a discretion.  The judge confessed that the decision was for him difficult and finely balanced, but in the end he determined that he should uphold the primary objective of the Convention and, in a paradigm case of abduction, order the return of the children.  That he had some misgivings as to the consequence of his decision clearly emerges from the final paragraph of his judgment when he said:

"perhaps the father would be well advised to reflect upon the strength of the wishes and feelings of his daughters (particularly E) and where they see their future, before moving to a full implementation of the order to which he is clearly entitled."

12.  The implications of that citation are to me obvious.  Abduction and relocation are two sides of the same coin.  Abduction is the wrongful removal of a child from its country of habitual residence.  Relocation is the lawful removal of that child from the habitual residence, the necessary consent having been obtained either from the other parent or from the court.  In my judgment, this mother plainly took the wrong path; it was a foolish choice; it has involved great damage to family relationships, all of which could have been avoided had she applied in Canada, for permission to relocate.  The context of that application and the surrounding circumstances would have ensured its high prospects of success. 
13.  Now ordered to return, the foreseeable consequence is that on return she will issue the application which she failed to issue in December 2009.  The wrongful removal in the interim will hardly impact on the exercise of the judge's discretion, and again there is a high possibility, a likelihood, that the application in all the circumstances will succeed.  As so often happens in these cases where the abducting parent is the mother in flight from an unhappy marriage, one consequence of the strict application of the Convention is that the children then experience and have to cope with three moves.  The first is the original abduction; the second is the return; the third is the removal that follows from the successful application to relocate.  I have no doubt that that was in the mind of the judge when he exhorted the father to consider whether or not he really wished to impose upon the family the outcome of the London trial.
14.  I would like to pay tribute to the quality of the judgment below, which is lucid in thought and expression, but there are factors which give rise to my concern. The first is: to what extent did the judge hear the voice of the children?  Given the age difference, the all-important child was obviously E.  She had written a letter which is addressed "Dear Sir or Madam".  It is dated the 16 August, and it is common ground that it was written for the judge who was going to decide the case.  It explains why "I never ever in my whole life want to go back to Canada". 
15.  There is, in this branch of international family law, a growing perception that the judge at trial should hear the voice of the child: that is implicit from the Convention itself but made explicit by the United Nations Convention on the Rights of the Child 1989.  Of course, the manner in which the judge hears the child is a matter for local custom and tradition.  In this jurisdiction, judges in the High Court have not traditionally in modern times heard the voice of the child directly but through the officer of the court, the CAFCASS Officer.  That tradition is now under scrutiny, debate and revision.  The subcommittee of the Family Justice Council that is concerned to ensure the safeguarding of the rights of children has forcefully expressed the view that judges in this jurisdiction should be meeting children and hearing their voice in carefully arranged conditions; given the fact that E was seeking to communicate her views to the decision maker, it is perhaps with hindsight a pity that HHJ Barnett did not have the opportunity of meeting her and hearing from her own lips. 
16.  Another concern I have is that in cases such as this, where the abduction is simply a reaction to great stress within the family, the physical return of the children does nothing to address the underlying problems.  Thus more and more emphasis is placed on the importance of mediation in cases involving the wrongful removal of children.  This was a paradigm case for mooting at least a mediated settlement.  What these parents needed to do was not litigate across the Atlantic but address the problems that had created the removal and mitigate the harm to family relationships that followed.  Obviously in mediation the plaintiff father could have been invited to recognise the likely outcome of an application to legitimise the removal and to address the consequences of the future in which the children would be living in this jurisdiction in the primary care of their mother, in order to ensure that their relationships with him and with his family in this jurisdiction would be restored and maintained.  It is, in my view, unfortunate that the judge's exhortation, that I have already cited in his final paragraph, although conveyed to the father's Canadian lawyers on 7 September, had not reached him when he had a telephone conversation with Ms Faggionato, his counsel in this jurisdiction, during the luncheon adjournment.
17.  So those are matters of concern to me.  Mediation was never mooted below; a meeting between the judge and the child was not mooted below; the letter that the child had written to the judge as decision-maker is not mentioned in the judgment below; and the judge's exhortation to the father to consider whether or not he should implement the judgment does not reach the father a month after the judgment has been given.
18.  What then is the outcome?  We have heard Ms Gasparro develop her skeleton argument in which she criticises the judge for his discretionary conclusion.  We have heard a very able address from Ms Faggionato, who has forcefully emphasised that there is nothing particularly new about E's letter to this court of 21 September and her letter written in the precincts today.  She says that very similar communications that the children had written in July and August was well investigated below.  She emphasises that these cases are not to be decided on what children want, the decision is not theirs to make.  This is not a case in which there had been threats of self-harm.  There are no expert reports.  This is a paradigm case, there can be no doubt at all about the children's habitual residence in December, there can be no doubt at all about the father's exercise of rights of custody.  The only possible defence to the abduction is the child's objection, which in turn rests upon the nine months or so when they have been out of contact with their father.  The judge considered that; he reached his conclusion, and this court should not interfere.
19.  With all those submissions I have an immediate engagement.  For me, the judgment below withstands the critical attack expressed in the appellant's skeleton.  His direction as to the law was impeccable, and he analysed the ultimate balance with equal skill.  The decision whether or not to return was the expression either of the exercise of the discretion or of a proportionate judgment and, as such, it is entitled to the support of the appellate court.
20.  However, this is not the issue.  The issue is how we should decide this case on the basis of the fresh evidence and the representations that have been made to us today by E, both in her statement of 21 September, her statement of today's date and the meeting that we had with her in the conference room. What stands out from that for me is the hardening of her position.  When she met the CAFCASS officer on the 17 August, having expressed her sense of despair at the prospect of returning to Canada, she said that she would reluctantly comply if that were ordered.  By 21 September she is saying to this court:

"Also, another thing, no one is forcing me to get on that plane ever, so don't think that I will."

21.  Courts of trial and appellate courts have to consider the implementation of a judgment for return.  A court needs to be alive to the difficulty of implementing a return order, where the subject of the return order is an articulate, naturally determined and courageous adolescent.  E is such a child.  I also was impressed by the cogency of her reasoning for rejecting Canada as a future for her, as a country where she could complete her education with the necessary sense of security and peace of mind.  Everything which she said about the challenge of her education in her present secondary school, everything that she said about her reliance on the wider family and friends in Middlesbrough, drove me to the conclusion that the judge might well have refusal return had he had the advantage which we have had today.  It is highly unusual for this court to meet a child before deciding an appeal.  It is the first time I have ever had that experience, but I believe that it was justified and necessary in this case, given the fact that the judge did not himself meet E and did not seemingly attach much weight to the letter that she had written to him as decision maker.
22.  So for all those reasons, whilst respecting profoundly the task that the judge performed in August, I would grant permission, I would allow the appeal and I would set aside the return order.

Lady Justice Smith: 

23.  I agree.  I add only a few words, which I wish to address directly to the parents of these two girls.  The mother will hear what I say.  I hope Ms Faggionato will be able to convey my words to the father.
24.  It seems to me deeply unfortunate that both of these parents have, by their separate actions and attitudes, driven a wedge between the children and their father.  The mother has done so by removing the children in the way that she did; the father has done so by his insensitivity to the children's wishes; and in their separate ways, in driving that wedge, they have not served their children well, in my view.  I was disturbed to learn from E this morning that the girls do not now see their paternal grandparents.  The grandparents are having to seek an order for contact through the courts.  That is opposed by the mother, and also, I understand, by E herself.  This is a very sad situation, as it seems to me.  Only a year ago, or a little over, the girls were happy to spend eight weeks with these paternal grandparents; now they do not even meet them.  I hope that when the dust has settled from these proceedings that the mother will not only permit contact but will encourage contact with the paternal grandparents.  I hope too that both parents will work towards the restoration of a loving relationship between the girls and their father, such as I have little doubt existed while the family was united, but which has been deeply damaged by the breakdown of the marriage and  these proceedings.  It will need hard work on both sides. 

Lord Justice Thorpe: 

25.  I would like to associate myself with everything that my Lady has said. Obviously there is a lot to be done, and the question of father's contact to these children needs to be addressed without delay, even if only to establish some immediate interim pending a long term solution.

Order: Application granted