ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE RODERIC WOOD
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
SIR MARK POTTER
|- and -
(by their solicitor NH)
Mark Jarman (instructed by Lyons Davidson) for the 1st Respondent
Michael Gration (instructed by Morecrofts ) for the Appellant
Hearing dates : 25 November 2011
Crown Copyright ©
Lord Justice Thorpe:
"And upon the mother indicating to the court through counsel that the primary issue in this case is whether the children should be returned to Poland notwithstanding their stated objections…"
"3. The CAFCASS High Court team is requested to make arrangements to interview the three children and to prepare a report setting out the children's views, any objection which any of them have to returning to Poland, their maturity and recommendations, in particular as to whether any of the children should be separately represented, by 4pm on 21 September 2011. The costs of the attendance of the children at interview shall be deemed a reasonable disbursement on the father's public funding certificate, and shall be reimbursed by the father's solicitor when met by the LSC.
4. The father's application for summary return of the children to Poland shall be listed for a further hearing at 10.30am on 28 September 2011 at the Royal Courts of Justice (with a time estimate of 30 minutes). At this hearing the Court will consider:
i. Any application for any or all the children to be made parties to the proceedings and to be represented; and
ii. Directions generally, including the approach to be taken to the mother's Article 13b defence."
"Based on my reading of the court papers provided to me and my interviews with K, JA and JU, I am not convinced that joinder of the children as parties would sufficiently enhance the courts understanding of the issues so as to justify further delay and the inevitable expense. The children had made their views known to the court through interview with me and they are clearly detailed in this report. "
"The children each expresses a strong wish to remain in England with their mother and particularly K who would 'fight' and not get on the plane. If the court determined the children should return to Poland K is 15.3 years of age and if he chose to, could seek his own legal advice and I would expect him to be considered competent to give instruction if he did."
57 How shall I approach the question of discretion assuming it arises?
58 I say 'assuming it arises' for the obvious reason that looking at what the children say and assessing its weight in the light of the objective evidence, I have real doubt that these objections are in fact made out overall. I nevertheless, if I am thought to be wrong about that, now consider whether or not to exercise my discretion in favour for or against a return.
60 I have therefore decided that, on balance, taking account of all the above factors, that even if the 'objections' are thought by others to be fully made out (which I have already clear I have real doubt about) I would exercise my discretion in favour a return.
"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 Hague 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. The 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 His Honour Judge Barnett did not have the opportunity of meeting her and hearing from her own lips."
"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."
Sir Mark Potter I agree.
Lady Justice Hallett I also agree.