England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MISS P SCRIVEN QC)

		Royal Courts of Justice Strand London WC2A 2LL
		Tuesday, 23 July 2013

LORD JUSTICE THORPE:

1. The parties to this appeal are Somali. They married in 2001 and their eldest child, M, was born on 9 March 2002. Through stages which I need not trace, the family ended up in Norway trading on the mother's grant of residency rights in that jurisdiction. So all reunited in Norway in February 2008. On 22 August 2008 there was a definitive event in which it is the mother's case that she was subjected to a particularly nasty assault which involved the two boys. I should have recorded that the second child, M, had been born on 21 May 2003.
2. The events of 22 August effectively destroyed the marriage. The parents separated and the third child was born post separation on 27 January 2009. She is a girl. The mother obtained a separation order in June 2009 and there were then proceedings in Norway after the father had applied for a contact order on 7 March 2011. It seems that the welfare investigations in Norway were profound and a child psychologist, Dr Terland, was appointed as the court expert. The father obtained interim supervised contact by an order of 26 October 2011, but it really availed him little. On 30 May 2012 M ran from contact, having refused to meet his father. Thanks to Dr Terland's intervention, it seems that there have been three occasions on which father has met his daughter, T, and she shows no disinclination. Of course the age difference between T and her brothers is considerable, and T was not involved in the episode of 22 August which had such a deep impact on all those involved.
3. Before the domestic proceedings in Norway were completed, the mother and children moved to this country where the mother has family in the southwest. The father reacted by applying for an interim residence order and initiated an application for return. The interim residence application was refused, although the father obtained a declaration that mother's removal was unlawful. The father achieved a supervised contact order in respect of his daughter, but his application for contact with his sons was effectively refused on the basis that they were entitled to a moratorium of at least 12 months.
4. The Convention proceedings commenced in this jurisdiction at the beginning of the year and went through conventional stages to a hearing on 1 March 2013, which was before a deputy judge of the division, Miss Scriven QC. She delivered a reserved judgment on 14 March refusing the father's application. There was then an appellant's notice filed pursuant to refusal of permission by Miss Scriven.
5. On 17 April I took a reasonably negative view of the application and simply adjourned it to an oral hearing without notice. That direction reflected the fact that Mr David Williams QC had come into the case to challenge the order below.
6. However, at that without notice hearing I was persuaded to grant permission and listed the hearing for 13 June with an one-day time estimate. That would have been the conclusion of the process had there not been a muddle over the time estimate. The listing office gave the case only a two-hour estimate. Accordingly, on the 13 June we had no alternative but to adjourn the appeal, and it returns to court today some six weeks later. But I emphasise that the appeal would have been concluded on 13 June but for that misunderstanding.
7. Mr Williams has advanced five grounds. His first is that the judge misdirected herself in law in her understanding as to the threshold necessary to achieve a finding of children's objections under the Convention. The second ground is that the judge also misdirected herself in confusing the children's antipathy to their father with an antipathy to the country of Norway. His third ground asserts that the balancing exercise conducted by the judge was flawed in that she placed so much weight on the episode of 22 August 20008, entirely overlooking that there had been nothing since to found or explain any objection on the part of the children. By his fourth ground Mr Williams submits that the judge misdirected herself in concluding that, there being no bar to a return order in respect of T, she could not refuse his return simply on the basis that it would separate the family if she upheld the objection defence in relation to the two older children. He relies particularly on the case of Zaffino v Zaffino [2006] 1 FLR 410.
8. His fifth ground is that the judge misdirected herself in the exercise of the discretion which arose from her finding that the two older children had established their objection to return. Despite that finding, a proper exercise of discretion would not have resulted in the refusal of the application.
9. The contrary case has been put before us in writing by Mr Scott Manderson QC, and I should say that Mr Williams leads Miss Papazian and Mr Scott Manderson, Miss Pollock. However, in the event we have not called on Mr Scott Manderson for oral submissions in response. That I can shortly explain.
10. The first ground, which is the ground that Mr Williams has elaborated most fully, is that the judge having conducted some research after the hearing on the 1st and before handing down, had lit upon the decision in Re W, which I think was only a permission application but which attracted a judgment from Wilson LJ which he released for reporting. That is to be found at [2010] 2 FLR 1165. Mr Williams submits that the judge failed in her research to find the later case of Re K [2011] 1 FLR 1268, and had she done so she would have seen that the obligation on the respondent was to clear a higher not a lower threshold in advancing a defence of children's objection.
11. I do not consider that that criticism can be made good. This being a reserved judgment, it is, not surprisingly, careful and comprehensive. The judge turns to the law at paragraph 4 of her judgment, and it is true that she does cite in extenso from Wilson LJ's judgment in Re W in paragraph 14 and following. In her citation from that judgment

she includes the paragraph in which is this sentence:

"The phrase means no more than what it says, so albeit bounded of course by considerations of age and degree of maturity, it represents a fairly low threshold requirement."

12. But the judge had earlier cited from the speech of Baroness Hale in the case of Re M [2008] AC 1288. She had cited at length from the judgment of Sir Mark Potter P in the case of L v H [2010] 1 FLR 1229, and in the citation from the judgment of Wilson LJ, had referred not only to paragraph 14 from which I have already cited a sentence, but also to the following paragraphs 18, 19, and 22. In paragraph 22 Wilson LJ in particular cited authority in the House of Lords from Baroness Hale. So it is not a single paragraph or a single judgment, but a review of authority on the topic of children's objection, and when she comes to consider the facts and to apply the law to the facts, we see from paragraph 103 of her judgment that she particularly directed herself by reference to the judgment of Sir Mark Potter at paragraph 66 where he had adopted a four-stage test earlier identified by Ward LJ. So here we see the deputy taking each of the four stages, ie the child's perspective of short, medium and long term interests; (2) the extent to which reasons for objection are rooted in reality; (3) the extent to which views have been shaped by undue parental influence; and (4) the extent to which objections would be modified on return.
13. Having carried out that exercise, the judge, I think quite rightly, emphasises that this is a quite exceptional case. The specialist CAFCASS officer had interviewed the children and written a comprehensive report, and she had then in her oral evidence stood by and emphasised all that she had said in writing. The case was exceptional because the traumatic incident of 22 August had affected them all, not only the relationship between husband and wife but the relationship between father and two children. She recorded the emotional responses, particularly of the elder child in speaking of his experiences with his father and his sense of himself as the protector of his mother and his sense of how exposed they would be were they returned to Norway, despite whatever protective measures might be asserted or offered. The children clearly affected the expert and her view of the case profoundly.
14. So despite the fact that there had been no repetition, despite the fact that there were undoubtedly protective measures available, the gravity of the event of 22 August and its consequences were plainly open to the judge as a sufficient foundation for her conclusion.
15. The second ground, the submission that the child's objection was to the parent and not the country, was really answered by the evidence of the CAFCASS officer. She made it plain that M's reaction, breaking down and crying when he realised that as a result of the court's order he might have to go back to live in Norway, was not in the context of thinking he would have to go and live with his father.
16. As to the third ground, the submission that the judge had impermissibly found objection proved when there had been nothing but a single episode in the history is not persuasive, as I have already indicated. It does not carry the consequence that the objections of the two boys were unrooted in reality. It was a very real root. The fact that it was the root that severed the parent child relationship made it more, not less, compelling.
17. The fourth ground asserted by Mr Williams rests on two paragraphs of the judgment, 97 and 120. The judge said in paragraph 97:

"However, different considerations apply if, in the light of the boys' objections (which I shall go on to consider), I decide they should not be returned. In those circumstances the mother may reasonably decide she should not return, and thus, as far as [T] is concerned, that would mean a return on her own to Norway, either to live in her father's care, or within the emergency care system. It is accepted by Miss Papazian that such an order here would be inappropriate for obvious reasons. As the Tonsberg District Court has found, [T] has lived all her life with her mother and brothers. She has never lived with her father. Indeed, the Court found that she has only seen him on three occasions for contact. To return to Norway, without her mother, or brothers, would create a grave risk of psychological harm to her and otherwise place her in an intolerable situation. To that extent the situation is analogous to that in the case of Re W to which I have already referred."

Then in paragraph 120:

"It therefore follows from my decision that the boys should not be returned. Furthermore, because the boys are not to return, it is reasonable for the mother not to return, and in those circumstances the Article 13(b) defence is made out in relation to [T] for the reasons I have given."

18. It seems to me that the concession made by Miss Papazian below was properly made, was realistically made and hardly supports Mr Williams' submission that the judge should first have concluded that the Convention required T's return, and then built that into her appraisal of the objection defence advanced in relation to the two older children. This is after all a family, and they are, as far as these parents are concerned, a family of four, and they are not separate entities to be considered individually and in a given order – an order which can be defined to produce the result for which Mr Williams contends. That would be a completely artificial approach.
19. For the reasons that I have already identified, the case is exceptional on its facts. The realities are overwhelmingly clear. It would be, practically speaking, impossible to return the older two children. It is completely unthinkable that their return could be achieved in any sense that would meet the CAFCASS officer's expert views, and the suggestion that the mother should leave them, damaged as they are by their early life experience, to fend for themselves in this jurisdiction while she returned to Norway with T is perhaps theoretically arguable, but seems to me to have no other claim on which it could be articulated.
20. Mr Williams' fifth submission is to be considered within a single page of the judgment, page 43, where between paragraphs 113 and 118 the judge explains why she is exercising her discretion not to return the two boys. It seems to me that it is an impeccable explanation of her conclusion. She identifies the pros and cons. The factors that she has brought into account are all relevant. She has given each of them the weight which she thinks appropriate having read the papers and heard the oral evidence and I see no need to consider her analysis more fully or more critically.
21. So my overall conclusion is, first, that this was a particularly thorough and careful judgment; second, that Mr Williams has attacked it with his usual fortitude and skill; third, that none of the ammunition he has fired at the judge has hit the target, and accordingly I would dismiss the appeal.
22. I end by recording that this is the last time on which I will give an ex tempore judgment, or indeed any judgment, and that is said with a considerable sense of relief.

LORD JUSTICE KITCHIN:

23. I agree that this appeal must be dismissed for the reasons my Lord has given.

SIR DAVID KEENE:

24. I also agree.

Order: Appeal dismissed