England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
SIR PETER SINGER
FD15P00077

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2015

Lady Justice Macur DBE :

1. This is an application for permission to appeal the order of Sir Peter Singer, sitting as a judge of the Family Division on 3 July 2015, refusing the applicant father's application to set aside a consent order made in Hague proceedings on 27 March 2015. The application for permission to appeal was listed before the full court with appeal to follow if permission was granted. Accordingly and conventionally this court has heard the arguments that would be advanced on appeal to determine the outcome of the application for permission to appeal.
2. Having done so, the court did not require to hear from counsel for the respondent mother. Permission to appeal was refused with reasons to follow in writing to reduce any further delay in listing the case for directions in the implementation of the order made on 27 March for E's return to Turkey. These are my reasons for agreeing that this application for permission to appeal should be dismissed.
3. The child concerned is E, now almost 9 years old. The parents are divorced but previously lived together with E in Turkey. The mother has a custody order from the Turkish court. The father has been settled in the UK since 2014. E resided with her mother in Turkey from a very young age until 25 January 2015. On that day she travelled to England for the purpose of a two week contact visit with her father. She has never returned. During the course of the second week of her visit the father texted the mother to inform her that E wished to stay and to go to school in England. The mother took immediate action, speaking to E on the telephone and travelling to England to attempt to persuade her to return without success; she was ultimately forced to issue an application with the Turkish central authority on 16 February 2015 to seek E's immediate return to Turkey through the courts. This, therefore, is a 'hot pursuit' case.
4. The mother's application was issued in the English High Court on 24 February 2015. Directions were made for E to be seen by a member of the specialist High Court CAFCASS team on 5 March 2015 to ascertain her wishes and feelings and objections, if any, to a return to Turkey. Ms Julian, an experienced reporting officer, reported in writing on 24 March 2015. She found E to have a level of understanding and maturity "broadly commensurate" with her chronological age, then 8 years and 4 months. E's negative comments about her mother and Turkish school were recorded, as were her entirely positive remarks about her father, the school she was then attending and her living arrangements whilst in the UK. E undoubtedly indicated that she wished to remain living with her father in the UK and to see her mother but not to stay with her. Miss Julian rightly expressed no opinion as to the outcome of the mother's application. She did record the obvious antipathy between the parents and the fact that E had "clearly aligned herself with the resident parent, now the father. She portrays the mother as being responsible for the situation between her parents and appears to perceive the father as 'the victim' ".
5. The matter was listed before Holman J on 27 March 2015. A transcript of the proceedings is available. Early on and throughout the course of the proceedings that morning it is clear that Holman J indicated his provisional view of the matter in open court and in the presence of the parents. That is:

"...this child should go back to Turkey. This was a blatant wrongful retention...She is not expressing an objection. She is expressing a preference, and it is really more of a current preference to be with father rather than with mother, than to be in England rather than Turkey."

6. The father, through his then counsel, challenged the judge's categorisation of E's views. Counsel informed the judge:

"He knows this child, she objects...He says that to facilitate her return in any way would be a betrayal of her position..."

However, the father was subsequently to indicate that he would return with E to Turkey. A consent order was drafted, amended by the judge and sealed that day. It recites, amongst other things, that the court did not interpret the written evidence as indicating that E objects to a return to Turkey and that the father agreed voluntarily to return with her to Turkey. The return was to be effected by 16 April 2015. Fundamentally, whether Holman J's view of the evidence indicating preference rather than objection was right or wrong, he was not called upon to make findings of fact or to adjudicate whether any judicial discretion as to E's return did or did not arise. The order was made by consent.

7. A flight was booked for 15 April 2015. E refused to board the aeroplane. The matter was returned to court on 17 April 2015. On that day Roberts J effectively mediated a solution whereby both parents would accompany E on a flight to Turkey the following day. On 18 April 2015 two attempts were made to return E. She attended the airport, but her distress was apparently such as to cause the pilot to refuse her passage on the first arranged flight; and on the second occasion having boarded the aeroplane she was disruptive and required to disembark.
8. On 20 April 2015 the father made application to set aside the consent order on the basis of (i) duress or coercion by his previous counsel and/or (ii) that there had been a significant change in circumstances. His application was dealt with in two hearings, on 11 June and 29 June 2015. On 11 June, counsel who had appeared for the father on 27 March gave evidence before Sir Peter Singer. The father's allegations of duress or coercion were rejected. There is no appeal from that decision. Directions were given for the further hearing when the issues to be determined were expressed to be :

i) the father's application to set aside the order on the ground that there has been a material change in circumstances, and any consequential directions thereto;

ii) (if necessary, implementation of order).

Further directions were given requiring both parties to attend the hearing, refusing the father's application to admit further evidence from the school, Turkish Airlines, the police and a local authority, and for E to be seen again by the CAFCASS reporting officer on the morning of the adjourned hearing.

9. On 29 June Miss Julian gave oral evidence of her meeting with E which had taken place that morning. There is a transcript of her evidence. E was described as an "articulate, confident child [with] no obvious anxiety meeting…" with the officer. She had spoken of "not trusting that her father would not be arrested when she got off the plane". She had re-iterated that she did not want to go to Turkey; she wished to live in London with her father. Miss Julian thought E was "confused about the situation". In the course of cross examination Miss Julian indicated her unhappiness about re-interviewing children since it "gives a lot of power to a child that really is not appropriate to do." Miss Julian did not detect a significant change in the nature of E's narrative albeit she recounted more recent events and had referred to people in Turkey being rude because they push and shove each other when they leave the station.
10. Sir Peter Singer did not find there to have been a significant change of circumstances. His reasons are to be found in a judgment and an addendum to it delivered on consecutive days, the first under pressure of time on 29 June, the second on 30 June since he felt it was "appropriate and reasonable to add just a few sentences" to that previously said by way of explanation for rejecting the father's claim. He made clear that his opinion and judgment was that there had been no sufficient "alteration" in circumstances, notwithstanding E's refusal to return to Turkey was not anticipated at the time of the hearing in March 2015, to warrant setting aside the consent order.
11. Mr Turner QC and Miss Chokowry appear on behalf of the applicant. Mr Jarman appears on behalf of the mother. Mr Turner QC did not appear in the court below. Each side has produced lengthy skeleton arguments.
12. The appellant's notice lists six grounds of appeal. Grounds 1 to 4 are interconnected and amount to a claim that the judge was wrong not to have found a significant change of circumstances on the basis that independent evidence and the circumstances of the failed attempts at return, demonstrated that E objected to a return to Turkey and that the father should have been allowed the opportunity to call evidence of the events which occurred at the airport, implicitly to exculpate him from any suggestion of manipulation; ground 5 complains that the judge was wrong to have proceeded on the basis that E's views had been manipulated by the father without hearing oral evidence; and, ground 6, that the judge was wrong to refuse to join E as party to the proceedings.
13. There is no reason to recite the jurisprudence which founds the proposition that this court does have power to set aside a consent order on the basis of a change of circumstances invalidating the fundamental assumption on which the order was made and which in themselves would lead to a different order being made. There is no issue on this point but rather whether the circumstances of this case as determined by the judge on 29 June 2015 were significantly different to those which appertained on 27 March 2015. Mr Turner QC and Miss Chokowry argue that if E's views were correctly assessed to have become 'objections' rather than 'preferences', this distinction in the situation between March and June is sufficient in itself to found revocation of the order since it would trigger the necessity for a court to exercise a discretion as to whether or not to return the child; a discretionary exercise which they say no court has yet conducted and which would inevitably include consideration of the difficulties in implementation of an enforced return of a recalcitrant child.
14. Re M(Republic of Ireland)(Child Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 conclusively establishes what should now be regarded as the correct approach in determining whether a child 'objects' within the meaning of the exception provided by Article 13(2) of the Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention") so as to require the court seized of an application to decide in its discretion whether to return a child to the jurisdiction of its habitual residence. I would summarise it as follows. There is a "fairly low" threshold to cross. A factual determination as to whether a child objects or not must be made. A child's objection is not determinative of the application. Once made, the weight to be given to the objection will inform the court's discretion as to whether or not to order the summary return of the subject child to the place of its habitual residence. It is a fact specific exercise. The court is required to consider the age and maturity of the child concerned as specified in Article 13B, but in addition there will be a number of other circumstances to weigh in the balance which define the root or strength of an objection found to have been expressed; adverse parental influence being the most commonly advanced.
15. There can be no doubt of the significance of the difference between an 'objection' and a 'preference' in Hague Convention proceedings; this is not a matter merely of expression. The former gives the court a discretion not to order summary return; the latter does not. In this case, however, the judge on the 29 June 2015 was not sitting in an appellate capacity to determine whether the judge on 27 March had got his assessment of the child's views as indicating a preference rather than an objection wrong, but whether there were new circumstances which significantly undermined the basis of the consent order to return E to Turkey. The father agreed to the order whilst explicitly believing E to 'object' to a return as indicated in paragraph 6 above. Acknowledging that Holman J had made his views clear, the father nevertheless had the opportunity to require the matter to be heard. Sir Peter Singer found that he had not been subject to duress or coercion. The father has not sought to appeal that finding.
16. Sir Peter Singer did indicate in his judgment that he would have expressed a similar view to that of Holman J in March 2015, which implies that he acknowledged a change in the circumstances by June 2015. Notably, whilst he does not specifically categorise E's "complaints, allegations, observations" concerning life in Turkey with her mother as contrasted with her life in England to be either preferences or objections in his judgment on 29 June, he does refer to them as objections in the addendum on 30 June. Nevertheless, he regarded the substance of those views to be the same on 29 June as when first interviewed by Miss Julian on 5 March 2015 and stated there were "only slight differences today... [which were] hardly a matter of weight or consequence." The evidence of Miss Julian justifies this factual assessment. The school report exhibited to the applicant father's statement prepared for the hearing on 29 June reveals nothing new.
17. Mr Turner QC relies upon the incidents at the airport to indicate a crystallisation or hardening of E's views so as to establish a change in circumstances. He contends that E's behaviour and physical demonstration of her objection in itself and without more required the court to set aside the March order and embark upon the Hague Convention process de novo. This process would necessarily entail the exercise of judicial discretion as to whether to order E's summary return to Turkey.
18. The evidence of E's refusal to return to Turkey was patent. E's behaviour was a potent and florid manifestation of the strength of her views, undoubtedly to be correctly categorised as objections. I agree with the evidence of Miss Julian on this point that it is entirely surprising behaviour for an 8 year old, however intelligent and articulate she may be. There is no reason to think that Sir Peter Singer concluded otherwise. It seems to me that he was obliged to consider the reason for E's behaviour in the airport in order to evaluate the father's application to set aside by assessing whether this change of circumstances was a material change.
19. Mr Turner QC argues that oral evidence was necessary to determine whether the father had manipulated E's reactions. He contends it was on the basis of speculation alone that the judge formed a view that the father had instigated the situation and therefore there has been failure of due process.
20. The oral evidence would no doubt have included the 'independent evidence which the father had managed to obtain prior to 29 June 2015', that is the e-mail from a Turkish Airlines flight supervisor, or hoped to obtain subsequently and additionally in relation to events at the airport. In so far as the father seeks to rely upon it to counter any suggestion that he manipulated the situation I would regard the opinions expressed in the text and any similar observations he may garner from individuals without any relevant expertise to be completely worthless.
21. I consider that there was ample, objective and undisputed evidence available upon which to make the necessary evaluation. Mr Turner QC has referred to various pieces of information within the papers, untainted by their provenance, which suggests the bona fides of the father in entering into, and seeking to abide by, the terms of the order; the father was independently observed to admire the mother's presents to E and to encourage a more positive view of E's assessment of the relationship with her mother. However other events and circumstances, which were factually admitted or beyond dispute, unquestionably point in the other direction; the father had physically engaged E in the obtaining of evidence for his application by taking her to the airport after school to track down flight attendants albeit that he described her as "stressed" at the prospect of return; she had obviously been involved by the father in his version of previous domestic events and adopted his view that he was the victim and may be arrested on his return to Turkey, he had unusually informed E of the pregnancy of his new partner at an exceptionally early stage. This last fact emerged in the face of the court at the father's instigation and observed intervention of his counsel's closing submissions.
22. The judge was entitled to draw inferences from the admitted and indisputable facts. It was open to both counsel to address the judge on the inferences he could or should draw from the agreed facts, and those which he could not or should not and the implications in terms of the application to set aside. I conclude that the judge's adverse findings against the father in terms of his manipulation of E's emotions to the extent that she physically resisted her return were entirely justified on the facts.
23. There can be no legitimate complaint that the judge did proceed summarily in this case. The substance of the order under consideration involved the Hague Convention and there was a necessity to proceed with all due speed in accordance with a signatory's obligations. Save in exceptional cases, where there must be evidence called to make a determination of those facts in dispute which will effectively decide the application, the application will be dealt with on the papers and submissions. I see no basis to categorise the process he adopted or the inferences then drawn to be perverse.
24. The judge refused an application to grant E party status in the proceedings. His reasons for doing so are plainly set out in the addendum to his judgment. He considered E's views had been very clearly stated and that a "third voice advocating in these proceedings" would not bring about any additional material necessary to reach conclusions. Further, there was the prospect that E would feel that her decision ruled and her polarised position would be reinforced. I would endorse his decision as plainly right and in accordance with the ratio of Re D (Abduction: Rights of Custody) 2007 1 AC 619 , paragraph 60 and all subsequent authorities both in the Supreme Court sanctioning it or in the High Court and Court of Appeal applying it.
25. The findings of parental manipulation such as those made in this case inevitably reduce the weight to be placed upon the child's objections. When invited to indicate other matters which may be relevant to the exercise of discretion whether to return E, Mr Turner QC identified the child's 'settlement', the delay already occasioned and the difficulty in implementation of the order. He did so conceding the necessity of the judge to balance these factors in the context of the well recognised Convention principles that a child's welfare is to be assumed to be protected and promoted by a swift return to its habitual residence and in recognition of comity.
26. In fact, none of these points was raised with the judge as a significant matter, possibly since the matters which Mr Turner QC posits as contrary to return are unconvincing. There could be no reasonable expectation that E's situation would be regarded by any court as 'settled', as the concept is recognised in Hague Convention proceedings, in the short period of time that she had resided with her father, nor that the 'delay' in her return was inordinate. The cause of the difficulties in implementing the order had been identified and could consequently be addressed.
27. Sir Peter Singer's judgments in this case are admirably concise but yet more than sufficiently comprehensive to convey that the judge did, and was entitled to, conclude that the change of circumstances upon which the father relied would not lead to a different outcome in terms of the order that would be made and therefore could not be deemed material.
28. For the avoidance of doubt, I do not regard the fact that Sir Peter Singer formed an adverse view of the father's influence upon E to mean that the refusal to set aside the order should be viewed as a solely punitive response to the situation regardless of consideration of E's welfare. In that it explains the alleged change of circumstances it is pertinent to the judge's decision as to whether or not to set aside the consent order. In that it was a matter of external influence then, implicitly, it properly may be expected to be ameliorated by the father who asserts he acts in the best interests of the child.
29. Absent a demonstrable error in the judge's findings of whether there was a significant change of circumstances which undermined the March order, or the process by which he came to make them, the application for permission to appeal is inevitably doomed. There is no realistic prospect that this appeal could succeed. It would be wrong to artificially recognise it otherwise, no matter how momentarily, and then to proceed to dismiss the appeal.

Lord Justice Sales :

30. I agree.

Lord Justice Briggs :

31. I agree