England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT (PRINCIPAL REGISTRY)
HIS HONOUR JUDGE BROMILOW
FD14P00856

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/02/2015

Lady Justice Black:

1. This appeal concerns E. He was born on 3 July 2000 and is now 14 years old.
2. E's parents separated when he was about 18 months old. From 2003 until the summer of 2014, he lived with his mother in Spain. He used to come regularly to see his father, who lives in England, for quite long holiday periods. He came over for an extended stay on 19 July 2014 and was due to return to Spain on 22 August. He did not do so. At the beginning of September, his mother therefore made an application to the English High Court pursuant to the Convention on the Civil Aspects of International Child Abduction ("the 1980 Hague Convention") for an order that he be returned to Spain.
3. On 8 October 2014, His Honour Judge Bromilow, sitting as a deputy judge of the Family Division, refused to order E's return. He considered that the circumstances fell within the child's objection exception in Article 13 of the 1980 Convention and that the appropriate exercise of the resulting discretion was to decline to make the order the mother sought.
4. The mother appealed to this court against Judge Bromilow's refusal of an order for summary return. By the time the appeal was heard, the Court of Appeal had heard, but not given judgment in, the case of M (Republic of Ireland) (Child's Objections) (Joinder of Children As Parties To Appeal) [2015] EWCA Civ 26, which also involved consideration of the child's objection exception. Arguments were advanced in the present case which covered ground similar to that covered in Re M (Republic of Ireland). I am grateful for the assistance that they provided, and particularly for their review of the international jurisprudence. Later on in this judgment I will touch briefly on the legal framework as it was presented to Judge Bromilow, but it is unnecessary to engage in any detailed discussion of the law because all that needs to be said has now been said in Re M (Republic of Ireland) which was handed down on 27 January 2015. This judgment should be read together with the relevant parts of that decision.
5. As for the outcome of the appeal, we announced at the conclusion of the hearing that it would be dismissed for reasons which would be given later. My reasons are given in this judgment.

Two further applications made to the Court of Appeal

6. Two ancillary applications were made to us and we dealt with them at the outset of the appeal.

Fresh evidence

7. The mother applied to the Court of Appeal for permission to adduce further evidence as part of her appeal. The evidence took the form of a further statement from her dealing with matters which had emerged whilst E was spending time with her in Spain during the October half-term.
8. The mother argued that her new evidence would significantly undermine the basis on which the judge made his order. She said that it established that E had been drawn into a plan made by his father to retain him in England, that he had been influenced by his father, and that he had not given an accurate picture of life with her or of life in England to the CAFCASS officer, Ms Jolly, who interviewed him from the purposes of the proceedings. Amongst the exhibits to the statement was documentation in relation to the proceedings that there are in Spain in relation to E.
9. We declined to admit the material, except that relating to the proceedings in Spain. No objection had been raised on behalf of the father to us seeing this and it was helpful to have the information. The Spanish proceedings appear to have been begun by the mother by a complaint on 25 August 2014 that the father had removed E when he did not have custody of him. A hearing in the Spanish court took place on 28 October 2014 and an order was made on 6 November 2014 which set out arrangements for the mother's contact with E which were to be "adopted provisionally" whilst proceedings were going on in England.
10. As for the other material that the mother wished to adduce, its introduction was resisted by the father and we were of the view that it would not influence the outcome of the appeal. It post-dated the judge's decision and can perhaps best be described as a further series of snapshots of what was said/thought at particular points. It was far from unequivocal in its import and it did not in any way compel a re-evaluation of the CAFCASS officer's more broadly based and neutral expert assessment.

Joinder of E as a party to the appeal

11. The second application was for E, who had not been a party in the court below, to be joined as a party to the appeal proceedings. E had contacted solicitors the day before the appeal hearing to say that he wanted to instruct a lawyer for the hearing. Solicitors and counsel acted with commendable speed to ensure that we had available to us, before the hearing began, a statement from the solicitor, Ms Hutchinson of Dawson Cornwall, and a skeleton argument from counsel, Ms Chaudhry. Ms Chaudhry attended the hearing to make the application for E to be joined. She was certainly acting pro bono at that stage and it may well be that Ms Hutchinson was too. We express our gratitude for this.
12. We declined to join E as a party to the proceedings, although we read the material that had been filed on his behalf. It was neither necessary nor desirable for him to become a party at this very late stage. Issues such as how the child's views should be ascertained and conveyed to the court, and whether he or she should become a party, need to be considered much earlier on, preferably at the outset of the first instance proceedings. There are, of course, exceptional cases, but generally speaking, it should not be expected that this court will be sympathetic to applications for party status that surface for the first time in the appeal proceedings. As it happened, the points that could be made on E's behalf were already before the court in any event. Ms Chaudhry was kind enough to stay to listen to the argument and was therefore able to keep him informed as to how the hearing progressed.

Judge Bromilow's decision

13. Judge Bromilow had statements from both parents and a report from Ms Jolly, who had seen E for two hours on 1 October 2014 in order to ascertain his views and to advise on his maturity. Ms Jolly gave evidence at the hearing before the judge.
14. The father's case was that E was objecting and should not be returned. The mother's position was that he was not objecting in Convention terms or, if he was, he should still be returned by the judge in the exercise of his discretion.
15. Ms Renton, who represented the mother before Judge Bromilow, set out clearly and concisely in her skeleton argument for the judge the legal approach that she submitted he should take. She referred him to WF v FJ, BF and RF (Abduction: Child's Objections) [2011] 1 FLR 1153 (a decision of Baker J) and summarised the three stage approach to child's objections cases which involves consideration of a) whether the child objects to being returned to the requesting state, b) if so, whether the child has attained an age and degree of maturity at which it is appropriate to take account of his views, and c) if so, how the resulting discretion should be exercised. Citing Re K (Abduction: Case Management) [2011] 1 FLR 1268, she invited attention to the fact that a clear distinction has to be made between a child's wishes and feelings and a child's objections, and she submitted that the court should be wary of a child's views which have developed as a result of the 'bubble of respite' created by the abducting parent. She cited Re M (Abduction: Zimbabwe) [2007] UKHL 55 to the effect that, at the discretion stage, the court had to consider all relevant factors and gave a list of specific considerations that were material at that stage. The list reflected the factors set out by Ward LJ in Re T (Abduction: Child's Objections to Return) [2000] 2 FLR 192 at 204 B-D but, whereas Ward LJ contemplated that these would be considered at the gateway stage, Ms Renton invited the judge to consider them instead at the discretion stage.
16. The judge said that the legal framework was not contentious and he essentially recited and adopted Ms Renton's approach.
17. Inevitably the CAFCASS evidence had an important influence on the judge's decision. He was impressed by that evidence. He noted the officer's experience both generally and in relation to Hague cases. He noted particularly that she had said in evidence that she was aware of the risks of children being manipulated and influenced by their parents and had come across this herself. His observations about her, set out at §9, were as follows:

"The whole of her evidence was impressive. It was immensely thoughtful. She is alive to the issues and alive to these parents' background and if I may say so, their baggage. Her answers were child focused concentrating on E. She has been, in my judgment, alert to his sensitivities and in particular the strong relationship that he has with his mother with whom he has lived all his life. Equally she was alive to the fact, as she grew to know him, that he knows a lot about his parents' past, probably far too much, but this is so often the way of a child, particularly a single child, who has been from time to time caught up in the quarrel between his parents."

18. Judge Bromilow discussed at some length in his judgment the matters covered in E's meeting with Ms Jolly and I will pick out only certain aspects here. He accepted her assessment that E's maturity was consistent with his age and that he was able to understand and put both sides in discussion. He noted that E had been able to mention positives about Spain even though he did not want to return there and said that if he had to, he would return here quickly. He recounted Ms Jolly's evidence that she considered that if E were ordered to return, he would get on the plane but would come back as soon as he could and would be unhappy because of the impact of this on his relationship with his mother.
19. The judge was clear that for E's views to amount to an objection, they had to be more than a preference; indeed he took as his test that they had to be 'almost akin to a refusal'. He found that since the early conversation that E had with his father as the end of his holiday here was approaching, E had been expressing a clear objection to returning to Spain, 'much more than a preference'. He referred expressly to some of the considerations he had borne in mind in reaching this conclusion, saying (§12):

"In reaching this conclusion I have stepped back and borne in mind what he has experienced since he arrived …. to spend time with his father and his family. I have also borne in mind the fact that he has, since the beginning of September, been in a new school where from the accounts that I have been given suggest [sic] that he is happy and doing well there thus the bubble of respite argument is fairly raised by Ms Renton. I bear it in mind. Nevertheless I conclude that there is objection and so the gateway is opened."

20. The judge considered that all the evidence pointed to the fact that he must listen carefully to E's views. He set out the factors that influenced him in this view as follows:

"He is alive to the issues about his future. As I have said, he is alive to the quarrels between his parents and he has been told too much. He is appreciative of the different ways of life, on the one hand in [England] and on the other in …Spain where he has lived for so long. He is alive to the fact that he is of dual heritage and bilingual. I take full account of the views of the CAFCASS officer."

21. Exercising his discretion, the judge worked meticulously through the various factors to which Ms Renton had invited his attention. He accepted that E may have exaggerated some things about Spain but balanced against that the positive things he had said about Spain. He accepted that what E said was based essentially upon real experiences. He did not accept that E's views had been coloured by pressure or manipulation by his father. It had been urged upon him as part of the mother's case that E had been swayed by his father providing information adverse to the mother to him at a critical time in his decision making. The judge concluded that the information had been given after E decided he wanted to stay and said that he rather suspected that E had been asking questions and his father felt he should answer them. He took careful account of the clear affection E has always expressed for his mother. He did not, however, think that E's views would be mollified on a return to Spain but thought that he would rebel and quickly argue and enter into a difficult relationship with his mother which would be wholly contrary to his interests.
22. In the penultimate paragraph of his judgment, the judge turned to more general factors to which Ms Renton had invited his attention in her skeleton argument. He said that he appreciated that it is 'the clear policy of Hague Convention proceedings that matters should proceed swiftly and that the object of the exercise primarily is for a child to be returned'. He bore in mind that E had lived in Spain since 2003 and members of his family were there. He considered the question of E's education, rejecting the mother's suggestion that the father did not take it seriously. He referred to E's health (E had been receiving medication for psychological troubles in Spain) but did not feel able to make any findings about it and said that he certainly could not find that the father did not appreciate the importance of E's health.
23. He put into the balance also the existence of the Spanish proceedings and the need for comity with the Spanish courts but reached the view that the factors, balanced, pointed in only one direction, namely that E would not be returned.

The mother's appeal

The law

24. Mr Williams QC and Ms Renton, who represented the mother in the appeal, submitted that the judge had failed to apply the correct test in evaluating whether E objected in the Convention sense to a return. This was a bold submission bearing in mind that the judge adopted the formulation of the law offered to him by Ms Renton. Counsel submitted that in fact he should have considered what I may term the 'Re T factors' when determining whether E objected rather than only at the discretion stage.
25. I would be disinclined in this case to permit counsel to pursue in the Court of Appeal an argument running counter to that pursued in the court below. This is not a case in which the court below was bound by authority which could, however, be challenged in this court. The authority to which Judge Bromilow's attention was particularly drawn was a decision of Mr Justice Baker and, as he was sitting as a deputy judge of the High Court, Judge Bromilow was to be treated as of equal status to Mr Justice Baker. Counsel could, therefore, have submitted that he should not follow Mr Justice Baker's decision but did not do so.
26. As it happens, nothing has been lost to the mother by this avenue of argument being barred, given the approach that this court has taken in Re M (Republic of Ireland).

Arguments on the facts: objections

27. As for the other arguments advanced by way of an attack on the judge's conclusion that E objected, they do not persuade me that there is any reason to overturn the judge's determination. I will deal here with the more major themes of this part of the appeal.
28. It was submitted, on the mother's behalf, that the 10 out of 10 score that E gave to remaining here was not consistent with his recognition that there were positive features about life in Spain, and that his ability to say positive things about Spain undermined the notion that he objected to returning there, as opposed merely to preferring not to do so. It was said that the judge failed to analyse and give weight to this evidence and to the CAFCASS officer's evidence that she expected that E would in fact return to Spain if that was required.
29. I do not accept that the judge failed to take account of this material. Before determining in §12 that E objected, he referred expressly to the CAFCASS officer's acceptance that a score of 10 out of 10 could not possibly have reflected the positives E had described about Spain (§10) and also to her view that E would get on the plane although she thought he would return as soon as he could (§11). Weighing up the various pieces of evidence that contribute to an overall picture of a child's views so as to determine what they are and whether they amount to an objection is very much a matter for the trial judge who, unlike the Court of Appeal, has heard personally from the CAFCASS officer, cross-examined on behalf of each of the parents. The features upon which the mother relied here are not inconsistent with E objecting to a return and the judge was entitled to find that he did. Indeed, it might be said that the case for finding an objection was more powerful in the light of E's ability to see both sides of the story and to agree that there were favourable things to be said of Spain, whilst indicating as strongly as he possibly could (for example by his 10 out of 10 score and his intention to return to England again at the first opportunity) that he opposed a return there. I do not think that counsel for the mother went so far as to argue that a child's views will only count if they are a refusal to return but it is worth remembering that that is not an appropriate formulation; the word in the Convention is "objects", not "refuses".
30. It was argued that the judge "failed to analyse whether or not the child's views had been formed in the "bubble of respite". Reference to a "bubble of respite" has become commonplace in cases such as this. In so far as it indicates that the context in which a child's views are expressed can potentially be relevant in an evaluation of those views, it is helpful. It is not, however, a separate test that has to be applied when determining whether the child's objections exception is established. This judge was acutely aware of the features that might be making life here more appealing for E than a return to Spain. Early on in his judgment, he quoted the paragraph from Re K in which Lord Justice Thorpe coined the "bubble of respite" phrase and he referred to the issue in §12 as part of his determination that E objected. In addition, he demonstrated his appreciation elsewhere of how this might be affecting E, for example by his report at §10 of the CAFCASS officer's evidence of her discussion with E about the grass being greener at his father's home, the impact of the recent holiday, and the fact that he was now in a routine at school. There is no basis for the argument, therefore, that he failed to have the relevant consideration in mind.

Arguments on the facts: discretion

31. It was also submitted that the judge failed to approach the exercise of his discretion properly. The factors which it was argued had not been approached properly or weighed sufficiently included:

i) E's views, which it was argued were the product of influence and/or were not rooted in reality and/or would be mollified once E was away from his father's influence;

ii) E's educational interests which it was said required him to return to Spain to take essential examinations;

iii) The impact on E's relationship with his mother of not being ordered to return;

iv) Hague policy considerations.

32. It was also submitted that the judge failed to "explain the reasoning process by which he concluded that the factors in support of a return were outweighed by those in support of a non-return".
33. Before I deal with these specific points, I want to make two general observations.
34. First, when approaching a judgment in a case of this sort, it is as well to remember that a vital part of the process under the 1980 Hague Convention is speed. The interests of children are generally best served if the courts determine cases with as little delay as possible and judges therefore do not have the luxury of time. It is astonishing how polished the judgments in these cases still often are, but this court must be realistic about what can be achieved in the time allowed and on the material that is available within the constraints of this summary process.
35. Secondly, as all experienced judges know, it is sometimes not easy, or even possible, to explain why one factor outweighs another. Sometimes one can articulate why a particular factor or sum of factors carry the day, but sometimes all the judge can do is to place the factors on one side or the other of the scales and say which way he considers the scales tip. If he were obliged to say more, it would add nothing because all he could say would be, "Because the factors in this side of the scales carry more weight".
36. In this particular case, I have reached a clear view that the judgment allows one to be satisfied that the judge had the relevant features well in mind and balanced them in a way that was open to him. I will, however, say a little more in the following paragraphs about some of the arguments that were advanced on the mother's behalf.
37. I have given anxious consideration to the submission that the judge was wrong to find that the father gave information to E about the "real story" of his parents' separation only after E had decided to stay and that he should not have rejected the case that E had been influenced. The judge's finding was, of course, in line with what E told the CAFCASS officer, which was that he had sought information from his father and that he was given it after he made his decision. It cannot therefore be said that it was without any foundation. However, he might to advantage have dealt with this aspect of the case more fully, including acknowledging that the CAFCASS officer had agreed that it was possible that the information had been given before the child's decision was taken.
38. But the question of influence had to be looked at as a whole. It had been examined in some detail with the CAFCASS officer in cross-examination on the mother's behalf and the judge expressly noted this at the outset of §16. Whether the father had influenced matters by feeding information to E about the history of the parents' relationship was one relevant feature but it was not the only consideration that would assist the judge to determine the issue. The opening words of §16 convey, I think, that he had looked at the matter more widely. What he said there was:

"It has been argued that his views have been coloured by pressure, by manipulation on the part of his father….and that has been explored fully by the CAFCASS officer. I reject that allegation. I am quite satisfied from what I have heard of the discussions between the CAFCASS officer and E as well as what E has been reported to have said much earlier that he has not been manipulated by his father."

39. A feature of the case which was acknowledged elsewhere in the judgment and upon which the judge could have drawn in this paragraph included, to my mind, E's continuing affectionate feelings towards his mother, as revealed by what he said to the CAFCASS officer about her. When he was asked whether there was anything good in Spain, he said his mother was there and that he misses her sometimes (§22 of the CAFCASS report). He said to Ms Jolly that he knew his mother wanted him back in Spain because she loves him (§29). He expressed a wish to visit her and spend time with her in the holidays, not wanting to be "cross anymore" (§33). And importantly, at §39, the CAFCASS officer reported that he loves and wants to maintain a relationship with his mother and was worried that his feelings of resentment and frustration would be to the detriment of their relationship if he had to return. These references do not sit easily with the idea of a child who has been manipulated by the other parent into voicing objections.
40. I have therefore concluded that the judge was entitled to take the view that he did of the question of influence. In so saying, I have not ignored the other pieces of evidence on which the mother relied in arguing that there had been influence but I do not regard them as assisting particularly in the analysis.
41. I am not persuaded that the judge erred in his treatment of the education issue either. He certainly did not overlook the question as we can see from his reference to it in his judgment. In considering the line he took, it has to be remembered that this was a summary Hague hearing, not a welfare determination. There was limited material for him to go on. The mother considered that there could be only one right answer to the education issue, that is for E to return to Spain forthwith and minimise the damage caused by his failure in the summer 2013 examinations. However, there was room for more than one point of view. E and the father saw things differently and others may have done so too. I certainly do not consider that it can be said that educational considerations pointed inexorably to a return to Spain.
42. Nor am I persuaded that the judge erred in his treatment of the impact of his order on E's relationship with his mother. The mother's case was that the relationship would be damaged by E not being returned. However, as with education, there was more than one way to look at this. For example, E himself was worried that relations with his mother would suffer if he had to return to Spain. The judge was aware of the issue and was entitled to attribute his own weight to it.
43. I do not accept either that the judge failed to give proper consideration to the Hague policy factors to which, in fact, he referred expressly.

Conclusion

44. This court is always reluctant to interfere with the exercise of discretion by a judge and I see no cause to do so here.
45. It was for all these reasons that I concluded that the appeal should be dismissed.
46. Since writing this judgment, I have had the advantage of reading the judgment of Lord Justice Davis. I agree with what he says.

Lord Justice Davis:

47. Perhaps just because I have not myself previously had much exposure to Hague Convention cases such as this, I would like to add a few observations of my own.
48. The underlying principal purposes of the Convention are made clear in Article 1: to secure the prompt return of children wrongfully removed or retained and to respect principles of comity. Article 13 provides its own exceptions to the operation of Article 12: but sight must not be lost of the underlying purposes.
49. The parents in this case had reached a thoroughly sensible arrangement in the English family court proceedings, embodied in a consent order made on 6 May 2003. Their arrangements with regard to E thereafter had been operated by reference to that consent order. When the mother put E on a plane at Madrid in July 2013 for his usual summer holiday with his father in England, she naturally would have expected him to return a few weeks later in accordance with the consent order and the agreed arrangements. E would likewise at that time have expected to return. But this did not happen. Further, the English court has refused to order his return. Imagine her feelings.
50. One surely has to have some concern about the wider potential implications of such an outcome. If there is to be a perception that children may not be returned, even after a short visit to a parent in England and even after prompt application made, parents may be reluctant even to agree the sensible kind of consent order made in this case in circumstances where consent orders are to be encouraged. Or parents may become increasingly reluctant to abide by the terms of such a consent order. Would the mother have put E on the plane at Madrid had she thought this might happen? She would not.
51. The fact remains, however, that the exception is – and for clear reason – embodied in Article 13, by reference to a child's objection. The concerns outlined above are to be accommodated within the operation of Article 13. The grafting of a further legal test of "exceptionality" in such a case, moreover, has been rejected by the courts at the highest level. I agree with Mr Vater's objections to "over-intellectualising" the position and I respectfully agree with Black LJ's analysis of the approach which is required to be taken in this case (and as further set out in Re M (Republic of Ireland)).
52. The position then is that each such case is fact and circumstance specific. That gives flexibility, in a context calling for flexibility, even if it comes at the cost of certainty. In my view, the judge was, in this case on the evidence before him, entitled to make the findings that he made and to evaluate the evidence as he did. He was entitled to give full weight to the report and evidence of the experienced CAFCASS officer. Whilst Mr Williams' minute dissection of the evidence and of the judgment operated to confirm, to my mind, that the mother had a powerful case to pursue, I think, with all respect, that ultimately his approach imposed far too great a burden of judicial exposition to be required of first instance judgments in such cases (in what, after all, are summary proceedings). At all events, the judge here dealt with all relevant points. He sufficiently spelled out the reasons for his conclusion and for the way in which he exercised his discretion. The appeal court cannot be used as a vehicle for conducting in effect an entire rehearing in such circumstances.
53. Further, the judge cannot be said to have overlooked or unduly downplayed the important factor of the underlying policy purposes of the Convention: for he expressly dealt with them. He concluded that they were outweighed by the other circumstances. That, in a difficult case, was a conclusion which I feel unable to say he was disentitled from reaching.
54. Accordingly, and notwithstanding my sympathy for the mother, I conclude that this appeal has to be dismissed. I agree with the judgment of Black LJ.

Lady Justice Macur:

55. I agree with both judgments.