England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT NEWCASTLE
HIS HONOUR JUDGE HEATON QC
NE16P00101

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/10/2016

Lady Justice Black:

1. This appeal concerns one year old H. The appellant is his father and the respondent is his mother. They are engaged in proceedings about the arrangements for H following their separation. Geography is important to the appeal so I need to explain immediately that whilst together, they were based in Kent, but the proceedings were issued by the mother in the North East, where she and H were staying with her family following the end of the relationship. She took H there without the knowledge or consent of the father and a central issue in the appeal is whether, in the light of this action, which the father would characterise as abduction, the courts should approach the case in the same way as they would approach an international abduction.
2. The appeal is a second appeal. On 5 February 2016, District Judge Grey dismissed an application by the father for an order that the mother should return to the family home in Kent with H. His decision was appealed to His Honour Judge Heaton QC who dismissed the appeal on 15 March 2016. Permission to appeal to this court was given by King LJ. The International Centre for Family Law, Policy and Practice were permitted to intervene and we received written and oral submissions from them as well as from both parents. H now has a guardian in the proceedings but she was not appointed until after Judge Heaton's order. She has an important part to play in looking after H's interests in the final hearing, which is to take place in mid-August. However, although she provided a helpful note for the appeal hearing before us, she quite rightly expressed no view on the merits of the appeal.
3. At the conclusion of the argument at the appeal hearing before us on 5 July 2016, we informed the parties that we were reserving our decision on the appeal. Because matters in relation to H had moved on since the decisions taken in February and March 2016, we made it clear that there was no need to await the outcome of the appeal before proceeding with the case at first instance. I hope, therefore, that by now the final hearing has taken place.

Factual background

4. Very little need be said about the factual background. The parties met in 2013 and started to live together in Kent at the end of that year. H was born, eight weeks prematurely, in June 2015. The mother suffers from a medical condition and H has remained under medical supervision in case he should have inherited it. The parties' separation took place on 11 January 2016 when the mother left the family home with H and travelled to the North East where she began living with her parents, although she has since moved to other accommodation. Her case is that the father had behaved abusively towards her and that this was the reason for her departure.
5. The father requested the mother to return with H to the family home and, when she did not agree to do so, his solicitors wrote to her to say that it was his intention to apply to court for an order that H return. Before that application was made, on 20 January 2016 the mother made a without notice application to a district judge in the North East for a prohibited steps order to prevent the father removing H from her care, which was granted. The father complains that the district judge was not told that he had made no threat to remove H from the mother's care and was, in fact, intending to make his own application to court.
6. As the matter was now before the family court in the North East, the father made his application there, seeking orders which would result in H being returned to the family home in Kent. In due course, a hearing was listed before District Judge Grey on 5 February 2016 to deal with both parties' applications.

District Judge Grey's decision

7. The hearing before District Judge Grey was an interim hearing, provision being made for directions to be given later in the month, in the normal way, with regard to the future conduct of the proceedings. The parties were agreed that H would live with the mother during the proceedings and District Judge Grey's order records this. It also includes provision for the father's contact with H. District Judge Grey dismissed the father's application for an order which would require the mother to return to Kent with H, and declined to transfer the case to a court in Kent.
8. The district judge's concise judgment set out the father's reasons for seeking a return of H to Kent, which included his concern about H's medical condition which he considered required the continuing oversight of the local hospital. The father's perception was that the mother had taken unfair advantage over him by her unilateral removal of H to the North East and that he would be prejudiced in the litigation if the mother and H were not to be returned to Kent. He advanced an argument, based upon the decision of this court in Re C (Internal Relocation) [2015] EWCA Civ 1305 (Re C), that the court should take the same approach to the case as would be taken where a child is unilaterally removed abroad, restoring the status quo by returning H home forthwith and allowing the court in Kent to determine the issues between the parties. The district judge was not persuaded by this legal argument and made his decision by applying the welfare principle in section 1(1) of the Children Act 1989 and having regard to the welfare checklist in section 1(3) of the Act in the usual way. He particularly considered the disruption to H that the move to the North East had caused, but also commented that if the father's application was granted, that would mean a further move to Kent, and depending on the outcome of the litigation in future, there may be yet another move. He did not consider that the medical position required H to be living in Kent. He observed that the concerns which the mother had raised about the father's behaviour would need to be looked at by the court and, in a passage which is central to his reasoning, said:

"26. …On the face of it there does appear to be fear on her part. The move to Kent at this stage to my mind may well have an effect upon the mother's wellbeing which may well have an impact upon her ability to care for H. If mother remains in the North East she will have the support of her family and all of the medical concerns will be met. The father would be able to maintain a relationship with H by way of regular contact which includes overnight contact and I bear in mind that ….he has worked shifts and has not necessarily been present in the home with H constantly.

27. There is no evidence before me that, by remaining in the North East, there would be any irrevocable steps taken which might prejudice the father's position. If mother were to return to Kent as I have said I do have concerns about her welfare. Whilst she does appear to have friends in the area and a network there and of course there is the medical support there, I am satisfied on balance taking all of these factors into account that it is appropriate for the child to remain with her in the North East whilst these enquiries are completed. … "

Judge Heaton's decision

9. When the father's appeal came before Judge Heaton on 15 March, the argument based on Re C was again advanced and again rejected, Judge Heaton proceeding on the basis that District Judge Grey was right to have determined the applications by the application of the welfare principle. The father also challenged District Judge Grey's order on the basis that his welfare analysis was flawed. The focus, in this respect, was upon section 1(3)(e) of the Children Act 1989 which directs the court to have regard to any harm that the child has suffered or is at risk of suffering. It was submitted that the district judge failed to take into account the offer that the father had made to address the mother's alleged fear of him or to explain why it was not sufficient to deal with the problem. The father's proposal was that the mother and H could move back into the family home and he would live separately. Judge Heaton acknowledged that it was correct to say that there was no mention of this in the district judge's judgment but he concluded that, when the district judge's reasons were looked at as a whole, it was clear that there was nothing in the point. Judge Heaton noted the difficulties that faced the district judge in dealing with this interim stage in the proceedings. It was a very preliminary hearing and there was very little information available to him. He noted that the district judge had considered each of the relevant matters from the welfare checklist carefully and set out his thinking on them. Although the father's proposal was not referred to in this exercise, Judge Heaton was persuaded that it emerged from the judgment as a whole that the district judge's concern related to the possibility that a move to Kent (rather than to any particular circumstances in Kent) may have an adverse effect on the mother's wellbeing, and this concern would not have been allayed by the father's proposal. Accordingly, Judge Heaton dismissed the appeal.

The arguments before us

10. The father's appeal was put, firstly, on the basis of legal principle (the Re C argument) and, secondly, on the basis that the district judge erred in his welfare decision in that he placed too much weight on the mother's untested evidence of her anxiety about returning to Kent and insufficient weight on the fact that Kent is the place of A's usual residence, where he was in the care of/in contact with the father, and whence he had been abducted by the mother, who had misled the court when obtaining a without notice prohibited steps order.

a) The Re C argument

11. Given that the father's argument about the legal principles applicable to a case such as the present one appears to have been provoked by Re C, it may be as well to commence with a short resumé of what was decided in Re C. That case concerned a so-called internal relocation, that is to say the planned move of a parent and child within the United Kingdom. Until Re C, internal relocation cases had been treated as a separate category of cases from external relocation cases (planned moves to live outside the United Kingdom). Having reviewed the authorities on internal relocation closely in Re C, the Court of Appeal concluded that the central thread running through all of them was the welfare of the child. Welfare is also the guiding principle in external relocation cases (see K v K (Relocation: Shared Care Arrangement) [2011] EWCA Civ 793 [2012] 2 FLR 880, Re F (Relocation) [2012] EWCA Civ 1364 [2013] 1 FLR 645 and Re F (A Child)(International Relocation Cases) [2015] EWCA Civ 882). Accordingly, the court decided that there was no reason to differentiate between the two types of case, and that the same approach should be taken in both (see, for example, paragraph 54 of Re C). It is important to recognise that all that this means is that the child's welfare is the paramount consideration in accordance with section 1(1) of the Children Act 1989 and, with the assistance of the welfare checklist, all the relevant factors are weighed in the balance with the objective of determining which of the available options best meets the child's welfare.
12. Mr Hale QC represented the father on appeal before us but did not appear below; Mr Persson has represented him throughout. Their argument was that, in the light of Re C, a legal issue arose as to the way in which the courts should approach applications by parents in the wake of a unilateral removal of a child from his home such as occurred here. Essentially, they sought to persuade us that domestic cases (where the removal is to another place within the United Kingdom) and external cases (removal abroad) should be treated in the same way. In their skeleton argument, they described the issue as being: "how far should the principles and law in relation to external relocations be imported into the court's decision making processes when considering a unilateral removal of a child within the jurisdiction".
13. I cannot see how Re C can be said to give rise to this issue or, in fact, to inform the debate before us much, if at all. Re C was about internal relocation and it is correct to say that the result of it is that there is no difference in treatment between internal and external relocation cases. However although, in stating the issue for the court, Mr Hale and Mr Persson referred to "relocation", what they were talking about was not actually relocation but abduction (wrongful removal or retention of a child by a parent from his or her place of residence). Their contention was in fact that the approach taken in international abduction cases (cases where a child is wrongfully removed or retained by a parent away from his or her country of habitual residence) should be adopted in domestic abduction cases. From the outset, it is apparent that there is a difficulty with this contention in that, unlike relocation cases, which are all determined by the application of the welfare principle whether the relocation is internal or external, there is not a uniform approach to international abduction cases. They are approached differently according to whether the 1980 Hague Convention applies between the countries concerned or not.
14. It was clear, however, that what counsel were in fact contending for was (to summarise broadly in my own words) the summary return of a child as a standard response in domestic abductions. They said in their skeleton argument that, had this been an international abduction, the presumption would have been that the child would be returned to his place of habitual residence for the dispute to be determined there. They referred to the Hague Convention 1980, which provides for summary return where it applies, and submitted that even in a non-Hague case, "the starting point would be that the interest of the child would be best met by decisions about its welfare being determined in its place of habitual residence and the burden would rest on the remover to provide good welfare reasons why not", citing Baroness Hale in Re J (Child Returned Abroad: Convention Rights) [2005] UKHL 40 (hereafter Re J [2005]) at paragraph 26 as authority for this proposition.
15. Although an order in an international abduction case will normally return a child to the place of his or her habitual residence, a return order in a domestic abduction case would have to be rather more precise geographically. Habitual residence is a concept that normally relates to a country of residence rather than a place within a country. So, for example, H is habitually resident in England and Wales, not in Kent or in the North East, and an order that he return to his place of habitual residence would not therefore achieve the desired effect. Counsel for the father sought to address this by translating the international approach into the domestic context by introducing a new concept of "the place of the child's usual residence", to which the summary order could return him or her. This begs the question, of course, as to how the place of a child's usual residence would be defined – would it be the child's house, or the town, or the county, or perhaps the local court area, for instance? But I will leave this complication to one side and set out the substance of counsel's point. Had this been an international case, the order (taking into account the substitution of usual residence for habitual residence) would, they submitted, have been for H to be returned forthwith to Kent pending a final welfare decision being made about him in the local courts there. In their submission, that is what should have happened here too.
16. Mr Hale and Mr Persson supported their main argument by advancing a number of reasons why it would be in the interests of the particular child, and of children generally, for summary return orders to be the response in domestic abductions. Amongst them were that:

i) neither parent should be entitled to make a substantial change in the child's life without the agreement of the other parent or permission from the court and it is important also to prevent one parent from stealing a march on the other by "a unilateral approach or flagrant breach of the rules";

ii) it is important to take into account the disruption caused to the child by an uncovenanted move and the profound impact that it has on the relationship between the left behind parent and the child;

iii) it would usually be in a child's best interests for the status quo to be restored whilst a decision is made as to the future;

iv) the courts should deprecate abductions and give a strong message to parents that return is the order of the day.

17. They emphasised also that even when it was within the jurisdiction, a move had the potential to interfere with the Article 8 rights of the parent left behind. Although I intend to deal in some detail with the other arguments advanced on the father's behalf, I do not intend to say more in relation to this point than that it was addressed in Re C, which explained how that consideration came into the balancing exercise designed to determine what was in the child's interests. As I will explain, in my view the same welfare exercise has to be done in a domestic abduction case so what was said in Re C is equally applicable in this context too.
18. For reasons which will by now be apparent, I do not accept the starting premise of the father's case, that is that Re C represents a sea change in the law which in some way dictates a new approach to cases where one parent unilaterally moves a child from their home to another place in England and Wales. Furthermore, I am equally unable to accept the argument built upon it, namely that there is or should be a general principle that summary return to the place where the child was formerly resident should follow upon such a move unless there are good welfare reasons why that should not happen.
19. I have already explained that Re C established that the child's welfare is the paramount consideration in internal relocation cases. So it is also in proceedings that result from a unilateral move of the type that took place here. Such proceedings will normally be Children Act proceedings. One or the other parent (or both) will be seeking an order under section 8 of the Children Act 1989. By virtue of section 1(1) and section 1(3) of that Act, it is by the application of the welfare principle and the use of the welfare checklist that the outcome is decided. These are the principles that Parliament has decided should determine the case. There is no room for supplementary principles or presumptions devised by the courts and there is a significant amount of jurisprudence which demonstrates that glosses and sub-tests can distract unhelpfully from the core principles and restrict the ability of the courts to respond flexibly and to achieve what is in the best interests of a child. It is one thing for a presumption or supplementary principle to be dictated in rules or statute (such as section 1(2A) of the Children Act 1989) and another for the courts to add to the law in this way.
20. To take an example from this area of family law, K v K (supra) and Re C were concerned with eradicating the "tests" that had grown from seeds sown in the form of guidance in the Payne v Payne line of authority (in relation to external relocation), and in the form of comment in Re E (Residence: Imposition of Conditions) [1997] EWCA Civ 3084 [1997] 2 FLR 638 (in relation to internal relocation). It would be ill-advised, in my view, to start devising new guidance in the present context which might, in due course, blossom into more "tests", "rules" or "principles".
21. Having firmly in mind the tendency of guidance and comment to flourish in this way, I should make it clear that nothing that I say in this judgment is intended to fix or circumscribe the approach of those who have to take decisions for children in situations such as that in which H finds himself. Everything depends upon the individual circumstances of the case. As Baker J observed during the hearing, the checklist in section 1(3) of the Children Act is neutrally drafted, without weighting of the various factors. What matters is for the judge to take a careful look at all the information available to him or her and then to fulfil his or her task of weighing all the relevant factors in the balance in determining what order will best serve the child's interests. Sometimes, the right order will be to return the child immediately to where he or she was living before his or her parent took him or her away, so that normal life can be speedily resumed whilst the future is sorted out. Sometimes, the right course will be to leave the child where he or she is until matters can be investigated further. Interim applications concerning children are often difficult applications for a judge to handle because, as Judge Heaton identified was the case here, the information available to the judge is limited. But a decision of some kind has to be made and the judge has to do the best that he or she can with what there is, if necessary making a series of interim orders whilst further material is collected to help in the decision making.
22. Quite apart from the danger of sowing the seeds of more unintended "tests", I do not think that the task of the judge would be likely to be assisted by this court endorsing a sophisticated list of considerations of the type proposed by counsel for the father or formulating, in the way invited by Mr Williams QC and Ms Renton for the intervenor, some "generalisations or non-binding presumptions as to what is likely to be in the child's best interests". In my view, matters are better left to the good sense and considerable experience of family judges around the country. Furthermore, I am not convinced that the proposed approach fits well with such authority as is available to assist us. Mr Hale and Mr Persson relied particularly upon Re J [2005]. I do not think that it takes them as far as they wish but it is certainly worth looking at because it seems to me that it is possibly the most illuminating of the available authorities.
23. In Re J [2005], the child had been living in Saudi Arabia with his parents before the mother brought him to England and then decided not to return him. The father sought an order summarily returning him to Saudi Arabia. By the time the case reached the House of Lords on appeal, a central issue was whether the principles of the 1980 Hague Convention applied to non-Hague Convention cases. The House of Lords decided that there was no warrant, either in statute or in authority, for 1980 Hague principles to be extended to countries which were not party to the Convention. What applies is section 1(1) of the Children Act (see paragraph 22 of Baroness Hale's speech). If a court decides to return a child, it is because that is in his best interests, not because the welfare principle has been superseded by some other consideration; the specialist rules and concepts of the Hague Convention are not to be applied by analogy in a non-Convention case (paragraph 25 ibid). In paragraph 26 (upon which counsel for the father place reliance), Baroness Hale said:

"26… the court does have power, in accordance with the welfare principle, to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits."

24. After citing from earlier authorities, she continued at paragraph 28:

"28. It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child."

25. Commencing at paragraph 29, she went on to consider how the judge should make the choice, stressing that the focus has to be on the individual child in the particular circumstances of the case. After rejecting the argument that there should be "a strong presumption" that it was "highly likely" to be in the best interests of a child to be returned to his country of habitual residence so that any issues could be decided by the courts there, Baroness Hale said this at paragraph 32:

"32. The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever."

26. I think one can draw the following propositions from Re J [2005]. First, 1980 Hague Convention principles have no place in non-Convention cases. Secondly, in the case of wrongful removals from one country to another, the welfare principle is determinative. Thirdly, it may well be in the best interests of a child to be summarily returned to his home country but this is not a presumption, still less a rule. Paragraph 32 of Baroness Hale's speech is, in fact, in qualified terms. At most, the judge "may find it convenient to" (not "must") start from "the proposition" (not "the rule" or "the principle") that it is "likely to be better" (not "will be better") to return the child to his home country and, she observes, "a case against his doing so has to be made". But, underlining, it seems to me, that this process does not dictate any particular outcome, she goes on to say that the weight to be given to the proposition will vary enormously from case to case.
27. If it were to be correct to align domestic abduction cases with international abduction cases, it seems to me that it is to Re J that one would have to turn for the applicable international principles. That authority leaves us, I think, in pretty much the same position in relation to domestic abductions as I have reached working from first principles. The 1980 Hague Convention has no application in domestic cases and we know from Re J that it should not be applied by analogy. Re J tells us that the governing principle in international non-Convention abduction cases is welfare. So it is in domestic abduction cases. Paragraph 32 of Re J gives some indication of the sort of considerations that may be material in international cases and it may obviously be of assistance in domestic cases too. I do not think it was intended to establish a presumption however, or any sort of rule of thumb, and it seems to me clear that the weight given to the various considerations must be tailored to the individual case. In short, in a domestic abduction case, as in a non-Convention international abduction case, the judge must derive the answer by applying section 1(1) of the Children Act to the particular facts of the case before him, having regard to all the relevant features, including the matters listed in section 1(3) (whether because the circumstances are within section 1(4) of the Act or otherwise by analogy). This is also, of course, the approach that must be taken to an internal or external relocation case. One could therefore reply to the legal question posed by counsel for the father in their skeleton argument (see paragraph 12 above) with the answer that, to this extent, the approach should be uniform. But, contrary to the balance of their submissions, which received some support from the intervenors as well, this does not, in my view, import any presumption or rule of thumb dictating summary return unless there are shown to be good reasons to the contrary.

b) The district judge's welfare decision

28. It follows from what I have just said that the district judge applied the correct principles in determining the applications before him, having made welfare his paramount consideration and had regard to the welfare checklist. The question that arises is therefore whether he took into account the correct factors and whether there is any substance in the father's criticism of his balancing exercise.
29. Although some time was taken up in argument with what was said to be the mother's failure to put the true picture before the district judge who made the first, without notice, prohibited steps order, the appeal was not against that order. I do not propose to deal with this aspect of matters at any length therefore. What I can say is that if it should transpire that the mother's presentation to the court was indeed misleading or incomplete, that should not have happened. The approach that has to be taken to without notice applications has been very clearly laid out recently by the President of the Family Division in Re A (child) [2016] EWCA Civ 572.
30. Turning to the arguments directed to the decision reached by District Judge Grey, much emphasis was placed upon the tactical advantage that it was submitted that the mother has been allowed to derive from her unilateral action. The father's submissions also addressed matters from H's perspective, however, the substance of the submission made on the father's behalf being, I think, that the child would benefit from both parents sharing his care and the court should promote this (as to which, see section 1(2)(A) of the Children Act 1989). It would be secured by H being returned to Kent during the currency of the proceedings and it was said that the district judge wrongly treated the allegations that the mother had made about the father and her alleged anxiety about returning to Kent as outweighing this benefit. In so doing, the argument went, he prejudged her allegations and ignored the father's proposals to address them, which were more than adequate. To these arguments, counsel added that it was vital for H to return to Kent so that his guardian could see him in the setting of his family home for the purposes of advising the court as to his future, and that if the mother would not return with him, he should be returned to live there in the care of the father.
31. I do not see any reason to differ from Judge Heaton's determination of this aspect of the appeal. The district judge had a delicate decision to make. It has not been established that he erred in his consideration of the factors that were relevant to it. He was entitled to take into account the mother's allegations, even though they were disputed by the father and, as was inevitable at this interim stage, they had not yet been adjudicated upon. He was entitled to conclude that moving back to Kent may have an adverse impact on the mother, and therefore on H; as Judge Heaton found, the father's proposals would not have addressed that. The relationship between father and son was not ignored in the district judge's decision; provision was made to preserve it by contact pending the final hearing. The guardian will be able to visit H's home in Kent for the purposes of her assessment. If she were able to see H in the Kent setting, that would no doubt be useful for her but I do not accept that it necessitated a return to live in Kent which would not otherwise be in his best interests.
32. Re J [2005] has something valuable to offer on how we should approach this welfare aspect of the appeal, as well as in relation to the legal arguments. At paragraph 12, Baroness Hale stressed that if there is a discretion to be exercised in which various factors are relevant, the evaluation and balancing of those factors is a matter for the trial judge, and she commented that too ready an interference with his decision by an appellate court risks robbing the trial judge of the discretion entrusted to him by law. That is an important warning and I see no justification in this case for interfering with District Judge Grey's decision.

Conclusion

33. So, for the reasons I have set out, I would dismiss the father's appeal. I do not want to leave the case without expressing particular gratitude to those counsel who appeared pro bono. Once again, as so often these days, their invaluable service enabled their clients to be well represented and assisted the court in arriving at a determination of the issues.

Lord Justice Floyd:

34. I agree.

Mr Justice Baker:

35. I also agree.