England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JONATHAN COHEN QC (sitting as a Judge of the High Court)
FD15P00571

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/12/2016

Lady Justice Black:

1. This appeal arises in the context of proceedings under the 1980 Hague Convention. By now, the proceedings have a regrettably long history to which I will refer further below. The present appeal is against an order made on 14 September 2016 by Mr Jonathan Cohen QC sitting as a Judge of the High Court. By his order, Mr Cohen QC set aside orders which had been made on 2 February 2016, by Mr Nicholas Francis QC (as he then was) sitting as a Judge of the High Court, for the return of three children to Hungary ("the February 2016 return orders").
2. At the conclusion of the appeal hearing, we informed the parties that the appeal was dismissed for reasons that would be provided in writing in due course. The purpose of this judgment is to set out my reasons for deciding that that was the appropriate result.
3. In setting aside the February 2016 return orders, Mr Cohen QC gave directions for the rehearing of the father's application for the return of the children. It was anticipated that this would take place on 10 and 11 November 2016 but, unfortunately, a final resolution of the matter on those dates became impossible. A case management hearing was, however, to be held on one of the days and we gave directions in an attempt to ensure that the judge responsible for that hearing would have all the material that might be required at it.

History

4. What follows is a brief history of central events in this case. More detail can be found from the decision of the Court of Appeal at an earlier stage of the case (Re F (Children) [2016] EWCA Civ 546) which can be found on www.bailii.org.
5. The children who are the subject of these proceedings are a girl, L, who is now 14 years old, her sister, F, who is 7, and their brother, G, who is 4. The parents and the children are Hungarian. The parents' marriage broke down and there were proceedings in the Hungarian court. In the summer of 2015, the mother came to this country with the children without the father's consent. The father brought proceedings under the 1980 Hague Convention. These commenced on 23 November 2015, coming on for final hearing on 2 February 2016. Mr Francis QC found that L and F both objected to returning to Hungary but exercised his discretion to return them nonetheless. They were to be returned by 19 February 2016.
6. The mother appealed against the February 2016 return orders, permission to appeal having been granted on 26 February 2016. L was also permitted to bring an appeal in her own right and was joined in the appeal proceedings as a party. The appeals were heard by the President of the Family Division and Arden LJ on 26 May 2016 and judgments were handed down on 9 June 2016 dismissing them (Re F (Children) [2016] EWCA Civ 546, see above). The court ordered that the children be returned to Hungary no later than 25 July 2016, the intention being that L would be able first to finish her term at school here.
7. The children did not return to Hungary by the due date. L had refused to return, locking herself in the bathroom. On 27 July 2016, an application was made by L for an order setting aside the February 2016 return order. This application was refused by Mostyn J on 1 August 2016. He rescheduled the children's return, which was now to take place no later than 25 August 2016. L's application to the Court of Appeal for permission to appeal against Mostyn J's order was refused.
8. Once again the children did not return to Hungary as ordered. It will be necessary to look in a little detail at the events which occurred at around this time, but in essence L was referred by her general practitioner to a child psychiatrist because of his concerns about her state of mind, concerns which were shared by CAMHS (the child and adolescent mental health services). On the evening of 25 August 2016, which was the last day for compliance with Mostyn J's order, she was under the care of the Accident and Emergency Department at a hospital in this country.
9. On 26 August 2016, the mother made a further application for the return orders to be set aside. The father sought a collection order by way of enforcement of the return orders, although ultimately he did not proceed with this, considering that he would be able to persuade the children to return without this sanction. The matter came before Newton J who set up a two day hearing for the purposes of determining the cross-applications. This was the hearing that took place in front of Mr Cohen QC and resulted in the order which was our concern in this appeal.

The hearing before Mr Cohen QC

10. At the outset of the hearing before Mr Cohen QC, L was joined as a party to the proceedings, the father very sensibly having conceded that that was appropriate. Oral evidence was not heard by the judge, who determined the matter on the documentation with the assistance of submissions.
11. The judge set out in §§10 and 11 of his judgment the approach he took to the law applicable to the application he had to decide, that is the application to set aside the return orders. He said:

"10. It is agreed that I have the power to revoke the order of Mr Francis if I find that there is a significant change of circumstances. The formulation has been agreed that it must be a change that makes it 'reasonably likely' that a different decision might have been made at the original hearing….

11. ...I have been referred to the words used by Mostyn J in TF v PJ [2015] 1 FLR 861 where he describes the change required as being 'significant' or 'a material change'. When he delivered judgment in this case on 1^st August 2016 he used the words 'very significant'. In my judgment the test is as set out in TF v PJ, namely a change of circumstances of such significance that the court might have been reasonably likely to come to a different conclusion."

12. Having directed himself that he was looking to see whether there was the requisite change of circumstances, the judge also considered the question of whether he should look to see if there had been a change of circumstances since Mr Francis QC made his orders in February 2016 or whether he should simply consider whether there had been a change of circumstances since Mostyn J refused the previous application to set aside the return orders in August 2016. He was in no doubt that he had to look at the whole period, going back to the original making of the orders in February 2016 but, he continued,

"obviously giving great weight to not only the original decision to return but also the refusal of Mostyn J to revoke the order, each decision having been upheld by the Court of Appeal. However, I accept the submission that there may be two changes of circumstances, one between February 2016 and 1^st August and the other being between 1^st August and today, which might each individually be insufficient to amount to a significant change but which cumulatively could amount to a significant change."

13. As the judge analysed it, the five changes which it was said were material to his determination were as follows:

i) The development of L's unwillingness to return to Hungary into a fixed determination that she will not return;

ii) L evidencing her determination by locking herself in the bathroom on 25 July and staying there for four hours so as to frustrate the return to Hungary;

iii) L's increased reluctance thereafter, to the extent of threats to her own life if made to return and the consequent involvement of medical services;

iv) The mother's decision that she could not abandon L in England if L refused to return to Hungary;

v) The intolerable position of the younger children if they had to return on their own, thus being separated from the mother and L.

Of these, the judge took the view that (i) and (ii) were "no more than a modest extension of what was in place in February" and the remaining three were new matters.

14. The judge accepted readily that F and G would be placed in an intolerable position if L did not have to return and stayed in England with the mother, whilst they had to return to Hungary without them. Accordingly, the focus of the judgment was upon the circumstances pertaining to L and whether there had been such a change as to lead to the setting aside of the return orders.
15. The judge prefaced his detailed consideration of L's circumstances by referring to the change in the family's life following the separation of the parents, which led to the children living in more straitened circumstances, life becoming, as the judge put it, "increasingly uncomfortable for them in Hungary." In contrast, they were now in a comfortable home in England, enjoying the education here, and with the mother working. All of this had been in evidence before Mr Francis QC. In Mr Cohen's view, the only additional point that emerged before Mostyn J was L's refusal to leave home on 25 July. Since then, however, there had been further difficulties, in particular of a medical nature. He set out quite a lot of the details in his judgment and I have drawn upon that in what follows, adding one or two extra points which emerge from the medical documents.
16. L had visited a general practitioner on 4 August. According to the general practitioner's medical notes of that consultation, L was complaining of a panic attack, saying she was scared, cries a lot and feels low. On 25 August, L was seen again by a general practitioner who referred her urgently to a consultant child psychiatrist at CAMHS. In the referral letter, the general practitioner set out that L was "very anxious and has been feeling very panicky with somatic symptoms of palpitations and vomiting". The letter said that L could not imagine getting on a plane and did not see how she would live in Hungary and that she was "tearful, despondent and has expressed thoughts of wanting to kill herself if she is sent to Hungary." The general practitioner said she was "very concerned about her mental safety", given that she understood L was imminently being compelled to return. She (the doctor) was asking for "an urgent assessment to ensure that it is safe for her to return to Hungary." From the documents in the appeal bundle, it can be seen that, as well as referring L to CAMHS, the general practitioner also wrote to L's solicitor to express concern about her "mental safety".
17. L was seen at the hospital that day, her presenting complaint being said to be "suicidal ideation". The hospital note, quoted quite fully by the judge, includes the following:

"Having suicidal thoughts. No current plans but says if she returns to Hungary she will end her life. Feeling panicky and feels throat is tight when she thinks about returning to Hungary."

Following the heading "MSE", which I have taken to denote "mental state examination", the hospital record says:

"Suicidal ideation expressed but no current plan."

18. It seems from the note that a discussion was held, by the member of the medical team who had examined L, with a consultant psychiatrist who said that L was to stay at the hospital. From another medical note, it seems that she was discharged later, at 23.15 hours.
19. A CAMHS appointment took place on 6 September and the judge quoted extensively from the report of it written to the general practitioner. I need not set out all the details here. The picture was of a young woman complaining that the impact of the court case was to make her worry constantly and feel sad, describing regular nightmares, and describing symptoms of anxiety attacks. She is said to have explained that she would never hurt herself but also (paradoxically it seemed to the judge) under the heading "Suicidal thoughts", it was recorded that L had explained that she would not want to end her life, but thinking about being forced to go back to Hungary, she thought about "jumping out of the window or off a building". The conclusion of the report was that her mental health was "being negatively affected" by the case and that she "does not have suicidal thoughts led by clinical depression however there is significant concern that L's intense fear of returning to Hungary and her desperation may lead her to take actions to end her life". The extent of the concern of the clinical nurse specialist who wrote the report is, perhaps, demonstrated by her concluding words which were as follows:

"Due to considerable risk concerns I will continue to see L at CAMHS until [specialist counselling] can start."

20. The judge's resumé of the medical evidence was followed by a careful consideration of the various factors that were relevant to his decision. They included:

i) The protracted nature of the case;

ii) The decisions already taken by first instance judges and the Court of Appeal;

iii) The fact that the whole family is Hungarian and there are proceedings about the children on foot in Hungary;

iv) The rarity of orders such as that he was being asked to make;

v) The father's view that he could easily manage the return of all of the children without the coercive assistance of the court, a view which L did not share;

vi) The need to exercise caution about what L had said, bearing in mind that at times her reactions appeared to be based on what was "probably a false belief that she will be made to live with her father" albeit that the father had accepted that he would not, in the short term, attempt to implement his rights under the Hungarian court order granting him custody (§30 of the judgment), and bearing in mind that there was "every opportunity for L to make self-serving comments to achieve her desired outcome".

21. The judge then set out his conclusion that the change of circumstances was so significant that he thought it reasonably likely that the court in February 2016 would have reached a different view, had the material been before it then. First, and it seems to me foremost, of the matters that led him to this conclusion was his important finding that he was satisfied that the medical material accurately reflected what L had said and genuinely felt at the time and his unwillingness to "categorise L's reaction and behaviour as simply 'more of the same'." This led to his setting aside the return order in relation to L. The orders in relation to the other children were treated in the same way. The judge considered that the mother's unwillingness to return to Hungary without L was understandable and not inappropriate and took the view that it would be intolerable for the younger children to return to Hungary in those circumstances. Mr Cohen was careful to stress that he went only so far as was necessary to determine the application before him and that it would be for the judge who heard the father's return application afresh to make his own determination. At the judge's suggestion, it was decided that there should be a referral to a consultant child psychiatrist who would provide an independent report on L's state of mind, as a single joint expert, for the new hearing.

The ambit of the appeal

22. Mr Gupta QC represented the father in front of Mr Cohen QC and, with Ms Chaudry, also represented the father on the appeal. He did not criticise the judge's formulation of the approach he should take in law. The father's appeal was directed at the judge's application of the law to the facts of this case. However, having said that, Mr Gupta did request us to deal in our judgments with the law concerning applications to set aside return orders made under the 1980 Hague Convention because, he said, guidance was required on the subject.
23. I will return to the law shortly, but will deal with the substance of the appeal first. Mr Gupta argued that the judge did not attach sufficient weight to a number of factors. Prominent amongst them, understandably, was the policy of the 1980 Hague Convention. Mr Gupta also submitted that insufficient weight was placed upon the various decisions that had been made by judges earlier in the proceedings and upon the fact that the point had not yet been reached when everything had been tried to achieve the return that had been ordered. In this latter respect, he submitted in particular that the father's view that he could get all the children to return voluntarily should have been tested out before setting aside the orders, especially as the father had been having good contact with the children during the proceedings. In contrast, too much weight was placed, Mr Gupta submitted, on the medical documentation, L's condition being in fact merely an extension of what had already been considered earlier in the proceedings and not sufficient to justify the order made. Furthermore, it was argued, the judge had been wrong to find that the separation of the siblings in this case would come within Article 13(b) of the 1980 Hague Convention.
24. Mr Gupta's submissions did not persuade me that the judge's application of the agreed law to the facts of this case was in any way flawed. It seems to me that the judge carried out a careful review of the relevant factors and that he was entitled to weigh them up as he did in making his decision. Earlier, I listed specifically a number of the matters that featured in his consideration because it seemed to me that they demonstrate that he took into account all that should have been taken into account. What tipped the balance was the evidence as to L's mental state. The documentary evidence about this revealed the serious concern that medical/nursing professionals had about her. It comes over clearly from the reports that they were not dismissing L's comments about ending her life as hyperbole and were sufficiently concerned to ensure that she got urgent professional help. The judge was appropriately cautious in evaluating what L had said, recognising that at times she appeared to be under the impression that she would be returning to live with the father (whereas that was not his case, at least in the short term) and recognising also that what she said could be self-serving. However, he was entitled, ultimately, to take the view that the reports reflected what L genuinely felt at the time and also to take the view that this was not simply more of the same sort of thing as had been seen at earlier stages in the proceedings. In the circumstances, given the gravity of the consequences that might come to L if she were to be forced to return, there is nothing surprising or obviously wrong in the judge's conclusion that, expressed in terms of the test he set himself, there had been "a significant change that might reasonably lead to a change in the order made for her return".
25. One is left in no doubt from the judge's judgment that he was well aware, as he had to be, of the context for his decision, that is summary proceedings for the rapid return of a child to their country of habitual residence where, in this case, proceedings were already on foot in the local courts. Furthermore, he was conscious that the order he was being asked to make was one which, as he put it, "is rarely invoked". Mr Gupta was, of course, correct to stress the purpose and policy of the 1980 Hague Convention, but there are some rare cases in which the court has to divert from the normal process and the judge was entitled to take the view that this was one of them.

The law

26. It was conceded by the father before Mr Cohen QC that, in an appropriate case, the High Court can set aside a return order made under the 1980 Hague Convention and Mr Gupta QC did not seek to argue otherwise on appeal. Had he sought to do so, he would, of course, have had to surmount the obstacles which stand in the way of those who seek to raise a new point only on appeal (see, for example, the notes at 52.8.2 of the White Book). As it was the case of both the mother and L that the judge had power to make the order that he did, we therefore received no submissions questioning that proposition. An argument to the contrary was mounted in Re H (child) [2016] EWCA Civ 988 (see §§9-11) but, for the reasons set out in §§12 – 14 of Re H, it was unnecessary to rule upon it, the order in that case being a wardship order which could be varied by the first instance court if the child's welfare so required.
27. In the absence of comprehensive submissions, I would be reluctant to make definitive pronouncements upon the subject of the existence, and, if it exists, the nature, of the High Court's power to set aside 1980 Hague Convention return orders. The one reported example of the exercise of such a power is the decision of Mostyn J which was cited by Mr Cohen QC in this case, namely TF v PJ [2014] EWHC 1780 Fam, reported as Re F (A Child)(Return Order: Power to Revoke) [2015] 1 WLR 4375, where Mostyn J relied upon Rule 4.1(6) of the Family Procedure Rules 2010. However, although I am not prepared to hazard a view as to whether the power actually does exist, I do acknowledge that TF v PJ and the instant case show that it is plainly desirable that there should be such a power in the High Court, albeit that it can be anticipated that it would rarely be used. If an application to set aside an order made under the 1980 Hague Convention could only be made to the Court of Appeal, this would have considerable practical disadvantages which would be likely to work against the interests of the children whose welfare should be served by the Convention. The Court of Appeal is not well suited to hearings of the type that would be required as, for example, Thorpe LJ explained in the case of Walley v Walley [2005] EWCA Civ 910 at §14. Although every effort is made to accommodate Hague cases speedily in the Court of Appeal, any application would have to take its turn in an already very over-charged list. It would require determination by two or three judges rather than one. The only appeal route from the Court of Appeal's decision would be to the Supreme Court. And it would, furthermore, not be feasible for the same judges to deal with the application to set aside and any resulting re-hearing of the original return application.

More general points

28. I said at the outset of this judgment that this case has had a regrettably long history. A number of factors have contributed to this and it will not assist to rake over them here. One never knows for sure what might have changed the course of events, but I think it is fair to say that delay in resolving proceedings under the 1980 Hague Convention never assists the situation of the family concerned. The Convention itself requires that the "judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children" (Article 11); a statement of the reasons for the delay may be sought if a decision has not been reached within six weeks from the date of commencement of proceedings. Article 11(3) of Brussels IIA requires that "the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged." Other countries have adopted innovative procedures in an attempt to achieve these targets. Addressing the problem of delay in this country is challenging, in view of the large numbers of Hague Convention applications filed in our courts and the lack of readily available resources. However, we need to do everything possible to process these applications urgently. The disruption caused by a wrongful removal and an imposed return to the country of habitual residence is minimised if the whole episode is concluded within a matter of weeks. If more time goes by, life in the new country may start to seem to the children like their established pattern of existence, battle lines may become firmly entrenched with the other parent, and the scope for damage is infinitely greater.

Lord Justice McFarlane:

29. I agree.

President of the Family division:

30. I also agree.