England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		14 October 2005

1. This case concerns the future of a girl, to whom I shall refer as S, who was born on 28 May 1994, and who is now 11½ years old.
2. In his judgment dated 12 December 2003 (Re C (Abduction: Interim Directions: Accommodation By Local Authority) [2003] EWHC 3065, (Fam) [2004] 1 FLR 653) Singer J set out the bare facts of this case as follows:

[3] The factual background which gives rise to the issue can be simply stated. The American father and the Irish mother married in California in 1994. Their only child, S, was born in the same year and is now 9. Until December 1998 the family home was in California, but in that month the mother kept S in Ireland after the end of an agreed holiday there. The father instituted Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention) proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It was envisaged that mother and child would both arrive there in time for a hearing before the California courts later that month, but the mother did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in the father's favour. What had apparently happened was that shortly after her and the child's return to the USA the mother re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than 4 years later. Prior to the first hearing before me on 17 October, S had been removed from her mother on 15 October and placed in foster care provided through the LA pursuant to a police protection order.

3. In his second judgment of 28 May 2004 (Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam) [2005] 1 FLR 127) the same judge made these further observations:

[3]   For the factual background I need do no more for present purposes than to repeat what appears at para [3] of the earlier judgment. The American father and the Irish mother (to whom I shall refer as F and M) married in California in 1994. Their only child, S, was born in the same year and is 10 today. Until December 1998 the family home was in California, but in that month M kept S in Ireland after the end of an agreed holiday there. F instituted Hague Convention proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It was envisaged that M and the child would both arrive there in time for a hearing before the California courts later that month, but M did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in F's favour. What had apparently happened was that shortly after she and the child returned to the USA M re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than 4 years later. Just before the first hearing before me on 17 October 2003 S had on 15 October 2003 been removed from M and placed pursuant to a police protection order in foster care provided through the good offices of the relevant local authority.

[4]   To bring the history up to date, S was reunited with M on 31 October 2003 subject to a variety of conditions, including the tagging order which (at the suggestion of M) I had made, and with which the earlier judgment also deals. M and S were seen by a Children and Family Court Advisory and Support Service (CAFCASS) officer at their home on 19 November 2003 pursuant to a direction I had made for a report to be prepared dealing, in particular, with S's maturity and any objections to her return to the USA within the terms and meaning of Art 13 of the Hague Convention, and the officer's observations concerning her degree of settlement in relation to Art 12. The CAFCASS officer arranged for contact to take place, observed and supervised by her, on 24 November 2003. That contact seemed to go encouragingly well. Sadly the same cannot be said of the next attempt at direct contact which took place on 20 December, when M was to be present throughout. Whatever the reasons for whatever took place (and both are highly contentious) this was in the result a disaster, although (once it becomes clearer to the parties whether or not S is to return to the USA) a setback which may hopefully be surmountable. There has only been indirect contact since then. No clear picture emerges, on the written evidence before me, to establish the true reasons for or the extent of the child's distress arising from that incident

…

[6]   There is no dispute but that in July 1999, for the second time, S was wrongfully removed by M from the USA, the country of the child's habitual residence, in breach of the rights of custody of F, and that her whereabouts from then until October 2003 were deliberately concealed from F. The concealment involved assuming new identities for both M and S which included, in the case of the child, elaborate and planned arrangements for her to take over the birth date as well as the name of a child who had died. In terms, therefore, of the degree of parental determination displayed to follow through the abduction and to sever the child's relationship with her father, this case is at the extreme end of the range

4. These bare facts do not do justice to the endeavours of the father ("F") to locate his missing daughter. He lobbied the press and politicians both in California and Ireland. He set up a web-site about S. The details found their way onto many other web-sites about missing children. His campaign became a cause celèbre such that in September 2002 the California State Legislature passed a Bill providing for measures which:

would require a court, in cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, to consider specified factors in determining the risk of abduction of the child and to determine whether conditions are needed to prevent the abduction of the child. The bill would require the court to consider imposing specified conditions to prevent the abduction of the child .

(citation from the State Legislative Digest)

5. This statute is named the Synclair-Cannon Child Abduction Prevention Act of 2002 in honour of F and another father whose child was abducted to Russia.
6. As I have mentioned, in pursuit of the search for his daughter F substantially involved the Irish Press, and they have been keenly interested in this story ever since. The story has sensational aspects, for as Singer J mentioned, the means by which the mother ("M") changed the identity of S was the same as that described in the well-known novel The Day of the Jackal namely to use the name and birth-date of a dead child taken from a tombstone in an Irish cemetery. M obtained a copy of the dead child's birth certificate and then imposed that identity on S. For these purposes she had to tell S that she was now going to be known by a new name and that her birthday would be altered. At the same time M changed her name by Deed Poll so that her surname coincided with that of the dead child.
7. F's discovery of S in October 2003 was a direct result of his involvement of the Irish Press. According to his web-site:

October 12, 2003, Governor Gray Davis of California and Actor Pierce Brosnan congratulate Josef on the one year anniversary of the "Synclair-Cannon Child Abduction Act of 2002" during a bill signing for Enviromental education at the Santa Monica Pier.

This event was reported in the Irish press and a member of the public reading an Irish newspaper in Scotland recognised the photograph of S as a class-mate of her son in Liverpool. This person contacted the Irish press and as a result S was located.

8. It has to be said that since the discovery of S the gross deceits and subterfuges of M have been revealed and exposed in the Irish press and that the dead child's mother has been caused considerable distress. I have read a statement from her in which her anguish is palpable.
9. M's case is that throughout the period of successful concealment she never denigrated F but simply told S that he was away working in the USA or Canada. I am unconvinced by this. There was no satisfactory explanation given to me about what she must have said to S to justify the dramatic steps that were taken to alter her identity. It seems to me that S must have been told that it was being done to prevent her father from discovering her whereabouts. I have reached the conclusion that to a greater or lesser extent, either expressly or tacitly, F must have been demonised in the mind of S by M.
10. Equally unsatisfactory have been the explanations expressed in the statements about why M abducted S. It is clear that she and S travelled to Ireland initially on return tickets with F's consent. Why she did not return is a matter of controversy but the fact is that upon proceedings being commenced under the Hague Convention M consented to return and an order recording such consent was made by McGuinness J on 18 July 1999. M and S did return to California but a few days later M re-absconded. The reason given to me was that M could not afford the lawyer's fees quoted to her for the purposes of the custody proceedings that had been initiated by F. That seems to me to be no justification at all for then disappearing off the face of the earth and depriving F of the society of his daughter; and, equally importantly, depriving S of one of the two most vital relationships in her life.
11. Following the disappearance of M and S, F obtained an order for custody of his daughter in California on 19 Oct 1999. I am also told that a warrant for the arrest of M was issued alleging felonious kidnapping, although the evidence about this is somewhat murky and I remain unsatisfied whether this actually happened. I shall proceed on the basis that it did.
12. A further development of significance was the conviction of F on 2 June 2000 on charges of cruelty towards the two children of his then partner for which he was sentenced to 270 days imprisonment. F adamantly maintains that this was an unjust conviction. He was offered a plea bargain whereby he would plead "no contest" to the charges in exchange for which he would suffer only a minor penalty. He adamantly refused this and the jury convicted him. His subsequent attempt to annul the conviction on the ground of the withholding by the police of evidence that would have exculpated him failed. It appears from documentary evidence that Judge Doyle, who presided over the trial, was doubtful about the safety of the conviction since he was instrumental in obtaining work for F thereafter in a school (where by all accounts H performed admirably). It is fair to say that neither M nor the Guardian in this case have relied on this conviction at all in justification of a limitation on F's contact to S.
13. I have severely criticised M for her heartlessness in doing what she did both to F and S. There is no justification for it whatsoever. That said, it is plain that during the period of concealment M has bought up S to be a dutiful, respectful, indeed model, child. She has performed excellently at school and is a devout member of the local Roman Catholic community. She made her First Holy Communion at the parish church two years ago and has recently moved from the Catholic primary school to the secondary school. F is also Catholic and it is painful for me to observe that he has been deprived of the opportunity of participating in his daughter's religious upbringing or in any of the important milestones of that faith.
14. S has developed an important societal network during the period of concealment, and that has deepened and widened during the two years that it has taken for this matter to come to final determination since the discovery.
15. I now turn to the events that followed the discovery in October 2003. F immediately initiated proceedings under the Hague Convention. M countered with an application for a residence order. The difficulty standing in F's way were the terms of Art 12 which provide

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment … 

16. Unfortunately these parents found themselves enmeshed in an extremely elaborate legal dispute as to the meaning of the exception mentioned in the second paragraph. The legal questions were, first, whether the notion of "settlement" encompassed in addition to physical settlement an emotional and psychological component; and second, whether, in the event that the court found settlement to be established, whether there was retained by the court within those proceedings a residual discretion to order a return. These issues had given rise to a host of often contradictory jurisprudence from jurisdictions all over the planet. Those questions were answered by Singer J on 28 May 2004, in an immensely learned judgment, respectively no and no. By this stage seven months had passed since the discovery. Singer J wished to give directions for a speedy resolution of issues of residence and contact but they were side-lined by F's decision to appeal. The Court of Appeal allowed the appeal on 19 Oct 04 (Cannon v Cannon [2004] EWCA Civ 1330 [2005] 1 FLR 169) answering the questions yes and yes and remitted the matter for a rehearing. On 3 November 2004 Kirkwood J held that S was "settled" here (in both senses of the word) and that he would not exercise his discretion to return. He gave directions for the questions of residence and contact to be tried, thereby returning the case to exactly the position it was in May 2004 when Singer J gave his judgment. Unfortunately the 4 day fixture scheduled for June 2005 was aborted for reasons nothing to do with the parties and so it has taken almost a whole year since the decision of Kirkwood J for the matter to be determined.
17. I have to say that while I entirely understand F's decision to invoke the Hague Convention and to seek to have S returned to California for determination there of issues of residence/custody and contact/access/visitation, it was a decision that was at the time misconceived and with hindsight regrettable. I say this recognising and agreeing with the comment of Singer J in his second judgment:

[7] … I simply acknowledge that, as between these adults, M has seriously wronged F by what she has done. If the issues were simply adult issues then it would be easy, and reasonable, to adopt the standpoint that it would be morally objectionable to permit her to derive benefit or advantage from that course of conduct. 

But these are not adult issues. The issues are first and foremost child issues. And I have to determine them by reference to s1 Children Act 1989 which makes the child's interests the paramount consideration and which specifically requires me, among other things, to have regard to the child's wishes and feelings.

18. It is clear to me (at least) that notwithstanding the grievous wrong done to F; notwithstanding the deceit and subterfuge perpetrated by M; and notwithstanding the existence of the Californian custody order, that it was in October 2003 or at any time thereafter inconceivable that any English court would have returned S to California for a custody trial there. It is equally improbable, that in proceedings here the court would have summarily transferred residence, after such a lengthy period of separation between father and daughter. It simply would have been in each instance directly contrary to S's interests and in defiance of her wishes. What was required was a full inquiry, on oral evidence, of the parties' respective applications for residence (and in F's case for contact). This I have endeavoured to undertake.
19. I recognise that all manner of moral and philosophical objections can be raised to this view. No doubt F, and his many supporters in California and Ireland, would say that in taking this view I am rewarding the worst kind of turpitude and encouraging a kidnapper's charter which says that if someone can successfully abduct a child for a sufficiently long period of time then that person will get away with it. But these views have to be subordinated to the child's best interests and in my view it would be a breach of the judicial duty to sacrifice a child's best interests in order to prove a point of principle.
20. It is a pity that F did not recognise this obvious reality from the start and instead of pursuing what I believe to have been futile Convention proceedings had instead invoked the court's assistance in effecting a full and meaningful reunion between him and his daughter.
21. In this regard I now refer to an aspect of the case which I regard of considerable importance. I have mentioned that this case falls to be decided by reference to s1 Children Act 1989. But there is more to it than that. Since the enactment of the Human Rights Act 1998 there exists what Horowitz, Kingscote and Nicholls have described in their book "The Human Rights Act 1998: A Special Bulletin for Family Lawyers" a "parallel system of law put at their clients' disposal by the Act".
22. By s1 of the 1998 Act the European Convention on Human Rights is implemented into our domestic law. By s3 I must read and give effect to legislation in a way that is compatible with convention rights. And by s6, as a public authority, it is unlawful for me to act in a way which is incompatible with Convention rights. The Convention right that is relevant for the purposes of this case is Art 8 which provides

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

23. In his illuminating article "The right to respect for family life: obligations of the state in private law children cases" [2005] Fam Law 124 Charles Prest explains clearly what the Strasbourg jurisprudence dictates in a case such as this. First there is the existence of the procedural right inherent in the decision making process which is that (a) the parties must be "sufficiently involved" in the decision making process and (b) the voice of the child must be clearly heard (but not necessarily directly by the court). Second, there is the express substantive right which so far as the facts of this case are concerned means taking "all necessary steps to facilitate reunion as can be reasonably demanded in the special circumstances of this case".
24. It is clear to me that if F had focussed on the outset on his right to demand a facilitation of the reunion between him and S, and in particular that meaningful unsupervised substantial contact should be initiated at the earliest possible opportunity, then he would not have lost a further two years of participation in his daughter's life.
25. The history of the contact regime that arose after the discovery is a depressing one. M's stance from the outset, indeed even at the commencement of the trial before me, was that contact should be supervised. In this she has been supported by the Guardian and the Court (by virtue of its interim orders made over the last two years), although in fairness to the Court almost all of the orders have been by consent. The reasons advanced have been that F would not behave appropriately by voicing his grievances to S. In reliance on this M points to what she considers to have been inappropriate outbursts by F in the Irish press, and intemperately expressed emails to S, which she says have emotionally upset her.
26. I have to say that it strikes me as slightly surprising that very much credence should have been paid to M's stance, even allowing for the fact that F has at times said and done things which judged by standards of English reserve one might regard as unwise. After all this was a woman who did all that she could to sever permanently the relationship between father and daughter. It was hardly likely that she would, following the discovery, undergo a Pauline conversion and embrace the idea of full contact unreservedly. While I acquit her of doing anything positively antipathetic to contact I do consider her to have been instinctively opposed to full contact and this instinct has, I believe, been recognised by S.
27. In such circumstances F has had only 12 occasions of supervised contact over the last two years. The sessions have been for about two hours. In his evidence F described to me how excruciating these have been, how is made to feel like a leper or convict, when he is the person who has been wronged. And it clear that S has not enjoyed them either. F has been given no opportunity to develop any kind of normal parental relationship with his daughter. His opportunity to do so has been stymied while the litigation has ground on.
28. On the facts of this case it is clear to me that supervised contact would only have been appropriate if there was the clearest and most compelling evidence that in some way S's best interests would be jeopardised by unsupervised, normal, contact. Given the terms of the Strasbourg jurisprudence to which I have referred it is almost as if there is a presumption in favour of normal contact and it is for those who say it is inappropriate to prove by clear evidence why this is so.
29. F is an articulate, flamboyant, American. He has cautioned me not to judge his brashness and tendency to impulsive actions by reserved English standards. I do not do so. But I do consider that his involvement of the Irish press since the discovery when the matter was under continued consideration by this court was unwise. He may feel wronged but it is hardly likely to help his cause if he turns his grievances into a crusade. I consider his recent appearance on an Irish television chat-show, when he stated that S had told him that she had been told that he was dead to be an example where he has crossed the boundary from legitimate rhetoric into untruthfulness, and this untruthfulness was, I am sorry to say, aggravated by his explanation in the witness box. He made other untrue statements in the interview. His comments about his perception if the failings of the English family justice system and his membership of fathers4justice (in which he was heavily encouraged by the interviewer) were within his perfect right to state (even if I happen not to agree with him), but I wonder if he had S's best interests in the forefront of his mind when he uttered them.
30. Another action of F that was certainly unhelpful was for him to telephone, during the hearing that took place on 20 June 2005, the family of the dead child to inform them that M was intending to visit their town in Ireland in order to attend the christening of her nephew. F's explanation in the witness box was completely implausible. It seems clear to me that this was a piece of mischief-making by him that was uncalled for.
31. I regard the complaints about the recent emails sent to S as utterly trivial and I propose to say no more about them. It is a sad fact that as a result of the row about these emails F has not had any contact of any nature with S for over two months.
32. But even allowing for some criticism of F's actions, who can really blame him? After all here was this extremely wronged father being treated (as he saw it) like a leper and being required to be subjected to supervised contact. It is quite understandable that he should react against this and so a vicious circle develops. I do consider that the Guardian has been overly cautious in recommending supervised contact right up to the commencement of this case. I completely acquit her of the allegations of bias that F levelled against her, and in fairness to F he has withdrawn that allegation from the witness box.
33. In her most recent report the Guardian recommended a continuance of supervised contact. Unsurprisingly M supported this. F's stance was that he wanted a residence order and leave to remove S to California, but did not want these orders to be effected until the conclusion of the current academic year and in the meantime was content that S should continue to live at home with M. In the meantime he wanted unsupervised contact on a progressively enlarging basis, but he was not seeking over-night contact at this stage.
34. In her most recent report the Guardian stated "S told me she did not want further contact". I was surprised to read this since the report from the NYAS staff of the last incident of supervised contact on 3 August 2005 was that it was successful. When I read this I wondered if this was a reflection of her true views or whether it was a loyal expression of what she thought her mother wanted.
35. When the case started I indicated that I regarded F's residence application as likely to fail and that I would need a good deal of persuasion not to order unsupervised contact. I asked F to set out in writing precisely what were his contact proposals and these were for fortnightly week-end contact and for 4 consecutive days over the Christmas holiday (but not overnight). I then asked the Guardian if this proposal could be communicated to S and for her to write me a letter setting out her views. I specifically insisted that M should not speak to S on the telephone before she wrote to me (M has been staying near London for the duration of the trial). In parallel I asked F to write a placatory letter to S to clear up the email brouhaha.
36. S's letter to me was at complete variance to what she was purporting to express through the Guardian's report. She wrote

Dear Judge (Mr or Miss)

I would just like to say that the contacts my father has made are pretty reasonable ideas.

I would just like to say that (sorry if I am going off the point) what is it like being a judge? Is it hard or easy?

I would also like to say that I hope that every (sic) will be over soon because it has been going on for 2 tiring years from a Tuesday in year 5 to a Friday in year 7. I felt ridiculous when I had to leave my OWN Halloween party just to sign up at a police station. I looked stupid in my grim reaper outfit. Also in year 5, Tuesday's was a footy club and I usually missed have (sic) the lesson because I had to sign up!!!

Well, at least everything is nearly over. Please think before you say. And remember, deep inside my heart you are putting a girl's happiness at risk.

Yours sincerely

S xxx

37. This letter speaks for itself and shows a wisdom beyond S's years. The reference to her happiness is explained by the content of a telephone conversation that the Guardian had with S that same evening. In it S expressed her concern that her residence was under active consideration and wanted to be assured that contact was in fact the only issue.
38. It is perfectly clear to me that S does not want her residence to be changed and that she wants to have a normal unsupervised contact relationship with her father. F accepted in his evidence that were S to write me a further letter she would unquestionably state that she wanted to continue living at her home with M. At 11½ her views are deserving of very great weight. After all in year's time (when F wants to remove her to live with him in California) she will be arguably Gillick competent. It is obvious that she has the necessary maturity to have an almost decisive voice as to where she should live both at that point, and, I believe, now.
39. I give full weight to her views as I am required to do by the terms of s1 of the 1989 Act and the Strasbourg jurisprudence. Fortunately all parties had by the time the evidence reached its conclusion reached common ground. It was broadly agreed at the conclusion of the oral evidence on Thursday 13 October 2005 that (among other things that I need not mention):

39.1. There will be a residence order in favour of M.

39.2. There will be an unsupervised contact order as per F's proposals. This will run until 30 January 2005 when I will reconsider it with a view to progressing to overnight contact

39.3. Both F and M will give an assurance that they will not talk about this case with S

39.4. F will not speak to the press, either here or overseas, about this case

39.5. F will do what he can to get the warrant in the USA dismissed and will discontinue his extant custody proceedings in California (which he has recently reignited)

39.6. F will do what he can to remove S's photographs from internet web-sites

Unfortunately on the morning of Friday 14 October 2005, when I was expecting to receive Counsel's speeches, I was informed that F had changed his position and that he now wished to pursue his application for an immediate residence order and an order that he be given leave to remove S to the USA in precisely two days' time. He re-entered the witness box to give me reasons for this volte-face. I have to confess that I failed fully to understand them. Essentially he says that he believes that the expression of wishes by S that she wishes to remain living at her home with M are not genuine (while at the same time stating that her wishes to have unsupervised contact with him are genuine). The proposal is obviously untenable and I believe that in his heart he knows that. It is a pity that he should have undermined his reasonable and measured approach of the previous day. I have concluded that this was an incident of emotion overwhelming reason when by and large the latter has been F's dominant faculty. It was a piece of soap-box oratory. I very much hope that F will try to exercise more self-control particularly when he enjoying unsupervised contact with S. I think F is bound up in the drama of this case. I sincerely hope that following the delivery of this judgment there will be closure and that both parents can now calmly focus on facilitating the major role that F should play in S's life. After all, he has so much to offer her.

40. There is a technical issue as to whether F's residence and leave to remove applications should be adjourned or dismissed. I have no doubt that they should be dismissed in order to bring about the finality and closure that S so obviously wants. In addition to this I shall make the orders referred to in Paragraph 39.1 – 39.6 above.
41. There will be a problem in allowing contact to F in the USA for as long as the existing custody order and warrant are in existence. I have full jurisdiction to deal with this matter by virtue of S's habitual residence here (s2 and 3 Family Law Act 1986). That she was unlawfully abducted here does not affect the proposition once the 12 month period has passed and a finding of settlement has been made under Article 12(2). Unlawful presence in the jurisdiction does not prevent the establishment of habitual residence (Mark v Mark [2005] UKHL 42). The habitual residence of the child is the basis for jurisdiction to be found in the Hague Convention for the Protection of Children 1996. I would hope that once the Californian court and criminal prosecutors have read this judgment they would take whatever steps are necessary to discontinue the custody proceedings and to discharge the warrant.
42. I specifically direct and order that notwithstanding that this case has been referred to by name in the Court of Appeal, and that S has been named and her photograph has appeared both in the Irish press and on the internet, nothing shall be published that has the effect of identifying S, where she lives or where she goes to school.
43. There are a lot of lessons to be learned from this case. Among them is the importance of recognising the vital role of the press in seeking to identify and locate abducted children. For that we must be very grateful. Another is the importance of recognising, when a child has been located after a prolonged disappearance, that it may be futile to seek to wrench her out of her rooted environment. Of course, all cases will turn on their own facts and generalisations are dangerous. But it seems to me that the first step should always to seek to achieve the most expeditious re-establishment of a meaningful relationship between the child and the wronged left-behind parent.