England and Wales High Court (Family Division) Decisions

IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF D (A CHILD) (TEMPORARY RELOCATION)

		Royal Courts of Justice
		23 May 2018

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MR JUSTICE BAKER:

1. By a notice of appeal dated 7 February 2018, the appellant sought permission to appeal against an order made by His Honour Judge Lancaster sitting in the Family Court in Carlisle in proceedings under the Children Act, 1989 in respect of a child of the parties hereafter referred to as "D", a boy, born 7 July 2012, so therefore now aged rising six.
2. The application for permission to appeal was considered on paper by Williams J who refused permission to appeal on one issue but listed the application for the other issue for hearing with the appeal to follow immediately if permission to appeal was granted. That hearing is taking place before me this morning. At the conclusion of the hearing I reserved judgment until this afternoon.
3. In simple terms, the issue arising in this matter is whether the respondent mother should be prohibited from removing D temporarily for a holiday in Japan which is her country of origin. The hearing before Judge Lancaster was principally concerned with an application by the mother to remove D from the jurisdiction permanently to live in Japan. That application was refused but the judge then went on to lift a pre-existing prohibited steps order, preventing the mother from removing D from the jurisdiction. By doing so, he therefore enables her to remove D from the jurisdiction temporarily in accordance with the principles in s.13 of the Children Act, 1989.
4. The history is set out in full in Judge Lancaster's judgment and can be summarised briefly as follows.
5. Until the mother came to this country in 2007, she had lived throughout her life in Japan. Thereafter, she visited for several years in a row. In 2008 she met the appellant and a relationship started between them. She came back to this country for a college course in 2010, returning thereafter to Japan for a period of three months but applying for a further visa to return here from January 2011. That visa was refused and she next returned on a tourist visa. At that point, she was apparently detained at the airport but the appellant assisted her and in due course proposed marriage, thereby enabling her to apply for a spousal visa.
6. After she returned to Japan, the appellant travelled out to that country and they were married there on 22 February 2011. Thereafter, the mother was entitled to return to this country as the appellant's spouse.
7. It is clear that at the start of the marriage the parties were very happy and, not longer afterwards, the mother became pregnant and D was duly born in July 2012. Thereafter, there were several further trips to Japan, initially involving the mother, father and D all together but, after 2014, the mother and D travelled there without the father. Altogether, the evidence before the judge was that the mother took about seven trips to Japan with D either with the father in the early stages or, latterly, without him, and on each occasion for a period of about two weeks.
8. In the course of 2015 however, the mother's health deteriorated and in addition, problems arose in her relationship with the father. There were also difficulties between the mother and her own sister in Japan. Towards the end of 2016, it was agreed between the parties that the mother would take D for a further visit to visit the family in Japan and they duly left in November 2016. The evidence before the judge was that the father anticipated that this visit, like the previous visits, would last for about two weeks although the judge indicated in his judgment that he though the father had in reality suspected that it would be for a rather longer period.
9. In the event, the mother and D remained in Japan for much longer, a period of over ten weeks. During that period, the father encountered difficulties in having contact with D indirectly through telephone or Skype and he became concerned whether the mother would, in fact, return with the boy. In the event, they did return on 30 January 2017, having spent, as I say, about ten weeks in Japan. The evidence before the judge was that the father thought that on his return, D had completely lost his ability to speak English, having not spoken that language at all during his period in Japan.
10. The relationship between the parties did not improve and in the course of 2017 proceedings between them were started. The first application was by the father in April 2017 for a prohibited steps order to prevent the mother removing D to Japan again. The father's statement in support of that application, which was initially made without notice, stated that the mother had told him she was going to return to Japan with the boy. The judge was doubtful about whether the father had given a full picture in his evidence to the court on that occasion. The judge noted that the mother had, in fact, always returned with D after her Japan trips, even after the extended stay in November 2016. In his judgment, he concluded that he did not find that she would have abducted D.
11. Within a few weeks of that application, however, the mother filed an application for leave to remove D permanently from the jurisdiction. She also applied for a non-molestation order following an incident between the parties which had occurred in front of D. On the basis of her evidence, the mother obtained a without-notice non-molestation order following that incident, although in the event, those proceedings were compromised by joint undertakings given by the parties without any findings made. Thereafter, the father left the house voluntary and the parties did not resume cohabitation.
12. The matter came before Judge Lancaster over several days in December 2017. The principal issue was, as I have said, the mother's application for leave to remove D permanently to Japan. In addition, the court was also asked to consider appropriate orders in the event that the mother's principal application was refused, namely (a) the appropriate division of parenting time between the two parties and, (b) the mother's application in the alternative for leave to remove D temporarily from the jurisdiction to Japan for the purposes of a holiday.
13. All parties are agreed that Judge Lancaster gave full and careful consideration to the principal issue. He described it as a, "difficult and finely balanced case". He had the benefit of expert evidence filed on both sides as to Japanese legal procedures. He also had the benefit of a s.7 report on the issues before him. Having considered the evidence, he then analysed the case using the welfare checklist in s.1(3) of the Children Act. He referred to the relevant legal principles concerning applications to relocate with a child to another country as set out in the case law.
14. Eventually accepting the s.7 reporter's recommendation, Judge Lancaster decided to refuse the mother's application to relocate permanently to Japan. For him, the decisive factor was the importance of D's relationship with his father which the judge accepted was a close relationship. The loss of that relationship would, the judge found, be very detrimental to D's welfare. As he said in conclusion in para.50 of his judgment:

"In balancing out the impact on the mother on the refusal against the likely effect of loss of D's relationship with his father, D's welfare tips the balance in favour of refusal. The adverse effect on D's welfare would, I find, be serious and long-lasting. My order therefore is that the application to remove is refused."

15. The judge then dealt briefly with the two supplemental issues. On the issue of the division of parenting time, the judge decided not to make any change from the existing arrangements and made an order under which D spent the majority of his time with his mother with contact between D and his father, including staying contact on alternate weekends and during school holidays. That order was contrary to the father's proposal for a greater share of the parenting time to be spent with him and also contrary to the recommendation in the s.7 report which had been for a shared care arrangement under which the child would spend alternate weeks with each parent. The judge rejected that, holding that, "the current regime works".
16. Secondly, the judge decided to lift the prohibited steps order. His reasons for doing so were set out in the last paragraph of his judgment, para.52:

"I also discharge the prohibited steps order so as to enable the mother to go to Japan with D for regular holidays. This is important to promote his dual heritage. In the past, the mother has always returned from trips to Japan when there was no order in place. I recognise that the father has a degree of mistrust that the mother will return but the history shows that she is likely to return and she is, I find, a law-abiding citizen. Japan is also a nation which is a party to the Hague Convention. Any order the court makes would extend to Japan under the Convention. I see no reason why the mother should not be allowed to go to Japan for periods of up to three weeks, that is to say half of the school holidays, on condition that she gives details of the outgoing and return flights and the relevant dates to the father. It is likely that the only available time will be during the school holidays, but this should not be problematic."

17. The father filed a notice of appeal against the judge's order concerning the division of parenting time and the discharge of the prohibited steps order. The application was considered on paper by Williams J on 12 March when the following order was made. The application for permission to appeal in respect of the division of parenting time was refused. The application for permission to appeal in respect of the discharge of the prohibited steps order and the order permitting the mother to remove the child to Japan for periods of up to three weeks was listed for a hearing with appeal to follow immediately if permission to appeal was granted. Williams J then gave a series of case management directions which included a direction that "the court may wish to consider the issues in relation to Japan at [2017] Family Law 547". That is a reference to a short article written by four lawyers including, as it happens, Williams J prior to his appointment. I shall return to that article shortly.
18. Under the rules applying in this court, an appellant who is refused permission to appeal on paper has a right to renew the application at an oral hearing if a request is lodged in seven days. In this case, the father, although unhappy about the judge's order in respect of the division of parenting time, has not availed himself of that opportunity for reasons he explained during the hearing before me. It is therefore unnecessary to consider that aspect of the judge's order any further. Likewise, the mother although unhappy about the judge's decision to refuse her permission to relocate permanently to Japan, has not sought to appeal against that decision and that also is therefore not a matter before me at this hearing, save insofar as it impinges indirectly on the issue of temporary relocation.
19. Although the father has had the benefit of legal representation before Judge Lancaster and until recently during the preparation of this appeal, including the drafting of skeleton argument by counsel, he has represented himself today assisted helpfully by a McKenzie friend, Mr. S. The mother has had the benefit of being represented before me by the same counsel, Ms. Turner, as appeared before the judge. I should record that the arguments on both sides have been put before me with great clarity and focussing helpfully on the key issues in the case. I am grateful to the father appearing in person and to Ms. Turner for the way in which they have conducted this hearing.
20. In the skeleton argument filed on behalf of the father by counsel, it was submitted that the judge failed to direct himself to the relevant test or principle or considerations always in play whenever a court is charged with determining the issue of temporary removal namely,

1. the scale or level of risk for non-return;

2. the degree of difficulty created for the consequences in terms of harm likely to be occasioned in the event of non-return and,

3. what safeguards, if any, might provide further security and/or reassurance and therefore ameliorate the risk of harm which are likely to result.

The overriding consideration remains whether the making of an order would be in the best interest of the child. The principles as summarised above are derived from the case law in this area. In the circumstances of this case, I do not think it necessary to refer to that case law in this judgment.

21. Counsel on behalf of the father acknowledged that Japan is a signatory to the Hague Convention and that the leading authorities dealing with the tests applicable in the context of temporary removal, as summarised above, were concerned with removal to non-Hague Convention countries. Counsel submitted in this case, however, that the judge had before him evidence of Japanese lawyers, the overall import of which was that the efficacy of the measures open to the father in Japan in the event of the mother failing to return D at the end of any holiday would be low, not least because the success or otherwise of such measures was, on the evidence, highly dependent upon the cooperation of the abducting or wrongfully retaining party which it was submitted would be unlikely to be forthcoming in this case.
22. In his succinct and focussed oral submissions, the father developed his arguments in the following way. He identified, as his counsel had, three critical issues - first, the risk of the mother taking D to Japan and not returning him, secondly, the consequences if D was not returned and thirdly, the efficacy of remedies available in the event that that occurred. With regard to the first point, the father stressed the fact that the mother had no roots in this country and had no property here in her own name. The matrimonial financial remedies dispute has been settled on the basis of a substantial lump sum being paid to her. The father submitted that the mother was not in work, although I was told by counsel on her behalf that that was untrue and she was, in fact, in part-time employment.
23. The father noted that the judge in his judgment had observed that the mother had behaved on occasions in a manipulative and dishonest way. He submitted that in those circumstances it was inconsistent and wrong for the judge to conclude that the mother was likely to return following a temporary removal and was a law-abiding citizen. In other words, the father submitted that the judge's expression of trust in the mother to comply with the order to return the child at the end of any holiday was inconsistent with his other findings. The father pointed out that the occasions when mother had returned the child to this jurisdiction following previous visits to Japan largely took place during the period when the parties' marriage was happy and continuing. That is no longer the case.
24. As to the second issue, the father submitted that, were D to be retained in Japan at the conclusion of a holiday, it would cause very serious short-term and long-term damage to him because it would destroy the relationship that D has with his father, which all parties and the judge acknowledged was of vital importance to him.
25. Thirdly, the father reiterates the points made by counsel on his behalf in the skeleton argument about the concerns over the efficacy of measures available to the father to secure the return of the child to this country in the event that he were retained in Japan. The father described Japan as an "outlier" within the Hague Convention.
26. In addition, the father drew attention to the article written by Mr. David Williams QC, as he then was, and others and published in the May 2017 edition Family Law Act 247. In that article, the authors state that although Japan was now a member of the 1980 Hague Convention club:

"It has become apparent that the 1980 Hague Convention may not be applied in Japan in the way the practitioners in England would expect. In the event of a return order being made by the High Court [i.e. in this country] and the abducting parent not complying with it, enforcement would follow. Japanese domestic law does not provide an enforcement mechanism in the event of non-compliance with an order. The Japanese system relying so largely on voluntary compliance with an order of the court has created a lacuna which the parent prepared to defy the court system can take advantage of. That being so, it may be necessary to return to the sort of approach to temporary relocations that existed prior to April 2014. Any parent faced with an application for temporary leave to remove to Japan should consider whether expert evidence is necessary to enable the court to determine the issue."

27. In this case, expert evidence was available and, as summarised above, identified issues and potential concerns about the enforcement of any order to return a child to this country by the Japanese court. That evidence formed part of the judge's reasoning for refusing the mother permission to remove D to live in Japan permanently. It was the father's submission before me, however, that this evidence was not taken into consideration by the judge in deciding whether to allow the mother to take D to Japan for holiday visits.
28. In reply, Ms. Turner on behalf of the mother submitted that the parties have received a thorough and balanced judgment from Judge Lancaster after he had heard five days of oral evidence from six witnesses, including lengthy evidence from the parties. Ms. Turner relied on the evidence that the mother had taken a number of trips to Japan with D during the marriage and had invariably returned the child at the end of each visit without the necessity of any intervention by the court. Whilst acknowledging that most of those trips took place at a time when the marriage was subsisting, Ms. Turner pointed out that the last visit between November 2016 and January 2017 took place at a point when the marriage was breaking down. Notwithstanding that, the child had been returned. Counsel on behalf of the mother relied on the judge's assessment that the history "shows she is likely to return and she is, I find, a law-abiding citizen". In those circumstances, Ms. Turner submitted that it was unfair of the father to contend that the mother would not cooperate. She has never removed the child from the jurisdiction without the consent of the father and always returned him without any court order. Furthermore, Ms. Turner relied on the fact that the mother has always complied with each and every order made since the proceedings were initiated against her in April 2017.
29. Ms. Turner submitted that it cannot be overlooked that Japan is, as a matter of fact, a Hague Convention country. She submitted that it would be plainly wrong, therefore, to deal with it as a non-Convention country. The judge had evidence before him from Japanese lawyers and with that information took the decision to discharge the prohibited steps order. In those circumstances, Ms. Turner contended that the judge's decision was manifestly within his discretion and could not possibly be described as wrong.
30. In oral submissions, Ms. Turner stressed the crucial importance for D of maintaining his Japanese heritage. She emphasised again the judge's acknowledgment that the mother had never failed to return the child to this country and his acknowledgments of the importance of the relationship between D and his father. Both of these matters were evident from the judgment. Ms. Turner conceded, however, that the judgment did not contain any analysis for the difficulties that can arise in seeking to enforce orders in Japan, notwithstanding that it is a signatory of the Hague Convention. The issue was considered in the reports before the judge but not analysed by the judgment.
31. In my judgment, this last omission is of decisive significance to the outcome of this appeal. In carrying out the necessary risk assessment, the judge reached the conclusion that there was only a low risk of the mother not returning the child at the conclusion of a trip to Japan. I am satisfied that the judge did consider the risk and concluded that, "she is likely to return". It is notable, however, that, by using those words, the judge was not saying that there was no risk that the mother would not return D to this country at the conclusion of a visit. The judge further considered the consequences of failing to return the child and concluded on the evidence that it would be very damaging to him. In the light of those findings it was, in my judgment, incumbent on the judge to consider the efficiency of the available measures in Japan to secure the return of the child. Had he done so, it would have been necessary for him to address the difficulties which the evidence demonstrated can arise in those circumstances.
32. A court can only allow an appeal where the decision of the judge in the first instance was wrong or unjust because of some procedural or other irregularity. In my judgment, the judge's failure to analyse the difficulties which may arise when seeking to enforce an order in Japan amounts to an irregularity given the findings that it was possible, albeit unlikely in the judge's view, that the mother would not return the child and that, were that to happen, it would have a devastating impact on D.
33. I have reached this conclusion with some reluctance, particularly given the extremely thorough analysis which the judge carried out on the main application before him by the mother for leave to remove the child permanently. It is unfortunate that, on this subsidiary issue, he did not, in my respectful judgment, carry out a sufficiently thorough analysis of the issues as set out above.
34. What is now to be done? Neither party wants fresh litigation and therefore, neither party seeks the matter to be relisted before the judge for further consideration. The argument which the father put forward before this court which, as I understand it, reiterated the argument he ran before Judge Lancaster, was that there should be a prohibited steps order for a limited period, namely two years to enable the trust between the parties to be restored. I consider that to be a proportionate and balanced proposal.
35. On the mother's behalf, Ms. Turner sought to argue that, in the event that the appeal was allowed, any prohibited steps order should be for a shorter period of time and it was her proposal that it should only continue until after the summer holidays in 2019, that is to say for a period of some fifteen months. That would enable the mother, unless restrained by further orders, to take D to Japan for a holiday in the October half-term 2019.
36. I propose to impose a prohibited steps order for a period of two years from the date of Judge Lancaster's order, that is to say until 20 December 2019. There is nothing to stop the mother applying to discharge the order earlier if she considers that the circumstances justify such a course.
37. In the meantime, I express the hope – which seems to be shared by the father judging by the way in which his submissions have been couched – that trust between the parties will be restored so that future arrangements for their little boy, who is plainly adored by both his parents, can proceed by consent.
38. I therefore grant permission to appeal and allow the appeal. The last part of para.8(b) the whole of para.8(c) and the whole of para.9 of the order of Judge Lancaster are all deleted. I will insert instead a new para.9 which provides that the mother is prohibited from removing the child from the jurisdiction until 20 December 2019.
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