England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/08/2018

The Honourable Mr Justice Cohen :

1. In this case I am concerned with a girl, A, born 4^th September 2007 and so soon to be 11 years old. The appellant is her father and the respondent her mother.
2. This is the father's appeal against the order made by District Judge Gibson on 5^th January 2018 refusing the father's application to register the order of the Zamoskvoretsky District Court in Moscow dated 27^th September 2016. The order had been unsuccessfully appealed by the mother as I will explain later in this judgment. The father's application was dated 15^th November 2017 and was supported by a statement dated 10^th November 2017.
3. In his statement the father properly addressed the issues set out at FPR [2010] PD 31A, rule 4.2 which include at (b)

A description of the opportunities provided by the authority which gave the judgment in question for the child to be heard, except where that judgment was given in a case of urgency.

4. On 5^th January 2018 District Judge Gibson, who was sitting as a District Judge of the High Court, refused the application to register the order. In doing so she said "I am not prepared to approve this as the child's views have not been heard. There is an automatic right of appeal to the High Court".
5. The husband's solicitors sought a further explanation to which the district judge replied as follows:

When I refused this matter on 5^th January 2018 I indicated the reason was the child's views had not been heard. The Russian court had endeavoured to have a psychological report but the mother had not complied because this would mean bringing the child to Russia, which she was not prepared to do as she was concerned about not thereafter being able to leave Russia. The order was made on 27^th September 2016 which is now some considerable time ago. The child is 10 years old so it is likely her views will carry some weight. It is not clear that she is given an opportunity to be heard in this (sic) country. In those circumstances I do not think the child is being given an opportunity to have her views heard. The mother was given the opportunity to have the child's views heard but the child herself was not. She was dependent upon the mother being prepared to bring her to Russia, the child herself had no say in whether that happened and therefore no opportunity to have her views heard.

6. Mr Gupta QC who appears with Mr Edwards on behalf of the father complains that the district judge went way beyond her obligation and should have simply registered the order and have left any challenge to it to be dealt with on appeal. He points out that it is the almost invariable practice that orders are approved and the opportunity to consider the Article 23 defences are to be considered in the High Court on appeal rather than at first instance unless there is the most obvious and blatant reason for recognition to be refused. I will return to this later in the judgment.
7. I accept that it is rare for cases to come on appeal to the High Court this way round. Far more commonly, registration is allowed and the challenge heard in the High Court. But, the fact that it was the non-registration that was subject to appeal raises the issue of how the court is to consider the Article 23 defences. After discussion both parties agreed to ask me to treat this hearing as a unitary hearing and to consider all the relevant matters under Article 23 as if this was the mother's appeal against registration. I considered that this was a wise decision as otherwise there would have been scope for me to remit the matter back to the district judge and for then there to be a further round of appeal which would be wasteful of both time and resources.
8. The history

The parties whom I shall call the father and the mother married in October 2006 and the child was born nearly one year later. She is the parties' only child together.

9. The parties separated in September 2009 and subsequently divorced. A financial settlement was reached.
10. In 2011 the mother began a new relationship with a man who I will call C. He is a businessman and prominent critic of the Russian Government and President Putin in particular. He is a leading campaigner against what he says is widespread corruption in Russia.
11. In April 2014 the mother and A travelled to London to meet C. The following month she gave birth to a son by C. Their child is thus the half-brother of A.
12. Within a week or two of the birth of the new child C received a summons from the Investigative Committee of Moscow accusing C and other activists of embezzling funds. It is the case of C that the accusations against him are politically motivated and without any merit.
13. In August 2014 the father applied to the English court for the summary return of A to Russia. It was his case and it was found by the English court that the mother had obtained his approval for a visit to England but that she had thereafter wrongfully retained A in England.
14. On 11^th September 2013 Mrs Justice Hogg made an order for A to be returned to Russia under the court's inherent jurisdiction. The mother appealed and the Court of Appeal allowed her appeal on the ground that consideration had not been given to how the voice of the child should be heard. The matter was remitted to the high court for a further hearing with the benefit of a CAFCASS report. The case is reported as in re S (A Child) (abduction; hearing the child) [2014] EWCA Civ 1557.
15. The remitted English proceedings came before Mr Justice Moor in December 2014. I have had the benefit of reading his judgment. In May 2014 criminal charges had been laid against C in Russia. The mother too was under investigation for allegedly diverting monies to fund the anti-corruption campaign. By the time of the hearing before Moor J she had been summoned to attend the Investigative Committee in Moscow but had failed to do so. She too alleged that the allegations made against her were politically motivated and without foundation.
16. The CAFCASS officer produced a report and gave oral evidence. At the time A was only 7 years of age and the judge exercised proper and great caution before giving weight to her views. She told the judge that in her opinion A would be very distressed to be separated from her mother. She pointed out that A had always lived with her mother as her parents had agreed. There was a growing bond with her half-brother and with C. She said that A would be considerably distressed if she had to go to Russia without her mother and that it was fundamental that she should not be separated from her at that time.
17. Notwithstanding some significant criticisms made by the judge of the mother's conduct in not being frank and open about the steps taken by her when she arrived in England in April 2014, the judge determined that on an interim basis it would be wrong for A to be returned to Russia. He found that if she returned to Russia the mother would be likely to be put under pressure to influence C who was very unpopular with the government of the Russian Federation. He accepted that the mother had genuine fears of arrest if she returned to Russia. If she did return to Russia it would mean separating from C. She did not have his permission to take their child out of the jurisdiction. In short, she would be deprived of her partner and very possibly her baby, and be subject to arrest or being forbidden from leaving the country and possibly imprisonment.
18. The judge made it clear that he had confidence in the integrity of the Russian Court and I will return shortly to the Russian proceedings. The judge indicated that if the Russian court were to decide that the long-term outcome was that A should be returned to Russia he would be likely to enforce that order.
19. At a date unknown to me but in 2015 or early 2016 the mother was charged with the offences for which she was being investigated (see paragraph 15).
20. It is right that I should emphasise that the behaviour of the father has not been criticised at any stage and there has been no suggestion in the proceedings at any time, including in front of me, that the mother's plight has in any way been caused or exacerbated by any act of the father.
21. The Russian proceedings

The parents had reached an agreement as to the arrangements for A which included the father seeing A most weekends and for holidays. However, difficulties arose between them and the father issued an application in the Russian court in March 2014 for his rights in respect of the child to be determined and the mother cross applied and also sought child financial support. In November 2014 the court suspended proceedings until the equivalent of a welfare report had been obtained. The substantive hearing took place in March 2015 in the Zamoskvoretsky District Court. The court order as translated recites that

Paragraph 5 of Resolution of Plenum of Supreme Court of the Russian Federation 10… states that by deciding an underage person's residence when the parents live separately, the court shall take into account that residence shall be determined strictly in accordance with the child's interest and opinion if the child is older than ten years, provided this does not contradict his/her interest (paragraph 3 Article 65 and Article 57 of the Family Code of the Russian Federation).

22. The court had the benefit of a 2013 report which spoke well of the close bond between mother and child and also the CAFCASS report. It concluded that the child was closely attached to her mother, wanted to live with her and that it would be in her best interests to do so. It did not have the benefit of the report that had been ordered in November 2014 because the mother and child had not appeared for examination in Russia for the reasons set out earlier in this judgment.
23. The father appealed the ruling but the judicial panel considered that the lower court had drawn the correct conclusions in determining that A should live with her mother on a permanent basis.
24. The father appealed to the Supreme Court and the hearing took place in June 2016. The Supreme Court allowed the father's appeal. It was critical of the lower court relying upon 2013 Russian reports written before the mother had left Russia, when inevitably those reports did not analyse the conditions in which the mother was living in England. It was also critical that other Russian reports which the courts below had relied upon had been written without the father being interrogated and it remitted the matter for a new hearing in the court of original jurisdiction.
25. The hearing took place again in the Zamoskvoretsky District Court on 27^th September 2016. The mother was not present although she had lawyers who attended for the sole purpose of arguing jurisdiction rather than merit.
26. The tone of the court's judgment is very different to that of 2015. The father's argument was two pronged; first, that he could provide well for the child in Russia and of that there seems to be no doubt. Secondly, he argued that A was in danger for her life and health while staying abroad with her mother being criminally prosecuted. The court decided to "critically treat" the previous reports prepared in Russia that were favourable to the mother and the CAFCASS report.
27. The judgment focussed heavily on the mother's alleged criminal activities, that she was charged with a large-scale fraud, had been put by the Russian Federation on an International Wanted List and that she resided abroad and did not intend to come back to Russia. The court thus resolved that considering the circumstances the place of residence with her mother did not conform to the legitimate rights and interests of A. It should be noted that there was no welfare material before the court which postdates the CAFCASS report of 27^th November 2014.
28. The mother appealed the ruling of the district court but the appeal court of the Moscow Municipal Court dismissed her appeal. It thereby upheld the order of the Zamoskvoretsky District Court of 27^th September 2016 and it was that order which the father sought to have registered.
29. The current situation

A continues to live with her mother, C and her step-brother in London. It appears to be accepted that her strong wish is to continue to live in England with her mother under the current arrangements. I asked Mr Gupta if it was his case that I should order a wishes and feelings report and he replied that it was his client's view that it was inevitable that having lived with her mother in England for the last 4 years she would wish the current arrangements to continue. There has been no suggestion that she has been other than thriving.

30. C was granted asylum in March 2015. On 6 July 2015 the mother and A were informed by the Home Office that they had been granted "leave in line" with C as his dependants.
31. On 4 February 2016 the Home Office issued a Biometric Residence Permit to A which states that she is a "refugee with leave to remain until 22 March 2020". There has been no change to her status since then.
32. The mother was granted asylum in her own right in December 2017.
33. It is obvious that if the mother or C set foot in the Russian Federation they would be likely to be arrested and imprisoned. The father says that if they deny the charges against them they should sort them out and return to Russia.
34. The father remains living in Moscow. To his great credit he comes over to England every few weeks to spend the weekend with his daughter. His contact has to date always taken place in England.
35. The mother's case

The mother says that registration should be refused pursuant to Article 23 of The Hague 1996 Convention pursuant to paragraph (2) (b) and (d). They read as follows

Recognition may (my emphasis) however be refused

(b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;

(d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child.

Thus it is that this appeal hearing has been focussed on the issues of whether A a) has had the opportunity to be heard and b) whether her asylum status would make any removal manifestly contrary to public policy.

36. Hearing the child

There is no doubt that it is established law in England (i.e. of the requested state) that a child of this age needs to be heard. It is unnecessary for me to set out in this judgment the many authorities on this subject particularly as the Court of Appeal has specifically said in relation to this very child 3 years ago that consideration needed to be given as to how her voice was to be heard. If any further emphasis is needed I refer to D (A Child) (International Recognition) [2016] 2FLR 347, a case involving a child who was aged 9 by the time the case reached the Court of Appeal. In that case it was found that the child never had the opportunity to be heard in Romanian proceedings and recognition was refused on that ground.

37. The father accepts that there has been no interview with the child since CAFCASS in November 2014. He says that is no one's fault but the mother's as she failed ever to bring the child to Russia for the purpose of the report ordered by the district court in November 2014. She is thus the author of her own misfortune and she cannot complain about the child not having been provided with an opportunity to be heard.
38. There are a number of replies to this argument, some of them obvious. First, the obligation for the child to be heard is not qualified. There were a number of different ways that the child might be heard without her having to enter the Russian Federation including by the obtaining of an independent report in England or a remotely conducted interview.
39. Secondly, the question of obtaining the child's views never appeared to be considered at any part of the 2016 district court order. True it is related in one short sentence that the mother has not attended for the psychological examination with the child, but that is the only mention. The judgment at no stage even touches on the point that the father now replies upon. The issue of the child's voice appears to have been completely overlooked in the concentration upon the mother's alleged criminal activity. Mr Gupta says that I should not read the Russian judgment in a way that the court would look at an English judgment and allow for different styles. I accept that general proposition but there is nowhere in the judgment that permits the conclusion that the Russian court considered the question of the child's voice.
40. Thirdly, it is of course completely impractical for the mother to permit A's views to be taken in the way that the father suggests. He says that the mother should simply come to Russia and sort out the issues of the criminal charge. Alternatively, she should seek some form of laissez passer to permit an interview to take place. There is no evidence upon which I can conclude that this is feasible.
41. Fourthly, it is accepted by the father that the child's view would be that she wished to remain in England with her mother. Nowhere is the fact that is her view to be seen in the Russian court decision.
42. As the court held in re D, the word "violation" in Article 23 (b) is synonymous with "breach". Giving the child the opportunity to be heard is "a fundamental principle of procedure" of the courts of England and Wales. This is a child who in 2014 was known by the Russian court, as it had possession of the CAFCASS report, to want to stay in England with her mother. The child was, by the time the district court made its decision, two years older and thus 8 years of age. It is fundamental that a child of 8 who had always lived with her mother was bound to have views of where she wanted to live.
43. It is not an answer to the mother's case that there had been assessments that the district court had before it when making an order in the mother's favour in 2015. The court was bound to reconsider the matter after the Supreme Court remitted the case back to the district court because of the failure of the district court first time round to establish properly the living conditions for A and her needs.
44. Mr Setright QC who appeared with Mr Gration on behalf of the mother submits that there is only one escape from the obligation to hear the child which is the case of urgency. No one has suggested that this was a case of urgency. I agree with him that A was never given the opportunity to be heard. The only avenue explored was the 2014 order that the mother produce A in Russia for examination. There plainly were other alternatives but none of these were considered and indeed the issue was not raised.
45. I therefore conclude on this issue that A was not provided with the opportunity to be heard, in violation of fundamental principles of procedure of England and Wales.
46. Immigration

It is submitted on behalf of the mother that there is an absolute bar on returning A to Russia in circumstances where she has been granted refugee status (I use the words refugee status and asylum as interchangeable). Mr Gupta accepts that for this purpose

"Refugee" means a third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country…

But, says Mr Gupta, whatever the position of the mother or C may be, A herself is at no risk and she does not fall within the description of a refugee.

47. Mr Setright's answer to that is that a refugee status is a refugee status. There are no fine distinctions to be drawn. Even if I accept, as I do, that A herself has no well-founded fear of being persecuted that does not take the matter any further.
48. I have been referred to and considered carefully F v M [2018] Fam 1. The facts of that case are well known and the hearing was one set up with great care following a Court of Appeal decision (see paragraph 54 below) and at which the issues were extensively canvassed over a number of days. The whole issue of whether or not a child who had a refugee status could be ordered to return to a home country was considered by Mr Justice Hayden with the benefit of representations, not only from the parties, but from the Secretary of State and the Joint Council for the Welfare of Immigrants. Whilst not technically binding upon me the judgment needs very careful consideration. The conclusion of Hayden J at paragraph 44 was

It seems clear that the grant of refugee status to a child by the Secretary of State is an absolute bar to any order by the family court seeking to affect the return of the child to an alternative jurisdiction.

49. As I have stated, Mr Gupta encourages me to say that this is to be distinguished from a case where the child herself is not at any risk. He says, and I have no reason to doubt, that A would be welcomed back in the Russian Federation.
50. His fall-back position was that I should encourage the Secretary of State to reconsider his decision to grant asylum in the light of the Russian court having determined that the child's best interests had been determined to be with the father in Russia. That, he says, might lead the Secretary of State to waive the asylum and that asylum cedes to a best interest test. He says this is all the more the case when the child's asylum is based on dependency.
51. I decline to ask the Secretary of State to attend. The father has not sought to challenge the grant of asylum and there has not been suggested to me any ground upon which asylum can be challenged. It is not for the court to suggest to the Secretary of State with no evidence of any error in the decision-making that he should reconsider his decision. If the father wishes to mount a challenge that is a matter for him.
52. As an alternative Mr Gupta suggests that I should recognise the order but stay or delay its enforcement until I have heard from the Secretary of State. This runs into the same difficulties as I have set out above but is also potentially a Trojan Horse as it potentially runs into the obstacle presented by Article 28 whereby

Measures taken by one Contracting State and declared enforceable, or registered for the purpose of enforcement, in another Contracting State shall be enforced in the latter State as if they had been taken by the authorities of that State.

For those reasons I therefore decline to adopt the suggestion.

53. I reserved judgment at the end of the hearing and this judgment has been delayed to coincide with my return from circuit and the father being in England. I was thus surprised when earlier this week and after I had circulated my draft judgment a dispute emerged as to the status of A in this country and its effect on the proceedings.
54. Mr Gupta drew my attention to Re H [2017] 2 FLR 527 and Re H [2003] 2 FLR 1105, which had not been cited to me during the hearing. Re H was the forerunner to F v M and in the course of her judgment Black LJ (as she then was) said this at paragraph 33

I cannot accept that the position of a dependant who is permitted to stay in this country by virtue of his or her relationship with, say, a parent who is claiming or has been granted asylum can be equated with that of a child who has been granted asylum on the basis that he or she personally is at risk of treatment contrary to Art 3 of the European Convention if returned to a particular country.

55. In Re H Wilson J (as he then was) was dealing with the child of a mother granted asylum on the ground of the father's violence and her inability to achieve sufficient protection in Pakistan. No asylum claim had been made on behalf of the child and she appended H as her dependant to her application. Her leave to remain was extended to H.
56. Wilson J regarded the asylum granted to the mother as being an event to which he paid significant regard but then went on to conduct a balancing exercise considering all the relevant factors to determine whether it was in the child's best interests to return to Pakistan.
57. Mr Gupta says that I should conduct such an exercise myself.
58. In my judgment there are no different tiers between refugees. Mr Gupta has been unable to refer me to any authority where a child with refugee status, whether on the child's own behalf or as a dependant, has been returned to a home country. I apply the same principles as those adopted by Hayden J in F v M and I regard myself as barred from ordering a return.
59. It is argued on behalf of the mother that to order a return via the recognition of the overseas order when the subject has asylum status would be manifestly contrary to the public policy of England and Wales taking into account the best interests of the child. In some ways this case is a particularly striking example of why it would be manifestly contrary to public policy as not only is this child a refugee but also the consequence of her return would be to sever her relationship from her mother probably for the duration of the time that A was in Russia. The mother cannot return to Russia without being liable to be imprisoned, probably for a substantial period of time. There must be every prospect that even if not imprisoned or when released, she would not be permitted to live in the country and the severance of the relationship between mother and daughter would be total.
60. Having said that, and in the event that I am wrong about being bound by the grant of asylum, I turn to the balancing exercise. In favour of a return are the following factors

• It shows comity with another Convention jurisdiction in which it has been held in the best interests of the child to return;

• It is the country in which she lived until 6 years of age;

• It is where her father lives and where she has family;

• It is the country from which she was wrongfully retained.

61. On the other hand, if she does return

• She will be separated from her mother with whom she has lived for all her life, possibly for a very long time;

• She will be removed from the home of her mother's partner and her half-brother;

• She will be leaving the country and home where she wishes to remain;

• There is no knowing when she would see again her mother, Mr C or half-brother;

• The possibility of seeing both sides of her family disappears or is radically reduced but if she remains in England she will continue to see her father.

62. In my judgment the balance overwhelmingly falls to her not being returned to Russia.
63. Discretion

Article 23 (2) states that recognition may be refused if certain events are established as I have found to be the case in respect of paragraphs 2(b) and (d). It does not follow that having made those findings, I should not then still recognise the Russian judgment. On behalf of the father a number of points are powerfully made:

i) Comity: International Conventions such as the Hague Convention only work if orders of contracting states are enforced. How, Mr Gupta asks, would the English court feel if a Russian court would not recognise its order?

ii) this situation comes about because of the original wrongful retention by the mother of A outside the jurisdiction;

iii) the Russian court has determined that the best interests of A are met by living with her father in Russia;

iv) the father has done everything by the book and I should not penalise him in the sense of saying that the child can still maintain relationships with both parents if she remains with her mother simply because the father has and will continue to put himself to the considerable trouble and expense of coming to England every few weeks to see his daughter;

v) if the mother is not guilty of the charges against her, as she claims, she should sort out her own criminal issues and that can resolve the problem.

64. On behalf of the mother the point is put very simply. A has lived with her mother throughout her life and for the last 9 years with her mother rather than her father. She has become an imbedded part of the family with C and her step-brother. Removal from them would mean a complete separation. It is simply unrealistic to think that any family member could accompany A to Russia and play any part in her life. This would be so contrary to her interests and so devastating that the court should not be contemplating recognition in the circumstances.
65. I agree with the submissions made on behalf of the mother in this regard. It would be wrong for me in the circumstances to grant recognition of the order.
66. I turn finally to the way that the matter was approached by District Judge Gibson. There are a number of authorities in which it is pointed out that it is not the job of the district judge to conduct an assiduous examination of the facts with a view to unearthing grounds for non-recognition. As Peter Jackson J said in re D [2015] 1FLR 1272 at paragraph 141

The task of the district judge faced with a BIIR registration application is therefore to apply the part 31 rules and practice direction with a broad appreciation of the nature and effect of the BIIR process under the grounds for non-recognition under the Article 23 of BIIR. This will normally involve checking that the documents are in order and that there is no evident reason why registration should be refused. It does not call for an extensive sceptical examination of the underlying documentation with a view to unearthing possible grounds for challenge. Issues of that kind will be determined on appeal.

67. The same approach was taken by Mr Justice Moylan in re P [2014] EWHC 2845 (Fam) where at paragraph 28 he sets out that the essentially administrative purposes of recognising or registering the order is to be adopted and that the district judge should apply the provisions of the rules "with a light touch".
68. I do not accept the criticism made by the father of the approach made by District Judge Gibson. She identified a gap in the information provided as I have set out at paragraphs 3 – 5 of this judgment. Whilst it is possible that some judges may have been less assiduous than she was, it cannot possibly be a ground of appeal that having identified a gap she acted upon it. Nor do I accept that her reasons were inadequate. They were expressed briefly but with sufficient clarity for the father to know why recognition had not been granted.
69. The facts of this case are unusual. I do not intend by this judgment in any sense to imply a lack of confidence in the Russian judicial system. That I have identified a failure of opportunity to hear the child in this case does not import any wider criticism than that.
70. Nor do I intend that anything I have said is meant to devalue or underestimate the role the father is playing in A's life. As I have mentioned, he deserves credit for the part that he has played in difficult circumstances.
71. I should not leave this judgment without paying tribute to the excellent presentation that I have been privileged to hear on both sides. The skeleton arguments prepared by leading and junior counsel have been models of their kind.
72. In accordance with what I have set out above, I therefore rule as follows:

i) The appeal against the order of District Judge Gibson is dismissed.

ii) The grounds of objection raised by the mother under Article 23 (2)(b) and (d) are made out.

iii) I exercise my discretion not to recognise the order of the Zamoskvoretsky District Court of 27^th September 2016

Of course my findings on ii) and iii) are in a sense superfluous in the light of the dismissal of the appeal but as they have been the subject of the hearing the parties at the very least are owed an explanation of my reasoning.