Vigreux v Michel & Anor

In this appeal the proceedings are governed by the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Abduction Convention and Council Regulation (EC) No. 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in matter of Parental Responsibility. This Regulation, which came into force on the 1^st March 2005, has come to be known in this jurisdiction as Brussels II Revised. The appeal is significant because it is the first case governed by the Regulation to reach this court.

Very little of the background is material. I take it from the judgment of McFarlane J. The parties were not married but had a long relationship during the course of which their son, Pierre-Mathieu, was born on the 14^th August 1991. He is therefore now fourteen and three-quarters. The couple and their son are French through and through and following their separation in 2001 proceedings were initiated in the Tribunal de Grande Instance of Melun, the first order being made on the 15^th January 2002. It was a conventional order: joint parental responsibility, residence to the mother, contact to the father. The order resulted from contested proceedings, the judge having the benefit of a welfare report prepared by Madame Ratcliffe. She recorded a very strong attachment between Pierre-Mathieu and his father. The parties were restricted from leaving France without the other’s express consent and neither was permitted to leave France with Pierre-Mathieu without the other’s express consent.

It seems that the father appealed that order but left for England prior to the hearing in the Cour d’ Appel de Paris on the 15^th October 2003. The father’s appeal was dismissed and his contact order was not varied to reflect the fact of his departure.

In 2004 it seems that the father’s only substantial contact was in the summer when Pierre-Mathieu spent several weeks in England. The visit was agreed.

The father’s next contact was for a weekend at a hotel in France prior to the issue of the father’s variation application in the Tribunal de Grande Instance in Versailles. Ominously the application was apparently made by the father and Pierre-Mathieu jointly, the statement in support being jointly signed.

Four days later the father was arrested at the Gare de Lyon for assaulting two police officers. For this assault he was sentenced in his absence on the 28^th June by the Criminal Court in Paris to one month’s imprisonment and a fine. The sentence has never been served.

The culmination came in August 2005. The father went to Paris ostensibly for an agreed period of staying contact in France. In reality he and Pierre-Mathieu had pre-planned an escape to England. They left on the 14^th August. The removal was deceitful, a breach of the mother’s custody rights and a flagrant breach of the orders of the French court.

The father’s conduct is aggravated by his beliefs, which at least he makes no effort to disguise. These beliefs are revealed by his writings. The excerpts which follow were selected by McFarlane J for the purposes of his judgment. An email from the father to Pierre-Mathieu of 18^th December 2004 included: -

On 10^th April 2005 he wrote to Pierre-Mathieu: -

On 3^rd May 2005 the first email to Pierre-Mathieu included: -

The second email of the same day included this: -

The joint statement to support the application of the 12^th May 2005 contained the following passages: -

On any view these writings demonstrate a complete disregard for his son’s emotional wellbeing and development as well as a deluded and poisoned mind.

I turn now to the proceedings in this jurisdiction. The mother applied to the French Central Authority on the 26^th August 2005. The papers were sent to the English Central Authority on the 16^th September 2005. On 23^rd September 2005 proceedings were issued under the Child Abduction & Custody Act 1985 and the inherent jurisdiction. On the same day Bodey J at a without notice hearing made holding orders which were served on the father together with the remaining papers by 29^th September 2005. The case was listed for hearing on notice on the 4^th October 2005 but was not reached that day. On the following day Bracewell J gave directions. On the 17^th October 2005 a contested application for separate representation for Pierre-Mathieu was granted by Hedley J. On the 11^th November 2005 the case was listed for final hearing but was not reached. Baron J re-listed for final hearing on the 28^th November. On that day the case was again not reached. Baron J sought in vain for a further date that term. Further directions were given by Her Honour Judge Mayer on the 1^st December 2005 listing the final hearing for the 12^th January 2006 and providing for a psychologist to report on Pierre-Mathieu’s objection by that date. On the 12^th January 2006 the report was not available and Kirkwood J, in a finely balanced decision, adjourned the trial to 13^th February 2006 to enable Dr Grania Clarke to report in the interim. The trial, without oral evidence, was before McFarlane J on the 13^th and 14^th February 2006, his judgment being given on the following morning. Thus the duration of the proceedings from commencement on the 23^rd September 2005 to judgment on the 15^th February 2006 was nearly five months.

This was not an exceptional case and compliance with the Regulation required completion by about the 3^rd November 2005. Given that disregard of our obligations it perhaps not surprising that the mother returned to the Cour d’ Appel de Versailles on the 7^th December 2005. At a hearing at which the father was neither present not represented the court, having regard to the gravity of the abduction, granted sole parental authority to the mother. The order continued: -

Dr Isembert was appointed to carry out a full child and family assessment. This development has been frustrated by the father’s refusal to cooperate.

Since the abduction it is hardly surprising that there has been little contact between Pierre-Mathieu and his mother. There was a tense meeting following one of the London hearings. Their Christmas communication was poor, for which each seems to blame the other. McFarlane J rightly criticised the mother for revealing her recent marriage to her cohabitee, Monsieur Barbeau on the second day of the hearing. This was particularly insensitive given the antagonism between Pierre-Mathieu and Monsieur Barbeau, now his step-father.

The outcome of the trial was the dismissal of the mother’s summons under the Child Abduction & Custody Act. The ancillary application under the inherent jurisdiction was kept alive in case of future need. McFarlane J held that the evidence of the father, of Pierre-Mathieu and of Dr Clarke established that Pierre-Mathieu’s objection to return had been made out. He then proceeded to the exercise of a discretion, balancing against the policy of the Hague Convention the strength of Pierre-Mathieu’s objections together with certain welfare considerations. He concluded that the discretionary balance was weighted against the return order.

I note briefly the subsequent developments. On the 1^st March the mother’s appellant’s notice was filed with this court. On the 4^th April 2006 I directed an oral hearing of the permission application with appeal to follow on 3^rd May 2006. The transcript of McFarlane J’s judgment was received by the mother’s solicitors on the 17^th March and despatched on the next working day, 20^th March to the Central Authority. The translated judgment and other documents were sent to the Central Authority in Paris on the 13^th April. The chronology of these last steps is important given the obligations imposed on the Court by Article 11(6) of the Regulation. If that Article had been duly complied with the relevant documents would have been despatched to Paris by 17^th March, the date the transcript was received by the mother’s solicitors.

For the appellant Mr Scott-Manderson’s principal submission was that the judge had failed to give sufficient weight to the French court process, the French court being fully seised in the welfare case to settle Pierre-Mathieu’s future. In the elaboration of this submission he suggested that the Regulation had raised the bar against the abductor. The specific provisions in Article 11, the automatic enforcement provisions within Article 42, and the supremacy over the Hague Convention established by Article 60 were the sources of the submission. Mr Scott-Manderson accepted that he had not put his case so high before the judge where he had accepted that the outcome was to be determined by the recent decision of this court in Zaffino v Zaffino [2006] 1 FLR 410. Mr Scott-Manderson did not concede that on that authority he would have no grounds for criticism of the judgment but did concede that he would have faced a much harder task, although he would still contend that the judge had erred in the exercise of his discretion. Here Pierre-Mathieu’s stated objections would be met by the protective measures available in France. Further the judge should not have relied upon Jean-Pierre’s belief there would no justice in France, and that he would not be involved in the proceedings.

These submissions were strongly challenged by Mr Hosford-Tanner for the father and Mr Setright QC for Pierre-Mathieu. They of course accepted the supremacy of the Regulation and that in certain respects Article 11 reformed the operation of the Convention within the European Union. However, they submitted that the emphasis on protective measures in Article 11 of the Regulation are in relation only to a defence raised under Article 13(b) of the Convention. Therefore nothing within the Regulation expressly applies to a defence that rests only on the objections of the child. Accordingly the judge had correctly applied Zaffino and had carefully balanced all relevant considerations in arriving at his discretionary conclusion.

Given that this is the first case to which the Regulation applies to reach this court it is necessary to set out those provisions relevant to the abduction of a child from one Member State to another. The interrelationship of the two instruments is expressed in recitals 12, 17, 18 and 21 as follows: -

These recitals are the foundation of the provisions for jurisdiction in cases of child abduction and return of the child, namely Articles 10 and 11 as follows: -

Section 4 deals with enforceability of judgements concerning access and the return of the child. It is Article 40 that applies to an order for the return of the child and Article 42 establishes the enforceability of such an order within any other Member State in the following circumstances: -

Finally the supremacy of the Regulation over the Hague Convention comes from Article 60 which provides: -

In approaching my conclusion I say at once that this was clearly a difficult case presenting the judge with a finely balanced decision. His conclusions are that Pierre-Mathieu objected to return and that he is a child of sufficient age and maturity are not open to challenge. For me the single question in the appeal is whether he erred in the exercise of the discretion that resulted from those conclusions. I have ultimately concluded that he did for the reasons that follow.

The judge identified the nature of Pierre-Mathieu’s objections when he recorded in paragraph 27: -

Again in paragraph 38 there is this: -

Those views have to be judged in the context of the available protective measures in France. These are recorded in paragraph 31 of the judgment as follows: -

I therefore question whether this consideration deserved the weight which McFarlane J gave it during the balancing exercise when in paragraph 48 he said: -

Perhaps more substantial is my concern at the weight given by the judge to the welfare considerations which he identified principally in paragraphs 52 and 53 thus: -

These factors are picked up when McFarlane J balances the scales in paragraph 55: -

These welfare considerations are precisely the sort of considerations that Article 11(3) of the Regulation is designed to eliminate from the account. Had judgment been delivered at the end of October in accordance with the requirements of the Regulation education and disruption issues could hardly have come into the reckoning. Furthermore these considerations are dwarfed by the very profound concerns for Pierre-Mathieu’s welfare arising out of the very issue identified by the order of 7^th December 2005 namely “the particularly conflicting background between both parents and the writings of the father”. In so ordering the Versailles court gave specific directions for expert investigation at a time when the London court was already in breach of the its Regulation obligation to determine the mother’s return application “using the most expeditious procedures available in national law.”

McFarlane J was plainly concerned at the potentially greater risk to Pierre-Mathieu’s welfare created by an extension of the period of abduction. He added the following rider to his decision to dismiss the return application: -

Therefore in my view this was not a case in which peripheral welfare considerations could be introduced into the discretionary conclusion. On the application for return the judge had to weigh only the nature and strengths of Pierre-Mathieu’s objection against the policy of the Regulation and the fact that the essential welfare investigations and decisions must be taken in France.

Of course the judge recognised that his refusal of the return order would inevitably trigger the very significant new procedures introduced by Article 11 (6) – (8). The investigation and determination of the very complex issues surrounding welfare were urgently required. The return order would have enabled the court in Versailles to resume its responsibilities within days of Pierre-Mathieu’s arrival. The procedures provided by Regulation 11 (6) – (8) would delay that process by months, even without the slippage that has since occurred in our compliance with Article 11(6).

Is my conclusion to be taken as an acceptance of Mr Scot-Manderson’s primary submission and therefore a conclusion of general application? I do not so intend since I accept the submission of the respondents that the Regulation is not to be taken to have achieved implicitly more than it has expressed. However there can be little doubt as to the intention of the member states that opted for the Regulation. The provisions relating to the return of abducted children were the most contentious and therefore the most difficult of resolution during the negotiation of the Regulation. The resolution of the resulting impasse was the retention of the operation of the Hague Convention throughout the European region but with the fortification of what were seen, in the light of nearly twenty years of operation, as weaknesses or loopholes through which abductors were escaping. The fortifications were threefold: the emphasis on protective measures to nullify an Article 13(b) defence; the return of the case to the requesting state in the event of a refusal by the requested state and automatic enforcement of return orders throughout the region. The policy that underlies these provisions is clear and it is important that states bound by the Regulation do not undermine its intended effect either in its interpretation or in its application in accordance with the stringent time limits stipulated.

The Good Practice Guide published by the Commission does not have the force of law but it remains an extremely useful tool for judges and practitioners who approach the Regulation without much previous experience.

At the trial of this application there can be little doubt that the focus was more on the Convention than the Regulation. Although McFarlane J carefully noted the terms of the Regulation in his consideration of practicalities in paragraph 43 – 45 of his judgment, the heading of the application made no reference to the Regulation and in recording his task in paragraph 9 McFarlane J said: -

Furthermore, nowhere did McFarlane J refer to the requirement for maximum expedition or to the extent to which Article 11(3) had been breached. The significance of the Versailles order of 7^th December 2005 is heightened by an appreciation of the breach of our Article 11(3) obligations.

What then are the lessons to be learned? Counsel informed us that an application under the Hague Convention used to be designated with a specific prefix to the court number which assisted preparation and management to ensure compliance with the Convention requirement for expedition. That requirement, which coincidentally is also expressed in Article 11, is less stringent. Nevertheless it provides: -

That requirement led to specific provisions in Part 6 of the Family Proceedings Rules 1991 to introduce abbreviated time limits for the filing of the written cases and to ensure that a Hague application could not be adjourned for more than twenty-one days. We were informed by the Bar that since the special prefix for Hague cases was removed some four years ago there had been some loss in expeditious listing.

The arrival of the Regulation has led to some amendment of the Rules but largely in relation to enforcement.

As to Article 11(3), in my judgment the application should be headed both under the Child Abduction and Custody Act 1985 and under the Regulation. On issue the outside of the Court file should be clearly marked to draw attention to the nature of the application. It should also state the date on which the six week period will expire in order to draw to the attention of the court administration the “hear-by” date which stringent compliance with the Regulation would require.

In our justice system trials under the Convention and the Regulation are restricted to the President and the eighteen judges of the Family Division. In any case of difficulty one to two days will be required for the trial. Even were the trial date sought on the day of issue it would be months rather than weeks ahead because of the great pressure on the Division of our domestic cases. Rarely a listing might be found before the hear by date if a previous fixture had vacated. Generally to comply with the requirements of the Regulation would require the removal of a previously fixed case from the list. Thus the application under the Regulation would be jumping the queue. Opinion may differ as to whether that is acceptable. However that is not a debateable issue since the United Kingdom has opted in to the negotiation of the Regulation and is bound by its stringent requirements.

As to Article 11(6) the first demand is clearly on the trial judge, who, if not delivering a written judgment, must expedite the transcript of the extempore judgment and then expedite its approval. The translation of the documents is an obligation which has been undertaken by the Central Authority. I draw attention to the memorandum of the 3^rd November 2005 and that of February 2006 which established the practical arrangements. Clearly if the Central Authority is to discharge this obligation, a heavy one given that the Regulation is now applied in twenty-four jurisdictions, it is essential that the judgment in English is sent to the Central Authority very quickly.

The President has read this judgment in draft and has approved paragraphs 44 – 46 which have potentially onerous consequences for the Family Division. It remains to be seen what will be the annual tally of contested applications under the Regulation. Research conducted by Professor Lowe for the Permanent Bureau reveals that in 2003 54% of the incoming return applications came from countries now bound by the Regulation. As the European Union expands so may the demands of the Regulation. However under the terms of recital twenty-nine to the Regulation the Commission is required to keep the operation of the Regulation under review. If the six week target is proving generally impractical it may have to be reconsidered. For the present our jurisdiction has acquired a reputation for high standards, administrative and judicial, in the application of the Hague Convention. It behoves us to be at or towards the top of the performance league when the Commission takes stock of the operation of the Regulation in its early stages.

Lord Justice Wall:

I agree. This appeal raises important issues of principle and practice in relation to cases under the 1980 Hague Convention on International Child Abduction (the Hague Convention) to which Council Regulation (EC) No 2201 / 2003 of 27 November 2003 (Brussels II Revised) applies. I say at once that I have reached the conclusion that the appeal should be allowed on the basis of one proposition only, which I see as central to it, and which I can state succinctly. This, in my judgment, is a case in which the policy of the Hague Convention, buttressed by the provisions of Brussels II Revised, powerfully outweighs the fact that the Article 13 defence raised by the child in question (identified in this judgment only as Pierre-Mathieu) is made out. The judge found, and the finding is not capable of challenge, that Pierre-Mathieu “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of (his) views”. I shall hereinafter refer to this aspect of Article 13 as “the child’s Article 13 defence”. Sympathetic as I am both to Pierre-Mathieu (whose life has, on any view, plainly been adversely affected to a serious extent by the conflict between his parents) and to the judge’s careful analysis, I part company with the latter on what I regard as this fundamental point.

In view of the importance of the issues raised by this appeal, I have decided to write a separate judgment. I have, of course, had the opportunity to read Thorpe LJ’s judgment in draft. I agree with his conclusion and with his reasoning. I recognise, accordingly, that my judgment will contain an element of repetition, which I will try to keep to a minimum.

I begin by acknowledging the obvious fact that, as the judge pointed out when refusing permission to appeal, his decision was made in the exercise of a judicial discretion. I also take fully into account the fact that in Re J (Child Returned Abroad): Convention Rights [2005] UKHL 40, [2005] 2 FLR 802 (Re J), the House of Lords was critical of this court for reversing Hughes J (as he then was) at first instance in a child abduction case, where the judge had directed himself impeccably as to the legal principles to be applied and had made an assessment of risk which had been open to him. The House of Lords referred to the well-known case of G v G [1985] 1 WLR 647, and concluded; (1) that the evaluation and balancing of material factors was a matter for the judge; and (2) that his decision could only be impugned if it was so plainly wrong that he must have given too much weight to a particular factor.

I am quite satisfied that we are in different territory in the instant appeal. No doubt for this reason, Re J was not cited to us. I cite it myself only to demonstrate my sensitivity to the point. Above all, Re J was not a Hague Convention case: the country concerned was Saudi Arabia. The crucial question for the exercise of judicial discretion in the instant appeal, namely the need to balance the success of the child’s Article 13 defence against the fundamental purposes of the Hague Convention simply did not arise in that case.

That it is open to this court to disagree with and to overrule a trial judge on the exercise of a judicial discretion on a point of principle is, I think, well established as a proposition of law. I can, however, provide a clear example from my own experience. In Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76, I had declined, in proceedings under Part IV of the Children Act 1989, to order disclosure to the police of statements made, and other evidence given by, the parents of a child who had died in their care. I took the view that, in all the circumstances of the particular case, the public policy of encouraging parental frankness in proceedings under the Act predominated, and that it outweighed the public policy which required such matters to be fully investigated by the police. Giving the leading judgment in allowing the appeal and reversing my decision, Swinton Thomas LJ said - [1977] Fam 76 at 87: -

Secondly, I am very conscious of the fact that in a decision of mine at first instance which was cited to us, Re L (Abduction: Child’s Objection to Return) [2002] EWHC 1864, [2002] 2 FLR 1042 (Re L), I exercised my discretion under the Hague Convention and declined to order the return to France of a child aged 14, who had established the child’s Article 13 defence. Moreover, I did so notwithstanding the fact that the child was subject to ongoing proceedings in France, in which an order had been made that the child was to live with his father in France from a given date. That order had not been obeyed. Furthermore, at the time I heard the case, Council Regulation (EC) (No 1347 / 2000) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matter of parental responsibility for children of both spouses (colloquially known as Brussels II) was in force, albeit not in its current, revised form.

In that case, I was satisfied of two matters in particular. They were ([2002] 2 FLR 1042 at 1058): -

In Re L, I found - indeed, I had no doubt – that the child in question was of an age and degree of maturity at which it was appropriate to take account of his views. His defence under Article 13 was thus made out, and the door was open to the exercise of my discretion not to return him to France.

Two particular factors influenced me in Re L. The first was that I found that the mother had also made out an Article 13b defence. Secondly, I took into account as an important factor the father’s failure to participate in the English proceedings, and his breaches of various orders to file evidence. He was, as Mr. Henry Setright QC for the mother in the case contended “invisible”. Further, he had been guilty of serious delay in the prosecution of the English proceedings, and I held that “once the door is open to discretion (as it is here) delay in the resolution of the proceedings is a factor which can properly be taken into account when deciding whether or not a child should be returned”.

These factors, in my judgment, are amply sufficient to distinguish Re L from the instant case, quite apart from the fact that the different provisions of Brussels II Revised apply in this appeal. True it is that there has been delay – a subject to which I will return below – but that delay has been due to the failure of the English judicial system promptly to process the case to a final hearing, not to any default on the part of Pierre-Mathieu’s mother.

Thirdly, I am very conscious of the fact that it was my first instance decision to return the children in question to Spain which was reversed by this court in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 (Re T). I must, therefore, have been plainly wrong to exercise my discretion in favour of the principles enshrined in the Hague Convention as I did. However, in the instant appeal I rely upon what was said about Re T by both Thorpe LJ and myself in the recent decision of this court in Zaffino v Zaffino (Abduction: Children’s Views) [2005 EWCA 1012, [2006] 1 FLR 420 (Zaffino), a decision upon which reliance was placed in the argument before us. At the conclusion of his review of the authorities, including, of course, Re T, Thorpe LJ said:

The relevant extracts from the judgments of Balcombe LJ in Re S and Re R are set out in Thorpe LJ’s judgment and I need not repeat them. The extract I have cited, however, requires a little elucidation. In Zaffino, Munby J at first instance had relied on Ward LJ’s citation and approval of Millett LJ’s statement in Re R ([1995] 1 FLR 716 at 734G-H that where a child’s Article 13 defence is made out, the child “will not (the emphasis is in the original) be returned against his wishes unless there are countervailing factors which require his wishes to be overridden”. Thorpe LJ did not accept that formulation, neither, with respect, do I. Equally, I agree with Thorpe LJ’s observation in paragraph 14 of his judgment in Zaffino [2006] 1 FLR 410 at 416, when he said: - “However, the reading of the judgment of Ward LJ in Re T shows that he had in fact had little to say on the principles.” Having then cited the passage from Re T in which Ward LJ cites from the judgment of Millett LJ in Re R, Thorpe LJ concludes: -

I respectfully agree with this analysis. In my own judgment in Zaffino, at paragraph [30], [2006] 1 FLR 410 at 420/1, I said this: -

Nothing in the instant case causes me to change my mind on this point. It follows, in my judgment, that the test laid down by Balcombe LJ giving the judgment of this court in Re S remains good law, and that there is no statement of principle in Re T which would prevent this court refusing to exercise its discretion in the child’s favour and ordering his return to France.

In my judgment, Zaffino is a re-statement of well-established principles, and a demonstration of their application to a given set of facts. Speaking for myself, I would urge caution in any over interpretation of my statement in paragraph [33] that when considering the objections of one child in the context of the family overall (there were six children in Zaffino), “the child’s place within the family, and the consequences of the exercise of discretion on that child, must be considered”. What I meant by the use of the word “consequences” is, I think, apparent from its context. The consequences for the child in question (Melissa) had her defence alone succeeded would have been that she would have been left on her own in England, whilst her father and her other siblings returned to Canada. The consequences for Melissa and Juliano (the two children whose children’s Article 13 defences succeeded before the judge) were the same: they would have been left in England, separated both from their parents and their siblings.

Such considerations do not, of course, apply in the instant case, since Pierre-Mathieu is an only child, although he has a number of adult half-siblings, all of whom live in France. I do not, however, resile from my use of the phrase “the consequences of the exercise of discretion for the child must be considered”. I should, perhaps have inserted the word “practical” before “consequences. That, certainly, was my intended meaning.

I therefore turn to the central issue in the case: the exercise of the discretion not to return taken by McFarlane J on the facts of the instant case.

Following Re S, the first question I have to ask myself is, I think: what is it about this case which renders it exceptional and requires the court to exercise its discretion not to return Pierre-Mathieu to France? I have to say that I struggle to find in the facts any conclusive factor or factors which compel that exercise of the discretion.

What stand out, of course, are Pierre-Mathieu’s age, the strength of his feelings and the fact that Dr Clarke formed a favourable view of his maturity. Furthermore, she reported to the judge that Pierre-Mathieu “appears to be able to separate his views from those of his father, to see some of this father’s views as fixed and sometimes bizarre, and to disagree with these both outside and within his father’s presence”. These factors made Pierre-Mathieu’s Article 13 defence a strong one. But is that enough, when weighed against the policy of the Convention and viewed in the overall circumstances of the case? I do not think it is.

This is, on any view, a straight-forward abduction in flagrant breach of Article 3 of the Hague Convention. Moreover, it is a French case through and through. Pierre-Mathieu’s father only refuses to return to France because he is in breach of orders of the French court and for fear of the legitimate consequences which will be visited on him by the French penal system. The French court is plainly seized of all questions relating to Pierre-Mathieu’s welfare. Its proceedings are pending and active. It is plainly for the French court to take all the necessary decisions about Pierre-Mathieu’s welfare, not the English High Court.

Factors which point strongly, in my judgment, to the need to uphold the policy of the Convention are the fact that Pierre-Mathieu’s father wilfully refuses to take part in the French proceedings, and has plainly persuaded Pierre-Mathieu that he will not receive a fair hearing in France. On the first point, it has long been established in the English jurisprudence relating to the Hague Convention that a parent cannot rely on his own wrong-doing in order to establish a defence under Article 13. Thus it is trite law that an abducting parent cannot found an Article 13b defence by relying on his or her refusal to return with the child if the child is returned: - see, for one example among many, Re C (A Minor) (Abduction) [1989] 1 FLR 403 at 410 per Butler-Sloss LJ. Although the passage relates to Article 13(b) (which, of course, is not this case) the passage is, I think, nonetheless worth citing in the overall policy context: -

In my judgment, when balancing the policy of the Convention against the exercise of the discretion not to return, the fact that the abducting parent refuses to participate in the proceedings from which he has wrongfully removed the child, thereby instilling in the child a fear that he will not receive justice in those proceedings, is a factor which should be given little or no weight, even in a child’s defence case.

On the latter point, even if Pierre-Mathieu has not reached his conclusion about the French court at his father’s instigation, he is manifestly and plainly wrong in believing that he will not receive a fair hearing in France. Not only is it clear that he will receive such a hearing; it is equally clear that he will be entitled to be represented in the proceedings by the lawyer of his choice - see the FAX received from the Ministère de la Justice dated 14 February 2006, which says in terms: “The child can choose his own lawyer. He could contact directly a lawyer in the bar of the competent court”. Furthermore, “the fees of his lawyer is paid by judicial aid” (sic) and in addition “the International Social Service could help for the child’s return”.

In my judgment, McFarlane J was plainly wrong to give Pierre-Mathieu’s misconceived perception of the French proceedings the weight he did in the passage in paragraph 48 of his judgment which Thorpe LJ has cited in paragraph 30 of his.

Furthermore, in my judgment, the judge’s acceptance, in the same paragraph, of the limited options which Pierre-Mathieu envisages as open to himself if returned to France is, as a consequence, also plainly wrong. Pierre-Mathieu envisages his choices as: (1) staying with his mother; (2) going into foster care; and (3) absconding. The judge comments: “that does not seem to me to be a unrealistically pessimistic set of options to hold”. With respect, I disagree. In my judgment, quite apart from Pierre-Mathieu’s right of access to French Social Services, the judge’s assessment leaves out of account the most important and relevant option of all, namely appearing in front of the French judge with the lawyer of his choice and asking the judge to allow him to live with his father in England. This court must not only not give credence to the father’s manifestly irrational and patently absurd view of the French judiciary: it must not assume that the French judge will refuse such a request, let alone that he or she will not deal with it fairly and appropriately. Indeed, the only legitimate assumption which the court can and, and indeed, must make about the exercise of its judicial powers by a co-signatory under the Hague Convention and Brussels II Revised is that the court in the foreign state, since it is seized with the question of Pierre-Mathieu’s welfare, will exercise is powers properly and fairly and will reach an appropriate decision which it deems to be in the best interests of Pierre-Mathieu.

In my judgment, therefore, by placing what I perceive to be substantial weight on Pierre-Mathieu’s perception of the French proceedings (however he acquired it) the judge was plainly wrong. I regard that error as making a very substantial contribution to the exercise of his discretion, and it plays a corresponding part in my conclusion that the judge’s exercise of discretion was flawed.

I also respectfully agree with Thorpe LJ that the judge was also plainly wrong to give weight to selective welfare considerations in the manner demonstrated by the former’s judgment. In my reading, McFarlane J demonstrated the correct approach in paragraph 49 of his judgment, and then did not follow his own lead. This is what he said in that paragraph: -

As a self-direction on welfare in a Hague Convention case, that seems to me to be immaculate. But it prompts the obvious question: if welfare considerations are “at least neutral, if not evenly balanced”, how is it possible to exercise the discretion in favour of a non-return? For the child’s Article 13 defence to prevail over the policy of the Convention, there must be something in the facts of the case which takes it out of the ordinary into the exceptional. Speaking for myself, and agreeing as I do with Thorpe LJ’s analysis of the welfare issues, I see nothing in the facts relating to welfare which warrants the judge exercising his discretion as he did.

For these reasons, I have come to the conclusion that the judge was plainly wrong to exercise his discretion to refuse a return of Pierre-Mathieu to France. In reaching that conclusion, however, I would like to make it very clear that I have considerable sympathy for the difficult situation in which the judge found himself. A case which raised a number of sensitive issues, including the unchartered territory of Brussels II Revised had already been grossly delayed, and required an immediate decision. Unlike the procedure in this court, the judge did not have the luxury of reserving judgment. He allowed himself only a period of overnight reflection before he gave judgment. In these circumstances, I would, without affectation, like to congratulate him on the clarity and humanity of his judgment. A thoroughly respectable case could be made out for dismissing this appeal: indeed, when I first read the papers, my instinctive reaction was that the judge was to be supported. Further reflection, however, a privilege not allowed the judge, coupled with skilful argument in this court, has led me to the clear view that his decision was wrong.

Although I am content to decide this appeal on the discretion point, I have to say that, speaking for myself, I think there is some force in Mr. Scott Manderson’s first ground of appeal, namely that the judge failed to give sufficient weight to what he described as “the European factors” deriving from the application of Brussels II Revised. It is of course true, as Mr. Henry Setright QC, for Pierre-Mathieu pointed out, that for present purposes, whilst Article 60 of Brussels II Revised gives it precedence over the Hague Convention, the only specific provision of Article 11 which affects the implementation of Article 13 of the Hague Convention (apart from the need, identified in Article 11(3)) for the proceedings to be concluded within six weeks) is Article 11(4) which relates specifically only to a defence under Article 13b, which this is not. Mr. Scott Manderson was thus unable to derive direct support from Brussels II Revised in his efforts to rely on the protective measures available to Pierre-Mathieu in France.

Nonetheless, when the court is considering the policy of the Convention, I do not think it can shut its eyes to the fact that pursuant to Article 11(8) the French court, in the event of an order for the non-return of Pierre-Mathieu, can subsequently require his return; and if it does so, the English authorities have no alternative but to comply.

I am, of course, far from saying that in a case to which Brussels II Revised applies, no child’s Article 13 defence will ever, or should ever succeed. That this is manifestly not the case is clear from the terms of Article 11(8) itself, which plainly envisages non-return orders being made. Nonetheless, in my judgment, when one is considering the policy of the Hague Convention in a case where there are active proceedings pending in the court of the child’s habitual residence, and where that court is plainly seized of all determinative welfare considerations, Article 11(8) seems to me, at its lowest, a reinforcement of the policy of the Hague Convention, and thus falls to be considered in the exercise of discretion.

The judge was plainly aware of Article 11 of Brussels II Revised (see paragraphs 44 et seq of his judgment). He says in paragraph 45 that he has “considered all that material” and states that he does not intend to read it into his judgment. However, nowhere, as I read the judgment, does he analyse the material. Moreover, all he says about it is contained in paragraph 47 of the judgment, which begins with the following words: -

With great respect to the judge, I do not think that this will do. In sensitive international cases relating to children, where the foreign court is plainly the right forum in which to decide the children’s future, it is, in my judgment, incumbent on English judges, if they are not going to return the child or children in question, not only to ensure that they are not trespassing on the foreign court’s jurisdiction, but also to explain clearly both why they have decided on that course of action, and why they take the view that it is not inconsistent with comity and international judicial co-operation. Thus, in a Hague Convention case to which the provisions of Brussels II Revised applies, McFarlane J needed, in my view, to explain clearly to the French court why he took the view that the course which he was taking was; (a) consistent with the philosophy of the Convention; and (b) that it was not inconsistent with the structure and philosophy of Brussels II revised.

It is, in my judgment, only too easy for different jurisdictions operating international conventions to retreat into their own national bunkers and refuse to return children who should be returned. I am not for one moment suggesting that this is what McFarlane J has done in the instant case: I am simply pointing to the danger, and the consequential need to take steps to ensure that the foreign court fully understands both why the English court has acted as it has done, and that its actions are not a reflection on the exercise by the foreign jurisdiction of its powers over the child.

For all these reasons, most of which chime closely with Thorpe LJ’s judgment, I would allow this appeal and set aside the judge’s order.

I share Thorpe LJ’s alarm and dismay at the unacceptably slow progress in England of the Hague Proceedings in this case. I am on record in a number of cases praising the speed with which Hague applications are customarily despatched in the High Court. Indeed, in Zaffino, I see that I said: -

It is, accordingly, with a sense of both shock and dismay that I find the chronology in the instant case revealing that the proceedings under the Hague Convention which were launched by the mother on 23 September 2005 were not heard by McFarlane J until 13 February 2006, his judgment being given promptly on 15 February 2006 after overnight reflection following the end of the two day hearing on 14 February. There was no question in this case of the child’s whereabouts being unknown, or any other reasons for the delay other than unavailability of court space and judicial time. That the proceedings took nearly 5 months to be heard is both shocking and unacceptable.

The matter is made worse, however, by the administrative delays in this court, which are equally unacceptable. The appellant’s notice is dated 1 March 2006. The papers were not placed before Thorpe LJ until 4 April 2006, when he directed that the matter be listed as an application for permission to appeal with the appeal to follow if permission was granted. As is well known, this listing is designed to ensure an expeditious hearing. Counsel’s convenience is not consulted, and an application so listed should be heard swiftly. It is therefore unacceptable that the application did not reach a hearing before 3 May 2006, notwithstanding the intervention of the Easter vacation.

Under paragraph 11(3) of Brussels II Revised, as Thorpe LJ has pointed out, proceedings for the return of a child must be completed in six weeks, “except where exceptional circumstances make this impossible”. No such circumstances apply in the instant case. I therefore strongly endorse Thorpe LJ’s observations on the procedural factors which must govern future applications under the Hague Convention and Brussels II Revised. Failure to adhere to the time-tables proposed will not only result in the English court being in breach of its international obligations; it will represent an unacceptable abnegation of the court’s responsibility properly to address cases of international child abduction – a matter in which, in the past, we have taken legitimate pride.

As a judge of the Family Division for eleven years, I am acutely conscious of the pressures on the judiciary and on those with responsibilities for listing. Article 11(3) of Brussels II Revised, however, does not admit of debate. It simply must be implemented.