V (a child), Re

LORD JUSTICE NEUBERGER: This is an application by Mr V for permission to appeal a decision of Coleridge J given on 24 May 2006. The judge had to decide whether to order the return of Mr V’s son, M, pursuant to the Child Abduction and Custody Act 1985, and what is known as Brussels II, or more accurately Council Regulation EC No. 2201 [2003], to Hungary. Mr and Mrs V were married in Hungary in 1993 but resided in England for most of the time thereafter. M, the subject of these proceedings, was born in Leicester some 13 years ago. Two other children, A and D, were born in England in 2000 and 2002, respectively. In 2002, however, the family returned to live in Hungary. Sadly, the marital relationship broke down in 2005 when they separated. M remained with his father, and A and D moved out with their mother. Divorce proceedings were begun by Mrs V in 2005 in Hungary.

In February 2006, Mr V brought M to England, and the decision which Coleridge J had to make, as I have said, was whether or not to order his return to Hungary. Given the terms of the 1985 Act and Brussels II, as explained very recently in the judgment of Thorpe and Wall LLJ in Vigreux v Michel [2006] EWCA Civ 630 there was, as the judge accepted, and indeed as counsel for Mr V accepted, a strong presumption that the child would be returned to Hungary. However, as the judge also recognised, and as counsel for Mrs V also recognised, the child’s expressed wishes could, if the judge considered it appropriate, be taken into account.

M had been interviewed pursuant to an order of Baron J by Malcolm Hartley, a children and family reporter, who had produced a careful and clear report which was before the judge and which I have read. It is clear from that report, as the judge accepted, that M was an impressive and sensible boy and wanted to stay with his father in England, and had reasons for this. The judge considered all the issues, and reached the decision that M’s desire to stay, and his reasons for that desire, were insufficient in all the circumstances to overcome the strong presumption in Brussels II that he should be returned to Hungary.

When refusing permission to appeal Coleridge J described this as “a finely balanced decision but entirely discretionary. All the factors considered, Brussels II policy prevails over child’s wishes”. That is, if I may say so, a very fair and accurate summary of what appears to have been a carefully reasoned decision. I say “appears to be” because I do not have an approved note of the judgment. That is not a criticism of anybody, because of the time factor of the judgment having been given a week ago, but I have a full note prepared by solicitor acting, I think, for Mr V.

The two decisions which the judge referred to, namely Vigreux which I have already mentioned, and Zaffino v Zaffino which I have in [2006] 1 Family Court Reports 387, both resulted in the Court of Appeal reversing the judge’s decision. However, it seems to me that this court should not interfere with the judge’s decision if he has not gone wrong in law or reached a decision which no reasonable judge could have reached. In light of the guidance given by this court in Vigreux , it seems to me that the judge certainly reached a decision he was entitled to reach, and it may well be, in the light of the clear terms of Brussels II, as explained by Wall LJ in paragraph 78 to 83 of his judgment in Vigreux , that the decision reached by Coleridge J was, sadly for Mr V, the only right decision on the facts of this case.

Mr V has presented his case in person today with considerable skill, despite the fact that English is not his first language and despite the fact that this is a very emotional matter. Any father who is close to his son, particularly a father who has acted as a mother to his son, as Mr V says he has in this case, must feel desperate about this sort of situation whatever the rights and wrongs may otherwise might be. Mr V has managed to overcome his emotional feelings and has presented his case very clearly.

He says, first of all, that the judge paid insufficient regard to M’s human rights. As a matter of principle, I do not accept that. It seems to me that Brussels II is consistent with human rights, and it entitles a person in the position of M to have his views taken into account, but it is quite clear that those views are not necessarily determinative.

A practical point which Mr V does make, and which I wish to spend a little time considering, because it is important in principle and it is also important in practice, is his concern that the Hungarian courts will take a very long time to consider M’s position. An important part of the reasoning behind Brussels II is that the court of normal residence of the child, the court in the country from which the child was taken, is the court which in principle should normally decide whether the child leaves the country or not. In other words in this case, as reflected in Coleridge J’s judgment, the principle is that the child should be returned to Hungary whence he was taken, and that it is then for the Hungarian courts to decide whether he can come to England. It should not normally be the English courts that should decide whether he can stay here.

As a matter of principle the argument that the Hungarian courts in this connection will act slowly, or even inappropriately, is not one I think that this court should entertain. The point was made by Wall LJ in paragraph 73 of his judgment in Vigreux . That was a case involving a child called P, and the case was concerned with the French courts. He said this:

To my mind, that applies to the courts dealing with the case in an appropriately speedy way as well. I have to assume that the Hungarian courts will deal with the matter appropriately, and in particular that they will deal with any application by Mr V to take M to England promptly, as well as fairly, because fairness includes promptness; indeed, properly includes promptly, too.

Now it is not for me to tell the Hungarian courts what to do but I would suggest, with respect to them, that the converse of Wall LJ’s observations is that signatories to the conventions should deal with applications, such as that that Mr V may make in respect of M, promptly, and I would expect the Hungarian courts to deal with it promptly. Otherwise, the basis of the Convention breaks down.

It is perhaps only right to draw attention to the fact that the English courts are not without criticism as well. Paragraphs 40 to 46 of Thorpe LJ’s judgment and paragraphs 85 to 88 of Wall LJ’s judgment in Vigreux show that the English courts have not acted as promptly as they should. As is made clear in those judgments, the English courts have to deal with children’s matters promptly, and I would expect the Hungarian courts, just as I would expect the English courts, to do so promptly. Otherwise, as I say, the basis for the convention and the trust other countries have in each other’s systems breaks down.

At the beginning of this judgment I indicated, in fairness to Mr V, what I was going to decide. I also said to him that he might like a copy of this judgment because I think it is only fair to him and to M that a copy of this judgment could be shown, if it is thought appropriate, to the Hungarian courts, to indicate that, at least to my mind, it would be only fair that any application in connection with M’s residence should be dealt with promptly. In fairness to Mr V, he is entitled to my clear indication that I would expect the Hungarian courts, just as I would expect the English courts, to deal with this sort of matter promptly because it involves the welfare of children.

So I am sorry, Mr V, but that is my decision and I just hope the unhappy situation in which you and your wife and your children find themselves will sort itself out. Thank you very much.