AJ v JJ & Ors

On the 25 November 2011 we allowed the appeal of three children intervening in the appellate proceedings between their parents, proceedings brought by the father for the return of the three children to Poland under the 1980 Hague Abduction Convention and Article 11 of Regulation Brussels 2 Revised. Given the utmost need for expedition we announced our conclusion with reasons to follow.

On the face of it this is a paradigm case for a return order. The parents are Polish and married in Poland on 13 April 1996. Their son K was born on the 18 June 1996. Their second son JA was born on the 12 July 1998. Their third child, a daughter JU, was born on 24 March 2001. The parents separated in August 2005 and custody proceedings immediately followed in Poland. On 31 August 2006 the court in Zamosc effectively granted custody to the father with contact to the mother on alternate Saturdays.

Subsequently the mother emigrated to this country where she has successfully established her habitual residence, employment, and a home which she shares with her current partner. Accordingly in September 2010 she applied for the variation of the contact order. A welfare report was prepared and on the 9 November 2010 the Zamosc court by consent ordered holiday contact three times a year, the travelling costs to be met by the mother.

On 5 July 2011 the mother collected the children from the father’s home for the three week summer holiday in England ordained by the Zamosc order. Thus the children were to return to their father on 26 July.

On 25 July the mother issued an application to the Zamosc Court for custody and for the children’s relocation to this jurisdiction.

On the mother’s failure to return the children on the 26 July the remedy provided by the Hague convention was swiftly invoked. The London central authority received the Polish request on 11 August 2011 and on the 17 August the first order was made requiring the mother to file her evidence by 2nd September. She complied and the first inter partes directions order was made by Charles J on 7 September. The second directions order was made by HHJ Coates on 28 September. To these two orders I will return.

The trial was fixed for 11 October and came before Roderic Wood J.

Effectively there was only one issue for trial. Although in her written statements the mother had raised two defences, Article 13b and the children’s objections, the directions order of 28 September contained this recital:-

“And upon the mother indicating to the court through counsel that the primary issue in this case is whether the children should be returned to Poland notwithstanding their stated objections…”

The mother maintained this position at trial. Although the Article 13b defence was not abandoned it was hardly pursued.

The statement of the children’s objections was not only contained in the mother’s statements but also in a written report from the children and family reporter filed at the second directions hearing. Her report was filed in compliance with directions given by Charles J on 7 September. I cite the relevant paragraphs in full:-

“3.

The CAFCASS High Court team is requested to make arrangements to interview the three children and to prepare a report setting out the children’s views, any objection which any of them have to returning to Poland, their maturity and recommendations, in particular as to whether any of the children should be separately represented, by 4pm on 21 September 2011. The costs of the attendance of the children at interview shall be deemed a reasonable disbursement on the father’s public funding certificate, and shall be reimbursed by the father’s solicitor when met by the LSC.

4.

The father’s application for summary return of the children to Poland shall be listed for a further hearing at 10.30am on 28 September 2011 at the Royal Courts of Justice (with a time estimate of 30 minutes). At this hearing the Court will consider:

i.

Any application for any or all the children to be made parties to the proceedings and to be represented; and

ii.

Directions generally, including the approach to be taken to the mother’s Article 13b defence.”

Plainly paragraph 4(ii) above explains the recital in the order of 28 September cited above.

Ms Julian, in her report of her interview with the children did not overlook the Judge’s request for recommendations on separate representation. Paragraph 92 of her report stated:-

“Based on my reading of the court papers provided to me and my interviews with K, JA and JU, I am not convinced that joinder of the children as parties would sufficiently enhance the courts understanding of the issues so as to justify further delay and the inevitable expense. The children had made their views known to the court through interview with me and they are clearly detailed in this report. ”

However, perhaps surprisingly, the last sentence of paragraph 93 and the first sentence of 94 reads as follows:-

“The children each expresses a strong wish to remain in England with their mother and particularly K who would ‘fight’ and not get on the plane. If the court determined the children should return to Poland K is 15.3 years of age and if he chose to, could seek his own legal advice and I would expect him to be considered competent to give instruction if he did.”

On the 11 October the trial took an unexpected turn when the mother sought to fortify her case on K’s objections by recounting a conversation she had had with K, unrecorded in her statements and not mentioned in Mrs Julian’s report. The Judge required that evidence to be given on oath.

When she had had her say the Judge asked her whether she would not accompany the children and look after them in Poland until her outstanding application to the Zamosc court was decided. She said that she would, that she and the children could live with her mother who did not live in the same town as the father. This was undoubtedly surprising since it was not a possibility outlined in either of her statements.

The Judge adjourned over night to enable Mr Anderson, who represented the father below, to obtain instructions on undertakings to ensure the mother’s security on return and pending the decision of the Zamosc court.

Conventional undertakings were proffered on the next day and the Judge delivered his judgment granting the application for return.

If the Judge did not find that the children objected to return, then Article 12 required the return order. If he found that the children objected to return then he could nevertheless order a return in the exercise of the discretion conferred upon him by Article 13.

It is by no means clear by which of these two routes the Judge arrived at the order for return. The relevant passages are as follows:-

57 How shall I approach the question of discretion assuming it arises?

58

I say ‘assuming it arises’ for the obvious reason that looking at what the children say and assessing its weight in the light of the objective evidence, I have real doubt that these objections are in fact made out overall. I nevertheless, if I am thought to be wrong about that, now consider whether or not to exercise my discretion in favour for or against a return.

60

I have therefore decided that, on balance, taking account of all the above factors, that even if the ‘objections’ are thought by others to be fully made out (which I have already clear I have real doubt about) I would exercise my discretion in favour a return.

Perhaps not surprisingly in the light of what the children had said and the observations of Ms Julian in paragraph 94 of her report, the children found their way to Ms Hansen, a partner in the London firm of Freemans. She filed a statement to record her interview with the three children and applied for leave to intervene and for permission to appeal.

I considered her papers at a time when a permission application from the mother was mooted but not yet filed. I directed an oral hearing on notice of any applications for permission with appeal to follow on 25 November. In the interim the mother’s appellants notice was filed.

We first heard Mr Gration advance the mother’s application for permission which we refused for reasons which need not be here repeated.

By contrast we granted the children’s application for permission which had been articulated in amended grounds of appeal and a skeleton argument settled by Mr David Williams.

Mr Williams submitted that he was entitled to succeed on two grounds. First that the Judge had fallen into serious error in not of his own motion ordering separate representation for the three mature and articulate children who so strongly objected to return. Alternatively the Judge should of his own motion have required a meeting with the children to gauge their true positions and particularly to involve them in the process. As Mr Williams put it, it was simply unacceptable for the Judge to impose on the children the return that they dreaded without engaging them in the process.

Mr Williams second ground was that the Judge had failed to make a clear finding on what was effectively the primary issue in the case, namely did the children object to return. It was impermissible for the Judge to sit on the fence. If he had implicitly concluded that the asserted objections had not been made good then that was a finding not open to him on the evidence. If he had on the other hand implicitly concluded that the children did object then the subsequent exercise of discretion was fatally flawed since a proper exercise was dependent upon proper findings on the children’s reported evidence.

Mr Jarman, for the father in response, easily met the submissions as to separate representation. As to a meeting Mr Jarman emphasised that no one had suggested, and it could not be said, that the Judge was plainly wrong in failing to seek it of his own motion.

Mr Jarman supported the Judge’s conclusion. This was a paradigm case for a return order and the Judge had sufficiently explained how his discretion led him to a predicable outcome.

Mr Williams in reply suggested that, since it was the Judge who, in inquisitorial mode, had asked the question that neither counsel had sought to put (thereby eliciting a much smoother after return), it was incumbent upon the Judge then to meet the children to explain to them the development and all its reassuring consequences.

In my judgment Mr Williams succeeds on his second ground. The Judge’s primary task was to make a clear finding on what was in effect the only issue in the case. Although he might have had a distaste for the mother’s strategy, the evidence as to the nature and extent of the children’s objections was certainly not scant or weak. A clear finding that the children’s objection had not been made good would have been the end of case and presented the mother with a single and clear ground of appeal. Equally a proper exercise of the discretion would only be triggered and conducted by an unequivocal finding that the objections had been made good.

Turning to Mr Williams first ground, in my judgment the submission that the Judge of his own motion should have joined the children as parties is unsustainable. I would not find it necessary to go to Rule 12 of the Family Procedure Rules 2010, given the care that Charles J took on 7 September to ensure that issue should be settled, if it were to be raised, on 28 September. It was not then raised and had it been raised by the mother’s current counsel on 11 October it would have received short thrift. On that view the submission that the Judge should himself have ordered it is hopeless.

However I am impressed by Mr Williams’s submission that the Judge should of his own motion have engaged the children in the process.

It is of course easy to form hindsight judgments. Were the developments which are before this court foreseeable? Certainly the concluding paragraphs of Mrs Julian’s report should have alerted the Judge to the risk.

Furthermore the flow of authority pointed towards a meeting. Sir Mark Potter when President in a number of reported cases emphasised the desirability of a face to face meeting between Judge and children in appropriate cases: See JPC v SLW and SMW (Abduction) [2007] 2FLR 900 and DeL v H [2010] 1FLR 1229.

Also for the Judge’s guidance there was the reported case of re G (Abduction:Children’s Objections) [2011] 1FLR 1645. I only emphasise what I said at paragraph 15 of my judgment:-

“There is, in this branch of international family law, a growing perception that the judge at trial should hear the voice of the child: that is implicit from the Hague Convention itself but made explicit by the United Nations Convention on the Rights of the Child 1989. Of course, the manner in which the judge hears the child is a matter for local custom and tradition. In this jurisdiction, judges in the High Court have not traditionally in modern times heard the voice of the child directly but through the officer of the court, the Cafcass officer. The tradition is now under scrutiny, debate and revision. The subcommittee of the Family Justice Council that is concerned to ensure the safeguarding of the rights of children has forcefully expressed the view that judges in this jurisdiction should be meeting children and hearing their voice in carefully arranged conditions; given the fact that E was seeking to communicate her views to the decision-maker, it is perhaps with hindsight a pity that His Honour Judge Barnett did not have the opportunity of meeting her and hearing from her own lips.”

I would also emphasise what I said at paragraph 21:-

“Courts of trial and appellate courts have to consider the implementation of a judgment for return. A court needs to be alive to the difficulty of implementing a return order, where the subject of the return order is an articulate, naturally determined and courageous adolescent.”

As well as these authorities the Judge had the advantage of the President’s Practice Note (guidelines for judges meeting children who are subject to family proceedings) of April 2010. That Practice Note is the product of the sub committee of the Family Justice Council to which I referred in paragraph of my judgment in Re G (see paragraph 34).

Mr Williams submits that the words of the Practice Note can be construed to apply only to domestic proceedings and not to proceedings brought under international family instruments such as The Hague 1980 Convention. He further informs us that in his experience the Practice Note has changed nothing and that practitioners and judges seem not to refer to it, or apply it.

I have a plain reaction to that. The Practice Note should be taken to apply to all proceedings in which the decision of the court will have a significant impact on the future life of the child. Further if the Practice Note has as yet had no effect that is matter of concern. Practice Guidance from the President is not, like most of today’s news, safely forgotten tomorrow. Practitioners and judges have the responsibility to consider in what way and to what extent the Guidance applies during preparations for trial and at the trial itself.

These children understandably felt themselves to be vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in this jurisdiction were brought under an international instrument and were essentially summary in character. They needed to understand that they were habitually resident in Poland and that accordingly the Polish court had primary jurisdiction under Article 8 of Brussels 2 Revised. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish Judge. They needed to understand that their mother had initiated that process during the course of the summer holiday. They needed to understand that a summary return order might be a transient order dependent on the outcome of the mother’s application for custody and relocation. They needed to be informed of the fundamental shift in their mother’s case elicited by the Judge’s questions.

Return orders in respect of a boy on the threshold of escape from the courts Convention jurisdiction and determined to fight enforcement need to be very carefully thought through by any trial judge. There are enough incidents in the report of the distress and general mayhem caused by the making of return orders that were foreseeably bound to provoke dramatic scenes. In these cases an option open to the Judge is a meeting at which practicalities, consequences and reassurances can be ventilated. The Judge sits above the family turmoil. The Judge’s authority can be an influence for acceptance. Importantly a meeting gives the Judge an opportunity directly to assess where the return order will lead if enforcement will be resisted. Dramatic (and by no means unknown) scenes such as the pilot refusing to take off without the children disembarking or children barricading themselves and threatening suicide cause profound damage to the principal actors and a great deal of disturbance to others in the cast or in the wings.

All these reflections reinforce the message that in the present case the Judge erred in not at least raising with the parties the need for him to meet the children face to face.

Of course each case is fact dependent. Of course the trial judge has a very broad latitude. In my opinion the Judge erred in not reacting to recent guidance. Of course I recognise that he was entitled to draw inferences from the absence of any application from the mother. Had this been the only ground advanced by Mr Williams, I would not have allowed this appeal. However I would not lose the opportunity of emphasising the importance of judges engaging children in the process directly in cases where the indications were as strong as here.

It is very regrettable that the case must be remitted. The Regulation itself imposes the duty of maximum expedition and the performance of that obligation inevitability means that applications under the Convention and Regulation must leapfrog other fixtures. Accordingly I would direct the remitted hearing be listed in the week commencing 5 December to ensure that, if that the return order stands, that the children will be in Poland for Christmas.

I would further direct that the remitted hearing be conducted without further oral evidence. If there were any question as to proof of the children’s objections on 11 October that question is dispelled by subsequent developments. Thus the Judge’s single task is to exercise the discretion giving due weight to relevant factors. Those factors are already well covered in the written evidence and the position of the parties has been fully ventilated in submissions here and below. I doubt the need for any further written submissions.

On the basis that the childrens’ objections are proved the judge’s need to see the children is self evidently reduced. Furthermore their need to be engaged in the process is currently met by their separate representation for the purpose of the appeal. Their solicitor and counsel must ensure that the children understand the judge’s task at the next hearing. The respective function of the English and Polish courts should be clearly explained to them. They should understand that the future which their mother desires and which they support can not be achieved by unilateral wrongful act on the part of their mother. That future can only be achieved by the discretionary judgment of the Polish judge whose responsibility it is to investigate and decide all issues governed by their ultimate welfare. They should understand that the mother’s application to the Polish court was issued during their summer holiday and that it may well be necessary for their mother to return to pursue her application and for them to return to enable the Polish court to have an expert report on their wishes and feelings and the wider welfare issues. Indeed the Polish judge may well wish to see the children himself.

Such due preparation of the children within the appeal for the remitted hearing might reduce the need for the Judge to meet the children. However if the judge makes a return order it is very important that every effort be made to avoid disruption and distress in its implementation. The impartial and authoritative judge would, in my judgment, be the best person to communicate to the children his decision and the importance of swift and untroubled implementation.

Given the restrictions which I consider must be imposed on the remitted hearing it should demand no more than a half day time estimate assuming that the Judge has an opportunity to prepare. In that regard counsel should agree an essential reading list sparingly drawn. Additional documents can always be introduced during oral submissions.

We were not informed what stage the mother’s application of 25 August has reached. I would in any event propose to communicate to the network judge in Warsaw the request that its trial be expedited. Information should be sought for the judge at the remitted hearing.