K (A Child) (Hague Convention: Child's Objections)

On 6 February 2014, His Honour Judge Bellamy, sitting as a High Court Judge, dismissed an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (hereafter “the Hague Convention”) for the summary return of a child to Lithuania. The child concerned is A. At the time of the judge’s decision, she was very nearly 11 years old. The applicant for a return order was A’s father (F). This is his appeal against Judge Bellamy’s order.

Until summer 2013, A had lived her whole life in Lithuania, sharing a flat with both her parents. On 25 July 2013, A and her mother (M) came to visit England, with F’s agreement. They were expected back in Lithuania by 2 September 2013 but did not return. M informed F that they were staying in England. There is no dispute that this was a wrongful retention in breach of F’s rights of custody.

F contacted the authorities and, on 14 October 2013, the Lithuanian Central Authority made a request under the Hague Convention for the return of the child. Proceedings were issued in the Family Division of the High Court on 18 October 2013.

In due course, M and A were located and directions were given for a hearing of the application. The uncharacteristically long delay in achieving a resolution of the proceedings at first instance was caused, essentially, by the difficulties that M encountered in obtaining legal aid. As is so often the case nowadays, the Bar Pro Bono Unit came to her rescue and we are grateful to Miss Ricci who represented her both in front of Judge Bellamy and in the Court of Appeal.

Judge Bellamy’s refusal to order the return of A was based upon his acceptance that A objected to returning to Lithuania and had attained an age and degree of maturity at which it was appropriate to take account of her views (see Article 13 of the 1980 Hague Convention) and his conclusion that the appropriate exercise of his discretion would be not to require her return. M also sought to rely upon Article 13b) but the judge rejected that and there is no appeal against that aspect of his decision.

Permission to appeal to this court was originally refused on the papers by McFarlane LJ on 17 March 2014. He considered that the only ground of appeal which was potentially arguable was that the judge had failed to give sufficient reasons for his decision but he was not prepared to permit it to be pursued because at that stage it appeared that the judge had not been asked to expand upon his judgment. The application for permission was renewed and came before Ryder LJ in May 2014 and July 2014. In May, Ryder LJ approved the making of a request to Judge Bellamy for further particulars of his discretionary conclusions. Judge Bellamy promptly provided a supplemental judgment and in July Ryder LJ directed that the matter be listed before the full Court of Appeal for the permission application to be determined, with the appeal to follow directly if permission were to be granted.

I would grant permission to appeal for reasons that will appear as I deal with the grounds of appeal.

A and both her parents are Lithuanian. A has an older sister, V, who lives with her long-term partner and young child in England. It was in order to visit V that M and A came to England on 25 July 2013. They have been living with V since then. In August 2013, M began working. In September 2013, A started school.

An important part of the case was the evidence that indicated that A may be afraid of F. This came from M and from the interview that the CAFCASS officer, Mr McGavin, had with A on 6 December 2013. From what A said to Mr McGavin, it appeared she had become fearful of F after she came to this country. A spoke to Mr McGavin of a bad relationship between her parents when they were all in Lithuania and she did not speak positively about F who she said was unemployed, drank vodka and never played with her or took her to the park. However, when asked whether she was scared of F when she was in Lithuania, she said “not very much, but when he drank he said it was better for him to commit suicide and I began crying”. In contrast, speaking of the position since her arrival here, she said “I’m very much afraid/scared of him”.

She told Mr McGavin that F had made threats by text and telephone and she spoke about a nightmare that she had had. When she spoke of threats by text, she was referring to text messages which were sent by F to M and V from 27 July 2013 onwards, about which it seems she knew. The judge described the messages to V as “abusive and threatening”. By way of example, the message F sent to V on 30 July 2013 read, “Tell to that bitch if the child is not there on time, she’ll lose her eyes”. A’s reference to her nightmare was a reference to the aftermath of a telephone call she had had with F on 5 August 2013. There was evidence that she had been upset by this. According to M, A was fearful during the call and M overheard F telling A to come back to him if she did not want anything bad to happen to her mother or sister. M said that following the call, A was hysterical and that that night she had trouble sleeping. What A told the CAFCASS officer was that she had a nightmare, dreaming that F killed M and V, and that she had a high fever that night.

The CAFCASS officer’s report and oral evidence were, of course, central to the question of A’s objections and provided valuable material also for the judge’s consideration of how he should exercise his discretion if it arose. As well as speaking to A, on 12 December 2013 Mr McGavin spoke to A’s teacher at the school she has been attending in England. The judge set out at some length in his first judgment (§§24 to 36) what the CAFCASS officer relayed to him of his enquiries and of the views he had formed and he revisited this in his supplemental judgment.

Mr McGavin reported that A was very anxious during her interview with him, which she found stressful. She spoke very positively during it about England. She gave a picture of a happy family life here. She was very positive about her school and was said by her teacher to have fitted in “beautifully”. She told Mr McGavin that she really wanted to stay here.

In contrast, she said she did not like school in Lithuania; it was not entirely clear to Mr McGavin why this was. She did, however, have good friends in Lithuania and was keeping in touch with one of them by Skype. In Lithuania, she had had contact with both sets of grandparents and got on well with her maternal grandparents but did not like her paternal grandmother as much. Aspects of her life in Lithuania that she enjoyed were spending time with her friends and her maternal grandparents.

She expressed clear views to Mr McGavin about returning to Lithuania, telling him she would be “very sad”, “crying all the time”. Mr McGavin reported that she “agreed to my suggestion that she is enjoying being here more than in Lithuania, though she misses her grandmother (maternal) and her best friends”. On a scale of 1 to 10, with 10 being that she would hate to go back to Lithuania, she immediately pointed to 10. When he asked her if there was anything that would make it better for her in the event of a return, for instance a return to her maternal grandparents, she started crying at the prospect of having to go back.

M’s evidence was that she was concerned about A’s mental state if they had to return to Lithuania. She said that when she tried to prepare A for a possible return, A burst into tears and said that if they took her back, she would kill herself. F responded to this evidence that he was “horrified” and that he did not believe A would ever say such a thing.

Mr McGavin’s view was that A has “a very strong wish to remain here which the court may consider amounts to an objection in Hague Convention terms”. He considered that the fact that she was able to identify positives about Lithuania added weight to the fact that in her mind they were strongly outweighed by the negatives. Her age and maturity came across to him as in line with her chronological age and he said that information from her school teacher suggested that her maturity may well be in advance of her age. He did sound a note of caution because, on account of A’s anxiety, he was not able to conduct as in-depth an interview as he would have hoped and he did not feel he got a full picture of her relationship with F. He also had the impression that she had prepared some of her narrative in advance and raised the question of whether A had been influenced.

M’s case was that she would encourage A to keep in touch with F from this country if they were to stay here. She said in her second statement that A could visit F on her holidays or he could visit her. A had in fact been in communication with F by text preceding the hearing before Judge Bellamy and the judge was provided with copies of a series of messages that passed between them on 24 January 2014 in which A informed F that she did not want to come back, that she did not love him and that she was scared of him. The CAFCASS officer read the exchange of text messages before he gave evidence and described them as “troubling” but they did not affect his conclusions.

The judge dealt with A’s psychological state as part of his consideration of M’s Article 13b) grave risk case as well as in the passages of his judgment where he dealt expressly with the child’s objections. It would not, I think, be right to take too compartmentalized an approach to his judgment because his analysis under one heading was plainly material to his conclusions under the other as well.

In the context of Article 13b), he commented that there was no evidence of physical or psychological harm suffered by A whilst she was in Lithuania or even of circumstances which may have given rise to the risk of such harm being suffered and that it was only F’s behaviour since they left that was said to give rise to that risk. He did not accept that the risk that follows from that behaviour could be said to amount to a grave risk of harm if A were to be returned to Lithuania, notwithstanding the teacher’s comment that A would be traumatised if required to return and M’s account that A had threatened suicide (§47 of the first judgment). He said he was “fortified in these views” by M’s willingness to contemplate A visiting F in Lithuania and keeping in touch with him by other means, and also by the fact that A had recently been prepared to engage in text messaging with F, finding it surprising that A was willing to do that “if [she] were as traumatised by recent events as is claimed” (§489ibid).

However, the judge accepted that A’s views amounted to an objection in Hague terms (§54 ibid, see below), describing it at §9 of the supplementary judgment as “a strong objection to returning to Lithuania”. Although he accepted that A would have been exposed to conversations which revealed the antipathy of M and V towards F, he found that her objection was authentically her own (§17 of supplementary judgment). He found that there was “a degree of reasonable justification for A’s objections” in that “there is evidence that F’s recent behaviour has made A scared of him” (§15 of the supplementary judgment). He also remarked upon the consistency between what A said to Mr McGavin and what she said to her teacher in the more relaxed daily classroom setting over a three month period. He found “[o]f particular note”, in this context, that A’s teacher had told Mr McGavin that:

“A has said she is not keen on her father. The picture she has given of him is ‘not positive’…. She is very concerned about going back to Lithuania. She does not want to go back. She is frightened at the prospect. She would be traumatised if she has to return.” (§32 of the first judgment)

He dealt with the difficult issue of separating out whether A objected to returning to Lithuania or to returning to live with F, then went on:

“54.

It would be surprising if a child of A’s age had the sophistication to advance a reasoned objection to returning to her home country without linking that objection to her own life in that country. In this case, because of the delay to which I have already referred, A has now been living in this country for more than six months. It seems to me to be equally impossible to separate out desire to stay where she is from unwillingness to return to Lithuania. Mr McGavin made the point that A ‘has a very strong wish to remain here which the court may consider amounts to an objection in Hague Convention terms’. In this case I am persuaded that it does, particularly when one adds to that the impact that F’s behaviour over the last six months has had upon her, the fact that she was unhappy at school and the fact that notwithstanding the positives she identified about life in Lithuania she has at all times been very clear that they are heavily outweighed by the negatives.” (My italics for the purpose of later reference in this judgment)

The foundation for the judge’s exercise of his discretion was laid midway through the first judgment when he dealt with the law, setting out Article 12 of the Hague Convention and quoting a passage from Re E (Children) [2011] UKSC 27 which left no doubt that he appreciated that the usual imperative was to return the child to his or her home country forthwith so that any dispute could be determined there. In relation to the child’s objection exception, he cited De L v H [2010] 1 FLR 1229 and Re M (Abduction: Zimbabwe) [2008] I FLR 251, including the well known paragraphs, §43, §44 and §46, in which Baroness Hale explained how the discretion that arises in child’s objections cases should be exercised.

What he said specifically in relation to the exercise of his discretion was contained in one paragraph at the end of his judgment which reads as follows:

“57.

I have acknowledged the central importance of Article 12. I have also referred to the guidance given by Baroness Hale in Re M that taking account of a child’s views ‘does not mean that those views are always determinative or even presumptively so’. It seems to me to be implicit in the way Her Ladyship expressed herself that there will be cases in which the child’s views will be determinative. In my judgment this is such a case. Whilst I have regard to the objectives of the Convention, I am also entitled to take welfare issues into account. Neither is of overriding importance. Both must be weighed in the balance. In this case I am persuaded that the balance comes down in favour of accepting A’s objections as being determinative on the basis that such an outcome is also strongly consistent with her welfare.”

Given the brevity of this, the request for amplification of the judgment was unsurprising. The supplemental judgment provided some further material about A’s objections, particularly as to their authenticity (with which I have dealt above), but also about the other considerations that had influenced the judge’s discretion.

The judge summed up his position as follows in the final paragraph of the supplemental judgment:

“In my judgment, where the nature of a child’s objections are borne out of her experience, where the objections are clearly and strongly expressed, where they are authentically her own, where they are rational and plainly consistent with her welfare interests, the exercise of discretion comes down against ordering summary return.”

As to why he considered it was in A’s welfare interests to stay here, §§18 - 22 of the supplemental judgment are directed to whether A’s views coincide with her welfare interests, although the preceding paragraphs dealing with the nature, strength and authenticity of A’s objections are also material.

From §18, it can be seen that the judge had in mind that although he could not make firm findings, there might be “more than a grain of truth” in A’s account of a home life in Lithuania characterised by frequent parental arguments and excessive drinking on F’s part. It seems that this conclusion was based, at least in part, on F’s behaviour in relation to the text messages and the August telephone conversation with A. We can see this from the judge’s reference in §19 of the supplemental judgment to “paragraphs 13 to 15” (“paragraphs 13 to 15 suggest there may be more than a grain of truth in what A says”) which must, I think, be a reference back to paragraphs 13 to 15 in the first judgment, which is where he dealt those matters. He had also referred to the same paragraphs (and paragraph 16) a little earlier in the supplemental judgment (§15 of the supplemental judgment) when he commented that “there is evidence that F’s behaviour has made A scared of him” and that, “[i]n other words, there is a degree of reasonable justification for A’s objections”.

I am afraid that making sense of §§20 to 22 is not entirely easy. For example, §21 incorporates as seven bullet points what the CAFCASS officer was told by the teacher yet the judge follows these up with §22 which reads:

“These two points are in my judgment illustrative of the way in which A’s views about being returned to Lithuania do indeed coincide with her welfare interests” (my italics)

However, §§ 20 to 22 need to be read together with the rest of this judgment and the first judgment and I will explain what I make of them having done this exercise.

§20 deals with schooling. It begins:

“A’s comments to Mr McGavin concerning her schooling could be seen as self-serving”

before reciting what A told the CAFCASS officer about school here and in Lithuania. Despite this caution, the judge himself does not seem to have concluded that A’s comments about school were self-serving.

First, his acceptance that A’s views/objections are authentically her own seems to me, on the facts of this case, to incorporate an acceptance that, amongst other things, she likes her school here and now feels she did not like her school in Lithuania. Indeed, at §54 of the first judgment (which I reproduced earlier in this judgment with the relevant passage picked out in italics) the judge referred to “the fact that [A] was unhappy at school” in Lithuania.

Secondly, §21 of the supplemental judgment seems to abandon the notion floated in §20 that A’s comments about school might be self-serving because it begins:

“However, [the CAFCASS officer] goes on to record what he was told by A’s class teacher….” (my italics)

and the judge then quotes verbatim the seven bullet points into which the CAFCASS officer had distilled his conversation with the school teacher. These include how, in the teacher’s view, A had fitted in beautifully at school and made friends, and that she is close to her sister who the school finds to be very supportive. They include less positive material from the teacher as well, dealing with A’s views of F (“the picture she has given of him is ‘not positive’”) and her views about a return to Lithuania (including that she “is frightened at the prospect” and “would be traumatised if she had to return”). A part of this passage from the CAFCASS report was also quoted by the judge in his first judgment at §32 and can be found set out at §20 above.

Whilst I am still not sure what “two” points the judge had in mind particularly in §22, I do not think this is fatal to an understanding of his judgment because they were intended to be “illustrative” of his point and I think it is tolerably clear that he was, in fact, influenced by all the material that he included in the section commencing with §18.

F did not challenge the judge’s conclusion that A in fact objected to a return to Lithuania. He sought originally to argue that A did not have sufficient maturity for her objection to be taken into account but this ground was abandoned when permission for it to be argued was refused on paper. The focus of the appeal was therefore essentially on the judge’s treatment of the discretion stage of the process.

As to this, one ground of appeal was simply that the judge had not given sufficient reasons for concluding as he did. The other ground was that:

“The learned judge was wrong to treat the fact that A was settled in her new home and school as relevant when there had been no delay attributable to F and the proceedings were issued within 7 weeks of M retaining the child, so well within the 12 months contemplated by Article 12.”

I will call this “the settlement ground”.

As set out in the skeleton argument of counsel for F, Mr O’Brien, the settlement ground looked as if it incorporated an argument that unless a child had been in situ for the period of a year, the fact that he or she was settled must be disregarded for the purposes of the exercise of the court’s discretion under Article 13. The foundation for this argument appeared to be that Article 12 and the primary purpose of the Hague Convention would otherwise be undermined. In the event, Mr O’Brien did not pursue the argument in this form. He had to acknowledge that, as Re M (supra) makes clear, the court has to consider all the circumstances and these include how settled the child has become, even if he or she has been here for less than 12 months. Instead, he pursued the settlement ground as part of his submission that the judge did not carry out, or did not demonstrate that he had carried out, an appropriate exercise of his discretion. Thus deployed, it became that:

No real criticism was made of the judge’s direction to himself about the legal framework for the exercise of his discretion; the complaint was that he had not followed it. A number of themes emerged. One was, of course, that the judge had not explained how he reached his conclusion. However, I think Mr O’Brien’s submissions went further than that. He argued that the judge was not, in fact, in a position to determine the welfare issue as he did, given the limited evidence before him. It was submitted that he was unable to resolve factual disputes, such as over the role of F in Lithuania and A’s performance at school there, he could not evaluate the medium to long term consequences of A not being returned to Lithuania and he did not consider whether issues such as language, education, contact and family relationships might need a fuller consideration than was possible on the material he had. Mr O’Brien submitted that he wrongly allowed the fact that A was happy and settled here to determine the outcome when it should not have done.

I have no doubt that the judge was very conscious that the policy of the Convention must have weight in his decision. This can be seen from the various references that he made to it, not least in §57 of his first judgment. In accordance with Re M (supra), the weight to be attributed to the factors that are relevant in a case, including the policy of the Convention and, of course, the child’s own views, is a matter for the judge to determine on the particular facts. This court is always slow to interfere with an exercise of discretion, and particularly when the judge has heard oral evidence, as this judge did from the CAFCASS officer. I would have preferred to see the judge’s reasoning process spelled out rather more clearly and specifically and I have had to think long and hard about whether he has sufficiently explained his decision. It is for that reason that I would give permission to appeal. Ultimately, however, I have concluded that the appeal should be dismissed. The two judgments must be read as a whole and if that is done, it seems to me that the reasons for the judge’s decision emerge adequately and are sufficient foundation for his order.

It has to be borne in mind, as Mr O’Brien acknowledged, that the proceedings were summary proceedings and that everyone was agreed that there would be no oral evidence other than from the CAFCASS officer. As far as I am aware, no one suggested to Judge Bellamy that there should be an adjournment for more information to be collected or for a more profound hearing. He had, therefore, to decide one way or another on the material that he had. Although he failed to collect together the factors that bore upon the question of A’s welfare in a passage specifically directed to this issue, I think one can in fact tell from his judgments what he had in mind.

He took into account:

However, the other factors that influenced him to exercise his discretion as he did included at least:

Accordingly, as I have said, reading the judgments as a whole, I have concluded that the judge’s reasoning emerges sufficiently. We can see which factors weighed with him. The weight that he gave to them was a matter for him in the exercise of his discretion. There can be no doubt that he took into account the policy of the Convention but he found other features which outweighed it in this case. In my view, he was entitled on the material before him to reach that decision. I would therefore dismiss the appeal.

I agree.

I also agree.