M (A Child)

The appellant in this appeal is the mother of a boy, K, who was born on 15 June 2007 (14). By a Notice of Appeal dated 7 July 2014 the mother seeks to challenge a decision made on 16 June 2014, when Mrs Justice Roberts refused an application made by the mother pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague Convention), and Council Regulation (EC) 2001/2003 Brussels II(R) for the summary return of K to Hungary.

The judge found that whilst K had been wrongfully retained in the United Kingdom pursuant to Article 3 of the Hague Convention, a defence had been made out pursuant to Article 13 of the Convention, in that K objected to being returned to Hungary, he having attained an age and degree of maturity at where it was appropriate to take into account his views. The judge, having found that K objected to a going back to Hungary, then, in the exercise of her discretion, declined to make the Order for summary return sought by the mother.

In her Notice of Appeal the mother formulated six Grounds of Appeal, each of which identify alleged errors in the approach adopted by the judge in her application of the law in relation to the proper approach to an Article 13 defence of a child’s objections to returning to their country of habitual residence. The Notice of Appeal pleads in the alternative, that if the judge had properly concluded that K objected in Convention terms to such a return, she had thereafter been wrong in the exercise of her discretion to decline to order a summary return.

On 18 July 2014 permission to appeal was given by Black LJ.

On 18 September 2014 the father sought permission to cross-appeal on the ground that the judge had erred in finding that the father had wrongfully retained the child in the jurisdiction; as a consequence he pleaded, Article 3 was not engaged and the court had no jurisdiction to make the order sought by the mother for K’s summary return to Hungary. The father’s application for permission was listed to be heard together with the mother’s appeal.

Both parties are Hungarian nationals. They married in 2000 and divorced in 2004. K is the only child of the marriage. Following the dissolution of the marriage, the parties agreed that K would reside with the father, which agreement was recorded in an Order made by the Szeged City Court on 22 January 2004. The Order provided for contact between the mother and K each Sunday from 10.00 a.m. to 6.00 p.m.

For the next eight years K continued to live with his father. Contact continued as between K and his mother and, as time went on, was arranged between the parties on a more flexible basis than had been originally prescribed by the Order in January 2004.

In 2012 the father came to England to seek work. K remained in the care of his paternal grandmother. This arrangement was the subject of a formal Order by the Szeged City Court dated 12 March 2012.

In August 2013 the father returned to Hungary and remarried. He sought the discharge of the Order in favour of the paternal grandmother with a view to obtaining an Order that K be returned to his care. Accordingly, on 27 September 2013 an order was made whereby “the paternal custody right of the father was re-established”. The Order reflected that the father had found a job in Hungary and had permanently returned from England. With the mother’s agreement, the order gave the father sole rights of custody but recorded that the mother “agreed to the termination of the family care solely on the condition that the father move back and works in Hungary and that her rights remain unchanged”.

In October 2013 the father, notwithstanding the recording on the order, returned to England to work. On 6 December 2013 K followed him to this country. The father had arranged with K’s school in Hungary that he remained registered there, and that he was to be excused attendance between 6 December 2013 and 30 August 2014. It was the father’s case that such a removal was temporary and therefore within the laws of Hungary.

The mother, having had no contact with K since November 2013, made a complaint to the Hungarian authorities and on 3 February 2014 initiated proceedings with the Public Guardianship Office in Hungary to enforce her contact rights. At that stage she made no application for K to return to Hungary.

On 7 April 2014 the mother issued an application in this jurisdiction under the Hague Convention seeking the summary return of K. A Location Order was made.

Meanwhile sometime between March and April 2014, the father had decided that he wished to remain in the UK with his second wife and K and set about regularising the position vis-à-vis the Hungarian courts.

By chance, the Location Order was executed as the father and K were trying to leave the country on 10 April 2014. They were intending to travel to the Hungary with a view to applying to the Hungarian courts to regularise K’s residence in England. They were in fact on their way to attend an appointment in Hungary at which K’s views as to the proposed relocation were to be ascertained. The father’s written application to the Hungarian Courts was dated 15 April 2014. It can be collected from the judgment that the father said during the trial that K had been deeply distressed at the airport when the location order was executed; there is no independent evidence in relation to this event.

The Hague Convention proceedings having commenced, the father indicated that the mother’s application for a summary return was to be defended on the basis of alleged consent and the child’s objections. The matter was listed for a final hearing on 9 June 2014. Given that the father had raised the issue of consent, arrangements were made for both parents to give oral evidence. In preparation for the hearing, Miss Toni Jolly, an officer of the Cafcass High Court team, interviewed K on 27 May 2014 in order to ascertain his wishes and feelings.

The judge was therefore faced with three issues:

Having heard evidence from both parents, the judge was entirely satisfied that at no stage did the mother give her clear and unconditional consent to K’s removal from the jurisdiction of Hungary for either a temporary period or at all.

Absent the consent of the mother, the question arose as to whether or not the removal/retention was lawful or unlawful.

Article 3 of The Hague Convention provides:-

“The removal or the retention of a child is to be considered wrongful where –

(a)

it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)

at the time of removal or retention those rights were actually exercised either jointly or alone, or would have been so exercised but for the removal or retention.”

It is accepted that when K left Hungary on 6 December 2013 he was habitually resident in Hungary and the mother was exercising her rights of custody.

A Directions Order was made by Nicholas Cusworth QC sitting as a Deputy High Court Judge on 30 April 2014. It provided for the obtaining of expert advice on the relevant laws of Hungary in order to allow a determination as to whether or not there had been a breach of the mother’s rights of custody by either a wrongful removal or retention.

A declaration on Hungarian law was provided by Dr Nemeth Zoltan of the Ministry of Public Administration and Justice of the Hungary Department of Private International Law. Further advice was obtained from him prior to judgment at the behest of the judge when four questions were put to Dr Zoltan in an agreed letter which had the input of the judge and which is dated 11 June 2014. The reply was received the following day.

The position under Hungarian law as set out by Dr Zoltan (who was not required to give oral evidence) can be summarised as follows:

The judge having heard evidence from the parents found that K’s removal on 6 December 2013 was not part of a deliberate plan giving rise to a wrongful removal in Convention terms. That left the question as to whether there had been a wrongful retention of K in the UK subsequent to a lawful temporary relocation.

The Hungarian law as set out above was clear and unchallenged and The judge concluded that :

“On the basis of Dr Zoltan’s supplemental report, I am therefore bound to accept that K’s retention in the jurisdiction after late March or early April was wrongful and Article 3 is properly engaged.”

Mr Jubb on behalf of the father, sought permission to cross appeal in order to argue that, there was no wrongful retention within the meaning of Article 3. This was on the basis that notwithstanding Dr Zoltan’s unchallenged evidence to the effect that as soon as the father decided to stay in England the retention became unlawful, the father had made his application to the Hungarian courts to regularise the position.

In his skeleton argument and oral submissions Mr Jubb submitted that:

Having heard the father’s submissions on the point the court informed the parties that the application for permission to cross-appeal was refused and that reasons for the refusal would be given in the judgments.

Article 3 of the Convention expressly links the concept of a ‘Convention retention’ directly to the law of the country of habitual residence, by providing that retention will be wrongful where there has been a breach of the rights of custody, “under the law of the State in which the child was habitually resident immediately before the removal or retention”.

The uncontroverted evidence was that Hungarian law is unequivocal in saying that the retention of K in England became unlawful once the decision had been made that the family wished to make England their permanent home. The situation is not salvaged by the making of an appropriate application to the Hungarian courts to regularise the position. That this is the case and accepted to be so by the father, is underlined by the fact that the court was told by Miss Papazian, on behalf of the mother that the father has applied in the Hungarian courts for permission to remain in the UK with K pending the final hearing of his relocation application. No such application would have been necessary if the lawful temporary removal remained lawful in circumstances where an application for permission permanently to relocate had been properly made.

Accordingly the father has no reasonable prospect of succeeding in appealing the finding by the judge that K had been wrongfully retained in England.

Article 13 provides exceptions to the principle of summary return of a child to its country of habitual residence:

Evidence had been obtained from K’s school as to his maturity and it is uncontroversial that K’s maturity is commensurate with his age, that is to say just turned 14 years at the time of the trial. The questions to be answered by the judge in relation to the Article 13 defence on the facts of this case were therefore:

Miss Jolly, having spent 45 minutes with K and an interpreter, gave oral evidence in relation to the issue as to whether K objected to returning to Hungary. The judge summed up Miss Jolly’s written and oral evidence in the following way:

“[39] It is a distressing account to read and about which to hear evidence, as I did from Miss Jolly. I collect from it a picture of a young man in a highly distressed and emotional state, who was at times incoherent as a result of his emotions but who was nevertheless plainly struggling, very respectfully through an interpreter, to present to Miss Jolly, and indirectly to me, his views at the current situation. What is singularly missing from Miss Jolly’s account of that meeting, through no fault of her own, is any lucid narrative or discussion with K about his life back in Hungary, his friends or his appreciation of the significant changes which have occurred since he came to London just over six months ago. It is clear that he does not yet have a sufficient grasp of English to be able to communicate without full reliance on the use of an interpreter. More significantly, Miss Jolly reported to me that she was not even able to move beyond first base, as it were, of introductions to gain any meaningful understanding of his life in Hungary because of his evident distress.

[40] What he did communicate to her very clearly, as she told me, was a clear preference to remain in England with his father. However, I do not know, and neither did Miss Jolly, whether this view is based upon any expectation that a return to Hungary, for so long as it took for matters to be resolved in that jurisdiction, would inevitably mean separation from his father and the family unit with which he has plainly established a bond. As I have said, it is an accepted fact in these proceedings that he has not lived in the primary care of his mother since he was four years old.

…

[43] What I do know is that there is at least prima facie evidence that K has been exposed to an inappropriate degree of adult involvement in and speculation about this case. As Miss Jolly told me last week, that practically the first words out of K’s mother (sic) constituted a statement about what he perceived to be his mother’s motivation for seeking his return to Hungary. That motivation he described in less than glowing terms, which appeared to reflect conversations he had overheard between his father and stepmother, which, as I have already observed, echoed aspects of the evidence which I heard from the father. It is somehow curious to me that an intelligent young man, by all accounts, who conveys a view to the Authorities in Hungary in September 2013 his clear wish to maintain contact with his mother in circumstances where he believes he will be living in Hungary, should only a few months later be attributing to her less than honourable motives in circumstances where she seeks his return to that jurisdiction when they have had very little effective communication in the intervening weeks and months since he left for London.”

Later in her judgment when further considering Miss Jolly’s evidence The judge said:

“[83] When she gave her oral evidence, Ms Jolly told me that she had not been in a position when she prepared her report to communicate to me in a clear articulated objection raised by K to a return to his former home in Hungary. What she said was “I have not said he objected to a return. I have described his distress and my interpretation of that distress”. She told me that the interpreter who was present on that occasion had said “the closest meaning to what K actually said was that he preferred to stay in England with his father”. She told me that she had been unable to gain any real understanding of K’s situation in Hungary or what he felt he would be returning to … she was able to ascertain that he appeared to believe that his mother wanted to “take him back home”

[85] I have already expressed some doubt as to whether K has a genuine understanding of his predicament. Despite the father having told me that K knows he will return with his son, if that is the course I order, I am not entirely persuaded that this has been adequately explained to this young man”…. She took the view that his troubled presentation in interview was suggestive of a young man who found himself placed in an invidious position and one where he was possibly experiencing conflicted loyalties.”

At the conclusion of the evidence therefore the learned judge was left with the following:

Having summed up the evidence in relation to the Article 13 issue of whether or not K objected to being returned to Hungary and having confirmed that K had attained an age and degree of maturity at which it is appropriate to take account of his views The judge found:

“[86] I am wholly persuaded that K has articulated a clear objection to the principle of being separated from the full time care of his father. Despite his obvious distress, I have reached the conclusion that K was anxious to use the interview he had with Miss Jolly to convey to me his clear wish to remain for the present in England with his father. It seems to me that I am entitled to take into account in reaching this conclusion the distress he had previously manifested when the location order was served on his father at the airport in circumstances where he believed he might be returned to Hungary against his will…. On balance, I have reached a clear conclusion that this is a rational view which he genuinely holds and one which he has been anxious to have heard in these proceedings”.

Finally on the issue of K’s objections, Roberts J went significantly further than in the passage quoted above in concluding as follows:

[90] ”As to the nature and strength of K’s objections, I have taken the clear view that , notwithstanding the doubts I have as to the full appreciation of his position as to what a return to Hungary might entail, and the reason for the mother’s objection to his removal in the manner in which it was orchestrated, he can properly be taken to be objecting to a return to Hungary at this stage. He has said quite clearly that his preference is to remain in England. Further I believe that, whatever external influences may be operating on his mind in terms of his mother’s motives( and these will be explored in the context of a full welfare enquiry in Hungary), his objections to a return at this stage are his own.”

Miss Papazian referred the court to Re M (Abduction: Zimbabwe) (HL) [2008] 1 FLR 251 and Baroness Hale’s analysis of so called ‘child’s objection ‘ cases including the following:

“[46]… The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and secondly, that she has attained an age and degree of maturity at which it is appropriate to take account of her views….”

She further drew the court’s attention to Re F (Abduction: Rights of Custody) [2008] 2 FLR 1239 where Potter P summarised the court’s approach in such cases as follows:

“[44] In Re M (a Child) [2007] EWHC Civ 260, the Court recently reviewed the questions which need to be explored by a judge when considering a defence of a Child’s Objections. They may be summarised in this way. (1) Are the objections to return made out? In this connection is the child objecting to being returned to the country of habitual residence, as opposed simply to expressing a preference to staying with the abducting parent”.

Miss Papazian points to the fact that Miss Jolly said, in terms, that her evidence was not that K had said he objected to a return to Hungary and she had emphasised that the closest meaning to what K had in fact said, was that he preferred to stay in England with his father (para 35 above). The judge had erred, she said, in once having identified K’s position as an expression of preference to stay with his father, thereafter to characterise that preference in paragraph [90] as an objection to an immediate return to Hungary. To have done so was not, she submitted, justified on the evidence. Such a conclusion, Miss Papazian submitted was not only unsupported by the evidence given by Miss Jolly, but the judge gave no reasons in her judgment for disagreeing with Miss Jolly’s conclusion that K had not objected to a return to Hungary.

In paragraph [86] above the judge said “K articulated a clear objection to the principle of being separated from the full time care of his father. Despite his obvious distress, I have reached the conclusion that K was anxious to use the interview he had with Miss Jolly to convey to me his clear wish to remain for the present in England with his father”.

Such a conclusion was entirely in accordance with the evidence of Miss Jolly. Neither Miss Jolly nor the judge was clear in their minds whether or not K, in his anxiety and distress, had grasped that come what may, he would remain with his father. K had not said he objected to returning to Hungary, what K wished to convey, and did convey in interview, was that he wanted to stay with his father, which at present, means England. In his distress K was unable wholly, or at all, to speak of Hungary and his life as it had been all his childhood until a little over 6 months before. K was unable to help Miss Jolly by way of any indication, (in whatever terms he may have been comfortable in using) to describe his feelings about a return to Hungary in the event that his father went with him.

At paragraph [90] the judge extended her analysis found at paragraph [86] by saying “he can properly be taken to be objecting to a return to Hungary at this stage”. With respect to the judge, there was in my judgment insufficient material to allow his stated preference to be with his father in England to be translated into an Article 13 objection to being returned to Hungary; not only did he not say to Miss Jolly that he did not want to go back to Hungary but, crucially, such a conclusion cannot be inferred from the totality of the interview in circumstances where he was unclear whether such a return would mean separation from his father. Additionally what K said had to be considered against the backdrop of Miss Jolly’s opinion that his presentation in interview was suggestive of a young man in an invidious position who was experiencing conflicting loyalties.

No assistance can be obtained from the incident at the airport; if the father is right that K did indeed show distress when the location order was executed at the airport on 10 April 2014, and it would have been surprising if he had not, such a response could equally be consistent with a fear of being taken away from his father there and then rather than of returning to Hungary per se.

The Learned Judge was in an unenviable situation faced as she was with the limitations in the evidence consequent upon K being a deeply distressed child who was in a wholly invidious position not of his making. No doubt the judge had in mind the caution to be exercised in ‘child objection’ cases in order to avoid applying this highly technical area of the law in such a way that, unless a child is somehow able to expresses his or her views in precise Convention terms, his or her the legitimate and strongly felt views will not adequately be taken into account.

In my judgment however this was not a case where the judge was able properly to interpret what K was saying to Miss Jolly as an Article 13 objection to returning to his country of habitual residence. K was unable to answer that key question in any meaningful way as he was unclear as to whether a return to Hungary meant separation from his father.

Such an understanding on K’s part was critical to an assessment as to whether he objected to returning to Hungary; K had, after all, lived all his life in Hungary, had school and friends there and had only recently come to this country and still had limited English. Importantly also, he was no longer seeing his mother who, until his departure, he had seen regularly and, in respect of whom as recently as September 2013, K had said he wished to carry on having contact. One simply does not know whether or not, if asked, this teenager would have objected to a plan, which meant (if only for the time being), going back to Hungary with his father to resume his old life.

K was labouring under a misunderstanding as to his father’s intentions; an understanding by K of those intentions was fundamental to an assessment as to whether or not he objected to a return to Hungary and his lack of understanding of this critical matter had the effect of vitiating his views in so far as he was able to express them; as a consequence his voice has not been heard.

It follows that it is not necessary for the purposes of this appeal to consider whether the respective observations of Thorpe LJ in Re K (Abduction: Case Management) [2010] EWCA Civ 1546; [2011] 1 FLR 1268 para [24], and of Balcombe LJ in S v S (Child Abduction)(Child’s Views) [1992] 2 FLR 492 at 499, as to the construction of the phrase “the child objects” are inconsistent each with the other.

I accordingly would allow the appeal on the basis that it has not been established whether or not K objects to a return to Hungary, it follows therefore that the issue of the exercise of the judge’s discretion does not arise.

Miss Papazian, on behalf of the mother, submited that such a conclusion marks the end of the matter. She submits that this court is in possession of all the facts and is therefore in as good a position as the court below to make a decision. The defence of ‘child objection’ not having been made out this court should she says, forthwith make an order for the summary return of K to Hungary.

Having considered that matter my view is that to do so would be to fall into the very trap which ensnared the judge. Where an Article 13 defence based on a child’s objections is properly raised, the court has a duty to ascertain, in so far as it is able, the views of the child concerned. This is done through the medium of the Cafcass High Court Team. In K’s case, his considerable distress prevented any sort of effective interview, leaving the court, as I have found, with no more than an understanding that come what may, K wanted to stay with his father.

I remind myself not only of the requirement found at Brussels II Revised: Article 11(2) that in applying Article 13 of the Hague convention “it shall be ensured that the child is given the opportunity to be heard during the proceedings “ but also of what Baroness Hale said in Re M (Abduction: Zimbabwe) [2007] UKHL 55

[46]…. These days and especially in the light of Art 12 of the United Nations Convention on the Rights of the Child 1989, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are ‘authentically her own, or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

K’s views have not been heard on the key issue of whether he objects to a return to Hungary as opposed to having a preference to stay with his father. I bear in mind that K is now 14 yrs 4 mths and that the Convention ceases to apply when he attains 16 years (Article 4). In my judgment it would be wrong of this or any court to make an order for summary return without knowing K’s views on a return to his country of habitual residence. Whilst one is always reluctant to order a rehearing, and I recognise the difficulties inherent in such a course, this court, does not have, any more than the judge at first instance had, the information available to determine whether K objects to a return to Hungary and if so whether, in the exercise of its discretion it should decline to order a summary return.

Accordingly the appeal is allowed and the matter is remitted to a Judge of the Family Division to be listed for directions as a matter of urgency.

K has lived with uncertainty as to his future for 10 months, given that it is accepted by all parties that K will continue to live with his father whether in England or in Hungary, it may be that the parents will agree to engage in mediation so as to minimise the inevitable further period of delay and uncertainty for K which will be consequent upon the matter being remitted to the Family Division for a rehearing.

I agree with King LJ that the appeal should be allowed and that the matter remitted to the Family Division for the reasons she gives.

In my judgment, paragraphs 51 and 52 of my Lady’s judgment, reciting the submission of Miss Papazian (that we should order immediate return of K to Hungary) and my Lady’s answer to it, articulate precisely the problem in this case. Sadly, the CAFCASS officer was never able to get into the position of ascertaining whether K, knowing the full facts, was truly objecting to being returned or not. It was not a case where an objection was established or not established. Through no fault of her own, Miss Jolly never got to “first base” on that point. Accordingly, it was not the case that the evidence merely failed to prove that there had been an objection on K’s part. Neither the CAFCASS officer nor the judge could say what the position was. The attempt to ascertain K’s views on the relevant matters had simply failed and there was no answer, one way or the other, to the crucial question on which the judge needed information.

I also agree that this appeal should be allowed for the reasons given by Lady Justice King and with the order which she proposes. In addition to the reasons which she has given, if this matter is within the scope of European Union law, I would also draw attention to Article 24 of the Charter of Fundamental Rights and Freedoms which strongly endorses the view which the Court has taken. Article 24 provides:

"(1)

Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

(2)

In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration.

(3)

Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests."