U-B (A Child)

This appeal concerns E. He was born on 3 July 2000 and is now 14 years old.

E’s parents separated when he was about 18 months old. From 2003 until the summer of 2014, he lived with his mother in Spain. He used to come regularly to see his father, who lives in England, for quite long holiday periods. He came over for an extended stay on 19 July 2014 and was due to return to Spain on 22 August. He did not do so. At the beginning of September, his mother therefore made an application to the English High Court pursuant to the Convention on the Civil Aspects of International Child Abduction (“the 1980 Hague Convention”) for an order that he be returned to Spain.

On 8 October 2014, His Honour Judge Bromilow, sitting as a deputy judge of the Family Division, refused to order E’s return. He considered that the circumstances fell within the child’s objection exception in Article 13 of the 1980 Convention and that the appropriate exercise of the resulting discretion was to decline to make the order the mother sought.

The mother appealed to this court against Judge Bromilow’s refusal of an order for summary return. By the time the appeal was heard, the Court of Appeal had heard, but not given judgment in, the case of M (Republic of Ireland) (Child's Objections) (Joinder of Children As Parties To Appeal) [2015] EWCA Civ 26, which also involved consideration of the child’s objection exception. Arguments were advanced in the present case which covered ground similar to that covered in Re M (Republic of Ireland). I am grateful for the assistance that they provided, and particularly for their review of the international jurisprudence. Later on in this judgment I will touch briefly on the legal framework as it was presented to Judge Bromilow, but it is unnecessary to engage in any detailed discussion of the law because all that needs to be said has now been said in Re M (Republic of Ireland) which was handed down on 27 January 2015. This judgment should be read together with the relevant parts of that decision.

As for the outcome of the appeal, we announced at the conclusion of the hearing that it would be dismissed for reasons which would be given later. My reasons are given in this judgment.

Two ancillary applications were made to us and we dealt with them at the outset of the appeal.

The mother applied to the Court of Appeal for permission to adduce further evidence as part of her appeal. The evidence took the form of a further statement from her dealing with matters which had emerged whilst E was spending time with her in Spain during the October half-term.

The mother argued that her new evidence would significantly undermine the basis on which the judge made his order. She said that it established that E had been drawn into a plan made by his father to retain him in England, that he had been influenced by his father, and that he had not given an accurate picture of life with her or of life in England to the CAFCASS officer, Ms Jolly, who interviewed him from the purposes of the proceedings. Amongst the exhibits to the statement was documentation in relation to the proceedings that there are in Spain in relation to E.

We declined to admit the material, except that relating to the proceedings in Spain. No objection had been raised on behalf of the father to us seeing this and it was helpful to have the information. The Spanish proceedings appear to have been begun by the mother by a complaint on 25 August 2014 that the father had removed E when he did not have custody of him. A hearing in the Spanish court took place on 28 October 2014 and an order was made on 6 November 2014 which set out arrangements for the mother’s contact with E which were to be “adopted provisionally” whilst proceedings were going on in England.

As for the other material that the mother wished to adduce, its introduction was resisted by the father and we were of the view that it would not influence the outcome of the appeal. It post-dated the judge’s decision and can perhaps best be described as a further series of snapshots of what was said/thought at particular points. It was far from unequivocal in its import and it did not in any way compel a re-evaluation of the CAFCASS officer’s more broadly based and neutral expert assessment.

The second application was for E, who had not been a party in the court below, to be joined as a party to the appeal proceedings. E had contacted solicitors the day before the appeal hearing to say that he wanted to instruct a lawyer for the hearing. Solicitors and counsel acted with commendable speed to ensure that we had available to us, before the hearing began, a statement from the solicitor, Ms Hutchinson of Dawson Cornwall, and a skeleton argument from counsel, Ms Chaudhry. Ms Chaudhry attended the hearing to make the application for E to be joined. She was certainly acting pro bono at that stage and it may well be that Ms Hutchinson was too. We express our gratitude for this.

We declined to join E as a party to the proceedings, although we read the material that had been filed on his behalf. It was neither necessary nor desirable for him to become a party at this very late stage. Issues such as how the child’s views should be ascertained and conveyed to the court, and whether he or she should become a party, need to be considered much earlier on, preferably at the outset of the first instance proceedings. There are, of course, exceptional cases, but generally speaking, it should not be expected that this court will be sympathetic to applications for party status that surface for the first time in the appeal proceedings. As it happened, the points that could be made on E’s behalf were already before the court in any event. Ms Chaudhry was kind enough to stay to listen to the argument and was therefore able to keep him informed as to how the hearing progressed.

Judge Bromilow had statements from both parents and a report from Ms Jolly, who had seen E for two hours on 1 October 2014 in order to ascertain his views and to advise on his maturity. Ms Jolly gave evidence at the hearing before the judge.

The father’s case was that E was objecting and should not be returned. The mother’s position was that he was not objecting in Convention terms or, if he was, he should still be returned by the judge in the exercise of his discretion.

Ms Renton, who represented the mother before Judge Bromilow, set out clearly and concisely in her skeleton argument for the judge the legal approach that she submitted he should take. She referred him to WF v FJ, BF and RF (Abduction: Child’s Objections) [2011] 1 FLR 1153 (a decision of Baker J) and summarised the three stage approach to child’s objections cases which involves consideration of a) whether the child objects to being returned to the requesting state, b) if so, whether the child has attained an age and degree of maturity at which it is appropriate to take account of his views, and c) if so, how the resulting discretion should be exercised. Citing Re K (Abduction: Case Management) [2011] 1 FLR 1268, she invited attention to the fact that a clear distinction has to be made between a child’s wishes and feelings and a child’s objections, and she submitted that the court should be wary of a child’s views which have developed as a result of the ‘bubble of respite’ created by the abducting parent. She cited Re M (Abduction: Zimbabwe) [2007] UKHL 55 to the effect that, at the discretion stage, the court had to consider all relevant factors and gave a list of specific considerations that were material at that stage. The list reflected the factors set out by Ward LJ in Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 at 204 B-D but, whereas Ward LJ contemplated that these would be considered at the gateway stage, Ms Renton invited the judge to consider them instead at the discretion stage.

The judge said that the legal framework was not contentious and he essentially recited and adopted Ms Renton’s approach.

Inevitably the CAFCASS evidence had an important influence on the judge’s decision. He was impressed by that evidence. He noted the officer’s experience both generally and in relation to Hague cases. He noted particularly that she had said in evidence that she was aware of the risks of children being manipulated and influenced by their parents and had come across this herself. His observations about her, set out at §9, were as follows:

“The whole of her evidence was impressive. It was immensely thoughtful. She is alive to the issues and alive to these parents’ background and if I may say so, their baggage. Her answers were child focused concentrating on E. She has been, in my judgment, alert to his sensitivities and in particular the strong relationship that he has with his mother with whom he has lived all his life. Equally she was alive to the fact, as she grew to know him, that he knows a lot about his parents’ past, probably far too much, but this is so often the way of a child, particularly a single child, who has been from time to time caught up in the quarrel between his parents.”

Judge Bromilow discussed at some length in his judgment the matters covered in E’s meeting with Ms Jolly and I will pick out only certain aspects here. He accepted her assessment that E’s maturity was consistent with his age and that he was able to understand and put both sides in discussion. He noted that E had been able to mention positives about Spain even though he did not want to return there and said that if he had to, he would return here quickly. He recounted Ms Jolly’s evidence that she considered that if E were ordered to return, he would get on the plane but would come back as soon as he could and would be unhappy because of the impact of this on his relationship with his mother.

The judge was clear that for E’s views to amount to an objection, they had to be more than a preference; indeed he took as his test that they had to be ‘almost akin to a refusal’. He found that since the early conversation that E had with his father as the end of his holiday here was approaching, E had been expressing a clear objection to returning to Spain, ‘much more than a preference’. He referred expressly to some of the considerations he had borne in mind in reaching this conclusion, saying (§12):

“In reaching this conclusion I have stepped back and borne in mind what he has experienced since he arrived …. to spend time with his father and his family. I have also borne in mind the fact that he has, since the beginning of September, been in a new school where from the accounts that I have been given suggest [sic] that he is happy and doing well there thus the bubble of respite argument is fairly raised by Ms Renton. I bear it in mind. Nevertheless I conclude that there is objection and so the gateway is opened.”

The judge considered that all the evidence pointed to the fact that he must listen carefully to E’s views. He set out the factors that influenced him in this view as follows:

“He is alive to the issues about his future. As I have said, he is alive to the quarrels between his parents and he has been told too much. He is appreciative of the different ways of life, on the one hand in [England] and on the other in …Spain where he has lived for so long. He is alive to the fact that he is of dual heritage and bilingual. I take full account of the views of the CAFCASS officer.”

Exercising his discretion, the judge worked meticulously through the various factors to which Ms Renton had invited his attention. He accepted that E may have exaggerated some things about Spain but balanced against that the positive things he had said about Spain. He accepted that what E said was based essentially upon real experiences. He did not accept that E’s views had been coloured by pressure or manipulation by his father. It had been urged upon him as part of the mother’s case that E had been swayed by his father providing information adverse to the mother to him at a critical time in his decision making. The judge concluded that the information had been given after E decided he wanted to stay and said that he rather suspected that E had been asking questions and his father felt he should answer them. He took careful account of the clear affection E has always expressed for his mother. He did not, however, think that E’s views would be mollified on a return to Spain but thought that he would rebel and quickly argue and enter into a difficult relationship with his mother which would be wholly contrary to his interests.

In the penultimate paragraph of his judgment, the judge turned to more general factors to which Ms Renton had invited his attention in her skeleton argument. He said that he appreciated that it is ‘the clear policy of Hague Convention proceedings that matters should proceed swiftly and that the object of the exercise primarily is for a child to be returned’. He bore in mind that E had lived in Spain since 2003 and members of his family were there. He considered the question of E’s education, rejecting the mother’s suggestion that the father did not take it seriously. He referred to E’s health (E had been receiving medication for psychological troubles in Spain) but did not feel able to make any findings about it and said that he certainly could not find that the father did not appreciate the importance of E’s health.

He put into the balance also the existence of the Spanish proceedings and the need for comity with the Spanish courts but reached the view that the factors, balanced, pointed in only one direction, namely that E would not be returned.

Perhaps just because I have not myself previously had much exposure to Hague Convention cases such as this, I would like to add a few observations of my own.

The underlying principal purposes of the Convention are made clear in Article 1: to secure the prompt return of children wrongfully removed or retained and to respect principles of comity. Article 13 provides its own exceptions to the operation of Article 12: but sight must not be lost of the underlying purposes.

The parents in this case had reached a thoroughly sensible arrangement in the English family court proceedings, embodied in a consent order made on 6 May 2003. Their arrangements with regard to E thereafter had been operated by reference to that consent order. When the mother put E on a plane at Madrid in July 2013 for his usual summer holiday with his father in England, she naturally would have expected him to return a few weeks later in accordance with the consent order and the agreed arrangements. E would likewise at that time have expected to return. But this did not happen. Further, the English court has refused to order his return. Imagine her feelings.

One surely has to have some concern about the wider potential implications of such an outcome. If there is to be a perception that children may not be returned, even after a short visit to a parent in England and even after prompt application made, parents may be reluctant even to agree the sensible kind of consent order made in this case in circumstances where consent orders are to be encouraged. Or parents may become increasingly reluctant to abide by the terms of such a consent order. Would the mother have put E on the plane at Madrid had she thought this might happen? She would not.

The fact remains, however, that the exception is – and for clear reason – embodied in Article 13, by reference to a child’s objection. The concerns outlined above are to be accommodated within the operation of Article 13. The grafting of a further legal test of “exceptionality” in such a case, moreover, has been rejected by the courts at the highest level. I agree with Mr Vater’s objections to “over-intellectualising” the position and I respectfully agree with Black LJ’s analysis of the approach which is required to be taken in this case (and as further set out in Re M (Republic of Ireland)).

The position then is that each such case is fact and circumstance specific. That gives flexibility, in a context calling for flexibility, even if it comes at the cost of certainty. In my view, the judge was, in this case on the evidence before him, entitled to make the findings that he made and to evaluate the evidence as he did. He was entitled to give full weight to the report and evidence of the experienced CAFCASS officer. Whilst Mr Williams’ minute dissection of the evidence and of the judgment operated to confirm, to my mind, that the mother had a powerful case to pursue, I think, with all respect, that ultimately his approach imposed far too great a burden of judicial exposition to be required of first instance judgments in such cases (in what, after all, are summary proceedings). At all events, the judge here dealt with all relevant points. He sufficiently spelled out the reasons for his conclusion and for the way in which he exercised his discretion. The appeal court cannot be used as a vehicle for conducting in effect an entire rehearing in such circumstances.

Further, the judge cannot be said to have overlooked or unduly downplayed the important factor of the underlying policy purposes of the Convention: for he expressly dealt with them. He concluded that they were outweighed by the other circumstances. That, in a difficult case, was a conclusion which I feel unable to say he was disentitled from reaching.

Accordingly, and notwithstanding my sympathy for the mother, I conclude that this appeal has to be dismissed. I agree with the judgment of Black LJ.

I agree with both judgments.