M (Children)

LADY JUSTICE MACUR: This is an appeal against the order of Russell J made on 20 May 2016 and sealed on 20 June 2016 refusing the summary return of two male children, JK and DI, aged five years eight months and four years ten months respectively, to the United States of America, the place of their habitual residence. The judgment at first instance is reported at [2016] EWHC 1282 (Fam).

My Lord, Beatson LJ, has already indicated that we intend to allow the appeal. I bear in mind that the Court of Appeal must accord primacy to the judgment below unless "by reference to the law or the evidence it had not been open to [the judge] to make it" (see Re S (Abduction: Article 13(b) Defence) [2012] UKSC 10 at paragraph 35), however, these are my reasons for joining the decision to allow this appeal.

The children travelled to the United Kingdom with their mother on 22 January 2016 "for the purposes of a holiday". They were expected to return on 19 February 2016, but have since remained living in the UK. The father's application for their summary return to the USA was considered by Mostyn J on 14 March 2016; he made standard directions for the location of the mother and children and the future progress of the application. The mother and children were located on 15 March 2016. On 22 March 2016, the application came before Russell J, who, regardless that the mother did not rely upon the fact that the children had voiced views to the contrary, ordered the Cafcass High Court team to file a report as to the children's views and wishes regarding their return to the USA and the children's degree of maturity and understanding. The report was filed on 11 May 2016.

At the date of the final hearing on 19 May 2016, the mother resisted the father's application on the sole basis that "there is a grave risk that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation", namely pursuant to Article 13(b) of the Convention on Civil Aspects of International Child Abduction 1980 (“the Convention”). She relied upon what she alleged to have been the father's domestic abuse, physical, sexual and emotional, towards her and, whether directly or indirectly, the children, who were often present and witnessed their parents' negative interaction.

The father disputed the extent of the mother's allegations, albeit accepting that the marriage had been unhappy and volatile and that the children would sometimes have been hapless witnesses to the same. He accepted that the police had been called to the family home on a number of occasions, albeit not always because of his behaviour, and that on one occasion he had been accompanied to a hospital for a psychiatric assessment but discharged that same night. The mother says this was the last time the family resided together. The father says that the family spent four days together over Christmas 2015.

Articles 1, 3, 4 and 12 of the Convention are engaged. There is no dispute that Russell J was required to determine the father's application that the children return to the country of their country of habitual residence expeditiously, and unless any exception was established in accordance with Article 13 of the Convention, was bound to return the children forthwith.

There was and is no issue between counsel representing the parents, and as Russell J's judgment at paragraphs 5 and 6 appears to acknowledge by extensive reference to Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, but that: the onus of proof was upon the mother to establish the Article 13(b) exception to the father's application; the court must contemplate the situation of the relevant child's return to the country of their habitual residence and not to the father; and, that the proceedings are summary in nature and militate against resolution of factual disputes going to the risk and extent of harm. Therefore, the court should proceed to assess risk on the basis that the relevant allegations are true and consider whether appropriate protective measures may be devised. Only if the protection envisaged would be inadequate, would it be necessary for the court to "do the best it can to resolve the disputed issues".

In these circumstances, and upon sound and informed legal advice, the position statement filed on the father's behalf dated 18 May 2016 made clear that he offered to provide undertakings to the court to last until the first inter-partes hearing before a competent court in the USA: not seek the mother's prosecution for the offence of child abduction; not attend the airport of arrival; not remove the children from the mother's care; to provide a three bedroom property for the exclusive use of mother and children and pay the rent and outgoings and make other reasonable maintenance provision; to pay for the children's return flights; to submit to a non-molestation order; and, to commence proceedings in a competent USA court in respect of the children.

Subsequently, the mother raising an issue as to the availability of accommodation, and in the light of Russell J's queries as to the enforceability of any undertakings given by the father to the UK court, a second position statement was prepared on behalf of the father and filed on the morning of 20 May 2016, appending a letter from a New Jersey attorney at law and a tenancy agreement. A position statement in response was filed on behalf of the mother later that day, challenging the validity of the tenancy agreement. However, the judge, we are told, heard no further oral submissions and raised no further query.

Russell J delivered her judgment during the afternoon that same day. She indicated that she had approached the case on the basis of the wife's allegations put at their highest. She was no doubt confirmed in her view by the fact that the father admitted domestic abuse had occurred and that the children had been present on occasions, and that the police had been called to the home. She cannot be and is not criticised for doing so.

Russell J's assessment of the protective measures proposed by the father is to be found in paragraphs 29 to 32 of her judgment. In summary, she found them "vague and ephemeral assurances ... not at all sufficient to meet the needs and circumstances of the children in this case" and consequently refused to order the children's return to the United States.

This appeal is brought on two alternative grounds, the first relating to the judge's approach to, and ultimate dismissal of, the prospective protective measures proposed, the second as to the judge’s failure to attempt to evaluate the mother's case if, as she found to be the case, the protective measures were inadequate.

Mr Hames QC, leading Mr Khan, on behalf of the father, argues that the error of the judge's approach to the application is demonstrated by her failure to correctly indicate the process upon which she should be engaged, namely the assumption of the validity of the mother's allegations, the contemplation of protective measures proposed, and only if those protective measures were found wanting, an attempt to make findings on the disputed issues as identified in paragraph 35 of Re E (see above. He maintains that Russell J elided the father's concessions made and her suspicion of the protective measures proposed.

Miss Meyer QC, leading Miss Slater, representing the mother, realistically acknowledges that the judgment under review is not immune to the criticisms made on the father's behalf, but submits that first, noting Russell J's correct self-direction of the law in accordance with the clear guidance in Re E, and second, the fact that there was information available to the judge to controvert the asserted adequacy of the protective measures, we should deem that Russell J’s imperfectly articulated judgment is nevertheless sufficient to establish that she adopted the correct approach in relation to the disputed allegations of domestic violence and when considering the adequacy of the protective measures proposed to reduce the risk of physical or psychological harm to the children, or otherwise ameliorate what would be an intolerable situation, and demonstrates thereafter a permissible exercise of discretion not to return the children to the USA.

There is longstanding judicial notice of the fact that physical and/or psychological harm befalling a child victim of, or witness to, domestic violence is implicit and incontrovertible and requires no further expert opinion. However, Russell J was entitled to consider the independent professional assessment of the needs and circumstances of the subject children derived from the Cafcass report in order to assess the proposed protective measures in relation to the boys' present and short term domestic predicament.

Russell J considered the report to be "careful and measured". For what it is worth, I agree with her favourable reception of the report and regard the expressed professional judgment of its author, Angela Adams, to be sensible and well-reasoned and the proposals she makes as to the desirability of further assessment by American child protection services to be uncontroversial. Whilst I question the necessity to have ordered the report in the circumstances of this case at an earlier hearing or at all, it was able to be utilised as a useful prompt for both parties and the court in assessing the necessary protective measures.

However, in the absence of hearing evidence from either of them on the disputed findings of fact, Russell J’s manner of reference to the Cafcass report in her judgment leads me to the view that she was not sufficiently careful to avoid the perception that she had reached adverse conclusions against the father and was sympathetic to the mother's plight. That is, the summary of the report in the judgment does not maintain its chronology and context, and I consider Russell J was ill advised to interpret a factual scenario recorded by Miss Adams as "on the face of it this is indicative of a five year-old learning to blame the victim for abuser's actions" (see paragraph 17) in the absence of expert opinion and counsel's submission on the point. In this respect I consider Mr Hames QC has a firm basis for his submissions that the judge merged the first and third step of the exercise upon which she should have embarked. However, whether or not that feature in itself would have provided a reason to allow this appeal I have come to the firm conclusion that Russell J's approach to the issue of protective measures was wrong.

I identify the crux of Miss Adams's professional assessment of the boys' needs in paragraph 44 of her report and to be that, "their emotional needs are closely entwined with their main caregiver, and a need to be with her to feel safe". In paragraph 49 of her report she confirms that the mother:

Any court hearing this application would be likely to, if not inevitably, require protective relief to be in place to protect the children from domestic violence or exposure to the dysfunctional family life of mother, father and the father's new partner M. Russell J was right to interrogate the proposals made as to the protection and financial support and enforcement of protection orders.

Miss Meyer QC has convincingly demonstrated that there were live issues as to the security of tenure of accommodation that the father was able to offer the mother, quite apart from uncertainty as to the protective orders that she may have obtained. As to funding, whilst the basis of the judge's finding as to the father's impecuniosity is difficult to obtain, it may have been inferred from submissions made as to his available funds to provide an independent and confidential address for the mother.

Accepting for the point of argument that a combination of paragraphs dispersed throughout the judgment amounts to findings to these effects based upon inferences to be drawn from the available and undisputed evidence, Miss Meyer, however, is unable to counter the failure of the judge to make an order conditional for return upon the father obtaining the landlord's written consent so as to securely accommodate the mother and children and the obtaining of advance injunctive orders.

Ultimately, I can find no basis upon which Russell J could legitimately doubt the efficacy of the USA courts or police force in enforcing protective measures for as long as they were necessary and otherwise investigating the pertinent welfare issues prior to making the equivalent of a child arrangements order. I find Russell J's articulated interpretation of the attorney's letter as to available procedure to acquire an enforceable non-molestation, occupation and interim maintenance order, as could be ordered in this jurisdiction, to be confused and inaccurate. The letter indicates that an order made with the parties’ consent in New Jersey, USA can contain the same protective language as set forth in the undertakings to the UK court, the undertakings can be specifically referenced in the New Jersey consent order, and otherwise a copy of the UK court's order can be attached and incorporated into the USA consent order. What is more, it is said that the consent order could be signed in advance of the mother and children's return and could be accomplished "in as little as one week should there be an agreement in writing between the parties".

In these circumstances, there was protection able to be afforded to the mother which would preclude the father's return to any accommodation arranged for her and the children’s exclusive use.

In accordance with the objects of the Convention, and having the same facility to adjudicate upon the available information as the court at first instance, I would direct the children's immediate return to the USA provided that the father provides evidence first of all that a consent order has been entered into the Superior Court of New Jersey and secondly that the landlord of his present accommodation consents to the subletting or assignment of the tenancy to the mother, or otherwise her exclusive occupation of the same.

The father is said to have previously indicated his willingness to enter into a consent order before the delivery of the judgment below. The terms of the draft consent order in the bundle before us are inadequate and will require further negotiation between the parties, not merely as to the agreement of the parties as to the terms of a consent order to be submitted to the requesting court, the provision of financial maintenance and the other conditions before the first hearing before a competent court seized of the issue relating to the children's welfare and their further contact with their father, but also as to the landlord's consent to the ‘assignment’ of the tenancy.

LORD JUSTICE SALES: I agree.

LORD JUSTICE BEATSON: I also agree.