S (Child Abduction: Joinder of Sibling: Child's Objections)

The subject of these proceedings is S; she is 13 years, 10 months old. On 3 March 2016, S left her home and school in France and travelled to England in the company of her mother and 17 year old sister, R. This was done without the knowledge or consent of S’s father.

There is now before the Court an application brought under the Child Abduction and Custody Act 1985 incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Hague Convention”), and under the Council Regulation 2201/2003 (“BIIA”), for an order for the return of S to France. The application, dated 5 April 2016, is made by S’s father (“the father”); it is opposed by S’s mother (“the mother”).

By separate application issued on 3 May 2016, R seeks party status in these proceedings; by virtue of her age, R is not the subject of these proceedings (per Article 4 of the 1980 Hague Convention). The application is supported by a statement from the solicitor instructed by R, and by a statement from R herself. I granted that application after considering argument at the hearing, and invited R’s solicitor to act as her litigation friend. R did not apply to the court for an adjournment of the case for her to prepare more fully; she and her lawyers realistically recognised the summary nature of these proceedings, and the timeframes within which the court is operating.

For the purposes of determining this application, I read the documentation filed, and heard oral evidence from Ms Roddy the Cafcass officer; I received oral submissions from the three advocates, and requested further information about the divorce proceedings in France which was furnished in writing on the day after the hearing. At the outset of the hearing, I was told that S had come to court and wished to meet with me. Having discussed with counsel the proposed purpose of such a meeting, and the parameters, I agreed to do so. I saw her straight away (i.e. before hearing argument) and – as agreed – explained to her the procedure involved in the hearing. I did not discuss with her the substance of the case, or indeed her wishes as to outcome. She is, as the Cafcass officer independently and rightly observed, a “charming, polite and bright young woman”.

The background can be shortly stated. The father is French, and the mother English. The parties married in England in 1996, and lived for the first years of their marriage in rural England. In February 2007, when S was 4 years old, the family moved to northern France, where they have lived ever since. The father works in business; the mother is an English teacher. The marriage deteriorated towards the tail-end of 2015; divorce was, it appears, first discussed at or about Christmas 2015. On 16 February 2016 the father presented a petition for divorce in the courts of France. Against the background of a domestic “undercurrent of unease” (a description from the Cafcass report, acknowledged to be accurate by both parents), on 17 February there was a scene at the family home; the parents argued in front of R. The mother called the police who advised her to leave the home and she did so, taking the two children with her. She found a room at a local hotel, where she remained for several days; the mother’s brother (maternal uncle to S) joined the mother for a while to offer emotional and practical support; indeed, together they returned to the matrimonial home and collected items while the father was at work. On 3 March 2016, the mother took the children out of school in France and brought them to England, where they have been ever since, living with her parents (maternal grandparents). A ‘round table’ meeting had been scheduled to take place in France between the parties and their lawyers on 9 March 2016; this did not happen. Both girls have entered school here. There has been minimal contact between the father and the children since 3 March.

The mother wishes to remain here in England, but has informed me that in the event that I order a return of S to France, she will return with her, and seek the French Court’s leave to relocate permanently to England.

I am further advised that there is to be a hearing in the French Court on 23 June 2016 at 3pm; the hearing is described as a ‘conciliation’ hearing before the ‘Juge aux Affaires Familiales’ and is expected to deal with a range of interim issues, including maintenance allowance, occupation of the matrimonial home, and child arrangements. The parties are expected to bring evidence of their income and expenses. I suspect that it is no more than a first appointment, and it may be that little of substance is actually achieved at that time. I am advised that at that hearing, the judge will consider whether he/she will meet the children, or either of them. Both parents have retained lawyers in France.

The mother does not contest that the removal of the children from France on 3 March was wrongful, and in breach of the father’s rights of custody in France under Article 3 of the 1980 Hague Convention. It is further not disputed that my primary obligation is therefore to return S forthwith to France under Article 12. The issue in the case is whether grounds are made out under Article 13 of the Convention so as to create an exception to this requirement to return. In this case, it is submitted by the mother that exceptions are made out in that:

There is a “grave risk” that a return of S to France would expose her to psychological harm, or otherwise place her in an intolerable situation;

S objects to returning to France, and is she of an age and maturity at which I should take account of her views.

The mother contends that ‘grave risk of psychological harm’ or intolerability (see [8](i) above) would be established by:

The likely separation of the siblings, R having indicated her firm intention to remain living in England;

The lack of accommodation or financial support for herself and S in the event of a return.

Before discussing the substantive issues, I wish to address my decision to accede to R’s application to join her as a respondent to this application (see [3] above). As Black LJ observed in Re M & Others (Abduction: Child’s Objections) [2015] EWCA Civ 26 (‘Re M’) at [140] “[i]t is imperative that consideration is given at the earliest possible stage in Hague Convention proceedings to whether the appropriate parties are before the court”; in that case, Black LJ was specifically considering the position of a young person, D, who was a sibling to the subject child and who, like R, was a ‘child’ between the ages of 16 and 18, therefore outside the scope of the Hague Convention. D had not been joined as a respondent until the case was before the appellate court.

In this case, the mother expresses her wish to shield both children from the litigation, but recognised R’s wish to have a voice; she did not object to R’s formal intervention in the proceedings. The father opposed R’s application.

There are many recent and now well-known judicial pronouncements on the importance of child participation in Hague Convention proceedings, of which In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, and In the matter of LC [2014] UKSC 1 [2014] AC 1038 (“Re LC”) are among the most important. But the situation in those cases was different from that which obtains here; I am not considering the participation of the subject child, but party status of a young person who falls outside the scope of the Convention but who is a full sibling. To succeed in her bid for party status, R has first to demonstrate that he or she falls within the category of a “person who appears to the court to have sufficient interest in the welfare of the [subject] child” (Rule 12.3(1) of the FPR 2010). Secondly, she (as any child in her situation) needs to demonstrate that it is in his or her interests to be joined as a party to the proceedings under rule 16.2 of the FPR 2010. If the two threshold tests are satisfied, the door is open for me to exercise my discretion to join the young person to the proceedings, though, as Lord Wilson observed in Re LC (an observation which is probably germane here) that “… is the sort of discretion, occasionally found in procedural rules, which is more theoretical than real: the nature of the threshold conclusion will almost always drive the exercise of the resultant discretion” (see [45]).

All counsel submitted to me that in deciding the joinder question (either at threshold stage or discretion stage) the provisions of para.7 of PD16A of the FPR 2010 apply. That they were right to direct me to this Practice Direction was justified by the words in brackets at the end of rule 16.2 viz.

Is the joinder ‘threshold’ crossed in the instant case? It will, I suspect, be a rare case in which the first of the threshold tests (i.e. the ‘sufficient interest’ test in Rule 12.3(1) of the FPR 2010 – see [12] above) is not satisfied on an application for joinder by a sibling of a child in Hague Convention proceedings. In this particular case, I am satisfied that R is close to S, and has an undoubted and anxious interest in S’s welfare and future. The more difficult question is whether it is in R’s interests that she be joined to the litigation. R is determined to remain living in England whatever decision I make in relation to her sister; she is nonetheless (indeed perhaps for that very reason) concerned that I should fully comprehend the implications for herself and her sister if the effect of my decision is that they are separated by S’s return to France. R and S currently benefit from real and mutual Article 8 ECHR rights to respect for their family life together; these rights operate separately from (but simultaneously with) their joint and independent Article 8 rights for respect for their family life with their parents. I am conscious that there is a value to a young person such as R of participation in family proceedings which concern them, either as subjects or as affected parties (see Mabon v Mabon [2005] 2 FLR 1011 at [44]), and this is materially reinforced by her rights under Article 12 of the United Nations Convention on the Rights of the Child 1989, including her right to express her views freely on matters which affect her, and her “opportunity to be heard in any judicial and administrative proceedings affecting the child”.

I am also conscious, as Mr. Barda has highlighted in his submission, of the countervailing importance of protecting children from the worst extremes of their parents’ disagreements; in this respect I was taken to Lord Wilson’s further comments in Re LC at [48]:

Having weighed the arguments, I was satisfied that it was right for R to be joined as a party. I was persuaded that she did indeed deserve to have an independent voice in these proceedings concerning her sister; the implications for their family life, and relationship, are significant. I took the view that she has an opinion which is probably “incapable of being represented by any of the adult parties”, even the mother. Having considered with counsel, during the submissions, the proposed limits on the extent of R’s participation in the proceedings (see [18] below) I was satisfied that she would be protected at least to some degree from unnecessary exposure to the parental conflict.

Unlike the position of a subject child party in Hague Convention proceedings who must appear by a Children’s Guardian, (see FPR 2010 r 16.6(2), and Re LC at [46]), R must appear in the proceedings by a litigation friend (rule 16.2, rule 16.5, and rule 16.6 FPR 2010). Once the parents confirmed (on my enquiry) during the hearing that they would not, under any circumstances, pursue a claim for costs against R (see rule 16.9(2)(c)), R’s solicitor agreed to be her litigation friend, thus avoiding the involvement of another family member (a maternal uncle) who had otherwise volunteered. One of the values of appointing a litigation friend was that I could ensure that R’s own participation in the proceedings was guided and regulated (see [155] of Re M): “He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing.” There is nothing controversial about that: as Lord Wilson observed in Re LC, the joinder of a child can be qualified / regulated by arrangements as to her participation (see Re LC [55]), within the “wide discretion” of the court (see also Peter Jackson J in A City Council v T, J and R [2011] EWHC 1082 (Fam) [2011] 2 FLR 803[2011] 2 FLR 803). Where party status has been given to a non-subject child, particularly one who is a mature 17-year old, I would limit the extent of her participation only cautiously. R has rights under Article 6 which must be carefully observed. However, for her – as for any party – an entitlement to a fair trial under Article 6 of the ECHR does not mean an absolute and unqualified right to see all the documents (see, for a discussion of that proposition, Munby J as he then was in Re B (Disclosure) [2001] 2 FLR 1017).

As it happened, on the day of the hearing, R was taking a GCSE at school and could not be present at court; there was no request for an adjournment. R recognised that her participation would, perforce, be limited. Therefore although Miss Clifford could access the documents once R was joined, R could not realistically do so; Miss Clifford acknowledged that there would be little material benefit in R having access to the parents’ statements after the hearing, and such benefit as there may be is likely in my judgment to be outweighed by the potential detriment of exposure to her parents’ dispute. I therefore directed that the parents’ statements and exhibits should not be shared with R without further application to the court. I directed that the Cafcass report, which contains a summary of a discussion between R and Ms Roddy, should nonetheless be available to her.

I turn to the mother’s case on ‘exceptions’.

‘Grave risk of psychological harm’: The mother’s case is that a return of S to France would inevitably impose a separation of the siblings and that this would be ‘intolerable’ for S, and/or cause her psychological harm; she further contends that a return will place S in an intolerable financial situation. The burden of establishing this exception on the balance of probabilities rests on her; it is for her to produce evidence to substantiate these exceptions.

The threshold for proving an exception under Article 13(b) remains high notwithstanding the removal of judicial gloss on the words of the exception by the Supreme Court in the cases of Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442. It is to be noted that (Re E at [33]):

I proceed, in determining this application, on the basis that R has made a firm, albeit I consider somewhat surprising, decision to stay in England to live and study come-what-may. It is of course entirely possible that she may reverse her intentions in due course, I am not in a position to say. For the purposes of my decision, I accept that a return of S will indeed impose a separation of the siblings. I accept the evidence that R and S are close; however the girls are 3½ years apart in age. They are at a very different stage of their emotional and educational development. In the event that S is returned to France, the sisters will be able to see each other in holidays, for significant periods; although in different countries, they would be living reasonably easy travelling distance apart which would make even weekend meetings feasible. The separation may – subject to the views of the French Court on the relocation question and/or R’s change of mind (as to which see [23] below – be only temporary.

It is of course as much R’s decision as it is mine which forces any immediate separation. R has declared a choice to be in England. In this respect, she is exercising some newly-developed autonomy. That is a matter over which I have no influence let alone jurisdiction. R could just as easily decide to return to France to return to school there at least for the next year; she is after all nearly at the end of her education, and may ultimately decide to complete it within a curriculum which she has thus far followed for all her school life.

The mother relies on financial difficulties to establish an exception under Article 13(b) (see [9(ii)] above); indeed, her case is that it was only her financial vulnerability immediately post-separation which caused her to move in the first place; she said in terms:

‘Objections’: I am satisfied that I have fully and effectively received S’s views in accordance with the obligations under Article 11(2) of BIIA (“it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity”), and Article 12 of the United Nations Convention on the Rights of the Child 1989. Although S has not been joined as a party, she has (a) spoken with the Cafcass officer (Ms Jacqueline Roddy), who has fully and clearly set out her views (in some respects verbatim) in a detailed report, and (b) S has written a letter to the court.

I have approached the issue of S’s ‘objection’ by first considering two questions of fact – namely, whether (a) S does indeed object to being returned to France, and (b) S has attained an age and degree of maturity at which it is appropriate to take account of her views; determination of these facts represents the ‘gateway’ stage. Black LJ has described this gateway stage in Re M at [69] as being:

S spoke “increasingly confidently and passionately” about the issues involved in this situation when she met with Ms Roddy (Cafcass) two weeks ago. She was said to be “very clear from the outset that she wishes to remain in England with her mum and sister”. She said that she loves her father, and “wishes this whole episode hadn’t happened”; S told Ms Roddy that she hoped that the father would seek her full-time care in the event of a return to France, as this would prove to her that he loves her. The father does indeed seek her care.

S told Ms Roddy that she wished to remain in England, with her family here, but admitted to missing her French friends, and spoke happily of life there. She said that she would like to see her father in the holidays. S had prepared a letter for me, in which she said this:

Ms Roddy was of the opinion that S’s views “might be seen as reflecting those of her mother”, specifically placing the blame for the current situation at the father’s door. Although reflecting that S was “determined” that she does not wish to return to France, objects to being separated from her sister, and adopts a “strongly held position”, Ms Roddy nonetheless concluded that S’s views amounted to no more than a “clear preference” to remain in the UK rather than an objection to return to France. That conclusion was intended to convey to the court that S’s views (‘preference’) fell short of an objection (see Re M at [38]-[41], and see Re LC at [8] and [71] – accepting the distinction between these expressions of view).

In oral evidence, Ms Roddy told me that she considered S to be “insightful” about her situation, and that S is a young person who had formed her “own opinion”, reaching a “considered decision of what she wanted”. She was of the view that S had a reasoned and balanced view of the options, and had some sorrow and regret at the current situation; she was also angry at her father. Significantly, it became apparent in Mr. Perkins’ questioning of Ms Roddy that she had considered and interpreted the word ‘objection’ to mean something which was “absolute” in quality, something which “could not be contemplated, distasteful … not find favour under any circumstances”. She added (my note of her evidence):

Having considered the evidence as a whole, I am satisfied that S does object (per Article 13) to returning to France. I draw, in reaching this conclusion, on the evidence garnered in, and reflected by, Ms Roddy’s helpful assessment, but not on her ultimate conclusion on this question. I was particularly struck by the passage in the report indicating that S was “determined” that she does not want to return to France; in stating her view forcefully in this way, I recognise that S may well be conflating her feelings about returning to the country with her feelings about her father and the situation which she left behind, but consider this below when exercising my discretion. It seems to me that Ms Roddy had probably attributed to the term and concept of ‘objection’ a loaded quality which it did not deserve. Her evidence that she understood ‘object’ to be something ‘absolute’ or not finding favour ‘in any circumstances’ is reminiscent of the erroneous approach taken by counsel and the judge to the term in the trial at first instance in Re F [2015] EWCA Civ 1022, in which Black LJ said at [35]:

S’s objection to returning to France nonetheless has complex roots, influenced, I am satisfied, by a number of factors which I have collected from the Cafcass report, and elsewhere. Those factors include: (a) S’s unhappiness at the thought of being separated from her sister and her mother, (b) her perception of a change in her father’s behaviour towards her and the family in the end of 2015, (c) her dislike of domestic disharmony between her parents (in particular her father’s shouting), (d) her blame of her father for the current situation (including his stance on financial provision which had caused the mother to leave France) and anger towards him, (e) her anger towards her paternal grandparents (in France) for allegedly ‘covering’ for her father’s behaviours, (f) the influence (whether intentional or otherwise) of her mother who has (she accepts) spoken with S about the issues, and (g) her worry about not having anywhere to live in France. I return to these factors when considering the discretionary stage.

It is rightly not challenged in this case by the father that S has attained an age and degree of maturity at which it would be appropriate to take account of her views, whatever they may be.

Having found that S objects to a return to France, I must now consider whether, in the exercise of my discretion, she should be ordered so to return. In exercising this discretion, I consider matters in the round; as Baroness Hale advised in Re M and another (Children)(Abduction: Rights of Custody) [2007] UKHL 55 (‘Re M’), in:

I start with the objection itself; this weighs significantly in the balance against an order for return. In this case it is apparent to me that S’s objection has been shaped by a number of factors, which I have identified at [32] (above); some of those factors have an invalid or insecure factual foundation yet have contributed to the formulation of S’s views. For instance,

Perhaps most importantly, and contrary to her belief, S would not in fact be separated from her mother if she is ordered to return to France as her mother has indicated that she would return too; (see [32(a)] above);

Objection to return to France is mixed to a significant extent in my judgment with objection to returning to the “unpalatable” situation which she left behind (see [30]/[31] above); in the event of a return, the parents would be living separately, and S would therefore be spared exposure to daily parental conflict; (see [32(c)] above);

The father has offered to fund accommodation for the mother and S in the event of a return (see [32(g)] above); so she would be relieved of the anxiety of being homeless.

I weigh carefully in the balance that the siblings would be separated in the event of an order for S’s return to France, and have conscientiously reflected on the impact this may have on the Article 8 rights of R and S to family life together, and the similar rights possessed by S and her father to a full family relationship with each other. While this is a powerful factor, as I indicated above (see [22]) any sibling separation which follows an order for return will be mitigated by the likely opportunities which will exist for the sisters to spend time together in the holidays, and maybe even for some weekends.

In reaching my conclusion, I am guided by the fact that the mother does not describe any unsatisfactory aspect of life in France for the children before her departure in March 2016, and clearly indicates (see [24] above) that had it not been for her financial worries, she would not have moved the children to England in the first place. The father has made an offer of financial support to the mother at this hearing, which is in my judgment adequate to meet her short-term needs. It is significant that the mother would be returning to France with a package of financial support not previously available to her.

There are proceedings afoot in France, in respect of which both parties have retained lawyers; these proceedings will provide an appropriate vehicle for resolution of all the family disputes in the jurisdiction in which the children are habitually resident. There is a hearing within an acceptably short time of this hearing; if the mother wishes to do so, she could of course make an application for permanent relocation.

At the time of her removal, S was integrated into life in France, where she has been in education throughout her life. If I have correctly understood the final sentence of her letter to me at [28] above, she has not found her transition from French to English schooling all that easy (viz: “I think as well changing schools from France to England isn’t easy at all because of language and because I need to start to learn the lessons all over again”). If ordered to return, she would (I hope) be able to settle back reasonably easily into French schooling after the Whitsun break, having missed relatively little of her curriculum there. In France, S enjoys a range of pastimes and hobbies described by both parents from which she plainly derives many benefits.

Her current expressions of anger at her father need to be addressed before positions become entrenched. I recognise that there is a risk that by ordering her return, I may cause S to feel additional resentment towards him for his part in separating her from her sister, and thwarting her mother’s plans for a new life in England. However, I bear in mind that S had expressed the hope to Ms Roddy that her father would seek her long-term care (thus, poignantly, indicating his love for her: see [27] above), and am much encouraged by Ms Roddy’s description of the meeting between father and daughter outside court on the day of the hearing. Geographic proximity of one another in France – at this crucial time even if not permanently – may encourage an easier re-establishing of the father/daughter relationship, which I am satisfied (having seen the messages and cards which have passed between them even in relatively recent times) has been extremely close and loving.

In exercising my discretion, I am entitled of course to have regard to the general philosophy of the convention, which is:

In the circumstances outlined in [34]-[41] above, I have reached the clear conclusion that I should accede to the father’s application and order the return of S to France. I will make orders in relation to financial provision which will have effect under the 1996 Hague Child Protection Convention in order to give the mother maximum interim financial protection pending determination by a French Court. I will invite counsel to agree, if possible, a form of order.

That is my judgment.