H (Children), Re [2005] EWCA Civ 319

Case No B4/2004/2672[2005] EWCA Civ 319
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE HEDLEY)
Venue Royal Courts of JusticeDate Tuesday, 1 February 2005
The Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE POTTER
LORD JUSTICE SEDLEY
H (CHILDREN)
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MR MICHAEL NICHOLLS AND MR TOM CARTER (instructed by Russell & Co, Malvern WR14 2AH) appeared on behalf of the Appellant
MR ANTHONY KIRK QC AND MR ANTHONY LOWE (instructed by Harrison Clarke, Worcester WR1 2JD) appeared on behalf of the Respondent
J U D G M E N T
Tuesday, 1 February 2005

LORD JUSTICE THORPE:

[1]There is a relatively complicated history behind this appeal and I will summarise only the essential facts. The parties to the appeal married in August 1982. Their eldest child, Oliver, was born the following year and is 21 years of age. Next came Annabel, who was born in 1986 and is 18. After her, Genevieve, who was born in April 1988; and then I come to the children with whom this appeal is directly concerned - Chloe, who was born in January 1992 and is accordingly just 13 years of age; and finally Quentin, who was born in May 1999 and who is still 5 years of age.[2]Between the birth of Chloe and Quentin the parents decided to relocate to Australia and arrived there at the end of 1997. Their life in Australia was beset with misfortunes, which it is unnecessary to detail, beyond saying that at one stage the father was gravely ill, and at another stage two of the children were involved in an accident which caused quite serious injuries.[3]To focus on issues that are relevant to the appeal, I record that in the summer of 2002 the mother with the children came to this jurisdiction, save for Oliver, who remained in Australia. That venture did not succeed and the family was reunited in Australia by the end of that year. Oliver left home, gaining his adult independence, in the spring of 2003, and at that stage there were discussions between the parents as to a possible return to the United Kingdom for the remaining family. In the event, the mother and the children arrived in the United Kingdom from Australia on 21 August 2003.[4]The parents both come from the English Midlands and the grandparents on both sides are settled there. It was there that Chloe started her secondary schooling in September 2003. The father arrived on 6 November. He believed that he was rejoining the family and that it was the start of a new phase in the life of the united family. However, on arrival the mother suggested that he should sleep at his parents' house and two days later informed him that she wanted a separation. Almost at once proceedings were commenced in the Worcester County Court. The mother sought and obtained on 25 November 2003, an order without notice preventing the father from removing the children from the jurisdiction and granting her interim residence. On the return date, 28 November, the district judge accepted the father's cross-application for residence orders and also a specific issue order to enable him to return the children to Australia. The district judge directed a CAFCASS report as to residence, contact and permanent removal to be filed by 20 February 2004. During the course of the CAFCASS officer's investigations the father and Genevieve returned to Australia on 28 January. A few days later Annabel returned to Australia, having stayed on to take part in a school event. Thereafter there was no contact between the father and Chloe and Quentin, who remained in this jurisdiction, until 8 December, when visits were arranged in the closing stages of the High Court trial. On 3 March in the county court the district judge gave further directions and ordered that the cross-applications be listed for final hearing on 24 May with a one day time estimate. Before that fixture it seems that the parties reconsidered the time estimate and agreed that a single day was inadequate. Accordingly, an order was made in June providing for a three-day fixture to commence on 26 October.[5]It seems that in August the husband, who had for a time been acting in person, instructed fresh solicitors. They sought the advice of Mr Michael Nicholls. In consequence, on 8 October 2004 with the three-day fixture only 18 days distant, the father effectively aborted those proceedings by issuing an originating summons under the Child Abduction and Custody Act 1985 seeking an order for the return of Chloe and Quentin to Australia under the provisions of the 1980 Hague Convention.[6]The consequence was a short appointment before a recorder in the Worcester County Court, who transferred all proceedings to a Judge of the Family Division. On 29 October Holman J stayed the proceedings under the Children Act 1989 but said that the evidence filed in those proceedings should stand in the child abduction application. That application finally came for hearing before Hedley J on 15 December. He heard the evidence on that day and, having deliberated overnight, delivered his judgment refusing the father's application for return. However, he granted Mr Nicholls' application to appeal to this court, on the finding that both children were settled within the context of Article 12 of the Convention. The notice of appeal was lodged on 16 December and arrangements made for an expedited hearing, as is always the case for Hague appeals. Mr Nicholls' skeleton was filed on 21 January, and a skeleton from Mr Anthony Kirk QC some ten days later.[7]Before recording Mr Nicholls' essential submissions it is probably helpful to read into this judgment the articles of the Convention that are engaged. We are principally concerned with Article 12, which reads as follows:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child and forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."
To that second paragraph can be attached the provisions of Article 18, which reads:
"The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
Finally, I need to record a provision of Article 13, which is in these terms:
"The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."
[8]The outcome before Hedley J was plain. He held that both these children, Chloe and Quentin, were clearly settled within this jurisdiction. He further held that Chloe objected to return within the context of Article 13. Finally, he exercised the discretion vested in him under Articles 12 and 18 in combination, and the separate discretion vested in him under Article 13, to refuse the application for return.[9]Mr Nicholls' submissions are essentially three-fold. He has said that the judge should not have found these children to have been settled, for reasons which he subsequently developed; secondly, he says that the judge should not have found that Chloe objected to return; and thirdly, he says that in any event the judge should not have exercised his discretion as he did under Articles 18 or 13 in a plain case of forum shopping.[10]Before considering those submissions separately, I observe that Mr Nicholls' attack on the judge's finding that Chloe objected is not to be found in his notice of appeal and emerges for the first time in his skeleton argument of 21 January. Nevertheless, and despite the further fact that it was not the subject of any permission given by the judge below, we have considered all three of his submissions on their merits.[11]I turn, then, to Mr Nicholls' elaboration of his criticism of the judge's finding that these children were settled. He eloquently categorises all the statements from Chloe which were influential with the judge as simply statements of preference for the future, rather than statements of any existing or achieved state of fact. He then points to the fact that this is a family which is fundamentally split between the two jurisdictions and that, accordingly, it is hard to see how a child is settled in this jurisdiction or in this part of the separated family, given the reality of her continuing relationship with her siblings in Australia. But above all Mr Nicholls submits that it is almost impermissible to find a child settled where, throughout the relevant period of review, namely from the date of initiation of the Hague proceedings, there have been continuous proceedings in the county court and then in the High Court to determine her future. Given that a decision as to her future location has never been taken and has always been pending, how could it be said that this was a settled child? Mr Nicholls also places great emphasis upon the need to take any decision as to the settlement of the child within the context of the Convention, and particularly having regard to its wide aims and objectives.[12]It is certainly to be recognised that the judge's finding in this case is in relation to a temporal period that only exceeds by a matter of weeks the marker that was internationally agreed and which found expression in Article 12 of the Convention. However, it is important to see the report of the CAFCASS officer, who the judge relied upon to make a direct assessment of Chloe's state of mind and emotion on the morning of the hearing in the course of a 40-minute interview in the Thomas Moore building. In how Chloe expressed herself to the CAFCASS officer, it is important to notice that as well as her clear expressions of preference for the future (desperate for a period of peace and quiet and future stability) there are also equally clear statements as to her present position. In particular, she is recorded as having said that she was very settled here and was very keen to remain here and not have another disruption. The welfare officer furthermore quoted these very words from Chloe:
"I've never been so happy as now, this period living in England."
The judge looked at all the evidence, of course, and also at a letter from Chloe which had been written a few days before the hearing and which emphasised her sense of frustration at not being listened to by the adults. The judge in the end dealt with this important question in paragraph 33 of his judgment, when he said this:
"In my judgment the concept of 'settled' is a description of fact which takes account of the physical and emotional circumstances. It is to be viewed primarily through the eyes of the child concerned. Litigation must, of course, be a relevant factor to be considered, but it cannot in my judgment on that basis be entirely decisive. Having reflected carefully on this, I am quite satisfied that the evidence demonstrates that Chloe is indeed now settled in her new environment. Although the evidence about Quentin is less precise, such evidence as there is demonstrates to me that he is an integral part of the unit of which Chloe is a part, and that it would be quite artificial to reach any conclusion but that he, too, is settled in his new environment."
In my judgment that is an impeccable direction as to the appropriate approach. He made a clear finding of fact which is based on firm evidence and, despite all Mr Nicholls' attractive submissions, I do not consider that this finding can be shaken.[13]Mr Nicholls has sought to develop an ingenious argument that the judge in any event was wrong to count the crucial period of 12 months from 21 August 2003. Mr Nicholls submits that he should have started the clock running from 8 November 2003. He particularly draws attention to the passage in the speech of Lord Slynn in Re S (A Minor) (Custody: HabitualResidence) [1998] AC 750, where Lord Slynn said in relation to removal or retention:
"Even though the two are separate and mutually exclusive, both can occur on the facts in relation to the same child at different times. It must, however, be necessary to point specifically to the event which constitutes the removal or the retention. This is necessarily so because of the provision of Article 12 that for an order for the return of the child to be made the date of commencement of the proceedings, a period of less than one year has elapsed 'from the date' of the wrongful removal or retention."
[14]So, says Mr Nicholls, what was essentially wrongful here only emerged when, on 8 November the mother revealed to the father that it was her intention to separate and therefore that the fundamental basis of his consent to the family's relocation had been shorn away. The judge should have seen that the issue of the originating summons did not fall outside a period of 12 months commencing from 8 November.[15]There are all sorts of difficulties with that submission. The principal is that Mr Nicholls did not run the case below on the basis that Article 12 was clearly not engaged, because there had been nothing wrongful prior to the wrongful act that constituted a retention commencing 8 November. To the contrary, he ran the case that this was a wrongful removal, and that the mother had throughout had the deceitful intention of establishing a relocation in this jurisdiction through subterfuge. The judge dealt with the mother's motivation quite clearly in paragraphs 26 and 27 of his judgment, when he said:
"Equally, the evidence demonstrates that once in the United Kingdom the mother became increasingly firm in her desire to separate. Whilst she may not have finally made the decision until 8 November, it is difficult to avoid the conclusion on the whole of the evidence that that decision had become inevitable before the husband arrived on 6 November. That was the reason, after all, for wanting him to go to his parents and not to join her. At the very least, at the time the consent was given she intended to use the move to explore very seriously the prospect of separation or continuation of the marriage, and, if separation, of retaining the children. Such a separation and retaining the children was only a practicable proposition for her if she was in the United Kingdom. 27. In the result the mother fails to establish that the undoubted agreement of the father to her travelling to the United Kingdom with the children was a clear, unequivocal and informed consent to what she was doing. She intended seriously to explore exactly what she knew he would never have agreed to. Accordingly I conclude that this was indeed a wrongful removal in August 2003. In those circumstances Article 12 is fully engaged."
[16]That citation is conclusive to the argument advanced by Mr Nicholls. I concede that it would have been possible for Mr Nicholls to have run a different case below by submitting to the judge that this was a case far removed from Article 12, since there was nothing to start the clock running before 8 November. That was not the case that he advanced, and the case that he now seeks to advance on appeal is simply inconsistent with the judge's very clear finding that I have cited.[17]I turn next to Mr Nicholls' second main submission that the judge should never have found that Chloe objected to return within the context of Article 13. He stresses on his client's instructions that Chloe was inevitably much influenced by her mother in whose company she had been for so long. He also makes the submission that Chloe had never contemplated a number of hypothetical realities, such as what would be her position if the judge were to order Quentin's return and what would be her position if the judge ordered Quentin's return and the mother elected to go with Quentin. Without a comprehensive review of all the possible hypothetical outcomes Mr Nicholls suggests that her objection is purely superficial.[18]That submission is not, as far as I know, supported by authority, and seems to me to be altogether more sophisticated, complex and unrealistic than the approach suggested by Professor Perez-Vera in paragraph 30 of her preliminary report. Furthermore, the judge reached his decision on the basis of evidence from Miss De Boer, the CAFCASS officer, who at page 26 of the bundle said:
"[Chloe] told me basically she would refuse to return and that she is coping..."
Miss De Boer also said in answer to the question:
"Did you ask what her views would be if it was decided that her younger brother had to go back to Australia?"
She responded:
"In fact I did. She just looked very, very distressed. She told me she is close to her brother. I didn't push that because I didn't feel I knew enough about the situation."
[19]On Mr De Boer's evidence and on the letter that Chloe had herself written to the judge he was, in my judgment, clearly entitled to resolve this factual issue as he did in paragraph 35 of his judgment, when he said:
"... and simply ask myself whether or not she objects in the sense that I have to consider. Mr Nicholls argues that these views do not amount to an objection. I disagree. On the facts of this case as I have set them out, particularly in the evidence from Miss De Boor, I find that there is a real objection to being returned in terms of destabilisation, removal from friends, uprooting from school and a sabotaging of Chloe's desire to put her roots down, Mr De Boor's comment about the emotional impact that such a thing would have on Chloe and indeed her own assertion that she would refuse to return. When those matters are drawn together (and there is nothing in the rest of the evidence to contradict them), it seems to me that that amounts to a real objection, as is contemplated by the Article."
That, in my judgment, is an impeccable approach and a factual finding that is fully justified by the considerations that the judge itemises.[20]Thus I come to Mr Nicholls' last submission, namely that the judge erred in exercising his discretion as he did. Mr Nicholls complains that the judge gave insufficient weight to countervailing factors, principally the important objects of the Convention which had to be given due weight in any discretionary judgment. He also points to the fact that this is a fundamentally split family and there can be no certainties as to Chloe's future either here or in Australia. Against that, I only emphasise that the welfare officer, in giving her advice to the judge, had said:
"Chloe is very clear with her wishes. I got the feeling that she would find it intolerable to go back to Australia at the minute, her present situation, given the deterioration in the relationship with her father, particularly over the last week, and in the context of her feeling fairly desperate for some stability in her life."
I only add this passage on the following page:
"I think I would be quite concerned about her emotional welfare if she was forced to go back to Australia at a time when she was feeling quite undermined by her father."
On evidence of that strength it was, in my judgment, clearly open to

the judge to find as he did in paragraph 40 of his judgment:

"After long and careful consideration, having adjourned this case overnight, I have concluded that I should not exercise a discretion to return these children under Article 12 and 18, nor in the case of Chloe under Article 13. These children have become settled. They would be seriously disturbed by removal especially if there was litigation in Australia ultimately successful to relocate to the United Kingdom. It would be unthinkable on welfare grounds to uproot Quentin on his own and return him and leave the mother and Chloe here. Chloe's position is such that a removal would be seriously damaging."
Once again I am quite satisfied that Mr Nicholls' attack on the judgment below fails on a review of the evidence and the judge's reasoning.[21]Before leaving the case, I do recognise Mr Nicholls' general submission that the outcome is in some senses one that is hard upon the father, given that the initiation of proceedings falls only just outside the limits set by Article 12, and given that he was plainly set on the wrong path by the solicitors previously acting for him. All that I recognise; but the distinguishing feature of this case from many in which this court either at first instance or on appeal has vigorously upheld the objectives of the Convention, is that when the father was faced with the crisis revealed to him on 8 November his resort was not to the Convention but to the courts of this country, pressing for a merits determination, both as to residence and as to future location, determinations which had to have regard to the welfare of the children as the paramount consideration.[22]That approach, of course, implicitly accepts that the children are habitually resident in this jurisdiction and that the primary responsibility for deciding their future lay with a judge in the Worcester County Court. That was his litigation position, assumed on 28 November and consistently maintained, certainly until June 2004, and arguably until 8 October 2004, when he issued the originating summons almost on the eve of the merits determination that he had sought. In those circumstances, an inevitable risk was that the children would have developed settled roots in this jurisdiction or would have developed strong objection to return. That risk effectively turned into a consequence on examination before Hedley J.[23]I conclude that his judgment is comprehensive, careful and not open to any criticism on appeal and I would accordingly dismiss this appeal.

LORD JUSTICE POTTER: I agree with the judgment of Thorpe LJ and the reasons which he has given. I too would dismiss the appeal.

LORD JUSTICE SEDLEY: In the course of his submissions Mr Nicholls has argued that in order to determine for the purposes of Article 13 whether the child objects to being returned - and I think by parity of reasoning in deciding for the purposes of Article 12 whether the child is settled into a new environment - it is necessary to ascertain not only how she feels about her present situation, but how she would feel in various unwelcome or unexpected eventualities. Here, for example, it was submitted that it was incumbent on the court to find out through CAFCASS how Chloe would feel about staying here if her brother or her mother or both were to return to Australia. It is possible that in certain situations it is necessary for Article 12 or Article 13 purposes to ask an already anxious 13-year old "What if?" But the notion that it is requisite in a case like this to put to such a child a series of distressing counter-factual hypotheses of the kind instanced by Mr Nicholls seems to me morally unacceptable and, as my Lords have said, legally unsustainable.

[26]For the rest I agree, for the reasons given by my Lord, that the application for permission to appeal should be refused and the substantive appeal dismissed. (Application refused; appeal dismissed; assessment of both parties' publicly-funded costs; further orders to be agreed by both parties; no reporting restrictions).