H (A Child), Re [2013] EWCA Civ 205

Case No B4/2012/3013[2013] EWCA Civ 205
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(HIS HONOUR JUDGE CLIFFORD BELLAMY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 1 st February 2013
Before
LORD JUSTICE THORPELORD JUSTICE LLOYD-JONESMR JUSTICE WARREN
In the matter of H (a child)
(DAR Transcript of
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Mr Alastair Perkins (instructed by Hanne & Co Solicitors) appeared on behalf of the Appellant.
Mr Mark Jarman (instructed by Howells Solicitors) appeared on behalf of the Respondent.
Judgment
[1]The parties to this application are the parents of C, who was born on 8 October 2000 and is accordingly 12 years of age.[2]The applicant father is American in origin and the respondent mother comes from this jurisdiction; however, their family life was in the father's state of Florida until their relationship broke down and proceedings in the United States were brewing and imminent.[3]The mother planned to return home; her evidence was that she consulted her son, treating him as an autonomous teenager: did he want to come with her or stay with his father? Her case was that he opted to accompany her. It was established that her departure was premeditated; it was established that it was clandestine. By those means she had achieved her own return, bringing with her C and an older child, now adult but somewhat disabled, from an earlier relationship.[4]There can be little doubt that this was a wrongful removal or abduction, and to provide the left behind parent with a remedy there is the 1980 Hague Abduction Convention to which both this country and the United States have steadfastly adhered over many years. Accordingly the father was able to approach the central authority in the United States, who transmitted the application to the central authority in this jurisdiction within, I think, three weeks of the wrongful removal. A location order was made by Bodey J. The mother was in fact with the children in South Wales. She had already, through solicitors, indicated her response to the application by serving a defence which sought to challenge the father's entitlement to a Convention remedy on the basis that he did not have, alternatively was not exercising, rights of custody at the material date. That assertion had pretty forlorn prospects of success, so effectively her only defence was the reliance on the child's objections pursuant to Article 13(c).[5]Mostyn J directed that there be filed a schedule of undertakings, evidence in reply from the father, and all that was done in advance of a listing before HHJ Bellamy, who was sitting as a deputy judge of the division. He heard oral evidence from the CAFCASS Officer, but otherwise had only the written evidence filed by the parties. He dealt with the case on 5 November and commendably gave a judgment on that day. It has not been transcribed because he made it available to the parties in written form. Ordinarily, where the defence raised his child's objections, the nature and extent of those objections will be ascertained by an officer of the specialist team in the vicinity of this court, but, given the situation of C in South Wales, the task was undertaken by a CAFCASS Officer from CAFCASS Cymru, who had abundant experience of contested proceedings under the Children Act 1989 but little or no experience of cases proceeding under an international instrument such as the 1980 Convention.[6]Accordingly, whilst the thoroughness of her work was not open to question, the form in which she had questioned C on a key issue was far from perfectly phrased and was the subject of some criticism from the judge. The important distinction that should have been drawn was between return to Florida and return to your father's care. It was very important that those two ingredients should be separated as far as they could be. The question posed was in rolled up form, but nonetheless the judge, having made due allowance for that, concluded in paragraph 36 of his judgment that C did object to returning to the United States.

The judge continued:

"I am satisfied that his objections are real, rational and reasonable."
[7]He then in paragraph 39 found as a fact that C had attained both an age and a degree of maturity at which it was appropriate to take account of his views. So those two findings in conjunction amounted to upholding the child's objection exception. He had then to complete his task by considering whether or not to order return despite the exception having been established. As he put it in paragraph 40:
"Having answered the first two questions in the affirmative, it then remains to consider whether the court should exercise its discretion to rebut the Art 12 presumption in favour of summary return."
That, in my opinion, constitutes an impeccable direction.[8]He properly balanced the Convention principles and objectives. He put into the other scale this factor:
"I am satisfied that [C] not only genuinely objects to being returned to the USA but that he strongly objects."
[9]In the end his conclusion was:
"It seems to me to be implicit in the way [Baroness Hale] expresses herself that there will be cases in which the child's views will be determinative. In my judgment this is such a case. I shall refuse the father to return."
[10]Now, Mr Perkins is the author of the grounds of appeal attached to the appellant's notice of 20 November and he is also the author of the supporting skeleton argument. Having read those documents and the judgment on 30 November, I directed that the permission application be adjourned to an oral hearing without notice. That listing was achieved, I think, last week or maybe even the week before when, as a result of error in the office, the further direction that the application was to be listed not before me alone but before a three-judge constitution was overlooked. It was impossible to arrive at a fuller constitution on that day and the application had to be further adjourned. Against the possibility that Mr Perkins would persuade the full court to grant permission, I extended my previous order or varied it, to an oral hearing on notice with appeal to follow if permission granted.[11]Mr Perkins has made much of an important factor in the case, namely that at a relatively late stage in the development of the evidence the mother declared that she would not herself return to Florida even if an order for summary return were made. That is a relatively rare development, but there were circumstances and factors which certainly could be counted against the conclusion that it was a strategic decision designed to thwart the thrust of the Convention. The judge had to recognise it; he had to ensure that he was not being manipulated, and that, in my judgment, he properly did in the course of his judgment.[12]Mr Perkins has made much of the fact that, as a result of the way the CAFCASS Officer approached the investigation, it is, he submits, apparent that C was objecting not to Florida but to a future in which he would be in his father's sole care. As the judge found, and I think correctly found, the two considerations are in reality inextricably bound together. The judge had regard to the fact that, in addition to antipathy towards his father, he had articulated the fact that he had no friends or only one friend in Florida and that he much preferred the curriculum of the school in Wales. Mr Perkins has also criticised a passage in the judgment in which the judge exercises his discretion. He said:
"Although the decisions I have to make are not welfare decisions, on the basis of the information presently available I am not persuaded that refusal to order summary return would be at odds with [C's] welfare interests."
[13]He says the judge has effectively turned the proper test on its head. Although it is perhaps an individual expression, I read it as being, if anything, an approach favourable to the applicant rather than to the respondent. Although Mr Perkins has argued his application with his customary skill, I am quite satisfied that the judge was entitled to find that C objected and strongly objected; I am equally satisfied that the judge was entitled to find that C had the necessary maturity. Accordingly, the objection, or rather the exception, was established and the judge had to reach a discretionary conclusion. In approaching that task I am satisfied that he directed himself properly in accordance with the authorities and he arrived at a conclusion with which this court should not interfere.[14]For those reasons I would dismiss the application for permission.[15]I agree.[16]I also agree.

Order

Application refused