In the matter of M (A Child) [2018] EWCA Civ 2043

[2018] EWCA Civ 2043Case No B4/2018/2095
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
(MR JUSTICE NEWTON)
Venue The Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 4 September 2018
Before
LORD JUSTICE FLOYDLORD JUSTICE PETER JACKSON
Between
Respondent ChildRespondent
IN THE MATTER OF M (A CHILD)
(DAR Transcript of WordWave International Ltd trading as DTI
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MR A NORTON QC and MR R JONES (instructed by Freemans Solicitors) appeared on behalf of the Applicant.
MISS C PAPAZIAN (instructed by DCC) appeared on behalf of the Respondent Local Authority.
MISS L RAMADHAN (instructed by Stephen Scown LLP) appeared on behalf of the Respondent Children’s Guardian.
Judgment Approved
[1]The child and family concerned in this case are not to be identified in any report. Introduction[2]This is a father’s application for permission to appeal, with the appeal to follow if permission is granted. It is brought against a decision made on 29 August 2018 by Newton J. His order required the father to secure the return from Thailand to England by today of a girl aged 15, whom I shall call Z. That order was requested by the local authority, the child’s mother and the Children’s Guardian.[3]The background is that Z’s mother is a Thai national now living in Sweden. Her father is British, now living in Thailand. The mother came to live in the United Kingdom in 2002, and she and the father married in 2003, the year of Z’s birth, but they separated the following year. There were then court proceedings that led to an order in November 2004 when the father was granted parental responsibility. The following month, the mother left the United Kingdom, and Z remained in the father’s care. She has not seen her mother since. In 2008 the mother settled in Sweden and has remarried. The whereabouts of Z and the father after 2004 are unclear, but it appears that they spent a significant part of the time in Thailand. In 2015, however, they returned to England and moved to the West Country. In June 2015 a referral was made to the local authority due to concerns that Z and the father were living in a bedsit in poor conditions and were sharing a bed. Z was not at school and was said to be socially isolated. She was subsequently enrolled at a college, where she was found to be illiterate and she appeared never to have had formal schooling, nor was she registered with a doctor.[4]A section 47 visit was undertaken by social services on 21 October 2015, and the father was asked to give an assurance that he would not leave the country. However, he and the child left the UK on 10 November 2015 to travel to Thailand, where they have remained. On 19 November 2015 the local authority issued an application for a care order, and that application remains before the court. On 24 November Baker J made Z a ward of court and ordered the father to return to this country. That order has been confirmed a number of times by orders of the same judge in 2015 and 2016. Various applications and requests were made to the authorities in Thailand, and two welfare visits were made to the father and Z by the Thai authorities, who in March 2016 expressed no concern regarding her wellbeing. At that stage the father appears to have withdrawn his cooperation from the Foreign Office and Z’s whereabouts in Thailand became obscure. Certainly, by 2018 they were unknown. From 2017 onwards, the court made a number of passport orders so that the father and Z would be picked up if they entered the country. More recently, a hearing took place on 12 July 2018 when Baker J refused the local authority’s application, issued in May, to withdraw its care proceedings and made a further passport order. He indicated that the concerns that led to the wardship had not been alleviated and he continued the wardship to reflect this.[5]The local authority was ordered to contact the Foreign Office and seek advice as to any further steps that might be available to locate Z and her father. The matter was listed for further hearing on 4 October 2018. However, matters took another turn. It now appears that in 2017 the father, unaccompanied by Z, had left Thailand for two months in order to renew his visa from abroad and that this procedure needed to be repeated annually. So it was that on 20 August 2018 the father, travelling through Heathrow apparently in transit and alone but in possession of both his and Z’s British passports, was arrested. He was brought before Moor J on 21 and 22 August and released on the basis that there would be a further hearing on 29 August and that in the meantime he would arrange for Z to speak to the Guardian by telephone from her boarding school. The wardship was discharged and the return order temporarily suspended, the judge being concerned about the lack of plans for Z in the UK. He considered that further enquiries would need to be made before an interim order for return was made. The hearing before Newton J on 29 August[6]The matter came before the judge, sitting as the Urgent Applications Judge in the midst of a very busy list. The agreed note of the hearing shows that the local authority and the other parties apart from the father sought the reinstatement of the wardship and the immediate return of Z on the basis that she would remain with her father, at least in the short term. Mr Jones, counsel for the father, argued that he should be allowed to file a full statement about Z’s circumstances and that it would be wrong to make a return order, which must be based on welfare, without knowledge of her situation and, in particular, of her views. The Guardian queried the direction made on 22 August that she should speak to Z, given that she was unaware of her circumstances and her knowledge of these proceedings or of her father’s arrest. She considered that enquiries should best be made with Z being in this country. So, it is clear that the relevant considerations were set out clearly by the parties for the judge’s determination.[7]The judge gave a necessarily short judgment hard on the heels of these submissions. He was very firmly of the view that the wardship should be reinstated. He took the view, not surprisingly, that the father had known about at least some of the return orders. In the course of his judgment he said this:
“It has been suggested to me forcibly that the court should not make any peremptory orders and the welfare assessment should be carried out in Thailand. In my view the position is that I know almost nothing about her circumstances since she was taken to Thailand by her father. There needs to be proper investigation of where her best interests lie, and this should be done in this jurisdiction. The only course I can realistically set out is that she be returned to this jurisdiction. Enquiries need to be made quickly.”
He approved the orders that are now under appeal and he refused the application made on the father’s behalf for permission to appeal. Whilst doing so, he reiterated that he was acutely aware of the requirement to hear a child’s wishes and feelings. The Appeal[8]The father now seeks permission to appeal on these grounds: firstly, that the order was made without knowledge of Z’s wishes and feelings; secondly, that no consideration was given to the effect on Z of removing her from an environment where she has been living since, most recently, November 2015 and placing her in a situation where she and her father have no place of residence; thirdly, that the order ignores the positive child protection assessment made by the Thai authorities; fourthly, that the father, who had not unlawfully removed Z in 2015, should have been given an opportunity to file evidence about her circumstances and habitual residence; and fifthly, that the judge was wrong to give such weight to the number of return orders that had been made when the father had not been personally served with any of them.[9]Mr Norton QC, leading Mr Jones on the application, has presented the arguments with effective moderation. He identifies the first ground of appeal as the nub of his argument. The judge, he says, should have ensured that more information was available, particularly from Z’s perspective, before making an interim return order. He points to familiar authority in the shape of Re D (A child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 at paragraph 41:
“A principle that is of ‘universal application’ consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child is on its face a fundamental principle. … In every case, the court is required to ensure that the child is given the opportunity to be heard. That means asking the questions, 'whether and if so how is the child to be heard'. There are a range of answers… It is not the answer that is key to the question before this court but the fact that the question must be asked.”
Here, says Mr Norton, the court should hear the views of a young person of 15 before imposing an order of this kind upon her.[10]The local authority, through Miss Papazian, responds that the order was well within the discretion of the judge. It allows for the hearing on 4 October to be purposeful. There were well-founded concerns for Z’s welfare before her removal in 2015, which had taken place without her mother’s knowledge. These are compounded by the father’s response to child protection enquiries and his effectively going to ground in Thailand. Baker J had made no fewer than seven return orders in knowledge of the circumstances. Moor J did not have full information or argument when the matter was before him.[11]The Guardian’s position, articulated by Miss Ramadhan, is that it is essential that Z returns to the United Kingdom to enable a comprehensive understanding of her position and for relevant assessments to be conducted. A telephone assessment by the Guardian will not, she says, be meaningful.[12]The court has written submissions from Mr Jarman on behalf of the mother supporting these contentions. Conclusion[13]I would refuse permission to appeal on all grounds. The management of a situation of this kind is a challenging one for the judge responsible for the urgent applications list, but I have concluded that Newton J’s order was one that he was entitled to make and, on full consideration of the circumstances, that the contrary is not arguable. These are my reasons.(1) As confirmed by Baker J, there was a solid basis for the 2015 concerns about Z’s welfare that have not been alleviated. These relate to her estrangement from her mother, her apparent lack of education and the lack of any clarity about her living circumstances. The 2016 assessment carried out in Thailand is now considerably out of date.(2) The father’s response to entirely legitimate efforts to ensure Z’s wellbeing have been anything but reassuring. Whether or not he has formally disobeyed them, he has ignored repeated orders for the return of his daughter, a British citizen, so that her welfare can be assessed. He appears to have evaded and obfuscated. He re-entered the jurisdiction for a substantial period in 2017 without informing anybody, and it has only been as a result of the passport order that he has now been forced to engage with the authorities.(3) There will be undoubtedly be some short-term disruption to Z in her coming to England, but that seems likely to be relatively slight and is clearly outweighed by the advantages to her of her long-term future being determined on the basis of an objective welfare assessment.(4) The submission that the court should have tried to ascertain Z’s views before making its order deserves serious consideration. However, as Re D makes clear, the court must ask itself how the child is to be heard. Here, the judge was faced with two very different possible approaches: a long-range and quite possibly protracted effort to gain information of uncertain evidential value, with Z remaining in Thailand, as against a shorter, sharper means of addressing the matter, with Z coming here. He was, in my view, aware of the competing factors and was entitled to prefer the latter approach. It will not be at all usual for a decision, even an interim decision, to be made in relation to a child of this age without the child’s views being taken first. But this is a most unusual case on its facts. The order that was made does not disrespect Z’s right to have her wishes and feelings heard; rather, it permits that to happen in a meaningful and productive way.(5) The judge’s order will allow the court on 4 October to make a more informed decision about interim or even final arrangements. If it is clear that it is in Z’s interests to return to Thailand at that time, this can be permitted on that occasion.[14]If my Lord agrees, I would therefore refuse permission to appeal, thus lifting the current stay, and put back in place the timetable provided before by Newton J’s order but with the dates postponed by one week. I would also, at the local authority’s invitation, add an order that the father is to take all necessary steps to encourage Z to travel as directed and add a penal notice to that order. Lord Justice Floyd[15]I agree.

Order

Application refused.