Jones (No 2), Re [2013] EWHC 2730 (Fam)

Case No FD12P02046[2013] EWHC 2730 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 21 st August 2013
Before
SIR JAMES MUNBY(President of the Family Division)(In Private)__________Re Jones (No 2)__________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Audio TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com__________A P P E A R A N C E SMR. E. DEVEREUX (instructed by Dawson Cornwell) appeared on behalf of the Applicant (Father).MR. C. HAMES (instructed by the Bar Pro-Bono Unit) appeared on behalf of the 1 st Respondent (Mother).MR. M. HINCHLIFFE (Solicitor, instructed by Cafcass Legal) appeared on behalf of the Guardian.__________J U D G M E N TTHE PRESIDENT:
[1]I have before me an application which arises in most unusual circumstances. The mother, who is Welsh, and the father, who is Spanish, married in 1995 and have five children; running from the eldest to the youngest, Sara, Jessica, Tomas, Eva and David. The marriage unhappily ran into difficulties and the parents separated in 2008. Since then there has been an enormous amount of litigation both here and in Spain.[2]The father has twice made successful applications in this country for orders for return of the children pursuant to the Hague Convention. The second set of Hague proceedings culminated in an order made by Hedley J on 9 October 2012. That, which one would normally have expected to be the end of the litigation in this country, was simply the prelude to a blizzard of litigation pursued in this country almost without cease since then. A number of judges have been involved and have given many judgments. For present purposes I need refer only to three: first, the judgment which, as I say, Hedley J gave on 9 October 2012 ([2012] EWHC 2955 (Fam)); secondly, a judgment which Theis J gave on 25 January 2013 ([2013] EWHC 88 (Fam)); and thirdly, the judgment which I handed down this morning ([2013] EWHC 2579 (Fam)).[3]The one common feature of the litigation has been the expressed objection of the second and third of the children – Jessica and Tomas – to return from this country to Spain. That objection was ventilated before Hedley J. He dealt with it in this way:
“It seems to me to be one of those cases where the importance of upholding Convention policy in the face of flagrant and, in this case, repeated breach, seriously outweighs the objections [of the children], especially when every matter that is relied on in support of those objections and in support of retention in this country is before the Spanish court and all the evidence is capable of being deployed before it. That is the court with jurisdiction, the court that ought to make the order and, for all those reasons I propose to direct the summary return.”
[4]The mother has made repeated attempts since the delivery of that judgment and the making of that order to have Hedley J’s order either set aside, stayed or discharged. All such applications have failed. The order for return which he made on 9 October 2012 remains in force.[5]There was a specific order that by 4 o'clock on 12 October 2012 the mother was to take the children to Cardiff Railway Station (she lives in Llanelli, also in Wales) so that the father could collect them and take them back to Spain. They were not taken to Cardiff Railway Station. The mother, together with her partner, then went on the run with the four younger children who were the subject of Hedley J’s order. In consequence of various orders made by the court there was considerable publicity about the abduction, which no doubt played a contributory part in the mother and her partner and the children being discovered some days later. As a result of further orders of the court the two youngest children were returned to Spain with the father. All the subsequent litigation in this country has focused upon the two older of the four children who were subject to Hedley J’s order.[6]The father sought, understandably, a further order that the mother return the children to Spain, not an order in substitution for but an order by way of implementation of Hedley J’s original order. That matter eventually came before Theis J. She has the inestimable advantage of hearing evidence from Mr. John Mellor, whose expertise and experience in matters of this sort is second to none. There is a transcript of the evidence that Mr. Mellor gave to Theis J on 30 November 2012. His evidence focused upon the wishes and feelings of Jessica and Tomas as expressed to him in interviews. The whole of that transcript requires careful reading. I illustrate the high points by reference to a small number of particularly striking passages. Quoting what he had been told by Tomas, Mr Mellor said:
“He was absolutely insistent he wouldn’t co-operate. He said: ‘You’d have to tie me up; you’d have to drug me’.”
Jessica is similarly recorded by Mr. Mellor as having said to him:
“I don’t think anyone in this country is going to drag me kicking and screaming, they’re not going to drug me, they’re not going to put me in handcuffs. I’m not going to get on that plane. Once I get to Spain, if I’m not legally allowed to live with my mum here in Wales, they won’t let me get on a plane to come back home.”
Mr. Mellor further assisted Theis J with a written report dated 10 January 2013 where he summarised his reading of the situation as follows:
“I remain of the view that in their present frame of mind, it is extremely unlikely that Jessica and Tomas can be prevailed upon to return to Spain. Though others, notably the father, may have constructive, practical suggestions to make, for my part I cannot identify any means by which their compliance might be secured.”
Further evidence of the children's behaviour and attitude can be found in notes prepared by the local authority of events which took place in Wales, and which can be found at Divider D, pp.177 and 231, in the bundle. What was Theis J to do?[7]Following the final hearing of that application on 16 January 2013 she delivered a considered written judgment on 25 January 2013. She set out the parents’ position as being very simply this: The father was seeking an order that the mother return the children to Spain. The mother did not support the making of any order against her and sought an indefinite stay on the order for return which had been made by Hedley J. Theis J, and if I may respectfully say so, with every justification for expressing these views, said that in her judgment:
“The harsh reality is that both Jessica and Tomas have been fundamentally let down by their mother by her refusal to comply with the court order requiring them to return to Spain.”
A little later in the judgment, to much the same effect, she said this:
“The mother is to be deprecated for the position she takes. She has, in my judgment, abdicated her parental responsibility for these children and she will have to answer to them and their siblings in due course.”
That said, Theis J recognised that the decision she had to reach was not and could not be in any way determined by what she called the mother’s “wholly unjustified position”, but as she appropriately said it was not something that she could ignore when she had to consider all the circumstances. Her conclusion was that, albeit “finely balanced”, she had come to “the very clear conclusion” that in what she called the particular and unusual circumstances of the case she should not make the order sought by the father.[8]Theis J set out her reasons for coming to that conclusion in a lengthy paragraph (para. 54) which requires to be read, although it does not require to be read in full into this judgment. In sub para (2) she said:
“There is, in my judgment, very little prospect of the order sought by the father working.”
And she then conjured up the spectre of committal applications which, as she put it “would … further polarise this fractured family with little or no prospect of the underlying purpose of the order being achieved.” She reminded herself of the court’s obligations under Article 8 to take all practical steps to ensure that its orders were implemented. Her conclusion was:
“In the circumstances of this case I have reached the conclusion that the reality is the injunction proposed by the father is likely to polarise positions more and is more likely than not to delay any re-unification of the children with their father.”
[9]She continued, and this, it seems to me, is the core of her reasoning:
“In my judgment the father’s alternative position is likely to have more prospect of success. Having taken the steps that have been taken what this case needs now is implementation rather than enforcement. That is likely to take time to enable relationships to be restored and provide an opportunity for reflection on the positions being taken. That is not going to take place against the backdrop of an injunction and the prospect of enforcement, by way of committal, of that order being on the horizon.”
[10]In other words, the wise and humane strategy which commended itself to Theis J was to allow time to heal matters in the hope that time would more likely lead to the desired result than harsh enforcement and penal sanctions. I can entirely understand why Theis J took that view. The consequence, however, has sadly been that her ambitions and hopes that there might be change have proved misplaced.[11]While those matters were being canvassed by Theis J, the law officers, following an invitation by Roderick Wood J, who had been dealing with the matter in the early days after the non-compliance with Hedley J’s order on 12 October 2013, had been considering whether or not, as invited by that judge, to make an application for the mother’s committal in relation to the non-production of the children at Cardiff Railway Station on 12 October 2012. That committal application finally came on for hearing before me on 23 July 2013. As I announced the following day, 24 July 2013, and for the reasons which I set out in the judgment I handed down earlier today, I found that the Solicitor General had not proved his case of contempt against the mother, she being at the crucial time on 12 October 2012 disabled from complying with the order and the Solicitor General, importantly, not being able to prove that it was within her power to comply with the order.[12]In the aftermath of that the father renews before me the application which, in earlier circumstances, he had unsuccessfully made to Theis J. He seeks an order that the mother return, or cause to be returned, the children to the Kingdom of Spain within a period of (he suggests) not less than seven but not more than 14 days from today. He seeks that order on the basis that, if made, it will simply be by way of implementation of the extant order of Hedley J that the children be returned to Spain.[13]The mother has, from time to time, as I have mentioned, sought to have Hedley J’s order stayed, varied, or discharged. All those applications have failed, indeed, such an application was dismissed by Theis J for reasons given in the judgment to which I have already made reference. The mother’s wish today remains, I think, that Hedley J’s order should in any event be stayed or discharged, but Mr. Hames, on her behalf, recognises the legal obstacles standing in the way of that submission. As Mr. Devereux on behalf of the father points out, it is clear from the judgment of Butler-Sloss LJ (as she then was) in Re M (A Minor) (Child Abduction) [1994] 1 FLR 390 at 397 that a final order for the return of children to a foreign jurisdiction under the Hague Convention, that being an order of the type Hedley J made, cannot be set aside by further application to the High Court. It is a matter, if it is to be set aside or discharged, for the Court of Appeal and no one else. The reality is that Hedley J’s order that the children be returned to Spain remains in full force and effect despite every attempt by the mother to escape from its coils.[14]What then, is the mother's answer to what, on the face of it, is the self-evidently justified application made by the father? It is that if the order which he seeks is made, it will be impossible for her to comply with it because of the likely obdurate refusal of Jessica and Tomas to co-operate. In other words, the sole argument as to why the court should not make the injunctive order which, on the face of it, the father is entitled to is the mother’s assertion that it will be impossible for her to comply with the order. That submission, needless to say, sounds deeply unattractive coming from the mouth of someone whose behaviour has been characterised, as this mother’s behaviour was, by both Hedley J and Theis J.[15]The normal approach of the court when asked to grant an injunction is not to bandy words with the respondent if the respondent says it cannot be performed or will not be performed. The normal response of the court is to say:
“The order which should be made will be made, and we will test on some future occasion, if the order which has been made is not complied with, whether it really is the case that it was impossible for the respondent to comply with it.”
There is a sound practical reason why the court should adopt that approach, for otherwise one is simply giving the potentially obdurate the opportunity to escape the penalties for contempt by persuading the court not to make the order in the first place. That said, I have to recognise that the court – and this is a very old and very well established principle – is not in the business of making futile orders. How does one balance those two somewhat contrasting propositions?[16]The answer, it seems to me, is that one has to evaluate the degree of likelihood that the order, if made, will be futile, which, in the present case means that one has to evaluate the degree of likelihood that the order, if made, will be frustrated, not by the actions of the mother, but despite her best endeavours to ensure compliance, by the obdurate opposition of the children.[17]Mr. Devereux, on behalf of the father, accepts that there must be a real degree of risk that the order, if made, will be frustrated if not by the mother’s own misconduct, which is, of course, no answer whatever to the making of the order, but rather by the obduracy of the children. With some justification he complains that if the children are, in truth, obdurate, that is merely the consequence of the mother’s success in working upon them, and her success in setting out on a campaign to frustrate the orders of the court. He may or may not be right in that, but it does not seem to me ultimately to address the key issue. The issue, unhappily, is not how it is we have arrived at the position we are in today. The key question is: what is the position we are in today? Mr. Hames says there is no point in making the order because there is no prospect of its being complied with. Mr. Devereux submits that although we may all be sceptical as to the likelihood of it being complied with, it is not so certain that it will not be complied with and that I should not on that ground be persuaded not to make the order.[18]He reinforces that submission with these powerful arguments. First, that this being a case involving the Hague Convention, this country as one of the partners in the Hague scheme owes obligations to the relevant foreign country, in this case Spain, to ensure that the Convention is enforced and, in particular, to ensure that orders which this court makes are enforced in accordance with the Convention. That is a powerful argument, and as I observed, albeit in a slightly different context in the judgment I gave this morning, there is what I described as:
“a clear public interest involved in the proper enforcement of the Hague Convention system – the Convention, after all, imposes international obligations on the United Kingdom.”
[19]Quite apart from the Hague Convention, and this is a matter on which Theis J touched in the part of her judgment to which I earlier made reference, it is the obligation of this country, as part of its positive obligations under Article 8 of the European Convention, to ensure that, if at all possible, orders of the court are properly enforced. That is a long and well-established principle, it is part of the settled jurisprudence of the Strasbourg Court, to be found most recently conveniently set out in the case of Shaw v Hungary [2012] 2 FLR 1314. In para. 65, the court rehearsing well-established jurisprudence said:
“In cases concerning enforcement decisions in the sphere of family law, the court has repeatedly held that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution as can reasonably be demanded in the specific circumstances of each case.”
Then, in para. 67, it went on to remind us:
“although coercive measures against the children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the children live.”
In other words, sanctions and coercive measures against a parent are perfectly appropriate and, even to an extent, though highly undesirable, appropriate in relation to the children.[20]From the father’s perspective the litigation in this country over much of the last year has been an exercise in futility. Twice he has had to come to this country to obtain relief under the Hague Convention. The relief he obtained under the Convention on the second occasion from Hedley J has turned out to be completely ineffective in relation to Jessica and Tomas, and we are in a situation today where the siblings live separated from each other in a fractured family. Three of them, the eldest and the two youngest children, are living in Spain with the father, the second and third of the five children are living in Wales with the mother. Their direct contact has been non-existent for quite some time, and indirect contact has been limited. It is a very disturbing situation indeed.[21]I am not so foolish as to imagine that the order I am about to make will necessarily bear fruit. It may be that it will be as ineffective as the previous orders which have been made, but I am not persuaded that the likelihood of futility is such as to justify my declining to make the order the father seeks. I think there is a prospect, even at this late stage, that an order directed to the mother will have the desired effect, if not in relation to each of the two children perhaps in relation to one, the younger. In my judgment if the court is faced with a parent as obdurate and as in default of her parental obligation as this mother the court should not be deterred from making the appropriate order unless satisfied, and I am not satisfied, that the order will be a futility. Accordingly, I propose in principle to make the order which the father seeks.[22]The order will be that the mother return or cause to be returned the two children, Jessica and Tomas, to the Kingdom of Spain by a date which will be specified in the order following further submissions, but which I would anticipate as being between seven and 14 days from today. Bearing in mind what happened in the immediate aftermath of the specific order of Hedley J of 9 October 2012, I propose to supplement that order with further injunctive provisions. One of the gaps in the protective framework imposed by the court on the previous occasion was that the mother, when she went on the run, was not in breach of any order of the court. I propose, therefore, to make, in addition to the order I have already indicated, an injunctive order that the mother, pending the return to Spain, is not to remove the children from where they are currently living in Wales, so that if she were again to go on the run that would be a contempt. Furthermore, if Mr. Devereux would like me to do so, I am inclined to include in the order default provisions to the effect that if, for any reason, it proves impossible for the mother to comply with the order by the first stipulated date, then she is to comply with the order by a second stipulated date and, if need be, a third stipulated date, so that there is not the gap left which was identified in the judgment I gave this morning. That is not, of course, an encouragement for the mother not to comply with the order; it is simply a mechanism to minimise the chance of her being able to escape the consequences by the gap which existed in the previous framework of orders. _________

Cited in 6 later judgments