Aj v Jj and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Date | 2012 |
| Year | 2012 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Wrongful removal – Application for return – Objections to return – Mother and father marrying and having three children in Poland – Custody being granted to father in Poland following separation – Holiday contact being granted to mother after emigrating to England – Mother applying to Polish court for custody and children’s relocation to England during period of holiday contact – Mother failing to return children to Poland – Father seeking return order pursuant to Hague Convention – Mother claiming that children objecting to return – Return order being granted – Children intervening and seeking leave to appeal – Whether judge erring in failing to make clear finding as to whether children objecting to return – Whether judge erring in failing to engage children in process – Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 12, 13.
The mother and father, who were Polish, married in Poland in 1996. Their three children, K, JA and JU, were born in 1996, 1998 and 2001 respectively. The parents separated in August 2005 and custody proceedings immediately followed in Poland. In August 2006, the Polish court effectively granted custody to the father with contact to the mother on alternate Saturdays. The mother subsequently emigrated to England and, in September 2010, she applied for a variation of the contact order. In November, the Polish court by consent ordered holiday contact three times per year, with the travelling costs to be met by the mother. On 5 July 2011, the mother collected the children from the father’s home for the three-week summer holiday in England ordained by the order of the Polish court. On 25 July, she applied to the Polish court for custody of the children and for their relocation to England. The mother failed to return the children to Poland on 26 July, with the result that the father sought a return order under art 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The mother relied upon art 13, which provided that ‘The judicial or administrative authority may … 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’. The statement of the children’s objections was not only contained in the mother’s statements but also in a written report from the children and family reporter. The reporter stated that each child had expressed a strong wish to remain in England and that K, in particular, had suggested that he would ‘fight’ and refuse to get on the plane. She indicated that she was not
convinced that joinder of the children as parties would sufficiently enhance the court’s understanding so as to justify the further delay and expense, but also stated that, if the court determined that the children should return to Poland, K could seek his own legal advice and that she would expect him to be considered competent to give instructions in that event. On the day of the hearing, the mother sought to fortify her case on K’s objections by recounting a conversation she had had with K; she was accordingly placed on oath to give that evidence. The judge then asked her whether she would accompany the children and look after them in Poland until her outstanding application to the Polish court was decided. The mother stated that she would, and that she and the children could live with her mother in a different town to the father. Conventional undertakings were proffered and the judge granted the application for return. The mother sought permission to appeal, but her application was refused. The children successfully applied for leave to intervene and for permission to appeal. It was submitted that the judge had erred in failing to make a clear finding on the primary issue in the case, namely whether the children objected to return. It was further submitted that the judge had fallen into serious error by failing to engage the children in the process by requiring a meeting with them.
Held – (1) The judge’s primary task in the instant case had been to make a clear finding as to whether the children objected to the return or not. If the judge had not found that the children objected to a return, then art 12 of the Hague Convention required the return order. If he had found that the children objected, he could have nevertheless ordered a return in the exercise of the discretion conferred upon him by art 13. However, it was by no means clear by which of those two routes the judge had arrived at the order for return. Although he might have had a distaste for the mother’s strategy, the evidence as to the nature and extent of the children’s objections was certainly not scant or weak. A clear finding that the objections had not been made good would have been the end of the case, presenting the mother with a single and clear ground of appeal. Equally, a proper exercise of the discretion would only have been triggered by an unequivocal finding that the objections had been made good. In the circumstances, the submission that the judge had failed to make a clear finding on the primary issue in the case was made out (see [18], [29], below).
(2) Authority suggested that the judge in the instant case should of his own motion have engaged the children in the process. Furthermore, the judge had erred in not reacting to recent guidance. He had had the advantage of the President’s Practice Note (guidelines for judges meeting children who are subject to family proceedings) of April 2010. That Practice Note applied to all proceedings in which the decision of the court would have a significant impact on the future of the life of the child. Practitioners and judges had the responsibility to consider in what way and to what extent the guidance applied during preparations for the trial and at the trial itself. The children in the instant case understandably felt themselves to be
vulnerable and lost in a complex legal landscape. They needed to understand that the proceedings in the jurisdiction of England and Wales had been brought under an international instrument and were essentially summary in character, that they were habitually resident in Poland and that, accordingly, the Polish court had primary jurisdiction. They needed to understand that any profound investigation of their future would be determined by the paramount consideration of their welfare and that the task of assessing that was for the Polish judge. They also needed to understand that their mother had initiated that process during the course of the summer holiday, and that a summary return order might be a transient order dependent on the outcome of the mother’s application for custody and relocation. They...
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