AM v as
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ryder,Lady Justice King,Lord Justice Tomlinson |
| Judgment Date | 04 December 2014 |
| Neutral Citation | [2014] EWCA Civ 1557 |
| Docket Number | Case No: B4/2014/3136 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 December 2014 |
[2014] EWCA Civ 1557
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the Family Division of the High Court of Justice
Hogg J
ZC14P00148
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tomlinson
Lord Justice Ryder
and
Lady Justice King
Case No: B4/2014/3136
In the Matter of S (A Child) (Abduction: Hearing the Child)
Mr Henry Setright QC and Mr Michael Gration (neither of whom appeared below) (instructed by Dawson Cornwell) for the Appellant
Mr Teertha Gupta QC and Ms Francesca Dowse (instructed by Withers LLP) for the Respondent
Hearing date: 30 October 2014
A is a seven year old girl whose parents are nationals of the Russian Federation. They were married in 2006, separated in 2009 and divorced in 2010. On 11 September 2014 on the application of A's father, Hogg J made an order in the inherent jurisdiction of the High Court for the summary return of A to Russia. The order was opposed by A's mother. This is the mother's appeal against that order.
At the conclusion of the hearing on 30 October 2014 the court allowed the appeal, set aside the order and remitted the application to be determined by another judge of the Family Division of the High Court who is available to give directions and hear the application before the end of December this year. These are my reasons for concurring in that decision.
The background circumstances are these. A was born in this jurisdiction as the result of a decision by her parents to come here for medical treatment. The family returned to Russia shortly after A's birth. The parties' subsequent separation has not been easy and the Moscow court is seized of cross applications for residence. At present those proceedings are 'suspended' pending a psychological assessment of the child and of the parents. Both parents are engaged in that process and both were represented by lawyers at a hearing on 29 August 2014 when that case management step was directed.
Approximately three years ago A's mother formed a new relationship with a man, Mr B, with whom she subsequently lived in Moscow together with A. Mr B is a political activist. His flat was raided by the authorities in March 2014 and there had been what were described to the judge as 'previous difficulties' because the authorities there were not happy with his activities. On 26 April 2014 he came to the United Kingdom where he has remained. On 23 May 2014 criminal charges were laid against him in Russia which he says are politically motivated. Mr B claimed asylum on 25 July 2014 and a decision of the Secretary of State is awaited on that claim.
On 28 April 2014, that is two days after Mr B arrived, A and her mother arrived in the United Kingdom. The reason for the visit was said to be because mother was pregnant with Mr B's child. Mr B and mother had decided to go to the obstetrician in London who had been consulted regarding A's birth. A baby boy was born on 18 May 2014 in London. Mother's evidence to the court was consistent in stating that it was always her intention to return after the birth to Moscow where she wanted to continue to live. The return flight was booked for 20 May 2014. She did not return on that day and remains with Mr B and the children in London.
Mother has not made an application for asylum for herself or for the children. That is apparently because she is advised that she and the children will be regarded as dependents of Mr B if he is granted asylum. Mother is also advised that in order to be regarded as dependents she and the children have to be in this jurisdiction when Mr B's asylum status is granted.
Within the proceedings relating to A in Moscow an agreement was entered into in February 2014, between A's mother and father, that A would live with her mother and have significant staying contact with her father every week and during her holidays. This court has not been told about the status of that agreement and how it is affected by the continuing litigation in Moscow, but it is clear that A's father was playing a significant part in her life and in decisions about her, for example, including her education, prior to her mother's unilateral removal to this jurisdiction.
On 23 May 2014 mother applied to the court without notice to the father for an order under the Children Act 1989 that A's father should not remove A from her care or from the school she was attending in this jurisdiction. That order was renewed, again without notice, on 29 May 2014. Given that it appears that mother and Mr B were communicating with father by email during the relevant period and that no asylum claim had then been made, I am unsure why anyone thought it appropriate to exercise jurisdiction without examining habitual residence and I am even less clear why it was thought to be proper to make orders without notice to A's father.
In any event, A's father became aware of the orders on 23 June 2014. On 20 August 2014 he made an application to the High Court for the return of A to Russia. Directions were heard on two occasions in August 2014, no doubt by a judge sitting in the urgent applications list and the application was determined by Hogg J on 11 September 2014. A's parents were represented by leading counsel. A new legal team has been instructed to represent mother before this court. The application was dealt with on submissions and the written evidence that had been filed. No-one applied for oral evidence to be heard. The court made an order for A's return.
The key issue in the appeal, which was identified when permission was given by the single judge, is that no consideration was given by the court to the wishes and feelings of A and to the welfare of the child from her perspective. There is a subsidiary ground relating to the rejection by the court of mother's evidence concerning the effect of separation on the child as a consequence of return.
I emphasise that given the decision of this court, welfare is to be re-considered by another judge in the very near future. Nothing in this judgment should be taken to be an indication, one way or the other, of any aspect of that determination. I also make it clear that the judge who heard the application did so under the misapprehension that the issue underlying the appeal had been considered and resolved at the earlier directions hearings. She dealt with the case as an urgent matter in the vacation and gave an ex tempore judgment that is not criticised. It is very unfortunate that the issue that gave rise to the error that occurred was not identified until the appeal was entered.
The Principle
Proceedings concerning the welfare of a child whether in the Family Court or in the reserved jurisdictions of the High Court are subject to the same fundamental principles concerning effective access to justice for children who are the subjects of the applications that are made. There is no general rule in England and Wales that every child should be a party and that every child be represented by lawyers, by litigation friends or by welfare guardians. In each species of jurisdiction there are rules and practice directions that require or permit different forms of representation depending on the nature of the process and the facts of the case. There is often a delicate balance to be undertaken between the procedural protections that are afforded to a child by the process and the protection that may be necessary in respect of the impact on the child of the process (including the adversarial positions of the child's parents).
The underlying concept is that the child must be afforded effective access to justice so that the State does not infringe that child's article 6 and 8 ECHR rights. Without prejudice to the schemes that are in place for public and private law children applications under the Children Act1989, this case is about the application of the general principles to proceedings in the inherent jurisdiction of the High Court. It should be recollected that in this case A was made a ward of court and was accordingly subject to the prerogative jurisdiction of the Crown otherwise known as the parens patriae jurisdiction, which is administered by the judges of the High Court.
There is a dispute between the parties about whether there are general principles that apply in a case of this kind. If there are, the key question that arises is whether the application of those general principles required something to be done that was not done on the facts of this case.
Article 12 of the United Nations Convention on the Rights of the Child 1989 [UNCRC] provides that:
"[1] States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
[2] For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."
The UNCRC creates international obligations rather than domestic rights. That said, it is consistent with and has a persuasive interpretative effect on other international instruments that are binding on the United Kingdom. For example, article 24 of the Charter of Fundamental Rights of the European Union provides that:
"[1] Children shall have the right to such protection and care as is necessary for their well being....
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