Cannon v Cannon
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Waller,Lord Justice Maurice Kay |
| Judgment Date | 19 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1330 |
| Docket Number | Case No: B1/2004/1273 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2004 |
[2004] EWCA Civ 1330
Lord Justice Thorpe
Lord Justice Waller and
Lord Justice Maurice Kay
Case No: B1/2004/1273
FD03P02308
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE SINGER
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr H Setright QC & Mr I Lewis (instructed by Reynolds Porter Chamberlain for the Appellant
Miss A Ball QC (instructed by Ballam Delaney Hunt) for the Respondent
Introduction.
4. This is an appeal from the judgment of Singer J given on the 28 th May 2004 and reserved from a three-day hearing commencing on 1 st March 2004. The hearing was almost entirely concerned with legal argument as to the meaning and effect of Articles 12 and 18 of the Hague Convention on the Civil Aspects of Child Abduction incorporated into our law by the Child Abduction and Custody Act 1985. Singer J himself granted permission to appeal, no doubt because his preferred construction of those articles rejected all previous authority in the courts of the United Kingdom. That bold course was open to him since none of the previous decisions were directly binding upon him.
5. The first orthodoxy rejected by Singer J was that the phrase "the child is now settled in its new environment" imports far more than mere ostensible physical settlement. The second orthodoxy rejected by Singer J was that a judicial finding of settlement only opens the gate to the exercise of a judicial discretion to order or refuse the child's return to the jurisdiction from which it had been abducted. In advance of the hearing the judge had sought the assistance of an Advocate to the Court and at the hearing all three counsel (Mr Setright QC for the father, Miss Ball QC for the mother and Mr Nicholls as the advocate to the court) were agreed that the judge would exercise a discretion to order or refuse return should he conclude that the mother had proved that the child was settled within the meaning of Article 12. When Singer J indicated that he was likely to take a different view Miss Ball for the mother naturally enough swam with the tide. Perhaps more surprising is that the judge converted Mr Nicholls. We are told that in his final oral submissions Mr Nicholls sided with Miss Ball, submitting that a finding that the child was settled precluded the judge from ordering a return
6. In all these circumstances it is not surprising that Singer J's reserved judgement is full and erudite. He reasons and almost argues the case for his stance. Accordingly we are perhaps less disadvantaged by the absence of any advocate to the court.
The facts.
7. I turn now to record briefly the facts giving rise to the legal issue. Singer J, during the course of his management of the interlocutory stages of the case, delivered a judgment settling the extent of the court's power to remove the child into Local Authority accommodation as an interim measure. His judgment is reported as Re C [Abduction: Interim Directions: Accommodation by Local Authority] 1 FLR 653. Singer J's summary of the essential history is to be found at paragraph 3 of the reported judgment and repeated at paragraph 3 of his May judgment. I gratefully adopt his summary:
"The American father and the Irish mother (to whom I shall refer as F and M) married in California in 1994. Their only child S was born in the same year and is ten today. Until December 1998 the family home was in California, but in that month M kept S in Ireland after the end of an agreed holiday there. F instituted Hague Convention proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It envisaged that M and the child would both arrive there in time for a hearing before the California courts later that month, but M did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in the F's favour. What had apparently happened was that shortly after she and the child returned to America M re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than four years later."
8. Some elaboration is recorded at paragraph 6 of his judgment which reads as follows: -
"There is no dispute but that in July 1999, for the second time, S was wrongfully removed by M from America, the country of the child's habitual residence, in breach of the rights of custody of F, and that her whereabouts from then until October 2003 were deliberately concealed from F. The concealment involved assuming new identities for both M and S, which included, in the case of the child, elaborate and planned arrangements for her to take over the birth date as well as the name of a child who had died. In terms, therefore, of the degree of parental determination displayed to follow through the abduction and to sever the child's relationship with her father, this case is at the extreme end of the range."
The issues.
9. Having set out the terms of Articles 12, 13 and 18, Singer J continued: -
"Three questions of law as to the interpretation and effect of Article 12 (2) seem to me to arise
• In an article 12(2) case, if it is indeed 'demonstrated that the child is now settled in its new environment', does the Convention give rise to a discretion nevertheless to order return, or is there quite simply no remaining Convention jurisdiction to make any such order?
• What if any impact does article 18 have on these questions?
• How if at all is the answer to the first question affected if the child's whereabouts have been actively concealed from the left-behind parent for part or the whole of the time since wrongful removal or retention?"
10. Mr Setright criticises the judge's analysis on the ground that he has put the cart before the horse. I see some force in that criticism and for the purposes of this appeal I would define the two issues that we are required to determine as: -
i) What is the proper construction of the phrase "the child is now settled in its new environment"? (Hereafter Issue 1)
ii) Once the defendant has proved that the child is now settled in its new environment, does the court nevertheless retain a residual discretion to order the child's return? (Hereafter Issue 2)
11. During the course of his comprehensive judgment Singer J dealt with a number of issues and submissions canvassed during the course of the hearing before him. Parallels were sought to be drawn from a consideration of the provisions of the revised Brussels II regulation, (formally known as Council Regulation (EC) (No 2201/2003) of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility). Similarly parallels were drawn with the 1996 Hague Protection Convention. Another section of the judgment deals with considerations raised by the Human Rights Act 1998. Then both Mr Setright and Miss Ball endeavour to draw support from the Vienna Convention on the law of Treaties. Another area covered is the jurisprudential foundation for the American doctrine of tolling, a doctrine commonly but not universally adopted in the United States of America for determination of issues arising under Article 12 (2).
12. I do not propose to consider any of those more or less related areas. They have insufficient potential to contribute to the resolution of the two issues which I have defined. Given that the Convention has been in force in this jurisdiction for eighteen years there is, in my judgment, ample material in our case law, supplemented by reported decisions in other jurisdictions, to give adequate guidance as to the proper determination of the defined issues.
13. Professor Perez-Vela's report is plainly in a different category. However on the first issue, although in general terms supportive of Singer J's conclusion the text is in some crucial passages ambiguous. On the second issue her observations seem to me to be plainly contrary to Singer J's conclusions. Thus overall I do not draw much from Professor Perez-Vela's commentary. However I will return to her report briefly when considering each of the two issues.
The Articles of the Convention.
14. Before I do so I must set out the Articles of the convention with which this appeal is principally concerned:
Article 12
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested state has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.
Article 18
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time."
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