A (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Kitchin,Sir David Keene |
| Judgment Date | 23 July 2013 |
| Neutral Citation | [2013] EWCA Civ 1256 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/0878 |
| Date | 23 July 2013 |
[2013] EWCA Civ 1256
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MISS P SCRIVEN QC)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Thorpe
Lord Justice Kitchin
Sir David Keene
Case No: B4/2013/0878
Mr D Williams QC and Miss C Papazian (instructed by Ellis Jones Solicitors) appeared on behalf of the Appellant
Mr M Scott-Manderson QC and Miss H Pollock (instructed by Henriques Griffiths) appeared on behalf of the Respondent
The parties to this appeal are Somali. They married in 2001 and their eldest child, M, was born on 9 March 2002. Through stages which I need not trace, the family ended up in Norway trading on the mother's grant of residency rights in that jurisdiction. So all reunited in Norway in February 2008. On 22 August 2008 there was a definitive event in which it is the mother's case that she was subjected to a particularly nasty assault which involved the two boys. I should have recorded that the second child, M, had been born on 21 May 2003.
The events of 22 August effectively destroyed the marriage. The parents separated and the third child was born post separation on 27 January 2009. She is a girl. The mother obtained a separation order in June 2009 and there were then proceedings in Norway after the father had applied for a contact order on 7 March 2011. It seems that the welfare investigations in Norway were profound and a child psychologist, Dr Terland, was appointed as the court expert. The father obtained interim supervised contact by an order of 26 October 2011, but it really availed him little. On 30 May 2012 M ran from contact, having refused to meet his father. Thanks to Dr Terland's intervention, it seems that there have been three occasions on which father has met his daughter, T, and she shows no disinclination. Of course the age difference between T and her brothers is considerable, and T was not involved in the episode of 22 August which had such a deep impact on all those involved.
Before the domestic proceedings in Norway were completed, the mother and children moved to this country where the mother has family in the southwest. The father reacted by applying for an interim residence order and initiated an application for return. The interim residence application was refused, although the father obtained a declaration that mother's removal was unlawful. The father achieved a supervised contact order in respect of his daughter, but his application for contact with his sons was effectively refused on the basis that they were entitled to a moratorium of at least 12 months.
The Convention proceedings commenced in this jurisdiction at the beginning of the year and went through conventional stages to a hearing on 1 March 2013, which was before a deputy judge of the division, Miss Scriven QC. She delivered a reserved judgment on 14 March refusing the father's application. There was then an appellant's notice filed pursuant to refusal of permission by Miss Scriven.
On 17 April I took a reasonably negative view of the application and simply adjourned it to an oral hearing without notice. That direction reflected the fact that Mr David Williams QC had come into the case to challenge the order below.
However, at that without notice hearing I was persuaded to grant permission and listed the hearing for 13 June with an one-day time estimate. That would have been the conclusion of the process had there not been a muddle over the time estimate. The listing office gave the case only a two-hour estimate. Accordingly, on the 13 June we had no alternative but to adjourn the appeal, and it returns to court today some six weeks later. But I emphasise that the appeal would have been concluded on 13 June but for that misunderstanding.
Mr Williams has advanced five grounds. His first is that the judge misdirected herself in law in her understanding as to the threshold necessary to achieve a finding of children's objections under the Convention. The second ground is that the judge also misdirected herself in confusing the children's antipathy to their father with an antipathy to the country of Norway. His third ground asserts that the balancing exercise conducted by the judge was flawed in that she placed so much weight on the episode of 22 August 20008, entirely overlooking that there had been nothing since to found or explain any objection on the part of the children. By his fourth ground Mr Williams submits that the judge misdirected herself in concluding that, there being no bar to a return order in respect of T, she could not refuse his return simply on the basis that it would separate the family if she upheld the objection defence in relation to the two older children. He relies particularly on the case of Zaffino v Zaffino [2006] 1 FLR 410.
His fifth ground is that the judge misdirected herself in the exercise of the discretion which arose from her finding that the two older children had established their objection to return. Despite that finding, a proper exercise of discretion would not have resulted in the refusal of the application.
The contrary case has been put before us in writing by Mr Scott Manderson QC, and I should say that Mr Williams leads Miss Papazian and Mr Scott Manderson, Miss Pollock. However, in the event we have not called on Mr Scott Manderson for oral submissions in response. That I can shortly explain.
The first ground, which is the ground that Mr Williams has elaborated most fully, is that the judge having conducted some research after the hearing on the 1st and before...
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