F (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] EWCA Civ 354 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2016/0615 & B4/2016/0615(A) |
| Date | 26 February 2016 |
[2016] EWCA Civ 354
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR NICHOLAS FRANCIS QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lady Justice Black
B4/2016/0615 & B4/2016/0615(A)
Miss R Amiraftabi (instructed by Dawson Cornwall) appeared on behalf of the Applicant
Mr C Hames QC (instructed by Goodman Ray Solicitors) appeared on behalf of the Intervenor
The Respondent was not present and was not represented
(Approved by the court)
The applications before me this morning are firstly the application of a mother for permission to appeal against an order made by Mr Nicholas Francis QC sitting as a Deputy High Court Judge on 2 February 2016 in Hague abduction proceedings. He required the summary return of the mother's three children to Hungary.
Secondly, an application by the oldest of the three children, L, who is aged 13, to be joined as a party to the proceedings and for permission to appeal in her own right. She wants to appeal both in relation to the order at first instance that she should not be joined as a party to the abduction proceedings and also in relation to the order for her return to Hungary.
The mother and L appeared in front of me last week with legal representatives. At that stage L was seeking disclosure of some of the documentation in the case. I made provision for disclosure and adjourned the rest of the application to this hearing in order to give time for L's representatives to consider that material and everyone to prepare for the present hearing.
I also ordered a transcript to be provided of any judgment given by Newton J at the pre-trial review that took place on 20 January when the question of whether L should be joined as a party to the Hague proceedings was considered and determined in advance of the hearing before Mr Francis. I now have a transcript of 20 January hearing, but not of the judgment. Instead, I have an agreed note of the judgment given on 20 January by Newton J.
I have also had a number of further documents from those representing L and a further helpful document from counsel representing the father in which she opposes the various orders which are sought today.
L has two younger siblings. F is 6 and G is 4. Both of the parents are Hungarian nationals. Until July 2015 the family lived in Hungary. The parents' marriage had broken down in 2013 and they had separated, the children remaining based with their mother. However, they saw their father regularly.
Each parent makes allegations of poor behaviour against the other. In August 2013 the mother approached the Hungarian Social Services and they have remained involved with the family up until the mother brought the children to England, as she did in July 2015 without telling the father.
There are ongoing proceedings at the moment in Hungary for divorce and with regard to the children. It was in the course of his application for contact last summer that the father learned from the mother's lawyers that the children were in England. The mother's case in the Hague proceedings was that she had intended to come here only for a holiday but changed her mind when she arrived. The judge was sceptical about this because she had paid rent in advance on a flat in England early in July and she had not bought return tickets.
Towards the end of November, proceedings were begun under the Hague Convention on the father's behalf. A location order was granted ex parte on 23 November. There was an inter partes hearing on 3 December and the usual sort of directions were given. They included a direction that L should meet with a Cafcass officer and she met with Mr Power, who filed a report on 18 January 2016.
The pre-trial review then took place before Newton J on 20 January, as I have said. He listened to an application by the mother that L should be joined as a party to the proceedings. He refused it because he considered that Mr Power had set out in his report very clearly what L was saying and he concluded it was not necessary for L to have her own separate representation. However, he did decide that F should also be seen by Mr Power and that took place with a report being provided for the final hearing.
The mother opposed the return of the children on two bases, namely article 13(b, (that is that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation), and also that the children object to being returned to Hungary and have attained an age and degree of maturity at which it is appropriate to take account of their views.
At the hearing before Mr Francis QC, the mother accepted that she had wrongfully removed the children from Hungary. The argument revolved around whether either of the two the two exceptions to summary return were established. The judge rejected the article 13(b) case. That decision has not been appealed.
Both the mother's and L's proposed appeals focus instead on the child's objections issue. As to this, the judge found that L did indeed object to being returned and that she had reached an age and degree of maturity at which it was appropriate to take account of her views. He also found that that was true for F, although in relation to her he said that it was "much more balanced taking into account how young she is". Nobody had seriously contended that the child's objections exception could apply in G's case because of his age.
In the exercise of his discretion, the judge nevertheless ordered the return of the children to Hungary despite the objections he had found to exist.
The grounds of appeal
The mother's proposed appeal is very clearly focussed upon the judge's exercise of discretion, which it is argued was too narrowly based. He failed, in the mother's submission, to have any or any adequate regard to the wide range of considerations, including particularly those relating to the children's welfare, to which he should have had regard. It is argued that this invalidated the exercise of his...
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Re F (Children)
...the order of the Deputy Judge. The matter came back before Black LJ on 26 February 2016. For the reasons she explained in her judgment ( Re F (Children) [2016] EWCA Civ 354), Black LJ refused L permission to appeal against Newton J's order but gave both L and her mother permission to appeal......