G (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Smith |
| Judgment Date | 22 September 2010 |
| Neutral Citation | [2010] EWCA Civ 1232 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2010/2117 |
| Date | 22 September 2010 |
[2010] EWCA Civ 1232
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
HIS HONOUR JUDGE K BARNETT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Smith
Case No: B4/2010/2117
Ms J Gasparro (instructed by Messrs Appleby Hope and Matthews Solicitors) appeared on behalf of the Appellant.
Ms M Faggionato (instructed by Messrs PJH Solicitors) appeared on behalf of the Respondent.
(As Approved)
On 24 August HHJ Barnett, sitting as a judge of the High Court, ordered the return of two children under the Child Abduction and Custody Act of 1985, which incorporates the Hague Convention of 1980. He refused permission to appeal, but granted a short stay to enable the application for permission to be brought to this court. Wilson LJ extended the stay and ordered the case in for hearing as a permission application with appeal to follow today. That is the compass of our hearing.
The case concerns a family, the Gaffney family. The parents were born and brought up in this jurisdiction, in the Middlesbrough area. Their parents, respectively maternal and paternal grandparents to these two children, still live in the Middlesbrough area, where there is a considerable extended family. The parties to this case married on 3 December 1988, and there are two children of the marriage, Emily, born on 25 August 1997 and therefore 13 years of age, and Lucy, born on 12 May 2001, therefore nine years of age.
The father's business ran into difficulties in the middle of the last decade, and to escape his financial problems he took employment with a company based in Calgary in Canada. He left on his own, and lived on his own, for two years until the family was able to join him in January 2008. Their departure was prepared by the sale of the home in Middlesbrough, and in March 2009 the family bought a home of their own in Canada. However, by then the marriage was running into considerable difficulties. The father's contrition on two occasions led him to write notes of apology to the mother for his behaviour, and each recognised that drink lay at the cause of these unhappy episodes.
During the summer of 2009 the girls enjoyed a holiday of about eight weeks with their paternal grandparents in England. That was supported by both their parents; mother brought them to this country at the beginning of their visit and father collected them for their return to Canada.
On 19 December 2009 the mother, on a pretext that she was taking the girls to a theatre and overstaying with a friend, in fact abducted them to this jurisdiction. That, in my view, was a very foolish step. The bare removal would have been bad enough, but the element of deception that surrounded the removal inevitably further damaged the relationship between the parents and has had sad repercussions since.
However, it was not until 14 July that the originating summons for the return order under the Convention was filed in this jurisdiction. The judge described the explanation for the six months of delay as opaque, and such explanation as we have received today is certainly no better. It is unfortunate. Of course the Convention permits twelve months for the engagement of the full remedy of the Convention, but that is a policy decision which is much questioned nowadays, and undoubtedly the application of the Convention is much easier when the Convention is engaged swiftly after the wrongful removal.
The defence that the application attracted relied upon, firstly, acquiescence; secondly, the objections of the children to return; and, thirdly, a grave risk of harm under Article 13B.
Given the second defence, a judge ordered a CAFCASS report and the case was assigned to Jacqueline Barclay of the specialist division in this building. She interviewed the girls on 17 August and filed her report on the 22nd in readiness for the trial before HHJ Barnett that commenced on the 23rd. Ms Faggionato has explained that he heard evidence only from the CAFCASS officer on the 23rd and adjourned in the middle of the day. On the 24th her asked counsel for further submissions on the law and delivered what was clearly a prepared judgment in the middle of the afternoon of the 24th.
The judgment is impeccable in its recital of the history and its finding of any necessary fact. The judge eliminated from his consideration both the first and third defences on the grounds that they were simply impossible to make good, and focussed on the second defence, namely the objections of the children to return. He had before him statements from the parties and he had the estimation of the CAFCASS officer that the children had a real objection, not just to returning to family life with their father in Canada but to returning to Canada itself. In a sense that was hardly surprising, given that the vast majority of their early lives and childhood experience had been here in Middlesbrough; that their engagement with Canada had been relatively brief and clearly far from happy. With their revived attachment to maternal grandparents in this jurisdiction, to the extended family here, to their friends here, to their schooling here, an objection to the country rather than to the specific domestic circumstances was perfectly understandable. So the judge, having surveyed the evidence, came to the clear conclusion that the children's objection had been sufficiently established. He came to that conclusion having considered the statements of the children and the report of the CAFCASS officer. He considered whether the views expressed by the girls were their own views or implanted views; he considered the sufficiency of their maturity and understanding, and had no hesitation in holding that their objections were established.
He then had to go on to consider whether he should exercise either a discretion or a proportionate judgment to order their return. That is because the relevant terms of the Convention (Article 13) are thus:
"The judicial or administrative authority may also 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 decisive word in that citation is "may". That imports the exercise of a discretion. The judge confessed that the decision was for him difficult and finely balanced, but in the end he determined that he should uphold the primary objective of the Convention and, in a paradigm case of abduction, order the return of the children. That he had some misgivings as to...
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