Gp (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,Lord Justice Lindblom,Lady Justice King |
| Judgment Date | 30 October 2017 |
| Neutral Citation | [2017] EWCA Civ 1677 |
| Docket Number | Case No: B4/2017/1881 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 October 2017 |
[2017] EWCA Civ 1677
Lady Justice King
Lord Justice Lindblom
and
Lord Justice Henderson
Case No: B4/2017/1881
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HAYDEN J
Royal Courts of Justice
Strand, London, WC2A 2LL
Aidan Vine QC and Martyn Bennett (instructed by PCB Solicitors LLP) for the Appellant, Mother
Nick Goodwin QC and Edward Bennett (instructed by Dawson Cornwell Solicitors) for the Respondent, Father
Hearing date: 5 September 2017
Judgment Approved
Introduction
The issue on this appeal from Hayden J is whether the child GP, who is the 11-year-old daughter of an Italian father and a Latvian mother, should be returned to Italy (which is agreed to have been her country of habitual residence at the relevant time) following her wrongful abduction from Italy to England by her mother in February 2016.
The father's application for GP's return to Italy was heard by Hayden J on 26 May 2017, some 15 months after the abduction had taken place. For the reasons given in his reserved judgment handed down on 20 June 2017, and by his order of the same date, the judge ordered GP to be returned to Italy forthwith, and in any event by no later than 25 July 2017, pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention") which was given domestic effect in English law by section 12(2) of the Child Abduction and Custody Act 1985.
In reaching this conclusion, the judge considered and rejected the mother's case that the exception under Article 13(b) of the Hague Convention was made out, namely that she had established that there was "a grave risk that [ GP's] return would expose [ her] to physical or psychological harm or otherwise place [ her] in an intolerable situation". The judge also declined, in the exercise of his discretion, to refuse to order GP's return under the second limb of Article 13, having found that she objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.
Permission to appeal was apparently not sought by the mother from the judge, but she requested permission in her Appellant's Notice filed on 10 July 2017. On 20 July 2017, Black LJ (as she then was) granted the mother permission to appeal on the first two grounds in the Appellant's Notice, which sought to challenge the judge's conclusion on Article 13(b) and the exercise of his discretion under the second limb of that Article. Black LJ refused permission on a third ground, which related to the conduct of the meeting which took place between the judge and GP. No renewed application for permission to appeal on that ground was made before us by counsel now instructed on the mother's behalf, Mr Vine QC leading Mr Martyn Bennett, neither of whom appeared below. The appeal to this court is therefore confined to the first and second grounds.
Black LJ also granted a stay of the directions for removal contained in the order of Hayden J pending determination of the appeal.
The hearing of the appeal was expedited and we heard it on 5 September 2017. The respondent father was also represented by counsel who had not appeared below, Mr Goodwin QC leading Mr Edward Bennett. After hearing concise and helpful submissions from leading counsel on each side, we were able to announce our decision at the end of the hearing, which was that the mother's appeal would be allowed, the order to return GP to Italy would be set aside, and the matter would be remitted for rehearing in the High Court by a different judge. We said that we would give our reasons later in writing. Our decision has now been embodied in an order, which also provides for the case to be listed before a High Court judge (other than Hayden J) for directions within 7 days of the handing down of our judgment in the Michaelmas term.
In this judgment, I explain why I agreed that the mother's appeal had to be allowed.
Background
The father was born in Italy in 1966. The mother was born in Latvia in 1970. They married in Italy in May 2001, having first met in Latvia in 2000. At the time, the father was a technical engineer for an American telecommunications company. His employment involved frequent travel around the world.
According to the father, the mother was unhappy that his job required so much travel, so he decided to leave it, and in 2002 they moved into his parents' home in San Benedetto del Tronto (which is a sizeable town on the Adriatic coast of Italy, in the province of Ascoli Piceno and the region of the Marches). He says that he then decided to start a new business, so he opened a company in Latvia distributing cosmetics for an Italian company. The business was successful and the mother was its financial administrator. Various aspects of this account were challenged by the mother in her evidence, and the judge was in no position to make detailed findings of fact about it, merely finding that after the marriage the couple were primarily based in San Benedetto del Tronto, although they travelled periodically to Latvia.
GP was born in Latvia in December 2005. She was premature, and spent the first two months of her life in hospital. This must have been a very worrying time for the mother, as two children had been born to her prematurely in an earlier marriage and they had both sadly died in early infancy. If she is to be believed, her relationship with the father had already deteriorated by the time of GP's birth, and she makes allegations against him of violence and financial neglect. These allegations are denied by the father, and the judge, probably wisely, again did not attempt to make any findings about them.
On any view, the marriage was in serious difficulty by late 2010, when (as the judge found) the parties returned to Italy on a permanent basis, and GP started nursery education. In November 2010, without the father's prior knowledge or agreement, the mother removed GP from the family home in San Benedetto del Tronto and took her to Sommacampagna in northern Italy, some 450 kilometres away. The father reported the mother to the police for child abduction, and he says that over the following five months he only saw his daughter once with the help of the police. By the spring of 2011, the mother had begun divorce proceedings and the father had started a new relationship with his current partner. Later in 2011, the mother moved to a town near Verona, and in July 2014 she moved again to Montecchio Maggiore, near Vicenza. On each occasion, GP had to change her school.
On 24 July 2014, the Court of Ascoli Piceno pronounced a decree of separation between the parties, and made a shared care order, the broad effect of which was to give the mother custody of GP for the school year from September to June, and the father custody during the long summer holiday, with arrangements for weekend access for the other parent. The father was also ordered to pay maintenance of €300 per month to the mother during the nine months of each year when she was GP's primary carer.
On 21 November 2014, the mother was found guilty by the Criminal Division of the Court of Ascoli Piceno for the removal of GP to northern Italy three years before, and sentenced to one year's imprisonment. She was also ordered to pay the father compensation, with a payment on account of €5,000. The mother then appealed against her conviction, which had the effect that her sentence was not activated pending the appeal.
The mother's appeal was eventually dismissed by the Court of Appeal in Ancona on 12 January 2017. In its judgment, the court found (among other things) that:
a) in removing GP, the mother had taken advantage of the father's absence in Latvia and had used a vehicle she had obtained from a man with whom she had started a romantic relationship, and with whom she moved together with GP to Sommacampagna;
b) she then consistently hampered the father's efforts to make contact with his daughter;
c) her argument that her decision had been based on necessity lacked any evidential support;
d) her allegations of violence and abuse against the father were "totally generic in content", and had been disregarded by the matrimonial court which granted the decree of separation;
e) GP had a strong bond with both the father and the mother; and
f) the mother "had created a situation whereby she could keep the child under her exclusive control with the purpose of excluding [ the husband] from any decision and contact, and… she ceased that conduct only when forced to do so by the judicial orders".
Meanwhile, on 10 February 2016, the mother had again wrongfully abducted GP, taking her from Italy to England, initially to stay with the mother's brother in Derby. This was done, as before, without the father's knowledge or consent, and in brazen disregard of the joint custody arrangements which were in place, and had indeed been affirmed on appeal (with minor variations) in August 2015.
The mother's evidence is that after the move to Derby she immediately enrolled her daughter in a local school, and looked for employment herself. She first worked as a housekeeper at a local hotel, and then went to live in Shrewsbury with a man who had befriended her. She now works as a self-employed interpreter and her business is growing. In September 2016, GP started school in Shrewsbury, where despite the language barrier she made good progress and became fluent in English.
According to the mother's statement dated 17 March 2017:
"44. [GP] has made friends in the area with whom she spends time with [sic] outside of school. She regularly has play dates. She attends after school clubs namely choir, netball and cricket.
45. On the...
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