J (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Floyd,Lord Justice Sullivan |
| Judgment Date | 07 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1019 |
| Docket Number | Case No: B4/2014/2518 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 October 2015 |
[2015] EWCA Civ 1019
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
FD12P02046
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lady Justice Black
and
Lord Justice Floyd
Case No: B4/2014/2518
Mr James Turner QC & Mr Edward Devereux (instructed by Dawson Cornwell Solicitors) for the Appellant
Mr Christopher Hames QC & Miss Laura Morley (instructed by Miles & Partners LLP) for the 1 st Respondent
Mr David Williams QC (instructed by Brethertons LLP) for the 2 nd Respondent
Hearing date: 29 th July 2015
This appeal is the last stage in long standing litigation about two of the five children of the appellant father and the respondent mother. The children are J, who was born in January 1998 and is now 17 years old, and T, who was born in January 2000 and is now 15 years old. They have an older sister and two younger siblings. The focus of the appeal is the order made by the President of the Family Division dated 9 July 2014.
The sad history of the case need not be recounted here. A number of the judgments that have been given along the way are readily available to provide the full picture. The mother is Welsh. The father is Spanish. They married in 1995 and separated in 2008. The family was based in Spain but following the breakdown of the marriage, the mother retained the children in Wales. That led to the first of two orders under the 1980 Hague Convention for the return of the children to Spain and they went back. However, in 2012, they were not returned to Spain following a holiday with the mother in Wales and a second set of Hague proceedings was commenced. The oldest daughter went back without an order and return orders were made by Hedley J on 9 October 2012 in relation to the other four children. They were not handed over to their father as ordered and by the time the police attended at the mother's property to enforce a collection order, the mother and her partner had absconded with them.
Extensive court involvement followed. The two youngest children returned with the father to Spain in mid October 2012 but J and T refused to go. Exhaustive attempts were made to secure their return. The response of the authorities was rigorous. The detail can be found elsewhere but it included the following. The mother and her partner were arrested and taken into custody following the initial failure to return the children. J and T were placed with foster carers where they remained for some weeks. Whilst the children were in foster care, social workers tried to assist in achieving the return of the children but were unsuccessful. Contact between the children and the father in this country did not change things either. When J and T were seen by an experienced CAFCASS officer at the end of November 2012, they were adamant that they would not return; as there appeared to be no purpose in them continuing to live with foster carers, they were returned to their mother's care. However, the court continued to attempt to achieve compliance with the return order. The children were seen again by the CAFCASS officer and remained steadfast in their refusal and determined to resist any effort to enforce the return order. The matter came before Theis J in January 2013. In the judgment that she gave at the conclusion of that hearing, she condemned the mother for her refusal to comply with the return order and for putting the children in an impossible situation where their relationships with their siblings were fractured, to their long term detriment. Theis J left the return order in place but decided to provide a respite from the threat of enforcement by committal in the hope that relationships could be restored and the parties could reflect on their positions. Regrettably, this strategy worked no better than had the tougher approach.
In July 2013, the President of the Family Division heard proceedings brought by the Solicitor General against the mother for contempt in relation to her failure to produce the children in October 2012 for their return to Spain, dismissing the proceedings on the basis that contempt had not been proved as it had not been established that, at the relevant time, it was within the mother's power to comply with the order (see [2013] EWHC 2579 (Fam)).
In August 2013, the President was asked by the father to make a further order requiring the return of the children to Spain. His judgment dealing with that application ( Re Jones (No 2) [2013] EWHC 2730 (Fam)) can be found on www.bailii.org. For present purposes, the important passage commences at §14 where the President explained that the mother's answer to the father's application was that it would be impossible for her to comply with any order for implementation of the return order because J and T would refuse to co-operate. The President's approach to this submission can be found at §§15 and 16 of his judgment:
"15. The normal approach of the court when asked to grant an injunction is not to bandy words with the respondent if the respondent says it cannot be performed or will not be performed. The normal response of the court is to say: "The order which should be made will be made, and we will test on some future occasion, if the order which has been made is not complied with, whether it really is the case that it was impossible for the respondent to comply with it." There is a sound practical reason why the court should adopt that approach, for otherwise one is simply giving the potentially obdurate the opportunity to escape the penalties for contempt by persuading the court not to make the order in the first place. That said, I have to recognise that the court – and this is a very old and very well established principle – is not in the business of making futile orders. How does one balance those two somewhat contrasting propositions?
16. The answer, it seems to me, is that one has to evaluate the degree of likelihood that the order, if made, will be futile, which, in the present case means that one has to evaluate the degree of likelihood that the order, if made, will be frustrated, not by the actions of the mother, but despite her best endeavours to ensure compliance, by the obdurate opposition of the children."
The President recorded at §17 of his judgment that it was accepted by the father that there was a real degree of risk that the order, if made, would be frustrated by the obduracy of the children, although the father complained that if the children were obdurate, then it was because of the success of the mother's campaign to frustrate the orders of the court. The President decided that he would not be deflected from making the order by fears that it would not succeed, and made an order requiring the return of the children. He explained his conclusion as follows:
"21. I am not so foolish as to imagine that the order I am about to make will necessarily bear fruit. It may be that it will be as ineffective as the previous orders which have been made, but I am not persuaded that the likelihood of futility is such as to justify my declining to make the order the father seeks. I think there is a prospect, even at this late stage, that an order directed to the mother will have the desired effect, if not in relation to each of the two children perhaps in relation to one, the younger. In my judgment if the court is faced with a parent as obdurate and as in default of her parental obligation as this mother the court should not be deterred from making the appropriate order unless satisfied, and I am not satisfied, that the order will be a futility. Accordingly, I propose in principle to make the order which the father seeks."
The President's order required the mother to return or cause the return of the children to Spain by 4 September 2013, or "[i]n the event that it is impossible for [her] to comply with" that, by 11 September 2013 or, failing that, by 18 September 2013.
This order was no more successful than any of the previous orders. The father applied for the committal of the mother for breach of it and for breach of a further order that the President had made requiring the mother to bring the children to London on 21 August 2013 so that they could speak to the CAFCASS officer again. The matter came again before the President who gave judgment on 9 July 2014 ( [2014] EWHC 2264 (Fam), hereafter "the committal judgment").
The President uncompromisingly endorsed Theis J's assessment that much of the responsibility for the unhappy state of affairs facing the court rested with the mother who, he said, "in very significant part bears responsibility for the children's intransigence and for …. 'this fractured family'" (§8 of the committal judgment). He said (§22 ibid) that he was left, by the end of the evidence, with "the very distinct impression that the mother had really done very little either to persuade the children to come to London, let alone to return to Spain [sic]" and "that what she did was indeed not much more than going through the motions". He accepted counsel for the father's characterisation of her efforts as superficial, minimal and utterly inadequate. Despite this condemnation of the mother, the President nevertheless refused the father's committal application because, in his judgment, the father was required to prove to the criminal standard of proof that the mother could have ensured compliance with the orders and he had not achieved this (§25 ibid).
It was against this refusal that the father appealed, having obtained permission to appeal from McFarlane LJ. At...
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