J (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 05 April 2004 |
| Neutral Citation | [2004] EWCA Civ 428 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2003/2412 FAFMI |
| Date | 05 April 2004 |
[2004] EWCA Civ 428
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
Mr Justice Hughes
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Wall and
Mr Justice Gage
Case No: B1/2003/2412 FAFMI
FD0200349
Charles Howard QC and Miss I Ramsahoye (instructed by Reynolds Porter Chamberlain) for the Appellant
Andrew McFarlane QC (instructed by Messrs Whiskers Solicitors) for the 1 st Respondent
Henry Setright QC (instructed by Dawson Cornwell) for the 2 nd Respondent
This is a judgment of the court.
On 11 March 2004, at the conclusion of the argument, we announced our decision, and reserved our reasons. Our decision was that the appeal should be allowed; that the order of Hughes J made on 18 October 2002 would be set aside; and that the Originating Summons under the Child Abduction and Custody Act 1985 (the 1985 Act) dated 12 March 2002 would be dismissed. Our reasons for making that order follow.
We have before us an appeal under the Hague Convention on International Child Abduction (the Convention) as incorporated into English Law by the Child and Abduction Custody Act 1985. The appeal has several unusual features. These are:-
1) that the appellant is not either of the parents of the children concerned but one of those children himself;
2) the events that give rise to the appeal occurred largely after 18 October 2002;
3) following Hughes J's order of 18 October 2002 the judge dealt with committal proceedings arising from breaches of undertakings given by the father to Johnson J on 14 August 2000 in previous proceedings under the Convention, and made series of strong findings that the father had indeed been in breach of those undertakings; and
4) that on 5 December 2002, Thorpe LJ refused an application by the children's mother for permission to appeal.
The case is also remarkable for the length of time, which elapsed between the issue of the father's second Originating Summons under the Convention on 12 March 2002 and the hearing of that summons before Hughes J in October. In addition, it is a simple fact that the children have been in this jurisdiction since 6 December 2001, when the mother brought them here from Croatia for the second time. That period of some two and three-quarter years inevitably means that the children have established themselves in this jurisdiction.
The facts
The father of the two children concerned is forty-four. He is Croatian. The mother is thirty-four and English. The parents met on a holiday in Greece in 1990, and the mother moved to Croatia to co-habit with the father in Zagreb. Their first child, S, was born on 24 May 1991 in England. The mother returned to England in January 1991 for his birth, and returned with him to Croatia in the summer of that year. The parent's second child, I was born in Croatia on 24 May 1995.
The parents never married, and by 1999 their relationship was under strain. On 30 June 2000 the mother removed the two children to England. She made serious allegations of domestic violence against the father, which included both physical and sexual assaults.
On 19 July 2000 she applied under the Children Act 1989 for a residence order, and those proceedings were transferred to the High Court shortly before an Originating Summons under the 1985 Act was issued by the father in which he applied for the children to be returned to Croatia. The mother filed a detailed statement and an affidavit setting out her allegations against the father. However, when the Originating Summons came before Johnson J on 14 August 2000 the mother acknowledged that her removal of the children from Croatia had been in breach of the father's rights of custody under Article 3 of the Convention, and appears to have accepted advice that her allegations against the father did not reach the high threshold required by Article 13(b) of the Convention. As a consequence, there was an order by consent for the orderly return of the children with the mother to Croatia. However, that was on the basis of a series of significant undertakings given by the father as follows:-
to refrain from assaulting, threatening, pestering or harassing the mother or the children;
to abide by any interim or final recommendations over the issues of residence and/or contact of the said children following an investigation of the said issues by the appropriate authorities in Croatia;
not to remove the children from the care and control of mother save for the purposes of agreed contact and not to remove the said minors from the care and control of the mother on their arrival back in Croatia and to encourage the children to reside with their mother in the interim upon their return.
In the normal way those undertakings were to continue until further order or directions were made or given by the relevant Croatian authorities. On 21 August 2000, before the mother left for Croatia, the father acknowledged and confirmed the undertakings by a letter from his solicitors. The mother had asked for this assurance because she suggested that he had told a friend that he did not consider himself bound by them.
On the same day 21 August 2000, the mother returned to Croatia by air with the two children. They arrived at Zagreb airport at 11:00pm, and in what Hughes J subsequently found to be a flagrant breach of his undertakings the father removed the children from their mother and took them away with him. Furthermore, on the following day, and again in clear breach of the undertakings he had given he refused to hand the children over to the mother. Instead, he had purchased bicycles for them in an attempt to entice them to stay with him. On one of the following days the father took the two children to the mother's address, but refused to allow the younger child to stay with her unless she handed over one of his two passports. This, as Hughes J subsequently found, was a further breach of his undertakings.
In order to be able to see I, the mother surrendered S's passport. Hughes J subsequently accepted the mother's evidence that during the period following the return to Zagreb she saw a great deal of the boys but the father effectively was the one who had the last word about where they were and when. There were also further unpleasant incidents between the parents, which resulted in critical findings by Hughes J both in his judgment given on 18 October 2002 and in his findings under the subsequent committal proceedings.
On 24 November 2000 the Zagreb Welfare Centre, Dubrava office decided that the children were to live with their father and to have contact with their mother. This brought to an end the undertakings given by the father in the English proceedings.
There were further incidents in December and early January 2001. On 4 January 2001 the mother suffered serious injuries in what Hughes J described as a fight between the parents, in respect of which the father was subsequently prosecuted and fined. However, either 5 or 6 January 2001, as a result of the incident on 4 January 2001 the mother left for England leaving the two children in Croatia. She was seen by her general practitioner on 10 January 2001 and her injuries noted.
On 23 February 2001 the Ministry of Labour and Social Welfare, which is the second instance authority in Croatia overturned the decision of the Zagreb Welfare Centre and ordered that the two children were to live with their mother. In April 2001 the mother returned to Croatia. The father did not accept the decision of the Ministry of Labour and Social Welfare and initially refused to hand over the children. He then appealed the decision. The mother's case is that thereafter he made it difficult for her and did not comply with the order.
On 5 November 2001 the father's appeal against the order of 24 May 2001 was dismissed by the Ministry of Labour and Social Welfare.
On 6 December 2001, the mother brought the two children to England for the second time alleging that she was frightened of the father's behaviour and that the children had been psychologically damaged by their experiences in Croatia. On 7 December 2001 the decision of the Welfare Centre was made final.
On 12 March 2002 the father issued his second Originating Summons under the Hague Convention seeking the return of the children and an injunction against the mother prohibiting further removal. He also applied for parental responsibility.
On 21 March 2002 Holman J gave conventional directions and listed the case for further mention on 11 April 2002. On that date the Originating Summons was further adjourned. On 26 April 2002 the mother's public funding was amended to cover committal proceedings in respect of the father's breach of the undertakings given to Johnson J on 14 August 2000.
On 29 April 2002 the Originating Summons came before the President, Dame Elizabeth Butler-Sloss P. She made a number of directions including a direction that the CAFCASS reporting officer was to interview the children prior to the next directions appointment on 16 May 2002 and was to attend that appointment to give oral evidence. She also directed that the anticipated committal proceedings and the mother's proceedings under the Children Act 1989 were to be adjourned and placed before the judge at the directions hearing on 16 May 2002. The Foreign and Commonwealth Office was to assist the father in obtaining a visa so that he could attend the hearing.
On 7 May 2002 the committal proceedings were served on the father's solicitors. On 14 May 2002, the two children met the CAFCASS officer, and she...
To continue reading
Request your trial
-
Re G (Abduction: Withdrawal of Proceedings, Acquiescence, Habitual Residence)
...to the court of the country of habitual residence: see the observations of Wall LJ in Re J (Abduction: Child's Objections to Return) [2004] EWCA Civ 428, [2004] 2 FLR 64 at [93]. Only where a case of grave risk is established on the basis of cogent evidence should it do otherwise. While the......
-
Re H (A Child: Child Abduction)
...childrens objections to return), Re[1998] 1 FCR 398, [1998] 1 FLR 422, CA. J (children) (abduction: child’s objections to return), Re[2004] EWCA Civ 428, [2004] 1 FCR 737, [2004] 2 FLR M (a minor) (child abduction: child’s objection to return), Re[1995] 1 FCR 170, [1994] 2 FLR 126, CA. M (m......
-
Njc v Npc
...unreported Ignaccolo-Zenide v RomaniaHRC (2001) 31 EHRR 7 J (Children) (Abduction: Child's Objections to Return) (Re)UNKFLRUNKUNK [2004] EWCA Civ 428; [2004] 2 FLR 64; [2004] 1 FCR 737; [2004] Fam Law 487 M and anr (Children) (Abduction: Rights of Custody) (Re)UNKWLRUNKFLR [2007] UKHL 55; [......
-
S v B & Y (A Minor)
...to the court of the country of habitual residence: See the observations of Wall LJ in Re J (Abduction: Child's Objections to Return) [2004] EWCA Civ 428 [2004] 2FLR 64 at para [93]. Only where a case of grave risk is established on the basis of cogent evidence should it do otherwise. While ......