LC (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lady Justice Gloster,Lady Justice Hallett |
| Judgment Date | 15 August 2013 |
| Neutral Citation | [2013] EWCA Civ 1058 |
| Docket Number | Case No: B4/2013/1609 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 August 2013 |
[2013] EWCA Civ 1058
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
MR JUSTICE COBB
FD13P00122
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
Lady Justice Black
and
Lady Justice Gloster
Case No: B4/2013/1609
Mr Frank Feehan QC & Mr Christopher Hames (instructed by Goodman Ray) for the Appellant
Mr Henry Setright QC & Mr Edward Devereux (instructed by Dawson Cornwell) for the 1 st Respondent
Mr David Williams QC & Miss Jacqueline Renton (instructed by The International Family Law Group LLP) for the 2 nd Respondent
Mr Teertha Gupta QC & Mr Michael Edwards (instructed by Freemans Solicitors) for the 3 rd & 4 th Respondents
Hearing dates : Thursday 1 st August 2013
Approved Judgment
This litigation arises from proceedings under the Child Abduction and Custody Act 1985 for the return of four children to the Kingdom of Spain pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980.
The eldest child is a girl, T, who was born on 27 August 2000 and is nearly 13 years old. She has three brothers: L was born on 4 December 2002 and is 10, A was born on 2 December 2004 and is 8, and N was born on 29 December 2008 and is 4. They are all Spanish nationals.
The applicant for the return of the children was their mother (M). She is a Spanish national, now living in Spain. Their father (F), who is a British national and lives in England, resisted the making of an order.
Cobb J determined the application on 23 May 2013. He found that the children were habitually resident in Spain on 5 January 2013 and that they had been wrongfully retained in this country by F. He found that the oldest child, T, objected to being returned to Spain and was of sufficient age and maturity for her views to be taken into account but he nonetheless determined that she should be returned. As for the boys, it was argued that the older two also objected to being returned but Cobb J did not accept that and he was therefore obliged to order the return all three boys, which he did. It is from these orders for the return of the children that F seeks to appeal. As will become apparent later, however, F was not the only protagonist in the appeal proceedings.
Cobb J's judgment is available on bailii.org.uk, reported as LCG v RL [2013] EWHC 1383 (Fam). It is not therefore necessary for me to repeat all the factual details in this judgment. I will confine myself to that which is sufficient to explain what was argued before us and what I would decide.
The parents never married. Because of this, F has no parental responsibility for the older two children. However, he does have parental responsibility for the younger two by virtue of his name being recorded on their birth certificates. In practice, all four children have always been treated in the same way within the family and no one sought to argue that the difference in respect of parental responsibility made any difference to the outcome of M's Hague applications.
The parents met in England and lived in this country throughout their relationship. M used to take the children to Spain, without F, during the summer for a holiday and to see her family there but until summer 2012 England was always the family's home.
The parents' relationship has been turbulent for a long time. Things became particularly difficult in 2011 and the relationship finally disintegrated in early 2012. There were constant arguments and the children were becoming increasingly disturbed by the home situation. On F's case, T aligned herself with M against him. There were a number of discussions between the parents over the early months of 2012 about the longer term future.
On 6 June 2012, M bought one way tickets to Spain for herself and the children. She gave notice that the children were leaving their schools and cancelled hobbies such as L's cubs. On 24 July 2012, F took M and the children to the airport from where they flew to Spain.
M and the children moved in with the maternal grandmother in Spain, their rooms there being redecorated and furnished to their taste and needs. They started school in Spain. F accepted that they had done reasonably well there. The children made friends.
F visited them in Spain in November 2012. It was agreed that the children would spend Christmas with him in England. He flew out to Spain and on 23 December 2012 he brought them back to this jurisdiction. They were to return to Spain on 5 January 2013, F's intention (at least at the date when he collected them) being that they would resume their life and school there. However, shortly before 5 January 2013, the children indicated that they did not wish to return to Spain. On F's case, they (possibly only L and A) hid their passports in an attempt to frustrate their departure. They were not returned.
On 10 January 2013, F told M that he had begun proceedings in England to secure protective orders here. On 21 January 2013, M made her Hague Convention application for the children's return to Spain.
The form of the hearing
In what was an unusually protracted hearing for a Hague case, which lasted three days excluding judgment, the judge heard oral evidence from both of the parents and also from Ms Vivian, a CAFCASS officer who had prepared a report dated 28 February 2013 in relation to the children's wishes and feelings, their objections (if any) to a return to Spain and their maturity, and a later addendum dated 7 May 2013 addressing particular questions that had arisen. He gave a reserved judgment a short time after the conclusion of the hearing.
The position of the children
The children were not parties to the proceedings in front of Cobb J.
An application was made to Cobb J on 12 April 2013 by F for T to be joined as a party so that she might be separately represented. The application was made on the basis that if joined, T would have the benefit of a children's guardian. The reasons put forward in support of the application were, in broad summary, that T was mature enough to be a party, that she had a strong view that she did not want to return to Spain, that she needed to be able to refute M's allegation that a material email purporting to come from T was influenced by F or written by him, and that she had a standpoint or interest which was inconsistent with that of the adult parties and could not be represented by them. Furthermore, it was suggested that she might have a different perspective on the issue of habitual residence from that advanced by F.
Cobb J refused to join T as a party. He said that he had to balance the need to "respect the autonomy of a mature child, who clearly expresses her wishes forcefully and intelligently to a CAFCASS officer, against the desirability of shielding such a child from the court process of which she is subject" (§12, 12 April 2013 judgment). He took the view that although confident and intelligent, at 12 T is still "but a girl". The strength of her wishes and feelings were already fully and vividly reported by the CAFCASS officer and Cobb J ordered that that officer prepare an addendum report. This was to provide an updated view as to the children's wishes and feelings and the officer was to discuss with T the provenance and authorship of the disputed email and was to consider the specific question of parental influence on any of the children. Cobb J took the view that the officer would do no more as a guardian than she would in this continued role as the author of a report and that T's best interests would not be in any sense compromised by his refusal to join her as a party.
As to the possibility that T may have a different perspective on habitual residence, Cobb J said there was no evidence to support that argument and considered that it would not be proper to join a child to the proceedings "on what is essentially a purely speculative possibility that T, through lawyers, would have a different perspective on a point of mixed law and fact (albeit heavily law dependent), particularly given that F … is represented by experienced and specialist solicitors and counsel".
That was where the question of any of the children being parties rested. F did not seek to appeal against Cobb J's refusal of 12 April 2013 to join T as a party. T did not seek to instruct solicitors to make a further application to the judge on her behalf. As for the boys, no application was ever made by anyone for any of them to be joined.
The experience of the three day substantive hearing led Cobb J to make some important observations at the end of his judgment of 23 May 2013. He commented on how bruising the litigation had been for the parents and asked them to think over how much worse it had been for the children. He said:
"115. T in particular has become directly involved in the proceedings — perhaps naturally given her age and her inquisitive mind. Ms Vivian left me in no doubt that it had been counter-productive to have had to interview the children for a second time (pursuant to my own direction, I recognise, albeit at the request of the parties); they did not want it and she felt that it had not been truly necessary. Mercifully T was not more closely embroiled, as had been the father's hope at the PTR when, through counsel, he made an application for her to be joined as a party." [incorporating a minor correction by me]
Sadly, however, T became very much more closely embroiled in the litigation following the conclusion of the proceedings before Cobb J. She instructed her own solicitor and in due...
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