M and another (Children) (Abduction: Rights of Custody) Re
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Longmore,Lord Justice Moore-Bick |
| Judgment Date | 12 September 2007 |
| Neutral Citation | [2007] EWCA Civ 992 |
| Date | 12 September 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/1794 |
[2007] EWCA Civ 992
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR JUSTICE WOOD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Longmore and
Lord Justice Moore-Bick
Case No: B4/2007/1794
Mr M Nicholls QC (instructed by Edward Devereux) appeared on behalf of the Appellant.
Mr M Scott-Manderson (instructed by David Williams) appeared on behalf of the Respondent.
In form this is an application for permission to appeal, with appeal to follow if permission granted. The case is finely balanced and we have, from the outset, treated the hearing as the hearing of an appeal without going through the formality of granting permission. The case raises a question as to how the judge should exercise his discretion in circumstances where he has found that the defendant to an originating summons under the 198 Convention has successfully made out a defence of settlement under article 12(2) and a defence of child's objection under article 13. The real question in the end for our determination is whether this judge, having scrupulously found all the relevant facts, having equally scrupulously directed himself as to the relevant law, then ultimately explained his exercise of the residuary discretion without misdirection, and sufficiently extensively to demonstrate that he had had regard to all the relevant considerations.
With that introduction I turn to a brief summary of the essential facts. Between the cases advanced by the plaintiff and the defendant there was a considerable gulf, resolved by the judge's crucial findings as to credibility. He said in paragraphs 56 and 57 of his judgment:
“56. Each of these parents asserts that the other has sought deliberately to mislead me in their evidence on many of the crucial issues. A combination of an analysis of the written documentation referred to above, and hearing each parent give oral evidence from the witness box has, I believe, given me the fullest opportunity to come to clear conclusions on this subject. In the course of my further consideration of some aspects of the disputed evidence below I shall give specific examples which have led to my conclusions on credibility, but I state now by way of preliminary that overall I found the mother to be devious, untrustworthy, and frequently given to lying, such that I can place little or no confidence in much of what she said.
57. As to the father's evidence, I considered him to be measured, frank (even where his answers were against his interests) and trustworthy. This finding has implications not only for my findings on issues such as consent and acquiescence, but also in what faith I can put in the undertakings which he offers to the court.”
The reference in that citation to written documentation takes me back to the judge's earlier record of the material available to him. He said:
“I have been provided with a trial bundle running to three volumes. Leaving aside nearly 50 pages of preliminary documentation prepared by counsel pursuant to the provisions of the President's Practice Direction of 27 th July 2006…there were over 550 pages of affidavits (including exhibits); a short section combining material from CAFCASS and from the Home Office; a miscellaneous collection of documentation including the articles from Newsweek and The Economist; letters concerning the immigration position etc., amounting to 125 pages; extracts from Hansard; and two full lever-arch files of Treaties, authorities, and reports from external agencies.”
That demonstrates that this was no ordinary trial. It was extraordinary in the extent of the documentary evidence and it was extraordinary in the sense that the judge heard oral evidence from both the parents. No doubt those extraordinary features assisted him in arriving at the very trenchant findings that he made as to the respective credibility of the parties. The consequence is that the relevant history can be recited thus: the plaintiff father is 40 years of age. The defendant mother is 31 years of age. The couple married by customary ceremony in 1993. Their first child, M, was born in Zimbabwe, where the parents had married, on 3 August 1994. She is, therefore, just 13 years of age. The second child, T, was also born in Zimbabwe on 25 April 1997. She is, therefore, ten. A civil ceremony of marriage was celebrated on 21 October 2000, very shortly before the parties' final separation. Early in 2001 the mother left the family home and the children remained living in their father's care. The mother submitted an application to a local magistrates' court seeking custody of the children but her application was dismissed when she failed to attend the hearing. On 20 January 2002 she left Zimbabwe for England but was immediately deported back. Thereafter she assumed a new identity and successfully achieved an entry to this jurisdiction. In December 2004 she returned to Zimbabwe and thereafter had periodic contact with the two girls.
On 2 March 2005 she entered into what seems undoubtedly a bigamous marriage to a Mr M in a civil ceremony in Harare. Three days later she executed a carefully planned and prepared abduction, leaving Zimbabwe with the two children by bus via Mozambique and Malawi to Kenya. She was able to achieve the abduction by taking advantage of the father's trust and removing the children during a period when she was having staying contact. On her arrival at Heathrow with the children, she presented herself and the children on Malawian passports and sought asylum. Three days later Mr M, who I will afterwards refer to as her husband, arrived and also sought asylum. The mother's application was refused on 8 April and on 27 she sought to lodge a notice of appeal which was subsequently held to be out of time. There are continuing immigration proceedings which seem to have been revived by the onset of the litigation within the Convention. It was only in late 2006 that the father discovered the possibility of his Convention rights, and an application was submitted to the Zimbabwean Central Authority. It was not transmitted to the Central Authority in London until 26 January 2007. Unfortunately proceedings under the Act and the Convention were not filed until 10 May 2007. Thereafter, because of the complexity of some of the underlying issues, there were a number of directions orders made respectively by Munby J, Coleridge J, Pauffley J, HHJ Bevington, HHJ Turner QC and finally Moylan J.
Moylan J's direction order was made on 21 June when, unfortunately, the case listed for trial could find no judge of the Division available to hear it. Thus it came for hearing before Wood J on 18 and 19 July, when he heard the oral evidence not only of the parties but also of the appointed CAFCASS officer. On the following day at his invitation, written submissions were submitted by leading counsel: Mr Marcus Scott-Manderson for the father and Mr Michael Nicholls for the defendant mother. He handed down his judgment six days later on 26 July. The judgment that he handed down is carefully structured. In the first section he records the children with whom he was concerned. He then outlined the application and the materials that were before him. Then followed his chronology which led to his summary of the relevant law. That summary was divided into sub-sections dealing with the Convention itself, articles 3, 4, 12 and 13, together with a paragraph that considered the overarching purpose of the Convention. The next section surveyed Convention defences: first, general comment; then consideration of settlement; consent; acquiescence; grave risk of psychological harm; and child's objections. Finally the judge dealt with the approach to the exercise of discretion and, importing authority from the criminal jurisdiction, the Lucas direction in relation to untruths. He dealt at length with the immigration position and then the marital status, before considering the defences relied upon by the mother, namely consent, acquiescence, settlement, and finally intolerability, and the grave risk of harm. He considered intolerability and grave risk not only in relation to the specific circumstances of the case but more generally in relation to the state of affairs in Zimbabwe, which Mr Nichols urged should be treated as a failed state, incapable of providing either justice or protection to children. The judge then turned to make his findings in relation to these issues and having found, in paragraph 88, that the mother had established settlement in this jurisdiction, and in paragraph 113, that the children did object and were of sufficient maturity to have their objections considered, he finally expressed the exercise of his residual discretion to order return, despite the positive findings in the mother's favour in the two paragraphs to which I have referred.
In ordering a return, despite the children's objections and despite their settlement, he placed considerable weight on a raft of undertakings which Mr Scott-Manderson offered, on the express instructions of his client, who was of course present to give his pledge to the court. The application for permission reached this court just before the expiration of the brief interim allowed by the judge before the children's departure. His order required their departure by 6 August, and on that day Ward LJ granted a stay pending the oral hearing on notice with appeal to follow, if permission given, which he fixed for hearing yesterday, 11 September. We heard argument through the day yesterday and, given the quality of the submissions from...
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