M (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Potter,Lord Justice Rix,Lord Justice Wilson |
| Judgment Date | 27 March 2007 |
| Neutral Citation | [2007] EWCA Civ 260 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/0222/PTA + A |
| Date | 27 March 2007 |
[2007] EWCA Civ 260
Sir Mark Potter
The President of the Family Division
Lord Justice Rix and
Lord Justice Wilson
Case No: B4/2007/0222/PTA + A
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
Mr Justice Singer
FD05P02305
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Marcus Scott-Manderson QC (instructed by Dawson Cornwell Solicitors) for the Appellant mother
Mr Henry Setright QC (instructed by Reynolds Porter Chamberlain Solicitors) for the Respondent father
Hearing date: Tuesday 27 February 2007
Sir Mark Potter, P:
Introduction
This is an application by the defendant mother (a thirty-nine year old British subject) in Hague Convention proceedings, (i.e. under the Child Abduction and Custody Act 1985) for leave to appeal from the order of Mr Justice Singer dated 18 January 2007 whereby, on the application of the plaintiff father (who is a Serbian national aged 44), the judge ordered the return to Serbia of the parties' daughter M, born on 23 February 1999 and now just 8 years old, there being current between the parties substantive proceedings in Serbia relating to M's care and welfare. The judgment pursuant to which the order was made was an oral judgment delivered on 16 January 2007, a transcript of which is before us.
The mother acknowledged before the judge that the removal of M from Serbia was wrongful within the meaning of Article 3 of the Convention, but she resisted the order for the return of M on the grounds (a) of what her then counsel Mr Reddish described as her 'principal' defence, namely that there was a grave risk that the return of M to Serbia would expose her to physical or psychological harm or otherwise place her in an intolerable situation within the meaning of Article 13(b) of the Convention and (b) of M's objections to returning to Serbia as set out in the report of Olivia Fitch, a CAFCASS Children and Family Reporter, dated 8 December 2006.
In giving judgment, Singer J adverted to various matters raised by the mother as demonstrating threats, hostility and intimidation on the part of the father (but which he denied) relating to the risk of harm to M. The judge took the view that he could not resolve them on the application before him and that they were matters for the Serbian court and, on the basis of a number of protective undertakings offered by the father, he ordered the return of M to Serbia. However, the judge overlooked, or at any rate failed in his judgment to refer to or deal with, the defence based on M's objections to her return. That being so, on 16 February 2007, the day before the mother was due to return to Serbia after a hold-up in obtaining the necessary passports under the order of Singer J, I granted her a stay of the order for M's return so as to enable her to make this application, in respect of which I ordered expedition and that, if leave were granted, the appeal should be listed to follow the application. The matter has a considerable history to which I 1now turn by way of background.
The background history
The parties were never married. A number of years after they had commenced their relationship, but shortly after the birth of M, they moved via Spain to live in Belgrade where they subsequently made their home. However, after a difficult period, the relationship broke down as a result of which, in circumstances which are in dispute, the father left the family home in January 2005. It is the mother's case, which the father denies, that the parting was against a background of violence and personal abuse by the father. It is clear in any event that the relationship broke up in acrimony. It is the mother's case, which again the father denies, that after their separation the father would threaten and abuse the mother when they met for purposes of his contact with M. At various stages she sought assistance from British Consular Services and the police. However, she developed the view that the father had influence with the local police and that she was not able to obtain proper protection from them.
On 3 March 2005 upon her application, the City Centre of Social Work in Belgrade, the competent first instance authority in charge of giving custody (so described in its own order), awarded custody of M to the mother with provision for contact to the father every second weekend, holiday and birthday and for half of the winter and summer holidays, the father to pick M up in front of the flat in which the mother lived and to return her at times to be agreed. Thereafter, between May and July 2005, the father made a series of applications to the Centre of Social Work seeking a change of custody based on accusations that the mother was suffering problems in bringing up M, that she was damaging M's psychological development by refusing to allow him to collect M from her nursery and by arranging for M to be cared for by various female friends and neighbours rather than himself; also upon the basis that the mother had accused him of having a bad influence on M and of making allegations against him in order to give her “an alibi to leave Belgrade”. He also claimed that the mother had neglected her duties by preventing him from exercising his personal relationship with M; that the mother had no regular source of income and that there was a real danger that she would remove M from Serbia. At the end of July the father returned M a week late after holiday contact and in early August the mother informed the father that she would be taking M to England on holiday, despite his attempts to persuade her not to do so.
On 11 August 2005 the mother left Serbia with M and put her into school in England. In those circumstances, the Fifth Municipal Court of Belgrade, as the court by then in charge of the litigation, ordered as a “Provisional Measure” that the father should be granted the custody and care of M, in lieu of the earlier order made.
The narrative in the order based the decision of the Municipal Court on the fact that:
“By taking the child to the UK in July this year, the [mother] made impossible the execution of the Resolution by the Center for Social Welfare [which] stipulated the terms [in which the] relationship was to be maintained between [M] and her father… [The court found that the mother] did not intend to come back with the child and make possible [that] relationship [and that it was therefore necessary] to establish a provisional measure before the proceedings were irrevocably closed.”
In November 2006, the father came over to England for contact with M and, according to the evidence of the mother's uncle who sought to act as some type of broker between them, he admitted that he had been violent to the mother in Serbia and that he had threatened her landlord in order to get him to evict the mother and M. The father denied he had made any such admissions
On 4 November 2006, the husband, by an Originating Summons in the High Court, instituted Convention proceedings for the return of M to Serbia.
While those proceedings were waiting to be heard, the father had staying contact for one week with M at the home of a mutual friend of the parties, Svetlana Vijevic. According to her uncontradicted evidence, M was nervous, subdued, and fearful and did not wish to be alone with the father, who spent his time throughout the visit speaking with animosity and in a negative fashion about the mother, constantly stating his adverse views of her and taking every opportunity to bring them into the conversation. He told Ms Virijevic that he would not stop until he had been successful in removing M from her mother.
The matter came on for hearing before Mr Justice Sumner on 23 January 2006, the mother being represented by solicitors and counsel other than those who now appear for her. However, there was no substantive hearing. No doubt upon advice, the mother consented to an order for the return of M to Serbia upon the basis of extensive undertakings given by the father and mother which were intended to cover the position in relation to M as between the parties until such time as the Serbian Court could deal with the matter after the return of the mother and M to Serbia. The undertakings were designed to ensure that M remained in the care of the mother, properly maintained by the father and protected from removal by him, pending any further orders by the Serbian Court in that respect.
Before that order took effect however, the mother had a change of heart, prompted by the fact that M had made it clear to her that she did not wish to go back to Serbia. The mother invited the court to engage the services of a CAFCASS reporter, Mrs Oliver, to investigate whether the child had objections or should be separately represented.
Sumner J heard the oral evidence of Mrs Oliver on 21 February 2006. Mrs Oliver made clear that M had said that she did not want to go back to Belgrade because her father “was always hitting mummy” and that she had seen him do so. Mrs Oliver also made clear her view that M, who was a very bright child, was describing what she had seen, rather than what she had been told. M also said that she did not want to go back to Belgrade as it was “scary” for her. If she went back she would be scared that her father would not do as he said he would do. However, on 22 February, upon the basis of the undertakings already given, Sumner J declined to amend or recall the order to which the mother had earlier consented and the mother returned to Belgrade with M pursuant to that order.
Unfortunately, conflicts and disputes quickly developed. The Regional Court...
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