R (A Child)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lord Justice Sales,Lord Justice Briggs |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] EWCA Civ 1026 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2015/2175 |
| Date | 14 October 2015 |
[2015] EWCA Civ 1026
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT FAMILY DIVISION
SIR PETER SINGER
FD15P00077
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Briggs
Lady Justice Macur DBE
and
Lord Justice Sales
Case No: B4/2015/2175
Mr J Turner QC and Ms K Chokowry (instructed by The International Family Law Group) for the Applicant
Mr M Jarman (instructed by J I Solicitors) for the Respondent
Hearing dates: 19 August 2015
This is an application for permission to appeal the order of Sir Peter Singer, sitting as a judge of the Family Division on 3 July 2015, refusing the applicant father's application to set aside a consent order made in Hague proceedings on 27 March 2015. The application for permission to appeal was listed before the full court with appeal to follow if permission was granted. Accordingly and conventionally this court has heard the arguments that would be advanced on appeal to determine the outcome of the application for permission to appeal.
Having done so, the court did not require to hear from counsel for the respondent mother. Permission to appeal was refused with reasons to follow in writing to reduce any further delay in listing the case for directions in the implementation of the order made on 27 March for E's return to Turkey. These are my reasons for agreeing that this application for permission to appeal should be dismissed.
The child concerned is E, now almost 9 years old. The parents are divorced but previously lived together with E in Turkey. The mother has a custody order from the Turkish court. The father has been settled in the UK since 2014. E resided with her mother in Turkey from a very young age until 25 January 2015. On that day she travelled to England for the purpose of a two week contact visit with her father. She has never returned. During the course of the second week of her visit the father texted the mother to inform her that E wished to stay and to go to school in England. The mother took immediate action, speaking to E on the telephone and travelling to England to attempt to persuade her to return without success; she was ultimately forced to issue an application with the Turkish central authority on 16 February 2015 to seek E's immediate return to Turkey through the courts. This, therefore, is a 'hot pursuit' case.
The mother's application was issued in the English High Court on 24 February 2015. Directions were made for E to be seen by a member of the specialist High Court CAFCASS team on 5 March 2015 to ascertain her wishes and feelings and objections, if any, to a return to Turkey. Ms Julian, an experienced reporting officer, reported in writing on 24 March 2015. She found E to have a level of understanding and maturity "broadly commensurate" with her chronological age, then 8 years and 4 months. E's negative comments about her mother and Turkish school were recorded, as were her entirely positive remarks about her father, the school she was then attending and her living arrangements whilst in the UK. E undoubtedly indicated that she wished to remain living with her father in the UK and to see her mother but not to stay with her. Miss Julian rightly expressed no opinion as to the outcome of the mother's application. She did record the obvious antipathy between the parents and the fact that E had "clearly aligned herself with the resident parent, now the father. She portrays the mother as being responsible for the situation between her parents and appears to perceive the father as 'the victim'".
The matter was listed before Holman J on 27 March 2015. A transcript of the proceedings is available. Early on and throughout the course of the proceedings that morning it is clear that Holman J indicated his provisional view of the matter in open court and in the presence of the parents. That is:
"…this child should go back to Turkey. This was a blatant wrongful retention…She is not expressing an objection. She is expressing a preference, and it is really more of a current preference to be with father rather than with mother, than to be in England rather than Turkey."
The father, through his then counsel, challenged the judge's categorisation of E's views. Counsel informed the judge:
"He knows this child, she objects…He says that to facilitate her return in any way would be a betrayal of her position…"
However, the father was subsequently to indicate that he would return with E to Turkey. A consent order was drafted, amended by the judge and sealed that day. It recites, amongst other things, that the court did not interpret the written evidence as indicating that E objects to a return to Turkey and that the father agreed voluntarily to return with her to Turkey. The return was to be effected by 16 April 2015. Fundamentally, whether Holman J's view of the evidence indicating preference rather than objection was right or wrong, he was not called upon to make findings of fact or to adjudicate whether any judicial discretion as to E's return did or did not arise. The order was made by consent.
A flight was booked for 15 April 2015. E refused to board the aeroplane. The matter was returned to court on 17 April 2015. On that day Roberts J effectively mediated a solution whereby both parents would accompany E on a flight to Turkey the following day. On 18 April 2015 two attempts were made to return E. She attended the airport, but her distress was apparently such as to cause the pilot to refuse her passage on the first arranged flight; and on the second occasion having boarded the aeroplane she was disruptive and required to disembark.
On 20 April 2015 the father made application to set aside the consent order on the basis of (i) duress or coercion by his previous counsel and/or (ii) that there had been a significant change in circumstances. His application was dealt with in two hearings, on 11 June and 29 June 2015. On 11 June, counsel who had appeared for the father on 27 March gave evidence before Sir Peter Singer. The father's allegations of duress or coercion were rejected. There is no appeal from that decision. Directions were given for the further hearing when the issues to be determined were expressed to be:
i) the father's application to set aside the order on the ground that there has been a material change in circumstances, and any consequential directions thereto;
ii) (if necessary, implementation of order).
Further directions were given requiring both parties to attend the hearing, refusing the father's application to admit further evidence from the school, Turkish Airlines, the police and a local authority, and for E to be seen again by the CAFCASS reporting officer on the morning of the adjourned hearing.
On 29 June Miss Julian gave oral evidence of her meeting with E which had taken place that morning. There is a transcript of her evidence. E was described as an "articulate, confident child [with] no obvious anxiety meeting…" with the officer. She had spoken of "not trusting that her father would not be arrested when she got off the plane". She had re-iterated that she did not want to go to Turkey; she wished to live in London with her father. Miss Julian thought E was "confused about the situation". In the course of cross examination Miss Julian indicated her unhappiness about re-interviewing children since it "gives a lot of power to a child that really is not appropriate to do." Miss Julian did not detect a significant change in the nature of E's narrative albeit she recounted more recent events and had referred to people in Turkey being rude because they push and shove each other when they leave the station.
Sir Peter Singer did not find there to have been a significant change of circumstances. His reasons are to be found in a judgment and an addendum to it delivered on consecutive days, the first under pressure of time on 29 June, the second on 30 June since he felt it was "appropriate and reasonable to add just a few sentences" to that previously said by way of explanation for rejecting the father's claim. He made clear that his opinion and judgment was that there had been no sufficient "alteration" in circumstances, notwithstanding E's refusal to return to Turkey was not anticipated at the time of the hearing in...
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