Re- B (Children) (Abduction: Consent: Oral Evidence) (Article 13(b))
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Andrews,Lord Justice Bean |
| Judgment Date | 19 August 2022 |
| Neutral Citation | [2022] EWCA Civ 1171 |
| Docket Number | Case No: CA-2022-001274 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1171
Lord Justice Bean
Lord Justice Moylan
and
Lady Justice Andrews
Case No: CA-2022-001274
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
MR G KINGSCOTE QC sitting as a DEPUTY HIGH COURT JUDGE
FD22P00140
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Hames QC and Paul Hepher (instructed by Russell-Cooke LLP) for the Appellant Mother
James Turner QC and Edward Bennett (instructed by Dawson Cornwell Solicitors) for the Respondent Father
Henry Setright QC and Anita Guha (instructed by Goodman Ray Solicitors) for the Intervener
Hearing date: 4 August 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on 19 th August 2022.
The mother appeals from a return order made under the 1980 Child Abduction Convention (“the 1980 Convention”) by Mr Kingscote QC, sitting as a Deputy High Court Judge, on 9 June 2022. The order requires three children, aged 4, nearly 3 and 19 months, to be returned to Spain.
The judge rejected the matters relied on by the mother in opposing the making of a summary return order, consent and Article 13(b). He found that the father had not consented to the mother removing the children from Spain on 23 August 2021 and determined that the mother had not established that there was any grave risk that the return of the children to Spain would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
The mother's case on this appeal is, in summary: (i) that the judge was wrong not to hear oral evidence from the parties for the purposes of determining whether the father had consented to the children's removal and, accordingly, that his finding that the father had not consented cannot stand; and (ii) that the judge's approach to the determination of whether the mother had established a grave risk within the scope of Article 13(b) was flawed (a) because he had failed properly to apply the approach set out in Re E (Children) (Abduction: Custody Appeal) [2012] 1 AC 144 (“ Re E”), and (b) because he had failed properly to analyse the children's situation on their return to Spain and the efficacy of the proposed protective measures.
The father's case, again in summary, is that: (a) the judge was entitled to determine the issue of consent without hearing oral evidence; and (b) that although the judge might have conflated the approach set out in Re E, he had sufficiently analysed the evidence and reached a conclusion which was open to him.
On this appeal, the mother is represented by Mr Hames QC (who did not appear below) and Mr Hepher; the father is represented by Mr Turner QC (who did not appear below) and Mr Bennett. I am very grateful to Reunite International Child Abduction Centre (who I gave permission to intervene) for their submissions on the issue of consent advanced through Mr Setright QC and Ms Guha, acting pro bono.
For the reasons set out below, I have concluded that the appeal must be allowed in respect of both consent and Article 13(b) and the matter remitted for rehearing before a Family Division Judge.
Background
The mother is a British national aged 23. She lived in Spain with her family from the age of 16. She has a child by a former relationship who is now aged 6.
The father is a Moroccan national aged 36. He has lived in Spain since 2009.
The parents met in either 2014 or 2016. Shortly afterwards, they began living together with the mother's parents in their home. The three children were born in 2018, 2019 and 2021. The parents and the children all lived with the mother's parents until the latter moved to live in England in 2019. Thereafter, the family lived, it would appear, in a number of different places in Spain.
The three elder children were removed from the parents and placed in foster care by the Spanish authorities in September 2020. In a report dated 4 May 2022, very helpfully provided by the Spanish authorities for these proceedings in response to a request from the English court, this was said to be due to a number of factors: “unsanitary conditions, lack of hygiene in the children, inadequate clothing for the time of year, lack of basic food for the children and even for the adults”; “inadequate security of the house”; “negligence in the health care of the children”. It is recorded that the “children are not registered in the Civil Registry” and that the family had lived in eight municipalities. There is reference also to the “consumption of toxic substances by the parents, conflictive relationship and lack of collaboration in the intervention”.
The children remained in foster care until April 2021 when they were returned to the care of the parents. This followed a “favourable report for the family reunification of the children”. It was said that both parents “have been actively involved and shown interest in improving their educational styles and their socio-family situation”. It was recommended that “monitoring and support by the Family Intervention Team is necessary”.
As referred to above, on 23 August 2021, the mother travelled to England with the children. They have remained living here since then. Following a referral from a specialist social worker (or advisor) at the British Embassy in Spain, a Child in Need Social Work Assessment was carried out by the relevant Local Authority in England. This is a long document and it records, at one point, the Embassy social worker saying to the author of the report that the father was “assessed as being the protective factor when the children were released from Local Authority Care” in Spain. There is no reference to this in the documents provided directly by the Spanish authorities. The latest information from the English Local Authority at the end of May 2022 was that some safeguarding concerns had been identified and there was due to be an Initial Child Protection Conference.
Proceedings
The father's application under the 1980 Convention was issued on 25 February 2022. The first hearing attended by the mother, in person, did not take place until 18 March 2022. This followed the making of a location order and other orders on 10 March 2022. Among other matters, the order of 18 March provided for the father's attendance at the final hearing, stating that this was “necessary for the just resolution of these proceedings”. Another hearing took place on 29 April, which the mother again attended in person. The father then filed a substantive statement dated 5 May 2022.
The mother was represented at the next hearing which took place before the judge on 9 May 2022. By that date, the mother had still not filed any response to the father's application. She filed her statement on 16 May 2022. In this, she set out her case that the father had agreed to her and the children moving to England. It was a short account which relied entirely on conversations between her and the father and on no documentary evidence at all. In summary, she said that, initially, they had proposed moving to England as a family but the father's application for a visa had been refused. After this, the father still agreed to the mother and the children moving because the children would be in a better position in England and because he was concerned that, if they remained in Spain, the children would be taken into care again. It was her case that he had said this “on multiple occasions” including on the day when she and the children had left when he “could see the bags had been packed for us to leave”.
In respect of Article 13(b), the mother relied on the father's “abuse of me and the children” and on the likely “lack of basic necessities”. In very brief summary, as to the former, she said that the father had been physically abusive of her and that he had been very controlling of both her and the children, including by locking them in the home and by not allowing the children to play with their toys by putting them on the balcony. As to the latter, she said that if she and the children were returned to Spain they would not be able to meet even their basic needs because the father had insufficient financial resources to maintain them and she did not believe they would be entitled to state benefits as “I did not get any benefits when I was living in Spain”. She also said that she was not a registered resident in Spain.
In his statement in reply dated 24 May 2022, the father disputed the mother's allegations. He said that he had never agreed to the mother and the children relocating to England permanently. He pointed to the fact that he had reported the mother's removal of the children to the police. He also did not rely on any documentary evidence in relation to consent. He denied that he had ever been abusive towards the mother or controlling of either the mother or the children. He said that he worked and would be able to make a contribution to the mother's and the children's living expenses. With that and state benefits, which he said were available, the children would not be in any financial difficulties.
The information provided by the Spanish authorities included that:
“(the parents) have been looking for a way to earn an income in order to be able to secure housing that would allow them to start all the necessary procedures to regularise their documentation (a tenancy agreement was urgently needed) as well as to be able to establish their residence definitively in search of stability.”
There was then reference to the family having been “granted … social emergency financial aid to help them pay their rent” and to the parents being assisted...
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