Re A (A Child) (1980 Hague Convention: Set Aside)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden,Lady Justice Asplin,Lord Justice Moylan |
| Judgment Date | 23 February 2021 |
| Neutral Citation | [2021] EWCA Civ 194 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/2010 |
| Date | 23 February 2021 |
[2021] EWCA Civ 194
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
OF THE HIGH COURT OF JUSTICE
MR L SAMUELS QC SITTING AS A
DEPUTY HIGH COURT JUDGE
FD20P00376
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
Lady Justice Asplin
and
Mr Justice Hayden
Case No: B4/2020/2010
Mr C Hames QC and Ms I Kumar (instructed by Lyons Davidson Solicitors) for the Appellant Father
Mr T Gupta QC and Mr R Powell (instructed by Tilly Bailey and Irvine LLP) for the Respondent Mother
Ms J Renton (instructed by Freemans Solicitors) for the Child
Hearing date: 2 nd February 2021
Approved Judgment
This is an appeal from an order made by Mr Leslie Samuels QC, sitting as a Deputy High Court judge, on 20 th November 2020. The judge set aside a return order made by Ms Deidre Fottrell QC, also sitting as a Deputy High Court judge, on 29 th September 2020 and dismissed the father's application for a summary return order to Italy, under the Child Abduction and Custody Act 1985, incorporating the 1980 Hague Convention on the Civil Aspects of International Child Abduction. On 18 th December 2020, permission to appeal was granted by Moylan LJ, who was satisfied that the grounds for appeal established sufficient prospect of success, “particularly in respect of the judge's decision to set aside the previous return order and his decision to dismiss the father's application under the 1980 Convention.”
Following the grant of permission to appeal, an application was made on behalf the child (A), the subject of these proceedings, to be joined as a party. The application was made by, and supported by a statement from, solicitors instructed directly by A. Moylan LJ directed that the application was to be listed for determination with this appeal and gave permission for written and oral submissions to be made on behalf of A both in respect of the application to be joined and in respect of the substantive appeal.
Background
A was born in England in 2008 and is now aged 12. His mother (M), a British national, met his father (F), an Italian national, in Italy in 2005. The couple moved to England for a brief period before A's birth but, shortly afterwards, in 2008, travelled back to Italy where they lived as a family.
F was not named as A's father on the birth certificate when A's birth was registered in England. A few months after arriving in Italy, the parents attended the office of the local Municipality and signed a declaration recognising F's paternity. A grew up in Italy with his parents. He attended nursery and primary school there. A and his mother travelled regularly to England to visit his maternal grandparents and extended family. On 27 th June 2019, when A was 10, M brought him to England. F says that there was an understanding that they would both return by mid-August, although no precise date had been set.
Over the summer of 2019, M decided that she would remain in England with A. F travelled to this jurisdiction to try and talk with M about their situation. There were two visits, the first between 15 th and 29 th August 2019, the second between the 3 rd and 10 th September 2019. On this second visit F discovered that A had been enrolled in school in England.
In February 2020 F collected A and took him to Italy for the half term break. A further trip was planned for 5 th April 2020. Though M had provided her consent to this trip, it was withdrawn and an ex-parte application made to prevent F removing A from the jurisdiction. F, who had travelled to England, returned to Italy and, shortly afterwards initiated proceedings under the Hague Convention by signing an application to the Italian Central Authority for the return of A.
The 1980 Hague Convention proceedings
On 24 th June 2020, F's application, pursuant to the 1980 Convention was issued in this jurisdiction in the High Court. M resisted the application and indicated that, in the event of A's return being ordered, she would not return with him. She contended that F did not have rights of custody, and/or that he had acquiesced, such that Article 13(a) was engaged. Further, M stated that A would be at grave risk of harm, and, alternatively or additionally, placed in an intolerable situation if he were returned to Italy, such that Article 13(b) would be engaged.
The first CAFCASS report of Ms Roddy
On 8 th July 2020, Roberts J directed CAFCASS to prepare a report addressing: A's wishes and feelings in respect of a return to Italy; his level of maturity; whether he should be separately represented in the proceedings and whether he wished to meet with the judge.
On 10 th September 2020, A met with Family Court Adviser Ms Jacqueline Roddy for 75 minutes. It was possible to arrange a face to face visit on this occasion. In her report, dated 11 th September 2020, Ms Roddy explained that A “spoke positively both about his life in England, and of his life in Italy”. When pressed on how he felt about the prospect of a return to Italy, A said that he did not know. Ms Roddy reports:
“ Despite my efforts – sensitive to the predicament [A] finds himself in – he was not willing or able to express a view in respect of a return to Italy beyond what he repeatedly told me was his unease at being caught in a quandary – and either option represents a significant loss for him… [A] wants the judge to know that he doesn't want to get involved in any sense of decision making; doesn't feel strongly about either option, but wherever he lives he wants to see the other parent.”
Ms Roddy observed that it was unusual, in her experience of these cases, for a child to resist being drawn on expressing a preference. She emphasised, however, that she was “confident” that the child's responses were, in her assessment, entirely authentic and had not been influenced by either parent. Ms Roddy described A as “an able, bright child” who gave a reasonable account of his life and views. Accordingly, Ms Roddy did not consider that joining A as a party to the proceedings was necessary. Further, in light of A's resistance to becoming embroiled in his parents' dispute, she considered joining him as a party would be inappropriate. A did not wish to write to the judge directly, having been satisfied that his views would be communicated through the CAFCASS report.
The judgment and return order, September 2020
On 28 th September 2020, the application for summary return was heard before Ms Deidre Fottrell QC. On 29 th September 2020, A's summary return to Italy, by 11:59pm on 30 th October 2020, was ordered. In her judgment, dated 8 th October 2020, Ms Fottrell found, having accepted the expert evidence of an Italian lawyer, that F has rights of custody for the purpose of Article 3.
Ms Fottrell was satisfied that M's defence, under Article 13(a), was not made out. M accepted that F did not know of her plans to remain in England when she brought A to this country in 2019. The available evidence demonstrated it was clear F wished for M to return with A to Italy. It was found that from July 2019 to April 2020, F was trying to reconcile with M, and then later focused his efforts on persuading her to return with A to Italy, or to allow A to come back to Italy with him. Further, F simply did not know about the 1980 Convention process and had not been advised he could make an application for the return of the child until April 2020. Mr Gupta QC, who resists the appeal on behalf of M, has endeavoured, rather ambitiously, to revisit the issue of acquiescence at this hearing but the argument is unsustainable in the light of these facts.
Similarly, Ms Fottrell was not persuaded that the high bar set in Article 13(b) was satisfied in this case. She noted that M's submissions on this issue were brief and mainly focused on her concern that F could not properly care for A, highlighting that this was a welfare issue which fell outside the remit of the 1980 Convention. Further, the CAFCASS report did not, the judge considered, reflect a child who had internalised his abuse by F, as was submitted on behalf of M.
Accordingly, F's application for summary return was granted. Consequential directions were made for F to collect A on a date to be agreed in the week commencing 23 rd October 2020, so that they could return together to Italy.
Events following the return order of September 2020
M was manifestly distressed by the court's decision to order A's return to Italy. On 30 th September 2020 (i.e. the day after the order was made), M contacted Ms Roddy to express her unhappiness with and surprise at the decision. It appeared that M simply had not really contemplated losing care of A. M also explained that she had contacted her local children's department in an attempt to avoid having to comply with the return order. M expressed to Ms Roddy a concern that A had been reluctant to discuss negative aspects of his relationship with F and had not fully appreciated that a return to Italy would involve returning without M. Ms Roddy explained that the involvement of CAFCASS had ended and advised her to speak with her legal team.
F arrived in England on 17 th October 2020. M said that A was shocked when he learned of the decision of the court and had spoken to her every day about not wanting to return to Italy. In her statement, she exhibited a note from the School Safeguarding Officer and a handwritten note from A. In the note, A says he would like more time to think about things, as he was not sure he wants to leave his school and...
To continue reading
Request your trial
-
PG v RT
...place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be.” 13 In Re: A (A Child) (1980 Hague Convention: Set Aside) [2021] EWCA Civ 194, I made the following observations: “48. The 1980 Hague Child Abduction Convention is predicated on ......