Re E (Children) (Abduction: Custody Appeal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Aikens,Lady Justice Black |
| Judgment Date | 01 April 2011 |
| Neutral Citation | [2011] EWCA Civ 361 |
| Docket Number | Case No: B4/2010/2832 and B4/2010/2901 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 April 2011 |
[2011] EWCA Civ 361
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
PRINCIPAL REGISTRY
The Honourable Mrs Justice Pauffley
Before : the Right Honourable Lord Justice Thorpe
The Right Honourable Lord Justice Aikens
and
The Right Honourable Lady Justice Black
Case No: B4/2010/2832 and B4/2010/2901
FD10P02270
Henry Setright QC and David Williams (instructed by Freemans Solicitors) for the First Appellant
Edward Devereux (instructed by Dawson Cornwell) for the Second Appellant
James Turner QC and Ian Cook (instructed by TLT LLP) for the Respondent
Richard Harrison (instructed by Bindmans LLP) for REUNITE
Maryam A-Tabib (instructed by Mischon de Reya) for The AIRE Centre, by way of written submissions.
Hearing dates : 3rd March 2011
Lord Justice Thorpe :
The Issues
On 29 th November 2010 Pauffley J granted the father's application for a return order under the provisions of the 1980 Hague Convention on the Civil Aspects of Child Abduction. The application had been opposed by the mother and by the half-sister of the children who had been given party status. The children at the heart of this case are Lilly Bo born on 19 th May 2004 and Missy Ann born on 10 th April 2007.
On 6 th December an appellant's notice was filed and referred to My Lady, Black LJ, where the appellants' counsel indicated an intention to apply for my recusal. Ultimately that application was not pursued. I will return to the stated ground for that application. My Lady adjourned the application for oral hearing and on 13 th December she and Lord Justice Ward granted permission.
By her paper order on 8 th December, My Lady had stayed the order below requiring the return of the two children by 9 th December. I am concerned that there has been a delay of nearly three months between the grant of permission and the hearing of the appeal. The reasons for that delay are under investigation.
The appellant's notice advanced two grounds. The first was that the judge had been wrong to reject the mother's defence under Article 13b of the Convention when necessary safeguards identified by the medical expert had not been put in place. The second ground asserted that the judge had failed to apply the decision of the European Court of Human Rights in the case of Neulinger [2011] 1 F.L.R. 122 and Shuruk v. Switzerland (Application 41615/07).
This decision handed down on 6 th July 2010 caused a considerable stir amongst practitioners in the field of international family law. It was commonly understood to undermine the foundations upon which the Hague Convention was built and this court on 12 th December decided that it was high time for this prominent case to be considered by the full court for the guidance of the judges of the Division and specialist practitioners.
In giving judgment on this appeal the more onerous task is to assess the effect of the decision of the European Court in Neulinger. The resolution of the first ground of appeal is altogether straightforward. Accordingly I propose to consider generally the Strasbourg jurisprudence before dealing shortly with the two grounds of appeal.
Shortly before the hearing applications for leave to intervene were received from both Reunite and the AIRE Centre. These are well known and highly respected charities who have an obvious interest in the issues of law raised by the appeal. Accordingly they were given the limited leave which each sought, namely to make general submissions on the law without access to the papers or reference to the issues specific to this case. We received Mr Harrison's skeleton, instructed for Reunite, and the skeleton of Ms A-Tabib, acting pro-bono for the AIRE centre. I express my profound gratitude for these interventions. The two skeletons cover different ground but share the hallmarks of objectivity and excellence.
The Background
Before considering the case of Neulinger it is helpful to set the general scene. In the field of international family law we are generally concerned with instruments that emanate from one of four law givers. They are: the Council of Europe, the European Union, the United Nations and the Hague Conference. These are, of course, very different institutions. Two are regional, two are global. Three are law givers by the creation of conventions which are then available to nations to ratify and internalise within their domestic law, thus creating rights and obligations to the other nations that have made the same election. The European Union, by contrast, imposes international law on Member States by Regulation or Directive. Not all Conventions ratified are internalised; by way of obvious example, the ECHR prior to 1998 and the United Nations Convention on the Rights of the Child.
Plainly these creative processes are more than a little haphazard. There is an obvious risk of the competitive production of new instruments causing general confusion as to which should be invoked in particular circumstances. Even more harmful would be outright conflict. The virtues of harmony and collaboration are as important in this field as anywhere. So the notion that the Strasbourg Court had struck an axe blow to the trunk of the 1980 Convention was shocking and perhaps scarcely credible given that the Convention had been in operation for nearly two decades without any criticism from the Strasbourg court.
That was not without many attempts by disappointed litigants to assert that a grant or refusal of a return order had breached their human rights. As to the history, Dr Andrea Schulz reviewed the period from first beginnings to 2002 in an article entitled "The 1980 Hague Child Abduction Convention and the European Convention on Human Rights" published in Transnational Law and Contemporary Problems Vol 12: 355. She surveyed the period up to 1998 during which not a single referral had been accepted under the Rule then operating. Then in the later period, following the change in the procedure of the court, she concluded that:
"In order to assess whether the action taken complies with Article 8 or whether it amounts to an interference with one parent's right to respect for his or her family life, the Court examines whether the national authorities have done everything that could have reasonably been expected of them. Here the court relies heavily on the provisions of the Child Abduction Convention. What is listed in those provisions as a duty of a national authority may, in the case law of the Strasbourg Court, reasonably be expected.
Therefore when an abducting parent complained against a return order, this was not considered an interference with that parent's right to respect for his or her family life. Where, on the other hand, a left behind parent complained against a non-return, this was generally considered to constitute an interference with Article 8 if the 1980 Convention was applicable between the two States concerned and the conditions for a return under Article 12 were fulfilled but the child was not returned. In its examination, the court did not distinguish between cases where the non-return was due to a court order refusing return or due to non-enforcement of an existing return order."
In more modern times the case of Maumousseau was the first case in which a complaint from a mother against whom a return order had been made was referred for the consideration of the Chamber. The outcome was extremely reassuring to all who believe in the value of the 1980 Convention. In the judgment, to which I will return, the court approved the objectives of the Convention and the balance struck by the Convention in achieving those objectives. The reverberations caused by the later decision of Neulinger were all the greater given the endorsement expressed in Maumousseau.
Neulinger is certainly not the last word. We have since received the judgment in the case of Raban v Romania and after that the decision in Van den Berg and Sarri v The Netherlands. The decision in Neulinger was ultimately a decision of the Grand Chamber and we understand that both Germany and the United Kingdom have applied for the decision of the Chamber in Raban to be referred to the Grand Chamber.
As a matter of chronology, in November the reported cases available to Pauffley J were, of course, Neulinger and also the first instance decision of Baker J in WF v FJ [2010] EWHC 2909 (Fam).
There are now available to us the four decisions of the Strasbourg court and three at first instance since Peter Jackson J has delivered his opinion on Neulinger in the case of DT v LBT [2010] EWHC 3177 (Fam). Although Raban might have been cited to him we were told by Mr James Turner QC that it was not.
Mr Edward Devereux who appears for Tyler Baldock, half sister to the two children within the Hague proceedings, has written an excellent skeleton in which he reviews the four Strasbourg cases in sequence and as a connected stream of precedent. He emphasises, correctly, in our view, that it is a mistake to consider Neulinger, or any of the four, in isolation. They must be read in their entirety in order for their true meaning and effect to be revealed. We only differ from Mr Devereux in his perception of that effect.
It is not only helpful to consider the wide field of international family law but also, more narrowly, the function of the Strasbourg Court. For this we are particularly indebted to the...
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