Re O (Children) (Abduction: Settlement)
| Jurisdiction | England & Wales |
| Judgment Date | 2011 |
| Date | 2011 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Wrongful retention – Settlement – Welfare – Parents raising two children in US – Mother retaining children in Nigeria following holiday – Father contacting US State Department and opening child abduction case – Father making Hague Convention application whilst children in England on subsequent holiday – English High Court finding that children settled in Nigeria but making order for return to US – Mother appealing – Whether judge erring in exercise of discretion – Hague Convention on the Civil Aspects of International Child Abduction 1980, art 12.
The parents, who originated from Nigeria and were Nigerian citizens, had two children together after meeting in the United States of America in 2000. The father also had US citizenship and the family made their home in the US. Whilst on holiday with the children in Nigeria in February 2009, the mother decided that she could not continue to live with the father. She consequently informed him that she did not intend to return to the US. When she failed to return the children on the date originally anticipated, the father contacted the US State Department and a child abduction case was opened on 22 April. Subsequent to visiting the children in Nigeria, the father provided the American courts with misleading information as to their circumstances. The mother and children continued to be based in Nigeria (where the children were enrolled at a private school) until July 2010, when they went to England for a holiday. Upon learning of the trip, the father informed the US State Department and an application was made in England on 22 July under the Hague Convention on the Civil Aspects of International Child Abduction 1980. In the application form, the father misled the authorities as to, inter alia, the circumstances in which the mother had left Nigeria. By virtue of orders made by the English High Court, the mother and children were unable to leave England pending a decision on the Hague Convention application. The final hearing took place on 29 September and the judgment was not handed down until 17 November. The trial judge found that the proceedings had been commenced more than 12 months after the wrongful retention and that the children had become settled in Nigeria within the terms of art 12 of the Hague Convention. He went on to conclude, however, that the children should nevertheless be returned to the US, holding that they were of an age where they were ‘able to adapt more readily than older children who [might]
have established deeper attachments and networks to family, friends and environment’. The mother appealed, submitting that the judge had mistakenly taken the view that there was a presumption in favour of the children being returned to the country of their habitual residence, giving overriding weight to Hague Convention considerations and failing to examine the issue of welfare in the context of whether the children should be returned.
Held – (1) Only two considerations that were relevant to the proper exercise of the judge’s discretion could be extracted from his judgment in the instant case. The first was that it tended to be in the interests of children to return to their country of origin to have their future determined (an aspect of what might be called ‘the Hague Convention policy considerations’), and the second was the judge’s view that the children were young enough to adjust. There were many other matters that had to be put into the balance and, even in relation to the two factors which the judge had picked out for consideration, there were serious problems with his approach. Contrary to established authority, the judge appeared to have given the Hague policy consideration overriding significance in the hierarchy of factors. Hague Convention policy considerations were by no means irrelevant in exercising the discretion which arose in a settlement case, but their relevance was strictly as a part of the whole picture. The notion that it would be best for the children to return to the US for their future to be determined had to be tested against the evidence in the particular case, aspects of which might support that course and aspects of which would militate against it. As for the judge’s reliance on the adaptability of the children because of their young age, the divergence of judicial opinion on that point served only to show that cases such as the instant could not be determined by a generalised approach and that the individual circumstances of the particular child had to be examined and weighed into the balance when exercising a discretion under the Hague Convention as to whether to return a child. The judge’s judgment did not give any indication that he had engaged in that exercise. In those circumstances, the exercise of his discretion could not be supported as a valid one, with the result that the question of whether the children should be returned to the US remained to be determined (see [22]–[26], below); Re M (children) (abduction)[2008] 1 FCR 536 considered.
(2) There were overwhelming reasons to decline to order summary return of the children to the US. The instant case was very far from being a hot pursuit case and, although not irrelevant, Hague Convention policy considerations were not as prominent as they would otherwise be. The children did not view the US as their home, had been settled in Nigeria in comfortable circumstances and with appropriate arrangements in place for their welfare before coming to England on holiday, and were likely to continue to see Nigeria as their home. They could easily return to resume the life they had been living before leaving that country. Both parents were very familiar with Nigeria and already had lawyers there. The Nigerian
court had already been seised of the matter at the invitation of the father and it would be a significantly more appropriate forum for any future litigation about the children than the American courts. The immoderate and underhand activities of the father since spring 2009 could not be ignored; it would be much easier for the mother to cope with that sort of behaviour if it were to continue if she were to remain in Nigeria with the support of her family than if she were to return to the comparative isolation of the US. Her sense of security was bound to make a vital contribution to her ability to look after the children. Accordingly, the appeal would be allowed and the father’s originating summons seeking the return of the children to the US would be dismissed. The undertakings given to the judge below would cease to have any effect, with the practical result that the mother would be able to return with the children to Nigeria (see [49]–[50], below); Re M (children) (abduction)[2008] 1 FCR 536 applied.
Cases referred to in judgmentsB (appeal: lack of reasons), Re[2003] EWCA Civ 881, [2003] 2 FLR 1035.
Cannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 32, [2005] 1 FLR 169.
L (minors) (wardship: jurisdiction), Re [1974] 1 All ER 913, [1974] 1 WLR 250, CA.
M (children) (abduction), Re[2007] UKHL 55, [2008] 1 FCR 536, [2009] 1 All ER 1157, [2008] 1 All ER 1157, [2008] 1 AC 1288, [2007] 3 WLR 975, [2008] 1 FLR 251.
N (Minors) (Abduction), Re [1991] FCR 765, [1991] 1 FLR 413.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763.
S (a child) (abduction: settlement), Re[2009] EWHC 1494 (Fam), [2010] 1 FCR 338, [2009] 2 FLR 1231.
AppealThe mother appealed against a judgment handed down by Judge Wallwork, sitting as a judge of the Family Division on 17 November 2010, holding that, although the parents’ two children had become settled in Nigeria within the terms of art 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (having been retained there by the mother following a holiday in February 2009), they should be returned to the US, where the family home had been prior to the breakdown of the parents’ relationship. The father had issued an application under the Hague Convention upon learning that the mother had taken the children from Nigeria to England for a holiday. The facts are set out in the judgment of Black LJ.
Anita Guha (instructed by Kingsley Napely LLP) for the mother.
Christopher Hames (instructed by Hodge Jones & Allen LLP) for the father.
16 February 2011. The following judgments were delivered.
BLACK LJ(giving the first judgment at the invitation of Wilson LJ).
[1] This appeal concerns proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Hague Convention) in relation to two girls who were born [in] December 2003 and October 2005 and are now 7 and 5. They are the children of the appellant (the mother) and the respondent (the father). The parents were married but their relationship is now over.
[2] The parents met in the United States in 2000 although they originate from Nigeria and are Nigerian citizens. The father also has US citizenship and the children have both US and Nigerian citizenship.
[3] The parents made their home in the US and the children were born there. On 27 February 2009, the mother went with the children to Nigeria on holiday. Whilst there she decided that she could not continue to live with the father and she told the father, in mid March 2009, that she did not intend to return to the US. It seems that the father hoped that she may still come back on 20 April 2009 as had been the original plan. When the mother and the girls did not return on that day, he contacted the US State Department and a child abduction case was opened on 22 April 2009.
[4] The mother and the children were based in Nigeria from then until the events of last summer. On 3 July 2010, they came to England to visit the mother’s brother for a holiday. When the father learned of this, he promptly informed the US State Department and an application under the Hague...
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