Re F (Children)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Sir James Munby |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] EWCA Civ 546 |
| Docket Number | Case No: B4/2016/0615 and 1201 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 June 2016 |
[2016] EWCA Civ 546
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Lady Justice Arden
Case No: B4/2016/0615 and 1201
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Nicholas Francis QC (sitting as a Deputy Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Henry Setright QC and Ms Roshi Amiraftabi (instructed by Dawson Cornwell) for the appellant mother
Mr Christopher Hames QC (instructed by Goodman Ray) for the appellant L
Mr Teertha Gupta QC and Ms Mehvish Chaudhry (instructed by Freemans) for the respondent father
Hearing date: 26 May 2016
Sir James Munby President of the Family Division:
These are appeals, pursuant to permission given by Black LJ on 26 February 2016, from an order in Hague proceedings made by Mr Nicholas Francis QC (sitting as a Deputy Judge of the High Court) on 2 February 2016.
Background
The factual background is shortly stated. The proceedings relate to three children, L, a girl born in April 2002, F, a girl born in July 2009 and G, their brother born in January 2012. The children and their parents are Hungarian. The parents' marriage broke down and there were proceedings in the Hungarian court. While those proceedings were on foot, the mother brought the three children to this country. It is not disputed that this was, for the purposes of the Hague Convention, an unlawful removal. The father started Hague proceedings in the Family Division on 23 November 2015. The mother defended the proceedings on two grounds: first, under Article 13, that L and F objected to being returned to Hungary; secondly, under Article 13(b), that there was a grave risk that returning the children to Hungary would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
On 20 January 2016 there was a pre-trial review before Newton J. By then L had been interviewed by an experienced CAFCASS officer, Mr John Power. The mother submitted that L should be separately represented in the proceedings. Newton J refused her application. There was no appeal against his decision.
The matter came on for final hearing before the Deputy Judge on 2 February 2016. By then, Mr Power had also interviewed F. As the Deputy Judge recorded in his judgment, both parents were present throughout the hearing, though neither gave oral evidence. The father had the assistance of an interpreter; the mother, who speaks good, fluent English, had no need of an interpreter. The Deputy Judge had the benefit of reading Mr Power's two reports, dated respectively 18 January 2016 and 1 February 2016, and of hearing his oral evidence, of which we have been supplied with the Transcript. At the end of the hearing that afternoon the Deputy Judge delivered an ex tempore judgment. It runs to 33 numbered paragraphs, occupying nine pages of Transcript. The Deputy Judge rejected the defence based on Article 13(b). He found that L and F both objected to being returned to Hungary, but exercised his discretion to order their return. His order provided that the children were to be returned to Hungary by 19 February 2016.
The appeals
On 16 February 2016 the mother applied to the Court of Appeal for permission to appeal against the order of the Deputy Judge. A stay of his order was directed by Black LJ on 18 February 2016. Subsequently, L applied to the Court of Appeal for permission to appeal against both the order of Newton J and the order of the Deputy Judge. The matter came back before Black LJ on 26 February 2016. For the reasons she explained in her judgment ( Re F (Children) [2016] EWCA Civ 354), Black LJ refused L permission to appeal against Newton J's order but gave both L and her mother permission to appeal against the Deputy Judge's order. In relation to L, Black LJ said this ( Re F, para 35):
"Whatever the outcome … at least I hope she will feel that she has had her full say in the process … she needs to be a full participating party with representation."
The father subsequently filed a respondent's notice on 24 March 2016.
The appeals came on before us on 26 May 2016. The mother was represented by Mr Henry Setright QC and Ms Roshi Amiraftabi, L by Mr Christopher Hames QC, and the father by Mr Teertha Gupta QC and Ms Mehvish Chaudhry. In addition to all the materials which had been before the Deputy Judge, we had two statements by L's litigation friend, JB, dated 18 and 25 February 2016 respectively, setting out L's evidence in some detail, and a statement from the father dated 17 May 2016 exhibiting a bundle of updating material in relation to the Hungarian court proceedings. There was no objection to the introduction of L's evidence and we made an order permitting both L's evidence and the father's updating evidence and material to be filed. At the end of the hearing we reserved judgment.
The judgment
Given the way in which the arguments before us were deployed, it is convenient, before I proceed any further, to go in some detail to the Deputy Judge's judgment. First (paragraphs 1–16), he set out the facts and the parents' allegations. In the course of this, the Deputy Judge said this (paragraph 9):
"I should say that the father, in his evidence, denies all of the allegations that the mother makes and equally makes allegations against the mother. In the summary process in which I am engaged, I can do no more than observe that these allegations and counter-allegations have been made."
Having identified the two defences I have mentioned and recorded that the mother had engaged in the Hungarian proceedings and recognised that the Hungarian courts have authority to make decisions about the children, the Deputy Judge continued (paragraphs 17–18):
"17 … Therefore the question that I have to ask is whether those two defences … apply and, if either of them applies, then I have to exercise my discretion in the normal way to decide what orders I should make.
18 It is common ground between the lawyers, and accepted that it is established authority now, that the child objections defence goes as follows: first, it is necessary for the defence to show that the child objects to being returned; secondly, that the child (or children) has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If each of those two limbs, which have been called the "gateway limbs", are established then I have a discretion as to whether or not to order a summary return."
I must set out the next three paragraphs in full:
"19 The evidence that I heard from Mr Power was clear and unequivocal … it seems to me that the conclusion that I have to reach as a result of Mr Power's evidence is that L does object to being returned to Hungary. I also have to conclude that she has attained an age and degree of maturity at which it is appropriate for me to take account of her views. Of course those findings are not determinative of the decision that I have to make this afternoon. But to summarise just a few of the points that Mr Power dealt with in his evidence, he said that there was no doubt that L really likes her life in England and wants to remain here with her mother, her sister and her brother. He admitted, and accepted under cross-examination, that it probably was true that she had been exposed to conversations with her sister and mother. Mr Power accepted that there may be a degree of emotional encouragement, however subtle, that seeks to support the opinion that has been given. He also accepted that children tend to prefer the education system here to that in East Europe. He said that the children did not go into a great deal of detail about the life in Hungary. The real focus was the life in this country. He observed that L was able to say that she found that the pound went further here than the forint did in Hungary. Having heard from Mr Power, it is clear to me that there are many ways in which L took the view that her life was better here than in Hungary and objected to being returned to Hungary.
20 So far as F is concerned, I am acutely aware of her young age, being only about 6 1/2 years old. I recognise what the Court of Appeal said in Re M about taking into account the wishes of younger children and how the trend is moving towards the ever increasing taking into account of such views. 1 I accept without hesitation what Mr Power told me about L, both in terms of her objections to being returned to Hungary and in terms of her ability to understand what it was that she was saying. So far as F is concerned, it is much more balanced, taking into account how young she is. F had had some health difficulties in Hungary which no longer subsist. For example, she had suffered from constipation which was thought to be the consequence of emotional difficulties. On balance I find that the threshold gateway is triggered insofar as F is concerned as well as L, and that there is an objection which could amount to a defence subject to, as I have said, the exercise of my discretion.
21 In respect of G, who is only 4, I do not think it is seriously contended by anybody that the defence could arise. Accordingly, I do have to exercise my discretion in respect of both L and F."
In paragraph 22, the Deputy Judge quoted what Baroness Hale had said in In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, para 42, referring to and indicating the "general policy considerations which may be weighed against the interests of the child in the individual case." In paragraph 24, the Deputy Judge went on to quote a further passage from Baroness Hale's speech ( Re M, para 46):
"These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a...
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