Re J (Abduction: Children's Objections)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Sir Mark Potter,Lady Justice Hallett |
| Judgment Date | 02 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1448 |
| Date | 02 December 2011 |
| Docket Number | Case No: B4/2011/2853 |
| Court | Court of Appeal (Civil Division) |
[2011] EWCA Civ 1448
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR JUSTICE RODERIC WOOD
FD11P01809
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Hallett
and
Sir Mark Potter
Case No: B4/2011/2853
B4/2011/2808
David Williams (instructed by Freemans) for the Interveners
Mark Jarman (instructed by Lyons Davidson) for the 1st Respondent
Michael Gration (instructed by Morecrofts) for the Appellant
Hearing dates : 25 November 2011
On the 25 November 2011 we allowed the appeal of three children intervening in the appellate proceedings between their parents, proceedings brought by the father for the return of the three children to Poland under the 1980 Hague Abduction Convention and Article 11 of Regulation Brussels 2 Revised. Given the utmost need for expedition we announced our conclusion with reasons to follow.
On the face of it this is a paradigm case for a return order. The parents are Polish and married in Poland on 13 April 1996. Their son K was born on the 18 June 1996. Their second son JA was born on the 12 July 1998. Their third child, a daughter JU, was born on 24 March 2001. The parents separated in August 2005 and custody proceedings immediately followed in Poland. On 31 August 2006 the court in Zamosc effectively granted custody to the father with contact to the mother on alternate Saturdays.
Subsequently the mother emigrated to this country where she has successfully established her habitual residence, employment, and a home which she shares with her current partner. Accordingly in September 2010 she applied for the variation of the contact order. A welfare report was prepared and on the 9 November 2010 the Zamosc court by consent ordered holiday contact three times a year, the travelling costs to be met by the mother.
On 5 July 2011 the mother collected the children from the father's home for the three week summer holiday in England ordained by the Zamosc order. Thus the children were to return to their father on 26 July.
On 25 July the mother issued an application to the Zamosc Court for custody and for the children's relocation to this jurisdiction.
On the mother's failure to return the children on the 26 July the remedy provided by the Hague convention was swiftly invoked. The London central authority received the Polish request on 11 August 2011 and on the 17 August the first order was made requiring the mother to file her evidence by 2nd September. She complied and the first inter partes directions order was made by Charles J on 7 September. The second directions order was made by HHJ Coates on 28 September. To these two orders I will return.
The trial was fixed for 11 October and came before Roderic Wood J.
Effectively there was only one issue for trial. Although in her written statements the mother had raised two defences, Article 13b and the children's objections, the directions order of 28 September contained this recital:-
"And upon the mother indicating to the court through counsel that the primary issue in this case is whether the children should be returned to Poland notwithstanding their stated objections…"
The mother maintained this position at trial. Although the Article 13b defence was not abandoned it was hardly pursued.
The statement of the children's objections was not only contained in the mother's statements but also in a written report from the children and family reporter filed at the second directions hearing. Her report was filed in compliance with directions given by Charles J on 7 September. I cite the relevant paragraphs in full:-
"3. The CAFCASS High Court team is requested to make arrangements to interview the three children and to prepare a report setting out the children's views, any objection which any of them have to returning to Poland, their maturity and recommendations, in particular as to whether any of the children should be separately represented, by 4pm on 21 September 2011. The costs of the attendance of the children at interview shall be deemed a reasonable disbursement on the father's public funding certificate, and shall be reimbursed by the father's solicitor when met by the LSC.
4. The father's application for summary return of the children to Poland shall be listed for a further hearing at 10.30am on 28 September 2011 at the Royal Courts of Justice (with a time estimate of 30 minutes). At this hearing the Court will consider:
i. Any application for any or all the children to be made parties to the proceedings and to be represented; and
ii. Directions generally, including the approach to be taken to the mother's Article 13b defence."
Plainly paragraph 4(ii) above explains the recital in the order of 28 September cited above.
Ms Julian, in her report of her interview with the children did not overlook the Judge's request for recommendations on separate representation. Paragraph 92 of her report stated:-
"Based on my reading of the court papers provided to me and my interviews with K, JA and JU, I am not convinced that joinder of the children as parties would sufficiently enhance the courts understanding of the issues so as to justify further delay and the inevitable expense. The children had made their views known to the court through interview with me and they are clearly detailed in this report."
However, perhaps surprisingly, the last sentence of paragraph 93 and the first sentence of 94 reads as follows:-
"The children each expresses a strong wish to remain in England with their mother and particularly K who would 'fight' and not get on the plane. If the court determined the children should return to Poland K is 15.3 years of age and if he chose to, could seek his own legal advice and I would expect him to be considered competent to give instruction if he did."
On the 11 October the trial took an unexpected turn when the mother sought to fortify her case on K's objections by recounting a conversation she had had with K, unrecorded in her statements and not mentioned in Mrs Julian's report. The Judge required that evidence to be given on oath.
When she had had her say the Judge asked her whether she would not accompany the children and look after them in Poland until her outstanding application to the Zamosc court was decided. She said that she would, that she and the children could live with her mother who did not live in the same town as the father. This was undoubtedly surprising since it was not a possibility outlined in either of her statements.
The Judge adjourned over night to enable Mr Anderson, who represented the father below, to obtain instructions on undertakings to ensure the mother's security on return and pending the decision of the Zamosc court.
Conventional undertakings were proffered on the next day and the Judge delivered his judgment granting the application for return.
If the Judge did not find that the children objected to return, then Article 12 required the return order. If he found that the children objected to return then he could nevertheless order a return in the exercise of the discretion conferred upon him by Article 13.
It is by no means clear by which of these two routes the Judge arrived at the order for return. The relevant passages are as follows:-
57 How shall I approach the question of discretion assuming it arises?
58 I say 'assuming it arises' for the obvious reason that looking at what the children say and assessing its weight in the light of the objective evidence, I have real doubt that these objections are in fact made out overall. I nevertheless, if I am thought to be wrong about that, now consider whether or not to exercise my discretion in favour for or against a return.
60 I have therefore decided that, on balance, taking account of all the above factors, that even if the 'objections' are thought by others to be fully made out (which I have already clear I have real doubt about) I would exercise my discretion in favour a return.
Perhaps not surprisingly in the light of what the children had said and the observations of Ms Julian in paragraph 94 of her report, the children found their way to Ms Hansen, a partner in the London firm of Freemans. She filed a statement to record her interview with the three children and applied for leave to intervene and for permission to appeal.
I considered her papers at a time when a permission application from the mother was mooted but not yet filed. I directed an oral hearing on notice of any applications for permission with appeal to follow on 25 November. In the interim the mother's appellants notice was filed.
We first heard Mr Gration advance the mother's application for permission which we refused for reasons which need not be here repeated.
By contrast we granted the children's application for permission which had been articulated in amended grounds of appeal and a skeleton argument settled by Mr David Williams.
Mr Williams submitted that he was entitled to succeed on two grounds. First that the Judge had fallen into serious error in not of his own motion ordering separate representation for the three mature and articulate children who so...
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