Re J (A Child) (Custody rights; Jurisdiction)
|LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD BROWN OF EATON-UNDER-HEYWOOD
|16 June 2005
| UKHL 40
|16 June 2005
|House of Lords
 UKHL 40
Lord Nicholls of Birkenhead
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
Timothy Scott QC
(instructed by Percy Short and Cuthbert)
Henry Setright QC
(instructed by Dawson Cornwell)
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I would allow this appeal.
I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I agree, I too would allow this appeal.
I am in full agreement with the opinion of my noble and learned friend Baroness Hale of Richmond, which I have had the privilege of reading in draft. For all the reasons given in her opinion I too would allow this appeal.
The issue of principle in this case is the proper approach to applications for the summary return of children to countries which are not parties to the Hague Convention on the Civil Aspects of International Child Abduction. But it is also another example of intervention by the Court of Appeal in the exercise of discretion by a trial judge despite the fact that he had, in the view of the appeal court, properly directed himself on the law. I believe that the Court of Appeal were wrong on both points.
The factual background
These proceedings are about a little boy, F, who was born in the United States on 5 April 2000. He is a citizen, not only of the United States, but also of the United Kingdom and of Saudi Arabia. His mother was born in the United Kingdom in 1972 to Iraqi Kurdish parents who had come here as refugees. The family moved to Saudi Arabia when she was six and she has dual citizenship. Her father is still working there as a doctor but her mother has already returned to live in this country where they have always kept a home and both plan to retire. The mother returned here aged 16 to study for her A levels and then for a degree. In 1998 she went back to work in Saudi Arabia where she met the father, who is a Saudi citizen. They were legally married there according to Shariah law in December 1998. Their son was born in the United States for medical reasons but was soon taken to Saudi. However, marital difficulties arose in 2001, and the mother brought the child to this country for a while, but she returned to begin divorce proceedings in the Shariah court. The father agreed to divorce the mother later that year, and it was a term of the divorce agreement that the mother would not remove the child from Saudi Arabia without the father's consent. However, the parents remarried in accordance with Shariah law in January 2002. At the end of July 2002, the mother and child came here again with the father's consent, initially for a holiday but he later agreed to their staying on while she pursued a one year master's degree course. The father visited them here in October 2002 and their marital difficulties returned. The mother decided that she did not wish to return to Saudi Arabia when her course was over. Technically, had this been a Hague Convention case, this would probably have amounted to a wrongful retention of the child, albeit far removed from the popular picture of a kidnapping or even an abduction.
On 7 May 2003, the mother presented a divorce petition in the Principal Registry of the Family Division, relying for jurisdiction upon her domicile of origin in this country together with six months' habitual residence. She also applied to the Muslim Council in London to obtain a divorce according to Shariah law. On 26 June 2003, the father applied for a specific issue order under section 8 of the Children Act 1989 that the child be summarily returned to Saudi Arabia. He also applied for a stay of the English divorce proceedings so that matters could be dealt with in the Shariah courts there.
His case was that he accepted that the marriage was at an end, and that the child should continue in his mother's care, but that they should both return to live in Saudi Arabia. The mother applied for a residence order under the Children Act 1989. Her case was that following the breakdown of her marriage, she wished to remain in this country and that as she was the natural carer of the child, he should remain here with her.
The applications came before Mr Justice Hughes in October 2003. The principal issue was whether he should direct the summary return of the child to Saudi Arabia. Accordingly he dealt with that first. He identified six principles from the authorities. He regarded the decision as a difficult one (para 69). On balance, were it not for one factor, he would have found it in the child's best interests to be returned to Saudi Arabia for his future to be decided 'according to the norms of his own society' (para 67). The factor tipping the balance the other way, however, was that the father had raised and then withdrawn allegations about the mother's association with another man. The judge had heard expert evidence about, among other things, the effect of such allegations in Saudi Arabian Shariah law. He was 'seriously concerned that an occasion will arise in which [the child's] interests are seriously damaged by a dispute between the parents in which father deploys complaints of this kind and they have the dramatic effects that they would have in Saudi Arabia' (para 64). Hence he declined to order that the child be summarily returned to Saudi Arabia. As the father had always taken the view that the child should be looked after by the mother, he agreed that if F was not to be summarily returned to Saudi Arabia, a residence order should be made in her favour with reasonable contact to him.
The Court of Appeal held (Re J (Child Returned Abroad: Human Rights) ; , para 6) that there could be no criticism of the judge's 'impeccable direction' on the applicable legal principles. Nevertheless, they allowed the father's appeal on the ground that the judge had 'elevated this specific anxiety above a level that the evidence justified' (para 19). Accordingly it should not have had such a decisive effect in what had earlier been described as 'an otherwise balanced judgment' (para 16).
Should the Court of Appeal have intervened?
The Court of Appeal appears to have intervened on the basis, first, that the judge's conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge's evaluation of the father's present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge's evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in , at pp 1372-3, an appeal court is not entitled to interfere.
Furthermore, once the judge has made such a finding, it becomes a factor to be weighed in the balance in the exercise of his discretion. To say that it should not have tipped the balance in a case such as this, which the judge regarded as a difficult one, is tantamount to saying that it should not have been taken into account at all or that the other considerations were so strongly in favour of return that it should not have been allowed to outweigh them. But even the brief account of the facts given above shows that this was not a case in which all other considerations pointed only one way. The age of the child, the length of time he had lived here and the substantial connection of both mother and child with this country were all relevant.
If there is indeed a discretion in which various factors are relevant, the evaluation and balancing of those factors is also a matter for the trial judge. Only if his decision is so plainly wrong that he must have given far too much weight to a particular factor is the appellate court entitled to interfere: see . Too ready an interference by the appellate court, particularly if it always seems to be in the direction of one result rather than the other, risks robbing the trial judge of the discretion entrusted to him by the law. In short, if trial judges are led to believe that, even if they direct themselves impeccably on the law, make findings of fact which are open to them on the evidence, and are careful, as this judge undoubtedly was, in their evaluation and weighing of the relevant factors, their decisions are liable to be overturned unless they reach a particular conclusion, they will come to believe that they do not in fact have any choice or discretion in the matter. On that ground alone, and even assuming that the principles applied by the judge were indeed correct, I would allow this appeal.
The issue of principle
But were those principles correct? The mother takes issue, in particular with the judge's fourth, in...
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