Re Jones (No 2)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 21 August 2013 |
| Neutral Citation | [2013] EWHC 2730 (Fam) |
| Court | Family Division |
| Docket Number | Case No. FD12P02046 |
| Date | 21 August 2013 |
[2013] EWHC 2730 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Sir James Munby
(President of the Family Division)
(In Private)
Case No. FD12P02046
APPEARANCES
Mr. E. Devereux (instructed by Dawson Cornwell) appeared on behalf of the Applicant (Father).
Mr. C. Hames (instructed by the Bar Pro-Bono Unit) appeared on behalf of the 1 st Respondent (Mother).
Mr. M. Hinchliffe (Solicitor, instructed by Cafcass Legal) appeared on behalf of the Guardian.
THE PRESIDENT:
I have before me an application which arises in most unusual circumstances. The mother, who is Welsh, and the father, who is Spanish, married in 1995 and have five children; running from the eldest to the youngest, Sara, Jessica, Tomas, Eva and David. The marriage unhappily ran into difficulties and the parents separated in 2008. Since then there has been an enormous amount of litigation both here and in Spain.
The father has twice made successful applications in this country for orders for return of the children pursuant to the Hague Convention. The second set of Hague proceedings culminated in an order made by Hedley J on 9 October 2012. That, which one would normally have expected to be the end of the litigation in this country, was simply the prelude to a blizzard of litigation pursued in this country almost without cease since then. A number of judges have been involved and have given many judgments. For present purposes I need refer only to three: first, the judgment which, as I say, Hedley J gave on 9 October 2012 ( [2012] EWHC 2955 (Fam)); secondly, a judgment which Theis J gave on 25 January 2013 ( [2013] EWHC 88 (Fam)); and thirdly, the judgment which I handed down this morning ( [2013] EWHC 2579 (Fam)).
The one common feature of the litigation has been the expressed objection of the second and third of the children – Jessica and Tomas – to return from this country to Spain. That objection was ventilated before Hedley J. He dealt with it in this way:
"It seems to me to be one of those cases where the importance of upholding Convention policy in the face of flagrant and, in this case, repeated breach, seriously outweighs the objections [of the children], especially when every matter that is relied on in support of those objections and in support of retention in this country is before the Spanish court and all the evidence is capable of being deployed before it. That is the court with jurisdiction, the court that ought to make the order and, for all those reasons I propose to direct the summary return."
The mother has made repeated attempts since the delivery of that judgment and the making of that order to have Hedley J's order either set aside, stayed or discharged. All such applications have failed. The order for return which he made on 9 October 2012 remains in force.
There was a specific order that by 4 o'clock on 12 October 2012 the mother was to take the children to Cardiff Railway Station (she lives in Llanelli, also in Wales) so that the father could collect them and take them back to Spain. They were not taken to Cardiff Railway Station. The mother, together with her partner, then went on the run with the four younger children who were the subject of Hedley J's order. In consequence of various orders made by the court there was considerable publicity about the abduction, which no doubt played a contributory part in the mother and her partner and the children being discovered some days later. As a result of further orders of the court the two youngest children were returned to Spain with the father. All the subsequent litigation in this country has focused upon the two older of the four children who were subject to Hedley J's order.
The father sought, understandably, a further order that the mother return the children to Spain, not an order in substitution for but an order by way of implementation of Hedley J's original order. That matter eventually came before Theis J. She has the inestimable advantage of hearing evidence from Mr. John Mellor, whose expertise and experience in matters of this sort is second to none. There is a transcript of the evidence that Mr. Mellor gave to Theis J on 30 November 2012. His evidence focused upon the wishes and feelings of Jessica and Tomas as expressed to him in interviews. The whole of that transcript requires careful reading. I illustrate the high points by reference to a small number of particularly striking passages. Quoting what he had been told by Tomas, Mr Mellor said:
"He was absolutely insistent he wouldn't co-operate. He said: 'You'd have to tie me up; you'd have to drug me'."
Jessica is similarly recorded by Mr. Mellor as having said to him:
"I don't think anyone in this country is going to drag me kicking and screaming, they're not going to drug me, they're not going to put me in handcuffs. I'm not going to get on that plane. Once I get to Spain, if I'm not legally allowed to live with my mum here in Wales, they won't let me get on a plane to come back home."
Mr. Mellor further assisted Theis J with a written report dated 10 January 2013 where he summarised his reading of the situation as follows:
"I remain of the view that in their present frame of mind, it is extremely unlikely that Jessica and Tomas can be prevailed upon to return to Spain. Though others, notably the father, may have constructive, practical suggestions to make, for my part I cannot identify any means by which their compliance might be secured."
Further evidence of the children's behaviour and attitude can be found in notes prepared by the local authority of events which took place in Wales, and which can be found at Divider D, pp.177 and 231, in the bundle. What was Theis J to do?
Following the final hearing of that application on 16 January 2013 she delivered a considered written judgment on 25 January 2013. She set out the parents' position as being very simply this: The father was seeking an order that the mother return the children to Spain. The mother did not support the making of any order against her and sought an indefinite stay on the order for return which had been made by Hedley J. Theis J, and if I may respectfully say so, with every justification for expressing these views, said that in her judgment:
"The harsh reality is that both Jessica and Tomas have been fundamentally let down by their mother by her refusal to comply with the court order requiring them to return to Spain."
A little later in the judgment, to much the same effect, she said this:
"The mother is to be deprecated for the position she takes. She has, in my judgment, abdicated her parental responsibility for these children and she will have to answer to them and their siblings in due course."
That said, Theis J recognised that the decision she had to reach was not and could not be in any way determined by what she called the mother's "wholly unjustified position", but as she appropriately said it was not something that she could ignore when she had to consider all the circumstances. Her conclusion was that, albeit "finely balanced", she had come to "the very clear conclusion" that in what she called the particular and unusual circumstances of the case she should not make the order sought by the father.
Theis J set out her reasons for coming to that conclusion in a lengthy paragraph (para. 54) which requires to be read, although it does not require to be read in full into this judgment. In sub para (2) she said:
"There is, in my judgment, very little...
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