Re KP (A Child) (Abduction: Rights of Custody)

Hearing date: 6 th February 2014

This is the judgment of the court with which all three members agree.

This is an appeal from a decision of Mrs Justice Parker made on 5 ^th November 2013 at the conclusion of Hague Convention proceedings seeking the return of a child to Malta pursuant to the Child Abduction and Custody Act 1985. At the conclusion of the final hearing the judge ordered that the child should return to Malta. The mother's appeal is brought before this court, permission having been granted by Black LJ on 12 ^th December 2013.

Although other grounds are relied upon, the primary thrust of the appellant's case focuses upon the fact that the judge conducted an extensive meeting with the child during the hearing.

The child, K, was born on 9 ^th September 2000 and is therefore now 13.5 years old. She is Maltese. With the exception of two periods of separation, her Maltese parents cohabited with each other from 1999 until April 2013. K has always lived in Malta, save for a brief period in England in 2003. She has a Maltese grandfather who lives in London. On 12 ^th June 2013 the mother brought K to England, without the knowledge or consent of the father. Since that time they have been living with the maternal grandfather in London. The father issued proceedings in England and Wales under the Hague Convention. Following a number of short early hearings which are uncontroversial, the final hearing before Parker J occupied two separate court days on 23 ^rd September and 26 ^th September 2013. By that stage the mother accepted that the father had rights of custody within the terms of the Hague Convention and that her removal of K to England in June 2013 amounted to a "wrongful removal", thereby triggering a requirement for the court summarily to order K's return to Malta unless one or more of the exceptions within the Convention was established.

The mother relied upon two such exceptions, firstly the child's objections and secondly Article 13(b). The relevant terms of Article 13 of the Convention are as follows:

"Child objections

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Article 13(b)

… the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

In support of her case, the mother made criticisms of the father and his behaviour, sought to characterise him as angry, moody and aggressive, but fell short of complaining of actual physical violence. There is a dispute between the parents as to what part the father played in K's upbringing before the separation.

So far as K is concerned, she was interviewed by a member of the CAFCASS High Court team on 16 ^th September. During the course of what was plainly a substantial discussion, K stated that she would not be returning to Malta. She described Malta in negative terms, particularly highlighting that it was a small island, where everybody knew each other's business, where she had experienced poverty and that, although the weather and the scenery were nice, the language and the people were "horrible". She also spoke in negative terms about her father. Later in the interview on the question of how K would respond if she were required to return to Malta she stated that she would need to be "tranquilised to get on the plane". She told the CAFCASS officer that she would simply refuse to go.

The CAFCASS assessment spoke positively about K, who had impressed the officer as an articulate, witty, confident and engaging young person, for whom Malta had become associated with conflict and difficulties. Whilst the author of the report did not identify information indicative of a risk of grave harm to K were she to return to Malta, there was concern about the strength of K's expressed refusal to do so.

K was not separately represented before Parker J, but she has been a party, represented by counsel, to this appeal.

The plan for the judge to meet K seems to have developed during the oral testimony of the CAFCASS officer on the first morning of the hearing. The topic of a judicial meeting, unhelpfully, was not covered in the CAFCASS officer's written report. During her oral evidence the CAFCASS officer explained how K 'really feels unheard' and she advised that it would be 'really helpful' for the judge to meet with K. The transcript then records a discussion about whether any meeting should be before the court made its decision, or after, or both. The CAFCASS officer and the judge were of the same view that, in this case, it was likely to be helpful for the judge to meet K both before the decision was made and afterwards. K, who was not expecting to come to court that day, was collected from school and brought to the Royal Courts of Justice. When she met the judge she explained that she had known that she would be meeting the judge at some stage, but had not expected it to take place that day.

Given the importance that the judge's meeting with K plays in the appeal we propose at this stage to set out the judge's account in relation to the meeting as it appears at paragraphs 15 to 22 of her judgment.

"15. At the outset I discussed with the parties, and again with the CAFCASS officer (who was the first witness) whether I should see K. I indicated my intention to:

i) tell her that I was conducting a limited evaluation in accordance with an international agreement;

ii) see her in accordance with the Guidelines for Meeting Children [2010] 2 FLR 1872. The Guidelines stress that the child should be assisted to feel part of the proceedings, and to understand the process as well as expressing their views.

16. I stated that my usual practice with children of this age is to see them in the courtroom, although sitting in the well of the court, with the guardian, the associate, the usher and my clerk present (to assist with a note). I said that I would speak to K about whether she was happy about this. My reason for seeing K in the courtroom rather than in my room was:

a) so that there could be a recording;

b) because I consider it important that a young person of K's age should appreciate the seriousness of the issues and that the meeting is part of the court process;

c) Mr Devereux in particular stressed that I should see K in court so that our discussion could be recorded and the mother's legal team could obtain a transcript.

17. I expressed my view (not for the first time) that with a young person of this age:

a) I should stress to K that she had a responsibility to comply with an order of the court, if made after I had considered her objections and concluded that they did not justify non-return.

b) I was entitled to form an evaluation of her wishes and feelings including on her presentation and demeanour and take into account any differences in what she had said.

18. Mr Devereux questioned the purpose and status of my discussion. I accept Mr Boyd's submission that I was in fact hearing K's representations: hearing her voice direct, not evidence, and in some respects akin to submissions. In that context, it was permissible for me to probe what she said not by in effect cross-examining her but by asking her to expand and to explain.

19. After I had raised the question of seeing K Mr Devereux referred me to Re G (Abduction) (Children's Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, repeated in Re J (Abduction) (Children's Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457 that the Judge needs to assess where a return order will lead if enforcement were resisted, and could be an influence for acceptance. I had already raised this issue.

20. I saw K for over an hour. I reported back in detail after the meeting. I have a very full note, and had at the time a very clear recollection of what had been said. I have checked my note.

21. K was brought to court by her grandfather. She had not expected to come to court that day, but at a later date. Why this was, since the hearing was originally listed only for one day, I do not know. K agreed to see me in the courtroom, with the tape on. She understood that there could be no secrets, and that a transcript might be obtained.

22. K said something to the CAFCASS officer after the meeting with me and the CAFCASS officer gave further evidence about this. All agreed that this justified the offer of another meeting between K and the CAFCASS officer. K took this up and the CAFCASS officer provided another brief report."

In addition to the judge's account as it appears in the judgment, we have been provided with a transcript of the entirety of the meeting between K and the judge.

Returning...