Re M (Abduction: Child's Objections)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Court | Court of Appeal (Civil Division) |
Abduction – Child’s objections – Mother unlawfully removing child from Serbia – English court making return order – Mother appealing – Whether court erring in failing to accede to application for oral evidence – Whether court erring in failing to take account of child’s objections – Convention on the Civil Aspects of International Child Abduction 1980, art 13(b).
The parents never married but cohabited for several years. The mother, who was a British subject, gave birth to the child, M, in 1999. Subsequent to M’s birth, the mother and father moved to Belgrade, Serbia. The relationship, which allegedly involved violence by the father upon the mother, broke down, and the father left the family home in January 2005. In March, the custody authority in Belgrade awarded custody of M to the mother with provision for contact by the father. In August, the mother took the child to England, and the Serbian court ordered that the father should be granted custody in lieu of the earlier order. He instituted proceedings in England under the Convention on the Civil Aspects of Child Abduction 1980 (the Convention) for M’s return to Serbia. The mother consented to an order for return upon the basis of undertakings pending further order of the Serbian court. Before that took effect, the mother invited the court to obtain a CAFCASS report to investigate whether M had objections. The CAFCASS officer gave evidence that M did not want to return as she had seen the father hit the mother. The court declined to amend the order and the mother returned to Serbia with M. The regional court of Belgrade allowed the mother’s appeal against the order granting custody to the father, and she applied for leave permanently to remove the child to England. On several subsequent occasions, the mother handed packages of cocaine, which she alleged had been planted in her possession by the father, to the police. In August, she was allegedly targeted by the red dot of a rifle’s laser at her home. She took the child to England, returning to Serbia in September. In October, she returned to England, enrolling M at school. The father applied for M’s return pursuant to the Child Abduction and Custody Act 1985. The mother acknowledged that the removal had been unlawful pursuant to art 3 of the Convention, but in defence relied upon art 13(b) thereof and upon M’s objections to returning. The court dismissed an application by the mother for oral evidence in relation to the art 13(b) defence and ordered the child’s return. The mother appealed, submitting, inter alia, that the judge had been in error not to accede to her application for oral evidence to
resolve any aspects of the evidence in relation to the art 13(b) defence in respect of which he retained doubts. It was further submitted that he had failed wrongfully to take the child’s objections into account.
Held– (1) Convention proceedings of the instant kind were summary proceedings, generally intended to be resolved on the basis of affidavits or statements which frequently embodied vigorously disputed facts, assertions and counter-assertions. It was also the case that, generally speaking, those disputed issues would be able to be sufficiently resolved, in the case of art 13(b) and child objection defences, by receipt of independent evidence such as that of a CAFCASS officer in child objection cases, or by evidence from a doctor or a psychiatrist in cases where the disputed issue principally concerned the effect of events on the child rather than the parties for the purposes of art 13(b). Save that it was frequently the case that the court would hear oral evidence from a CAFCASS officer as to a child’s objections, the hearing of oral evidence was and remained a rarity, if the speedy and summary nature of the proceedings was to be preserved. It was necessary and proper that, where the judge concluded that oral evidence might be determinative of the question of whether a defence had been established or not, he should enjoy the discretion to require oral evidence, though such a situation would not often arise, bearing in mind the high threshold of the Convention defences. The judge had been well within the ambit of the discretion, which he undoubtedly possessed in relation to the admission of oral evidence, when he had refused to require it in the instant case.
(2) Where a child’s objections were raised by way of defence, there were three stages in the court’s consideration. The first question to be considered was whether or not the objections to return were made out. The second was whether the age and maturity of the child were such that it was appropriate for the court to take account of those objections (unless that was so, the defence could not be established). Assuming a positive finding in that respect, the court moved to the third question, whether or not it should exercise its discretion in favour of retention or return. The instant case was an exceptional one which merited refusal of an order for immediate return. It was clear from the evidence of CAFCASS that the child was a bright eight-year-old, well able to understand and assimilate the questions which had been put to her and to give them considered answers. Her age and maturity were such that her clearly voiced objections were required to be taken into account by the court. The objections were undoubtedly strong and their nature was undoubtedly exceptional in the sense of the unusual circumstances underlying the strength of those objections, namely a campaign by someone (whether or not the father) who was bent upon planting drugs upon the mother in an effort not simply to harass her, but, inferentially, to secure her arrest, prosecution and imprisonment. The instant case was not one in which the child could be adequately protected from the eventualities which she feared by the undertakings offered by the father and incorporated into the judge’s order.
(3) It would not have been surprising if, as a result of the atmosphere in which M had been living and the mother’s hostility to the father, her views had been coloured by the unseemly tug of war which appeared to have occured in Serbia. However, quite independently of those matters, the deeply unsettling experiences of M as a result of police attention had been enough in themselves to create the fears rationally expressed by M. In this respect, it was largely immaterial whether the planting of the drugs was effected or instigated by the father, though, on the information before the court, no other candidate realistically emerged.
Accordingly, the appeal would be allowed.
Cases referred to in judgmentA (minors) (abduction: custody rights), Re[1992] 2 FCR 97, [1992] 1 All ER 929, [1992] Fam 106, [1992] 2 WLR 536, [1992] 2 FLR 14, CA.
D (a child) (abduction: custody rights), Re[2006] UKHL 51, [2007] 1 FCR 1, [2007] 1 All ER 783, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961.
R (child abduction: acquiescence), Re[1995] 2 FCR 609, [1995] 1 FLR 716, CA.
S v S (child abduction)[1993] 1 FCR 12; sub nom Re S (a minor) (abduction: custody rights) [1993] 2 All ER 683, [1993] Fam 242, [1993] 2 WLR 775, [1992] 2 FLR 492, CA.
T (abduction: child’s objections to return), Re [2000] 2 FLR 192.
W (a child) (abduction: conditions for return), Re[2004] EWCA Civ 1366, [2004] 3 FCR 559, [2005] 1 FLR 727.
Z v Z (abduction: children’s views) [2005] EWCA Civ 1012, [2006] 1 FCR 387; sub nom Zaffino v Zaffino [2006] 1 FLR 410, CA.
AppealThe mother appealed from the order of Singer J, dated 18 January 2007, whereby, on the application of the plaintiff father, the judge ordered the return to Serbia of the parties’ daughter M. The facts are set out in the judgment.
Marcus Scott-Manderson QC (instructed by Dawson Cornwell) for the mother.
Henry Setright QC (instructed by Reynolds Porter Chamberlain) for the father.
Sir Mark Potter P. Introduction[1] This is an application by the defendant mother (a 39-year old British subject) in Hague Convention proceedings, (ie under the Child Abduction and Custody Act 1985) for leave to appeal from the order of Singer J dated 18 January 2007 whereby, on the application of the plaintiff father (who is a Serbian national aged 44), the judge ordered the return to Serbia of the
parties’ daughter M, born on 23 February 1999 and now just eight years old, there being current between the parties substantive proceedings in Serbia relating to M’s care and welfare. The judgment pursuant to which the order was made was an oral judgment delivered on 16 January 2007, a transcript of which is before us.
[2] The mother acknowledged before the judge that the removal of M from Serbia was wrongful within the meaning of art 3 of the Convention, but she resisted the order for the return of M on the grounds (a) of what her then counsel Mr Reddish described as her ‘principal’ defence, namely that there was a grave risk that the return of M to Serbia would expose her to physical or psychological harm or otherwise place her in an intolerable situation within the meaning of art 13(b) of the Convention and (b) of M’s objections to returning to Serbia as set out in the report of Olivia Fitch, a CAFCASS Children and Family Reporter, dated 8 December 2006.
[3] In giving judgment, Singer J adverted to various matters raised by the mother as demonstrating threats, hostility and intimidation on the part of the father (but which he denied) relating to the risk of harm to M. The judge took the view that he could not resolve them on the application before him and that they were matters for the Serbian court and, on the basis of a number of protective undertakings offered by the father, he ordered the return of M to Serbia. However, the judge overlooked, or at any rate failed in his judgment to refer to or deal with, the defence based on M’s objections to her return. That being so, on 16 February 2007, the day before the mother was due to return to Serbia after a hold-up in obtaining the necessary passports under...
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