Re M (Children) (Abduction)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Custody – Mother wrongfully removing children from Zimbabwe – Father applying for return of children – English court making return order – Mother appealing – Whether court in error – Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 12 and 13(b).
In 1993, the parents were married by a customary ceremony in Zimbabwe. They had two children aged 12 and 10 respectively. A civil law marriage was celebrated in 2000, very shortly before the parties’ separation. In 2001, the mother left the family home and the children remained in the care of their father. The mother submitted an application to the magistrates seeking custody of the children, but her application was subsequently dismissed when she failed to attend. In 2002, the mother left Zimbabwe to visit the United Kingdom, but was immediately deported. She assumed a new identity and two years later she returned to Zimbabwe where she had periodic contact with the children. The mother entered into a bigamous marriage with M. Three days after the marriage she executed a planned abduction to leave Zimbabwe with the two children. The mother and the two children arrived in the United Kingdom and sought asylum. The father initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980, seeking the return of the children. At the hearing, oral evidence was heard from the parents and also a CAFCASS officer. The judge examined the defences put forward by the parents; dealt at length with the immigration position; acquiescence; intolerability and grave risk of harm. The judge found that the mother had established settlement in the United Kingdom and that the children did not object to remaining in the United Kingdom. However, in the event, the judge exercised his residual discretion to order the return of the children to Zimbabwe. The mother appealed against that decision. She submitted, inter alia, that the brevity of the judge’s balancing exercise had meant that he had not factored in a number of considerations; and that he had directed himself wrongly as to the purpose and policy of the Convention.
Held– There were no circumstances in the instant case which amounted to a defence under art 13(b) of the Convention. The judge had not in anyway misdirected himself. He had, in considering the law governing art 12 of the Convention, referred to the relevant Court of Appeal authorities and had not been misled. The father’s submissions were well made and viewed in totality, he had sufficiently demonstrated that the judge had exercised his
residual jurisdiction without misdirection; without attaching weight to immaterial matters; and without disregarding to any degree the material matters. The judge had legitimately exercised his residual discretion and the balance clearly tipped in favour of ordering the return of the children to Zimbabwe. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentC (a child) (abduction: settlement), Re[2006] EWHC 1229 (Fam), [2007] 1 FCR 649, [2006] 2 FLR 797.
C (abduction: settlement) (No 2), Re [2005] 1 FLR 938.
Cannon v Cannon[2004] EWCA Civ 1330, [2004] 3 FCR 438, [2005] 1 WLR 32, [2005] 1 FLR 169.
Klentzeris v Klentzeris[2007] EWCA Civ 533, [2007] 3 FCR 580.
M (a child) (abduction: child’s objections to return), Re[2007] EWCA Civ 260, [2007] 3 FCR 631, [2007] 2 FLR 72.
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.
Vigreux v Michel[2006] EWCA Civ 630, [2007] 3 FCR 196, [2006] 2 FLR 1180.
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 applied for permission to appeal against the decision of the judge whereby he exercised his residual discretion to order the return of her children to Zimbabwe. The facts are set out in the judgment.
Michael Nicholls QC and Edward Devereux for the mother.
Marcus Scott-Manderson QC and David Williams for the father.
THORPE LJ.[1] In form this is an application for permission to appeal, with appeal to follow if permission granted. The case is finely balanced and we have, from the outset, treated the hearing as the hearing of an appeal without going through the formality of granting permission. The case raises a question as to how the judge should exercise his discretion in circumstances where he has found that the defendant to an originating summons under the 1980 Convention has successfully made out a defence of settlement under art 12(2) and a defence of child’s objection under art 13. The real question in the end for our determination is whether this judge, having scrupulously found all the relevant facts, having equally scrupulously directed himself as to the relevant law, then ultimately explained his exercise of the residuary discretion without misdirection, and sufficiently extensively to demonstrate that he had had regard to all the relevant considerations.
[2] With that introduction I turn to a brief summary of the essential facts. Between the cases advanced by the plaintiff and the defendant there was a considerable gulf, resolved by the judge’s crucial findings as to credibility. He said in paras 56 and 57 of his judgment:
‘56. Each of these parents asserts that the other has sought deliberately to mislead me in their evidence on many of the crucial issues. A combination of an analysis of the written documentation referred to above, and hearing each parent give oral evidence from the witness box has, I believe, given me the fullest opportunity to come to clear conclusions on this subject. In the course of my further consideration of some aspects of the disputed evidence below I shall give specific examples which have led to my conclusions on credibility, but I state now by way of preliminary that overall I found the mother to be devious, untrustworthy, and frequently given to lying, such that I can place little or no confidence in much of what she said.
57. As to the father’s evidence, I considered him to be measured, frank (even where his answers were against his interests) and trustworthy. This finding has implications not only for my findings on issues such as consent and acquiescence, but also in what faith I can put in the undertakings which he offers to the court.’
The reference in that citation to written documentation takes me back to the judge’s earlier record of the material available to him. He said:
‘I have been provided with a trial bundle running to three volumes. Leaving aside nearly 50 pages of preliminary documentation prepared by counsel pursuant to the provisions of the President’s Practice Direction of 27 July 2006 … there were over 550 pages of affidavits (including exhibits); a short section combining material from CAFCASS and from the Home Office; a miscellaneous collection of documentation including the articles from Newsweek and The Economist; letters concerning the immigration position etc, amounting to 125 pages; extracts from Hansard; and two full lever-arch files of Treaties, authorities, and reports from external agencies.’
[3] That demonstrates that this was no ordinary trial. It was extraordinary in the extent of the documentary evidence and it was extraordinary in the sense that the judge heard oral evidence from both the parents. No doubt those extraordinary features assisted him in arriving at the very trenchant findings that he made as to the respective credibility of the parties. The consequence is that the relevant history can be recited thus: the plaintiff father is 40 years of age. The defendant mother is 31 years of age. The couple married by customary ceremony in 1993. Their first child, M, was born in Zimbabwe, where the parents had married, [in] August 1994. She is, therefore, just 13 years of age. The second child, T, was also born in Zimbabwe [in] April 1997. She is, therefore, ten. A civil ceremony of marriage was celebrated on 21 October 2000, very shortly before the parties’ final separation. Early in 2001 the mother left the family home and the
children remained living in their father’s care. The mother submitted an application to a local magistrates’ court seeking custody of the children but her application was dismissed when she failed to attend the hearing. On 20 January 2002 she left Zimbabwe for England but was immediately deported back. Thereafter she assumed a new identity and successfully achieved an entry to this jurisdiction. In December 2004 she returned to Zimbabwe and thereafter had periodic contact with the two girls.
[4] On 2 March 2005 she entered into what seems undoubtedly a bigamous marriage to a Mr M in a civil ceremony in Harare. Three days later she executed a carefully planned and prepared abduction, leaving Zimbabwe with the two children by bus via Mozambique and Malawi to Kenya. She was able to achieve the abduction by taking advantage of the father’s trust and removing the children during a period when she was having staying contact. On her arrival at Heathrow with the children, she presented herself and the children on Malawian passports and sought asylum. Three days later Mr M, who I will afterwards refer to as her husband, arrived and also sought asylum. The mother’s application was refused on 8 April and on 27 April she sought to lodge a notice of appeal which was subsequently held to be out of time. There are continuing immigration proceedings which seem to have been revived by the onset of the litigation within the Convention. It was only in late 2006 that the father discovered the possibility of his Convention rights, and an application was submitted to the Zimbabwean Central Authority. It was not transmitted to the Central Authority in London until 26 January 2007. Unfortunately proceedings under the Act and the...
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