Re R (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice McFarlane,Lord Justice Floyd |
| Judgment Date | 06 September 2013 |
| Neutral Citation | [2013] EWCA Civ 1115 |
| Docket Number | Case No: B4/2013/1963 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 September 2013 |
[2013] EWCA Civ 1115
Lord Justice Patten
Lord Justice McFarlane
and
Lord Justice Floyd
Case No: B4/2013/1963
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE SITTING AT READING
DISTRICT REGISTRY
HHJ Oliver of 25th June 2013 sitting as a Deputy Judge of the High Court
IN THE MATTER OF [N] (A GIRL BORN ON 8TH OCTOBER 2002)
IN THE MATTER OF THE CHILDREN ACT 1989
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Newman (instructed by Fisher Meredith LLP) for the Appellant
Julie Okine (instructed by Clifton Ingram Solicitors) for the Respondent
This is the judgment of the Court.
The issue on this appeal is whether HHJ Oliver was right to discharge a prohibited steps order made by the District Judge in Children Act proceedings concerning a 10 year old girl [N] and to have granted to the child's mother permission to take her to Kenya for a holiday. The father opposed the mother's application on the grounds that there was a real risk of the child being abducted and retained in Kenya which is not a signatory to the 1980 Hague Convention and that the retention of the child in that jurisdiction would have very serious adverse consequences for her. The father now appeals against the orders which the judge made on the ground that he failed properly to carry out the assessment of risk and balancing exercise described by this Court in Re K (Removal from Jurisdiction: Practice) [1999] 2 FLR 1084. It is also said that the safeguards imposed by the judge as conditions of the specific issue order which he made were ineffective to minimise the risk of abduction and detention and that in exercising his discretion the judge relied on expert evidence which was both inadequate and incomplete.
The father and mother married in Kenya in May 2001. The father is British and is now aged 67. The mother was born in Kenya but is now a British citizen and no longer has Kenyan nationality. She is now aged 37. She came to live in England with the father in 2001. In 2009 the father and mother were divorced and there were ongoing Children Act proceedings about the child's residence. In October 2009 the father applied for a residence order and a prohibited steps order ("PSO") to prevent N being removed to Kenya by her mother. At a final hearing on 26 th July 2010 HHJ Hamilton made a residence order in the mother's favour with a generous contact order in favour of the father. Then in December 2010 the father made a further application for a residence order and subsequently for a PSO. The mother responded by making her own application for a s.91(14) order.
There were various adjournments of those substantive applications and in August 2011 the mother applied for permission to travel with N to her brother's wedding in Kenya. This application had to be adjourned due to problems with the lack of expert evidence and the application therefore lapsed. In February 2012 the residence and the s.91(14) applications were determined but an application made by the mother in December 2011 for permission to travel with N to Kenya for the Easter 2012 holidays was adjourned with directions for further expert evidence. The application then proceeded in the High Court (in accordance with Practice Direction: Allocation and Transfer of Proceedings [2009] 1 FLR 365, paragraph 5.2(6)), but was apparently released to be heard by a deputy High Court Judge, if no judge of the Division was available.
An expert report by Mrs Wanja Wambugu, a solicitor advocate and notary practising in Nairobi, was filed on behalf of the mother in August 2012. This consists of a two-page letter, addressed to the mother's solicitors, and deals with what remedies the father could obtain from the Kenyan Courts were the mother and N to fail to return to the UK. In short, the letter says that although Kenya is not a signatory to what is described in the letter as the Rome Convention and the direct enforcement of foreign custody orders is not available, there could be what are described as parallel proceedings in the Kenyan Children's Court for an order requiring the child to be returned to the UK at the end of the holiday. The letter refers to the Kenyan Children Act 2001 but does not contain any further information as to the principles which would be applied by the Kenyan Court in considering such an application by the father.
On 19 th November 2012 HHJ Hamilton made further directions including one which required the mother's solicitors to send a letter of instruction to Mrs Wambugu seeking clarification as to whether mirror orders for the child's return to the UK at the end of the holiday could be obtained prior to her arrival in Kenya; how such orders would be enforced; the scope for the mother to obtain a material variation or the discharge of such an order; and details of the costs, timescales and procedure involved in applying for such an order. Details were also sought as to what was meant by the reference to "parallel proceedings" in the first report.
In response to this letter, the mother's solicitors received a further two-page report from Mrs Wambugu which states that a mirror order from the Kenyan Court would have to be obtained once the child was in Kenya; that it might be necessary for the parents and the child to attend court and give evidence; that the remedy for non-compliance with the order would be committal; that the mother could apply to vary or discharge the order; and that an application by the father for an order would take about 2 weeks to be dealt with and would cost the equivalent of about £3,500. It contains no further explanation of the earlier reference to parallel proceedings.
It was hoped that the mother's application would be heard by Pauffley J, the Family Division Liaison Judge, but this proved impossible and instead it came before HHJ Oliver (sitting as a judge of the High Court) in April 2013. The hearing was spread over three days after which (on 18 th April) Judge Oliver gave a judgment in which he stated that he was impressed with the mother's evidence that she was a British citizen who wished to stay here and enjoy the benefits of life in this country and that the risk of N not being returned was not great. He went on to say:
"I believe that [the mother] does want to go and see her family, but she is actually very content with her life in this country and would not want to give that up. Therefore, my decision at this point is that she should be entitled to take [N] to Kenya. However, I do not think it is as simple as that at this stage. There needs to be some more reassurance put in place, because whilst I can see that the risk is not that great, we have to ameliorate that risk as much as possible. It is about reassuring [the father] as much as it is about securing [N's] return.
… However, I do need further reassurance myself by the processes I have described and discussed."
Various possible safeguards had been considered during the hearing. The judge accepted that the mother was not in the financial position to provide some kind of deposit against not returning the child. He recognised, based on the expert evidence, that the Father would have no right to apply to the Kenyan Court for an order for the return of the child either under the Hague Convention or by the reciprocal enforcement there of the contact and residence orders made by the English Court. Mirror orders could be made but it appeared that the Kenyan Court would not in practice make them (and perhaps had no jurisdiction to do so) unless and until the child was within the jurisdiction of that court. This means that the safeguard of the orders would not be in place prior to the child leaving this jurisdiction and there was the possibility that the mother would not apply for the orders once in Kenya or that they might not be granted. The father would, according to the first report, have a right to bring proceedings in Kenya under the Kenyan Children Act if his daughter was not returned but the cost of making such an application together with the cost of travel to and accommodation in Kenya meant that this would be an unaffordable option for the father in this case.
Two other possibilities were considered. One was for the mother to deposit her and the child's passport with the British High Commission in Nairobi on terms that they would only be used to enable them to return to the UK. But, as the judge recognised, this involved an assumption that the mother and the child should be allowed to travel to Kenya and did not offer any protection against the mother's failure to leave that country and return with N to the UK. The Foreign Office has also subsequently confirmed that the High Commission would regard itself as obliged to deliver up the passports to their holders if required.
The second alternative which the judge considered was that the mother should enter into a notarised agreement containing an acceptance by the mother that the child's best interests lay in her continuing to be habitually resident in the UK and undertaking to return with her at the end of the holiday period. At one point in his judgment the judge described such an agreement as the nearest one can get to an international order, although at a later point he said that he was not clear how such an agreement would be treated in Kenya. The provision of such an agreement together with the lodging of the agreement and the passports at the High Commission in Nairobi were, in the circumstances, the only safeguards which the mother could offer and the judge (as explained in the passages from his judgment quoted...
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