Re W (Abduction: Domestic Violence)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE SEDLEY,LORD JUSTICE WALL |
| Judgment Date | 06 July 2004 |
| Neutral Citation | [2004] EWCA Civ 1366 |
| Docket Number | B1/2004/1264 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 2004 |
[2004] EWCA Civ 1366
Lord Justice Thorpe
Lord Justice Sedley
Mr Justice Wall
B1/2004/1264
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION
(MRS JUSTICE BARON)
Royal Courts of Justice
Strand
London, WC2
MR A KIRK QC (instructed by Bindman & Partners of London) appeared on behalf of the Appellant/Defendant
MR H SETRIGHT QC (instructed by Dawson Cornwell of London) appeared on behalf of the Respondent/Claimant
The parties to today's proceedings began to cohabit in 1993. Their only child, S, was born in the United States of America on 21 May 1994. That was during the course of a brief visit that the parties made to Texas to explore business opportunities. Both parties are essentially South African through and through. It was from South Africa that the respondent mother left with S on 3 February 1997, marking the first separation in the family. There was, on any view, a great deal of volatility and turbulence in the relationship between the parents. The mother's second departure from South Africa with S took place in July 1997. Again she came to the United Kingdom, but, having briefly visited the Republic of Ireland, moved to Australia where she has family. Proceedings resulted in Australia which were compromised in a consent order of 11 December 1997 which essentially provided for shared parenting of S.
Pursuant to the agreement, the mother left S in the father's charge on 15 January for a period that was due to terminate on 30 March. On that date the father failed to return S to the mother, and, over the course of the following 28 days, moved rapidly between a number of African countries, then ultimately choosing Dubai, all of these being countries that were not signatories to the 1980 Hague Convention. This third period of unilateral separation ended with a telephone discussion between the parents on 1 May. The father's proposal was that they should marry without delay. The mother agreed on condition that the family should quit South Africa and move to the United Kingdom. The marriage took place in South Africa on 9 May, and the family moved to the United Kingdom on 10 June.
After six months in Europe, during which the family did not take root, they returned to South Africa in December 1998 and that remained the centre of family life until the fourth unilateral separation brought about by the mother's third return to the United Kingdom with S on 23 January 2004.
During these ten years of S's life the obvious hallmarks are the extent to which the child's upbringing has been disrupted by the adults' decisions to move across continents. The other hallmark has been the highly charged emotional relationship between the parents.
The mother's account of the marital history is that the father is an inherently violent, manipulative and abusive male. She says that in his early adult life he was diagnosed as suffering from a disordered personality which has found expression in his physical and sexual violence.
The father's account of the marital history is less clear, because to date he has only responded to the mother's allegations and either denied or taken issue with the scale of her charges. However it is, on his side of the story, the fact that in 1997 he was shot by the mother during the course of a violent altercation. As a result of the shooting, he suffered moderately serious injuries for which he was hospitalised for some time and which had to be corrected by three separate operations. The mother's admission of the shooting is mitigated by her assertion that she acted in self-defence during the course of what was a characteristically violent assault.
I move from that very brief review of the marital history to record the father's reaction to the mother's flight to the United Kingdom in January 2004. He reported her disappearance to the authorities in South Africa, as a result of which an application for summary return was transmitted to the Central Authority in London who issued an originating summons under the Child Abduction and Custody Act 1985 on 12 February 2004. At that stage the mother's and S's whereabouts were unknown.
The service of the proceedings on 22 February was upon solicitors and was the prelude to an application for a location order listed before Her Honour Judge Pearlman on 11 March. At that hearing the issues of location were resolved and directions were given for the filing of a CAFCASS report and for the father's evidence. The originating summons had been supported by an affidavit by the father's solicitor, Mrs Hutchinson, sworn on the same day as the originating summons. The mother's principal affidavit in defence was filed on 11 March. The father's detailed response to her 83 paragraphs of history came on 21 April. That was perilously close to the fixture which had been given by the Clerk of the Rules on 23 April before Mr Justice Wood. He did not embark on the case as a result of pressure on his list. It was re-listed before Mrs Justice Baron on 6 May. She heard submissions over two days and on 7 May pronounced her conclusion that a return order should be made on the originating summons, subject to a raft of protective conditions without which the order was not to go. She reserved her judgment, that is to say her reasons for making the order, which was handed down on 28 May. She extended the mother's time for applying for permission for 14 days and the appellant's notice was duly filed in this court on the last day, 10 June.
On 22 June I made an order for this oral hearing on notice with appeal to follow if permission granted.
The skeleton argument in support of the application was settled by Mr Mark Everall QC, who appeared for the mother in the court below. A number of points are raised in the skeleton which are plainly arguable, and effectively we have treated this as the hearing of an appeal. Mr Anthony Kirk QC has appeared today to argue Mr Everall's skeleton argument, which he has done with his customary skill and precision.
The case for the father has been argued today, as it was argued below, by Mr Henry Setright QC. He has assisted the court with a skeleton argument that recognises the misgivings and anxieties expressed by the judge in her reserved judgment and seeks to state, and to a degree explain, the basic principles that determine the practice and the approach of the court in deciding applications for summary return under the Convention, and particularly in addressing defences raised under Article 13 (b).
As the judge recorded at the outset of her judgment, the defences raised by the mother to the originating summonses were two-fold. First, pursuant to Article 13 (b), it was asserted that S would suffer grave risk to her physical or psychological health if she were returned. Secondly, it was asserted that S objects to returning and, at the age of 10, is old enough and of sufficient maturity for her views to be taken into account. Those views had been elicited by Mr Dermot Reilly, the CAFCASS officer appointed to the case, whose report was dated 25 March. Mrs Justice Baron had the advantage of highly specialist representation on both sides of the court. She had of course submissions of the highest calibre from Mr Everall in advancing his defences and from Mr Setright in responding. She did not have any oral evidence from either of the parents. No application was made to her for either of the parents to go into the witness box despite their presence in court throughout the trial. She did not have any oral evidence from the CAFCASS officer, who stood by his written report. She had to make an evaluation of the mother's case on the written material that had been prepared and filed, supplemented by the CAFCASS report which went essentially to the second rather than the first ground of defence.
The reserved judgment explaining the judge's conclusions starts with a record of the history. This is contained in paragraphs 3 a) to z), which run from pages 11 to 16 inclusive of our bundle. Then the judge set out the relevant Articles of the Convention, namely Articles 3, 12 and 13 (b). She then analysed the mother's defence under Article 13 (b) in paragraphs numbered (i) to (viii) on pages 17 and 18 of the bundle. At page 19 she reviewed the law in a single paragraph. In the following paragraph she stated her conclusions and then, at page 20, she set out her concerns which lead her to impose very stringent protective conditions to accompany the order for return. Indeed the order as drawn only provides the obligation to return if the protective conditions have been satisfied.
The judge then turned to the second ground of defence, namely S's objections. Again she reviewed the authorities. She then set out the facts, which are essentially drawn from the observations and conclusions of Mr Reilly, and stated her conclusion. In a schedule to her judgment she set out the unusually extensive protective conditions. Indeed Mr Setright has said that they are more extensive and more stringent than any protective conditions he has encountered previously in his long specialist practice in this field.
Having set out the structure of the judgment below, I want to draw attention to a number of specific passages. The judge's record of the history is interrupted in paragraph w) by what is an interjection that, first, states the proper approach of the court to the evaluation of evidence and then expresses two misgivings at the consequences of applying that law. I will therefore cite these two paragraphs in full:
'3 w) …..
Of course, with disputed written evidence...
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