S (Children)

JurisdictionEngland & Wales
JudgeMr Justice Cobb,Lord Justice Baker,Lord Justice Bean
Judgment Date09 April 2020
Neutral Citation[2020] EWCA Civ 515
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B4/2019/2794(B)
Date09 April 2020

[2020] EWCA Civ 515

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Her Honour Judge Hillier, sitting as a Deputy High Court Judge

FD18P00811

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Bean

Lord Justice Baker

and

Mr Justice Cobb

Case No: B4/2019/2794(B)

S (Children)

Rachel Langdale QC and Anita Guha (instructed by Dawson Cornwell) for the Appellant (mother)

Christopher Hames QC and Michael Edwards (instructed by Freemans) for the Respondent (father)

Hearing dates: 24 March 2020 (Hearing conducted remotely using Skype)

Approved Judgment

Mr Justice Cobb

Introduction

1

This appeal relates to three children: D, a girl now aged 5, E, a boy now aged 4, and F, a boy now aged 2 (“the children”). The children are living with their father and members of his family in Libya; they have been there for over two years.

2

The appeal is brought by the children's mother (“the mother”) against a decision of Her Honour Judge Hillier, sitting as a Deputy High Court Judge in the Family Division, of the 14 October 2019. For reasons set out in a judgment which I discuss in detail below, Judge Hillier (‘the judge’) dismissed the mother's application for the summary return of the children from Libya; the judge concluded that the English court had no jurisdiction to make such an order:

i) rejecting the mother's claim that the children had been ‘wrongfully retained’ in Libya by the father on 9 January 2018 (per Article 10 of Council Regulation 2201/2003 (the ‘ Brussels II Revised Regulation’ or ‘ BIIR’)),

and

ii) finding that at the time the English court was seised of the mother's application (3 December 2018), the children were habitually resident in Libya (per Article 8 BIIR).

The judgment at first instance is unreported. I have therefore, as appropriate, reproduced relevant sections of it into this judgment.

3

Permission to appeal was granted by Moylan LJ on 6 February 2020. In granting permission, Moylan LJ remarked that the “Grounds of Appeal and Skeleton raise sufficient issues to justify the grant of permission although the appeal appears to be very largely, and possibly solely, from findings of fact and will therefore have to surmount the high threshold for the Court of Appeal to interfere with findings of fact”.

4

Miss Langdale QC and Miss Guha for the appellant mother seek to persuade us that the findings of fact on which the judge's conclusions were based are so flawed, inconsistent, and so contrary to the evidence, that they cannot stand. They submit that this court should allow the appeal, and should substitute a conclusion that the courts of England and Wales do indeed have jurisdiction; they propose that the mother's application should be re-listed before a Judge of the Family Division for directions to set up a judicial determination of whether there should now be a summary return of the three children.

5

Mr Hames QC and Mr Edwards for the respondent father contend that the factual findings are perfectly sound, in line with the evidence overall, and support the conclusions on jurisdiction; they contend that this appeal should be dismissed.

Factual background

6

The undisputed facts are these.

7

The mother is 41 and English by birth; her extended family lives in England. The father is 37 and was born in Libya; he is a lawyer with a Master's degree in law obtained in 2012 at an English University. His extended family lives in Libya; his father is said to be a lawyer there. The parties met in 2007, and were married under Islamic law in 2008. They have lived in England for most of their married life, save for a period of about five months in 2013–2014 when they lived in Libya. All three children were born in England. The father obtained indefinite leave to remain in the United Kingdom in 2014, and was granted British citizenship in 2016.

8

On 12 December 2017 the parties travelled, on one-way tickets booked by the mother, with their children, to Turkey where they met with members of the paternal family for a holiday, before all travelling on together, on 26 December 2017, to Libya. The circumstances in which they travelled to Libya were at the centre of the dispute before the judge, and I return to this in my review of her judgment.

9

On 9 January 2018 the mother returned alone to England, to attend an appointment with the Department for Work and Pensions (‘DWP’) in relation to a benefits' claim; she had been notified of this appointment after she had left England, and while she and the family were in Turkey. The mother had expected that her youngest child, F, would be travelling with her, but shortly before their scheduled departure the father advised her that he had not been able to secure an exit visa for F. During the early part of 2018, and while in England, the mother made contact with her current solicitors, Dawson Cornwell, a lawyer in Libya, the Libyan embassy, Reunite, and others, seeking advice about her situation. During the year, the mother travelled between Libya and England five times; she spent approximately four months in total in Libya during 2018, and the balance of the time in England. The children and the father remained in Libya throughout this period.

10

On 3 December 2018, the mother issued proceedings in the Family Division of the High Court seeking the summary return of the children to this jurisdiction. By her application, she asserted that the children had been “forcibly retained” in Libya “while we were there on holiday”. She alleged that the father was “shortly… due to travel to England and Wales”, hence (she maintained) the need for urgent protective orders. At a hearing on the day of the issue of proceedings, the children were made Wards of Court, and a Tipstaff passport order was made; the hearing had been conducted without notice to the father, justified according to the mother, by reason of the father's imminent arrival in this jurisdiction, and the risk that he would not travel here, or would take steps permanently to separate the mother from her children if he knew of the court process. The court further made provision for a return date at short notice; a long-stop date of 17 May 2019 was set for the next hearing. In fact, the father did not travel to England at that time, or indeed at any time since.

11

On 28 June 2019, at a hearing at which both parties were represented, Ms Ruth Henke QC sitting as a Family Division Deputy High Court Judge, listed the mother's application for “a fact-finding hearing to determine the issue of the habitual residence of the children and thereafter whether or not the court has jurisdiction to proceed to make orders in respect of the children”.

12

Two days were allocated to the hearing of the case. A sizeable bundle of documents was assembled (in excess of the authorised limit per para.5 of PD27A Family Procedure Rules 2010); both parties gave oral evidence, and the judge heard the submissions of counsel. The father had been given leave to participate in the hearing by video-link from Libya; the mother was in attendance in person in London. Both parties were represented by experienced junior counsel who appear before us, with leading counsel, on the appeal.

13

The parties agreed the parameters of the hearing, which the judge described in her judgment thus:

“[17]… There were no Scott Schedules or prior identification of factual disputes requiring resolution. The advocates proposed that I should hear oral evidence on the issue of habitual residence and on the issue of wrongful retention, and confirmed a time estimate of 2 days”.

Later in her judgment ([77]), the judge recorded that she had been provided (later on in the hearing) with a more extensive agreed list of “relevant factual matters” on which the advocates wished her to adjudicate. It is no part of the mother's case that the judge failed to deal with these factual matters.

14

The judge reserved her judgment. The draft judgment was circulated on 14 October, and formally handed down on 25 October.

The judgment

15

The judgment runs to 138 paragraphs, ranged over more than 40 pages. After a short introductory factual outline, the judge set out the parties' respective cases in summary. She then turned to the relevant legal architecture. She reproduced in full the provisions of Article 8 and Article 10 of BIIR, and then referred to a number of key authorities which had been cited to her by counsel. As invited by counsel during submissions, and understandably so given the very considerable issues over the reliability of the parties (see [17], [18], [19], [20], [21], and [81] below), the judge gave herself a direction in accordance with the guidance in R v Lucas [1981] QB 720; she expressed herself thus:

“[29] … Proof that a party has lied about one thing is not proof that they have lied about everything, and it is wise to look at the reasons for a lie, since people may lie from shame, fear and other concerns rather than as attempt to conceal their guilt or responsibility”.

16

The judge then reviewed the evidence of the parties, before going on to ‘analyse’ it, drawing heavily on the submissions of counsel.

17

The main interest in this appeal is focused on the ‘assessment’ section of the judge's judgment. It is convenient for present purposes to take, first, the judge's assessment of the parties' credibility; she observed that:

“[84]… This case, like many others, has involved demonstrable elements of dishonesty by both parents. It has been my task to evaluate their evidence as a whole and to consider why they may have either lied, or not provided information within their knowledge which would have contradicted their case, and to piece together as best I can what happened”.

18

She separately reviewed the mother's evidence and the father's evidence. She specifically alluded to various answers which the mother had...

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