S v S (Child Abduction) (Child's Views)

JurisdictionEngland & Wales
JudgeLORD JUSTICE BALCOMBE
Judgment Date07 July 1992
Judgment citation (vLex)[1992] EWCA Civ J0707-2
Docket Number92/0631
CourtCourt of Appeal (Civil Division)
Date07 July 1992
Re: "S" (A Minor)

[1992] EWCA Civ J0707-2

Before:

Lord Justice Glidewell

Lord Justice Balcombe

Mr Justice Boreham

92/0631

CA 1136 of 1991

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

FAMILY DIVISION

PRINCIPAL REGISTRY

(MR JUSTICE EWBANK)

Royal Courts of Justice,

MISS PATRICIA SCOTLAND Q.C. and MR H. SETRIGHT (instructed by Margaret Bennett, Solicitor, London, W.C.2.) appeared on behalf of the Appellant.

MR ALLAN LEVY Q.C. and MR B. JUBB (instructed by Messrs.Taylor Joynson Garrett, London Agents for Moore & Blatch, Solicitors, Southampton) appeared on behalf of the Respondent.

1

LORD JUSTICE BALCOMBE
2

This appeal, from an order of Ewbank J. made on 17th January 1992 whereby he dismissed an application under the Hague Convention on the Civil Aspects of International Child Abduction for the return to France of a nine-year-old girl, raises once again a question under Article 13 of that Convention. The judgment that follows is that of the Court and we repeat the direction given during the course of the hearing that nothing should be published which may identify the child concerned.

3

The child, "C", was born on 9th August 1982. Her mother is English, aged 48; her father is French, aged 46. The father is a petroleum engineer whose work takes him to many parts of the world. The parents met in Indonesia, where the mother was working as a secretary with the United Nations. They married in England in 1979. When the mother became pregnant with "C" (their only child) they were living in Borneo.

4

The mother came back to England for her confinement and spent a few months in England after "C's" birth, but then returned with "C" to the father in Borneo. In September 1984 the family moved to Paris, France. In September 1985 the family moved to Harstad, Norway. In November 1986 the family moved back to Paris, and "C" spent two months in a French school. In February 1987 they moved to Stavanger, Norway. From February to June 1987 "C" attended a French school in Norway. From September 1987 until they left Norway in March 1991, "C" attended the Stavanger British School. In March 1991 the family returned to Paris as their home, where they lived in a flat in the Place des Vosges; there is also a house at Maisons-Laffitte, just outside Paris. Apart from the short time after her birth, and for occasional holidays since, "C" has never lived in England.

5

Unfortunately "C" has long-standing psychological problems. These have manifested themselves in speech difficulties—stammering and stuttering—and it was as a result of the advice of a French speech-therapist that "C" should be educated in her stronger mother tongue (English) that "C" was moved to the British School in Stavanger. This advice has been confirmed by the reports of psychologists, both French and English, which were put in evidence by the mother. These reports show that "C" has a high IQ and the mental age of a child of twelve; she also suffers from dyslexia, although the problem is not acute.

6

On the family's return to Paris in March 1991, "C" was sent to the local school near the flat in the Place des Vosges, and she attended that school until the mother brought her to England on 24th November 1991. A letter from the headmistress of that school, addressed to "whom it may concern", was also in evidence, from which it is clear that "C's" speech and other problems were very apparent to the headmistress, and that "C" was also affected by the dissensions between her parents. The marriage had been in difficulty for some years, and by the autumn of 1991 the parents were ready for a divorce. On the advice of their lawyers they entered into a voluntary Deed of Separation, which provided that the mother should live in the Paris flat with "C", while the father should live in the house at Maisons-Laffittes, with an unimpeded right of access to "C". The Deed made provision for the financial maintenance by the father of the mother and "C".

7

The Deed was signed on 7th November 1991, and in accordance with its provisions the father moved out of the Paris flat on Saturday, 9th November 1991. On the same day he gave the mother a cheque for 6,000 French francs, maintaining that a third of the month had already elapsed. Whether or not this was correct, the fact is that the mother had run out of money by 22nd November. The father refused to give her more; the mother sold her rings for about £250, and she then decided to leave France with "C". This she did on Sunday 24th November, and she came to England, to the Southampton area where her family lives, to a house forming part of the estate of her deceased mother and which belongs beneficially to her sister and herself. She immediately put "C" into the local junior school and that position has continued up to the present time.

8

On 20th December 1991 the father made an application for the return of "C" under the Child Abduction and Custody Act 1985, by which the provisions of the Hague Convention are incorporated into our domestic law, and it was that application which came before Ewbank J. on 15th January 1992, and which resulted in the order from which the father now appeals.

9

Before the Judge it was common ground (as it was before us) that the mother's removal of "C" was wrongful under Article 3 of the Hague Convention, and that prima facie the Court was bound to order the immediate return of "C" to France under Article 12. The issues before the Judge were whether he had a discretion not to order "C's" immediate return under Article 13 and, if so, whether he should exercise the discretion in favour of allowing her to stay here.

10

The two grounds under Article 13 upon which the mother relied were:

11

(i) under paragraph (b), that there was a grave risk that "C's" return would expose her to psychological harm. The Judge rejected this ground and, although it was raised again by the mother in her Respondent's Notice on the appeal, as well as an alternative ground under paragraph (b) that "C's" return would place her in an intolerable situation, these grounds were expressly abandoned before us by the mother's Counsel, Mr Allan Levy, Q.C. Accordingly we do not consider them further.

12

(ii) that "C" objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views. This was the ground upon which the Judge relied in refusing to order "C's" return to France.

13

The mother's affidavit was largely devoted to "C's" psychological problems and her learning and language difficulties, but it included the following passage:

14

"On many occasions 'C' has indicated to me that she does not wish to return to France….'C' has expressed extremely strong feelings about returning to France, and she has an age and degree of maturity where it would be appropriate to take account of her views".

15

There was no independent evidence of "C's" views, but the Judge was invited to see "C". He took the view that it would not be appropriate for him to do this, but he asked the duty Court Welfare Officer, Mrs. Varley, to do so. Mrs Varley had a long interview with "C" and gave her report orally in evidence to the court. In view of the importance of this report, we set out below the relevant passages from the transcript of Mrs Varley's evidence:

16

"I saw 'C', my Lord, in my office on her own and I would say as a preamble that she is a very fluent and sophisticated conversationalist. It was very easy to interview this child, so much so that she would see the drift of my questions and pre-empt them with an answer. I would sum up what she said to me in her own words. She said would I tell the Judge really, really strongly that she does not want to go back to France. She does not want to go back to France because she feels great in England, was how she put it.

17

"(MR JUSTICE EWBANK): She feels great in England?

18

"(A) Yes. She had obviously had a miserable experience going to school in France, from her own account. She said she felt awkward and like a fish out of water at a French school. She tried to illustrate that by saying that 'Two won't go into seven'. That was her way of illustrating that, that she felt so out of place. She said that being forced to speak French, she thought, brought on her stammer which made her feel bad. She illustrated on how going from France to a holiday in England her stammer had almost miraculously gone at the airport, and she sees that as a sign of how much happier she feels speaking English. She felt under pressure, she said, from her father while she lived in France to, I suppose, do some sort of remedial work to catch up in the French school system and so that was a sad experience for her too. She made a very, very emotional plea that she feels more at ease in England and she feels it is more natural for her to speak English and to he English".

19

Then in cross-examination by Mr Setright:

20

"MR JUSTICE EWBANK: Did you have any feeling that the view she was expressing, an impassioned plea put into her mouth by her mother, or was she expressing her own views? (A) I certainly did not think they were rehearsed, my Lord. She was able to separate, when I led her that way, the feelings of a parent and as a child. She could appreciate that children are influenced by their parents' views, but she seemed to feel quite strongly that she was not.

21

"(Q) Did you think that she was mature enough for her feelings to be taken into account by the Court? (A) Well, she is certainly intellectually mature enough to know what the situation is that she is in. Emotionally she is still a child of that age. She is still emotionally very fragile.

22

"(Q) But would you...

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