W v W (Abduction: Joinder as Party)
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 2009 |
| Neutral Citation | [2009] EWHC 3288 (Fam) |
| Date | 10 December 2009 |
| Court | Family Division |
| Docket Number | Case No: FD09P02436 |
[2009] EWHC 3288 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: The Honourable Mr Justice Baker
Case No: FD09P02436
Mr David Williams (instructed by International Family Law Group) for the Applicant
Miss Jacqueline Renton (instructed by Bindmans LLP) for the Respondent
Mr Edward Devereux (instructed by Freemans LLP) for the Applicant Child C
Hearing date: 8 December 2009
MR. JUSTICE BAKER:
Introduction
C W, born on 9 January 1992 and therefore now aged 17 but rising 18, applies to this court to be joined as a defendant to proceedings brought by her father, M W, (“the father”) under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction 1980, and in the alternative under the inherent jurisdiction, for the summary return to Australia of her brother, L, born 26 April 1998 and therefore aged 11. The first defendant to the application is V W, the mother of C and L who, it is accepted, brought L to England earlier this year without the consent of the father.
The father's application is listed for a full hearing (at risk) on 11 December 2009. C's application issued on 3 December, was initially listed before me sitting as the applications judge in the Family Division on 4 December but adjourned for want of time until 8th December. At the conclusion of the hearing, I indicated that I would make the order sought by C and would give the reasons for my decision as soon as possible. In addition, I gave further directions for the hearing on 11 December.
In this judgment, I now set out the reasons for my decision to join C as a defendant. I say at the outset that I have been greatly assisted by the written and oral submissions made by three members of the specialist child abduction Bar, namely Mr Edward Devereux on behalf of C, Mr David Williams on behalf of the father and Miss Jacqueline Renton on behalf of the mother.
Summary of background
It is unnecessary for the purposes of this judgment to recite the family history in any great detail. The father and mother are both Australians. The father is 46 years old and the mother 43. C was born 9 January 1992 and is therefore aged 17, rising 18, and L was born 26 April 1998 and is therefore now aged 11. According to the mother and C, the father was regularly abusive, and occasionally violent, throughout the marriage. The mother's allegations include claims that the father raped her on numerous occasions. The mother asserts that the parties separated in 2007 but that the father continued to visit her and the children and continued to be abusive and domineering to all members of the family, including L.
Following an incident on 9 June 2009 when, according to the mother, the father was violent towards her, the children and the maternal grandmother, she applied to the local court in Western Australia for a Violence Restraining Order. However, before the return date for her application, the mother left the home and Western Australia accompanied by L and C and, without the father's knowledge or consent, brought the children to England. On 13 August 2009 the father applied to the Perth Magistrates Court for injunctions preventing the mother from removing both children from Australia. A few days later, his Australian solicitors received information from the maternal grandmother in England stating that the mother and children were now living in this country.
On 2 November 2009, the father issued an originating summons under the Child Abduction and Custody Act 1985, and under the inherent jurisdiction, for an order for the summary return of L to Australia. On that day Roderic Wood J made location and disclosure orders and gave directions in the proceedings. At the next hearing on 13 November before Macur J, both the father and the mother were represented by counsel and the learned judge gave directions, including (a) listing the final hearing for 11 December 2009 with the time estimate one day at risk; (b) extending the time for the filing of the Defence to 23 November; and (c) directing an officer of the Cafcass Abduction team to interview “the children [sic] and prepare a report addressing his wishes and feelings and any objection he may have to returning to Australia” and to file and serve a report by 9 December. On 30 November, the mother filed a Defence relying on Article 13(b) of the Convention. On the same day, the matter came before me sitting as the applications judge when, on the application by the mother, I gave leave to her to file a report from Dr Kolkiewicz, consultant psychiatrist, as to the psychological impact on her of an order for the return of L to Australia. On 3 December 2009 C issued this application.
C's reasons for being joined as a party
An affidavit has been filed by Miss Nina Hansen a partner in Messrs Freemans Solicitors, in support of C's application in which she states, inter alia, as follows.
(1) C is a bright, articulate young woman who is without doubt competent and able to give instructions.
(2) C informed Miss Hansen that if the Court ordered L's return to Australia, her mother would follow and then so would she, otherwise no one will be there to protect her brother or mother. She was extremely concerned as to their welfare and her own.
(3) C told Miss Hansen that she could not remember when her parents did not argue and fight, and that her father was an extremely domineering man and when annoyed he would take it out on either her (in the last few years) or her mother or both of them.
(4) Given the level of violence in the home, C always tried to keep L by her side to protect him and keep him away from it all. He is six years younger and she has always protected him as much as she was able. They are very close.
(5) When asked by Miss Hansen whether her father had been physically violent to her, C said “yes”. The first time was when she was eleven years old. She had come home from school to find her parents arguing and had shouted at them to stop. Her father had told her it was none of her business, C had replied “yes it is, I live here” and her father smacked her across the face. She described to Miss Hansen how her father had seemed to lose control and was beating and punching her all over her arms and legs and then threw her across the room onto a sofa and continued hitting her. After this incident, C said that she was bruised all over her arms and legs.
(6) C described to Miss Hansen how the fights and beatings continued for a number of years until eventually her mother got the courage to separate from her husband and the three of them left the family home in 2006 when C was about fourteen. However, she said that this did not last for long as her father visited them regularly. During the visits he would be rude and offensive to her mother and would be horrid and denigrating to L calling him “fat” and telling him that he was no good for anything. C stated that her father would never take L out but seemed to use contact as a way of controlling her mother and her.
(7) C stated that her mother had subsequently moved house again, but, to her disappointment, had then told her father where they were now living. C stated that her father constantly demanded that they move back to live with him. She said to Miss Hansen that “they sort of reconciled” and that it was “like she [i.e. her mother] had given up”.
(8) C said that things had come to a head last year when she was sitting her exams in June. One evening her father came round and her parents started arguing again. C could not concentrate and asked him to be quiet, whereupon her father became furious and started hitting her all over her arms and legs. The next morning she went to her exam covered in bruises and with her arms aching. She broke down during the exam and could not complete the paper. The school's counsellor had taken her aside and found her a hostel where she could stay because she was too scared to go home.
(9) C told Miss Hansen that she was worried for L and knew that she had to move back into the house because of her concern and did so in about January or February of this year. She said: “the last five months before we left were awful. My Mum had tried to protect L a bit but it did not really work. I would therefore argue with Dad to try to ensure that L was protected from his Dad's usual bullying. I also felt I had to protect my mother”.
(10) C further said to Miss Hansen: “I am terrified that if L goes back, Mum would go back as well, and there will be no protection for either of them. I will have to go back too… I do not how [L] would handle my father now. I do know that my father started hitting me quite regularly from the age of eleven onwards and this is L's age now. I believe L would suffer the same fate”. She stated that unfortunately her mother is so scared of her father that she could not say no to him. She could not shut the door on him and could not report him to the police. In essence, C said that the mother could not protect her children from the father. Their only protection was that of distance.
The parties' positions
On behalf of C, Mr Devereux deployed a number of detailed legal arguments, but essentially put forward two bases for joining his client as a respondent. First, he submitted that C is a “mandatory” defendant to this application under the 1985 Act by virtue of rule 6.5(e) of the Family Proceedings Rules (“FPR”). Further or alternatively he submitted that these proceedings fall within the statutory definition of “family proceedings” and, pursuant to FPR rule 9.5, the Court has a discretionary power to join C, as a child, if it considers that it is in her best interest to be so joined.
On behalf of the father, Mr Williams opposes C's application and invites me to reject Mr Devereux's...
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