Z v Z (Abduction: Children's Views)
| Jurisdiction | England & Wales |
| Judgment Date | 2006 |
| Date | 2006 |
| Year | 2006 |
| Court | Court of Appeal (Civil Division) |
Child abduction – Custody – Wrongful removal by mother – Return – Objection by children – Sufficient age and maturity – Separation of six children – Judge considering children’s wishes – Whether judge in error – Hague Convention on the Civil Aspects of Child Abduction 1980, art 13.
In 1989 the parents married and subsequently lived in Canada with their six children. In 2004 the mother spent time in the United Kingdom, with a view to the family relocating. During her visits to the United Kingdom she formed a relationship with a man, with whom she was to later co-habit. The mother returned to Canada and shortly thereafter moved out of the matrimonial home with three of the children. She initiated proceedings in the Supreme Court of Justice in Ontario, and applied for permission to relocate to the United Kingdom with the four youngest children. Before any determination was made, the mother wrongfully removed the four youngest children and brought them to the United Kingdom, and informed the father the following day. The father applied to the court for the return of the children under the Hague Convention on the Civil Aspects of Child Abduction 1980. The judge heard oral evidence from the CAFCASS officer and the mother raised a defence under art 13 of the convention, that the children had reached an age and degree of maturity to have their wishes and feelings taken into consideration. The judge concluded that the objections of two of the children, J and M, were made good, having regard to their age and maturity, and concluded that they were to remain in the United Kingdom. The other children were to be returned to Canada. The father appealed. The father submitted that the judge had given insufficient weight to the purpose of the convention and the mother’s pending application in the Supreme Court of Justice in Ontario. He contended that an abducting parent should not be able to raise art 13 of the Convention as a defence, and the judge had ignored the spirit of the Convention in the light of the fact that there were six children who were all affected by the pending litigation in Canada.
Held – In the instant case, the judge had erred in the exercise of his discretion, when concluding that two of the children could remain in the United Kingdom, and there had been no exceptional circumstances in the instant case to warrant his determination. Although the judge had been entitled to concluded that M was of sufficient age and maturity for the opinion to be taken into account, he had wrongfully concluded the decision of J on the back of his decision to allow M to stay. The correct approach would have been to first address J’s objections
and complaints, which had been relatively minor. Furthermore, M had expressed a desire to remain in the United Kingdom to be with her sister, but the judge had failed to address M’s motives when deciding that she could remain but her sister would be returned, and by ordering the return of some of the children, J and M would have had to remain in the United Kingdom with their mother’s family, whilst their mother returned the other children to Canada. The judge should have had regard to the children as a whole and the effect of separating them, and not considered them as individual cases. He had erred in balancing the relevant issues, and had failed to record the nature of the mother’s pending applications in Ontario. The decision below would be set aside, and J and M would be made subject of return orders. Accordingly, the appeal would be allowed.
Cases referred to in judgmentsA (minors) (abduction: custody rights), Re[1992] 2 FCR 97, [1992] 1 All ER 929, [1992] Fam 106, [1992] 2 WLR 536, CA.
R (child abduction: acquiescence), Re[1995] 2 FCR 609, [1995] 1 FLR 716, CA.
S (a minor) (independent representation), Re[1993] 2 FCR 1, [1993] 3 All ER 36, [1993] Fam 263, [1993] 2 WLR 801, [1993] 2 FLR 437, CA.
S v S (child abduction) [1993] 1 FCR 12; sub nom Re S (a minor) (abduction: custody rights) [1993] 2 All ER 683, [1993] Fam 242, [1993] 2 WLR 775, [1992] 2 FLR 492, CA.
T (abduction: child’s objections to return), Re[2000] 2 FCR 159, [2000] 2 FLR 192, CA.
AppealThe father appealed against the decision of Munby J whereby he held that two of the father’s children, who had been wrongfully removed to the United Kingdom by the mother, should remain there. The facts are set out in the judgment of Thorpe LJ.
Jeremy Rosenblatt (instructed by Mischon de Reya) for the appellant.
Valentine le Grice QC (instructed by Cobbetts) for the respondent.
THORPE LJ.[1] This appeal concerns to some extent all of the six children of the parties, that is to say the appellant father, Nazzareno Z and the respondent mother, Donna Z. The children are respectively P, born in August 1990; M, born in April 1992; A, born in November 1993; J, born in June 1995; Ma, born in September 1997; and Is, born in December 1999. So the age range of the children is from 14 at the top to five at the bottom. I will condense the history, essentially adopting the summary offered by Mr Rosenblatt (who appears for the father) in his skeleton argument.
[2] The parents married in 1989 and in 2004 there seems to be no doubt that the mother spent periods in this jurisdiction exploring the possibility of moving
here from Canada. During those visits she formed a relationship with a man with whom she still co-habits. She returned from England and left the children with the father whilst she made a trip to Cuba. On her return, she initiated the final separation by leaving the matrimonial home with M, J and Ma. She initiated proceedings in the Superior Court of Justice, Ontario, essentially applying to that court for permission to relocate to this jurisdiction with the four youngest children. There were directions orders in that court in October and November, to which I will return. However, before any determination, the mother wrongfully removed the children to this jurisdiction on 21 April. In fairness to her, it can be said that she did not resort to any particular subterfuge, nor did she endeavour to conceal her whereabouts. She informed the father that she had removed them, on the following day, 22 April. It can also be said in mitigation of her wrongdoing that during the course of without prejudice exchanges between the parties in March 2005 the father had offered the concession that M should make her future with her mother in this jurisdiction.
[3] The application for return under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction was swiftly initiated and swiftly processed in this jurisdiction to a final hearing on 26 May 2005. The application was supported by a formal statement by the solicitor instructed by our central authority exhibiting the Canadian orders. A narrative affidavit from the mother was filed with leave on the eve of the trial, and therefore there was no evidence from the father himself. The only oral evidence was that of Mrs Raleigh, the CAFCASS officer, who had interviewed two of the children, namely M and J, in the light of the mother’s defence raised under art 13 of the Convention to the effect that those two children objected to being returned and had attained an age and degree of maturity at which it was appropriate for the court to take account of their views. We have a transcript of the evidence of Mrs Raleigh, and it does not seem to me that it is of any particular significance that her assessment was given to the judge orally. Had time allowed, no doubt she would have reduced her assessments to writing and it would have been the final piece of written evidence before the judge.
[4] The case was listed at 10.30. It was of course a summary trial. The judge conducted the proceedings with proper dispatch: the submissions were concluded by the lunch adjournment and at 2.00 Munby J delivered a characteristically full and lucid judgment.
[5] The mother in the court below was represented by Mr Michael Nicholls, who has of course enormous experience in this field. He readily conceded that there could be no defence to the application for an order for the summary return of both Ma and Is. He presented the mother’s case in opposition only in relation to J and M, and he relied only on the provisions of art 13 that I have already cited, provisions which, if substantiated allow the judge to exercise a discretion as to whether or not to grant the order for return.
[6] In his extempore judgment Munby J reviewed the law, concluded on the basis of Mrs Raleigh’s evidence that the objections of both children were made good, having regard to their respective ages and degrees of maturity. As he put it, that finding opened the gate to the exercise of his discretion. In each case he
exercised the discretion to refuse the return order. His conclusion in respect of M was categoric. In relation to J he was less sure, and expressed his final conclusion as he said, with hesitation. He then refused Mr Rosenblatt’s application for permission to appeal, an application which was renewed on 9 June. That was swiftly referred to me and on 14 June I ordered an oral hearing of the permission application with appeal to follow if permission granted, fixed for 22 June. I identify those dates simply to illustrate that in this court, in this jurisdiction, great priority is given to any appeal in a Hague Convention case. The obligation to conclude the appellate process within six weeks is clear, and in many cases (of which this is an instance) the appeal is determined within a matter of a week or two.
[7] Mr Rosenblatt in his skeleton argument identified the kernel of his appeal. He conceded that the judge was entitled to find that in relation to each child their views were of such a nature, having regard to their age and degree of maturity, that they must be taken into account. He simply said that, in the exercise of the resultant discretion, the judge was plainly wrong for a number of reasons. First, he...
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