Zaffino v Zaffino (Abduction: Children's Views)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LORD JUSTICE WALL,LORD JUSTICE NEUBERGER |
| Judgment Date | 23 June 2005 |
| Neutral Citation | [2005] EWCA Civ 1012 |
| Docket Number | B4/2005/1273 |
| Date | 23 June 2005 |
| Court | Court of Appeal (Civil Division) |
[2005] EWCA Civ 1012
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE MUNBY)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall
Lord Justice Neuberger
B4/2005/1273
MR J ROSENBLATT (instructed by Mischon de Reya, London) appeared on behalf of the Appellant
MR VALENTINE LE GRICE QC (instructed by Cobbetts, Manchester) appeared on behalf of the Respondent
( Approved by the Court)
This appeal concerns to some extent all of the six children of the parties, that is to say the appellant father, Nazzareno Zaffino and the respondent mother, Donna Suzanne Zaffino. The children are respectively Paolo, born on 25 August 1990; Melissa, born on 28 April 1992; Adriano, born on 19 November 1993; Juliano, born on 16 June 1995; Marco, born on 9 September 1997; and Isabella, born on 16 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.
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 Melissa, Juliano and Marco. 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 Melissa should make her future with her mother in this jurisdiction.
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 Melissa and Juliano, in the light of the mother's defence raised under Article 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.
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 Mumby J delivered a characteristically full and lucid judgment.
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 Marco and Isabella. He presented the mother's case in opposition only in relation to Juliano and Melissa, and he relied only on the provisions of Article 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.
In his extempore judgment Mumby 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 Melissa was categoric. In relation to Juliano 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.
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 said that the judge had given insufficient weight to the spirit and purpose of the Convention and to the forum conveniens claim of the Superior Court of Ontario. Secondly, he said that the judge had given insufficient weight to the consideration that the abducting parent should not be permitted to create a situation which makes it possible to raise an Article 13 defence. Third, he said that, in ignoring the spirit of the Convention, the judge was plainly wrong in the present case, given the existence of six children, the litigation regarding all six, the possibility of cross-applications, and the priority that should be given to the well-advanced proceedings in the Canadian jurisdiction.
Mr Valentine Le Grice QC in his skeleton argument of 21 June essentially resisted this assault on the exercise of the discretion and sought to uphold the judge on the conventional basis that he had carefully and fully considered all relevant factors and that his discretion was not therefore to be impugned.
During the course of argument, the court offered Mr Rosenblatt some additional submissions. I will list those shortly: first, that the judge nowhere alluded to the nature of the mother's application in Ontario, namely an application to relocate to England and Wales with the four youngest children. We do not have the application itself, but in the affidavit in support of the originating summons the deponent stated that that was the nature of the mother's application and in her own affidavit in response at paragraph 26 the mother conceded that point.
The first directions order made by Justice Van Melle on 19 October 2004 appointed a children's lawyer to "provide such services as he deems appropriate for the minor children": then the six children were identified. In her later order of 16 November Justice Van Melle made a range of provisions—some by consent, some not by consent—to regulate a variety of issues in the interim, including the sharing of the children between mother and father and issues of financial support. So that is how things stood at the end of 2004, and the progress of the proceedings in the spring of 2005 is not revealed by the evidence. However we do know from the mother's affidavit that in January 2005 she conceived the belief that Miss Nichol, the lawyer appointed to represent the children, was heavily prejudiced against her as a mother, and perhaps consequently against her application for permission to relocate. She says in paragraph 32 that by mid-February she believed that Miss Nichol was having private conversations with the father's attorney, both about her and about her case, without her own attorney being informed of what was happening. It seems to me reasonable to infer that those considerations made a significant contribution to the mother's seemingly impetuous decision to take flight. That inference is certainly not displaced by her explanation given at paragraph 37, where she only says:
"The reason why I removed the children was because I was concerned about the past incidents, fear of future harm (emotional and/or physical), lack of financial support and ability to work."
This was therefore the plainest case of a parent diverting from the essential application to the court for permission to relocate in order to achieve her desired goal by unlawful means. Cases in which the court of the requested state then by order validates such contact must be exceptional indeed.
Second, did the judge not essentially reason his...
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