Neutral Citation Number: [2011] EWCA Civ 1385
Case No: B4/2011/2456
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
MR JUSTICE CHARLES
FD 11 P 01290 
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 2/12/2011
Before :

LORD JUSTICE THORPE
LORD JUSTICE LONGMORE
and
LORD JUSTICE MCFARLANE
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Between :

	S	Appellant	
	- and -		
	C	Respondent	
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Nicholas Anderson (instructed by Lyons Davidson) for the Applicant/Father
James Turner QC and Geraldine More O'Ferrall (instructed by Rosleys) for the Respondent/Mother

Hearing date : 26 October 2011
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Judgment

LORD JUSTICE THORPE:  

1. This is an appeal from the judgment of Charles J given on 30 August 2011 refusing S's application for a return order under the 1980 Hague Abduction Convention.

2. S (hereinafter "the father") is Australian and C (hereinafter "the mother") has dual Australian and British nationality having emigrated to Australia from the UK.  The parents were not married but cohabited between October 2008 and January 2011.

3. Their only child, W, was born on 13 November 2009.

4.  The parents' relationship was a stormy one and, on the mother's case, the father behaved very badly towards her.  In January 2011 the mother called the police who took out an Apprehended Domestic Violence Order against the father on 27 January.

5. Shortly thereafter the father moved out of the marital flat into a boarding house.  In early February he received a text message from the mother informing him that she was in England.  He did not credit this until the end of March.

6. I do not know when he commenced the process in Australia but his application in this jurisdiction was issued on 15 June 2011.  The case was listed for directions before Coleridge J on 30 June.

7. The order that emerged contained this paragraph 6:-

"The application shall be listed before a High Court Judge at 10.30 am on 27 July 2011 with a time estimate of 1 day (including 2 hours of judicial reading time) as follows:

(a) For consideration of whether, taken at their highest, the allegations made by the mother would come within the Article 13(b) exception having regard to the proposed undertakings/protective measures.

(b) For consideration of whether there is an arguable basis for asserting that the father consented to the child's removal within the meaning of Article 13(a).

(c) Subject to the Court's conclusions as to (a) and (b) above, summary disposal or directions to enable a further hearing with such oral evidence as the Court considers appropriate to take place. "

8.  It was not suggested that Coleridge J crafted this direction but rather that it was laid before him for approval by juniors who drew their inspiration from paragraph 36 of the leading judgment in the case of Re E (Children) (abduction: custody appeal) [2011] UKSC 27, [2011] 2 FLR 758.

9. The hearing on the 27 July came before Charles J.  He followed closely the directions order of 30 June and was much influenced by the guidance offered by the Supreme Court in Re E.  He refers to it in 9 of the 19 paragraphs of his judgment.  He explained his decision to adjourn the case to a third day of hearing on 30 August in these terms:- 

"16.  However, it seems to me that given the emphasis that Re E places on the assessment of the protective measures and in particular that they will actually be in place and practically enforceable it is appropriate for me to adjourn to enable the parties to put in further evidence directed to the rival contentions on that central point and that is what I propose to do.  I confess that I do so with some considerable reluctance for a number of reasons.  First, I accept, as Re E clarifies and determines, that these are summary proceedings and remain summary proceedings.  Both from the perspective of the child, albeit a very young child here, and the relevant adults, the sooner they are decided the better.  

17.  However, I have concluded that given the guidance in Re E and the need to approach each case having regard to its own particular circumstances and to ensure that it cannot be said that any decision was arbitrary or mechanical, I need further information in particular, it seems to me, as to the precise protective measures that the mother will be able to enjoy from the moment of her arrival in Australia.  

18.  My suspicion, and I put it no higher than that at this stage, is that the protective measures would necessarily involve in the circumstances of this case, given the risk the mother advances which is in large measure on her perception of how the father will react and is reacting, which I should record he hotly asserts is wrong, would be ones  which have the result that he actually cannot act in that perceived and feared way and the position is, therefore, much closer to that which the mother now enjoys in this country given the distance between them. So, if, for example, the father does not know where she is and she has appropriate public support and, importantly, support in the legal process, it could be said that the decision can be made in Australia in circumstances where essentially the mother is protected, if not cocooned, and then it would seem to me that the mother may well have greater difficulty than would otherwise be the case in establishing article 13b.  That, of course, is subject to any further medical evidence she puts in as to any trigger to an onset of clinical depression."

10. In this first judgment Charles J also criticised the directions given on 30 June, saying:-

"2.  Unsurprisingly in the directions given in this case the very recent decision of the Supreme Court in Re E was plainly at the forefront of the minds of the parties and the court.  However, I confess that with hindsight it seems to me that the directions given on 30th June which have their basis in paragraphs 36 and 37 of the judgment in the Supreme Court have caused more difficulties than would have been the case if the matter had simply been set down in the normal way for determination on a summary basis of a case under the Hague Convention.  To my mind, this is often so whenever a court tries to define preliminary issues because their very definition creates problems."

11. In the interim the applicant collected a wealth of material relating to protective measures available in Australia and the parties obtained a report from Doctor Kampers, a consultant psychiatrist jointly instructed by the parties.

12. As he recorded in paragraph 3.2 of his report of 15 August, Dr Kampers was instructed 'to undertake an assessment to ascertain: 

•	The mother's current psychiatric or psychological condition. 
•	The psychiatric or psychological impact of the mother on the return to Australia. 
•	What, if any, protective measures such as psychological interventions, accommodation, the address of which was unknown to the father, support from the mother's close family or any other measure, would it be necessary to put in place to safeguard the effect on the mother's mental health of a return to Australia. 

13. In answer of the first question he stated:-

"Her current psychiatric and psychological condition is stable and healthy and she does not display any current features of depression nor post traumatic stress disorder.  Her symptoms of acute stress have resolved."

14. He answered the second question thus:-

"The likely psychiatric and psychological impact on the mother of a return to Australia is significant and severe.  The source of her stress (the father) is in Australia.  Contact with this source of stress (re-exposure to the father) puts her at risk for further acute stress and post traumatic stress.  She has a prior history of anxiety and depression which not only lowers her threshold for acute stress and post traumatic stress but also increases the likelihood of a recurrence of her anxiety and depression."

15. He did not answer the third question.

16. It was open to either party to ask him to address the third question and or to attend the hearing on 30 August.  Neither party took either step and the report was put before the Judge as an agreed document.

17. In preparation for the adjourned hearing the father repeated his offer of a range of undertakings recited by the Judge in paragraph 50 of his judgment of 30 August under headings "financial undertakings" and "other undertakings".

18. I draw particular attention to undertakings 5, 6 and 7 under the latter head.  However for completeness I set out the whole package:-

"Undertakings

5.   I set out in paragraph 56 of my Statement signed on 21st July 2011, my comments regarding the protective measures sought by the mother and the Undertakings I am prepared to offer to smooth the return of W and the mother to Australia.  For the avoidance of doubt, the Undertakings I am willing to provide are as follows:

6.  Financial Undertakings 

1.  To pay to the mother the sum of $2,500, by way of a lump sum, 7 days prior to her return to Australia; 

2.  If the mother chooses to return to the apartment at the address, I will undertake to pay 2 months rent in advance towards renting an alternative property to a maximum of $4,866.  This money will be paid into the client account of my Solicitors, Messrs. Lyons Davidson, no later than 7 days in advance of the mother''s return to Australia. Lyons Davidson will hold the money and pay it directly to the landlord once the mother has found accommodation;

4.  If the mother rents an alternative property for less than $2,433 per month, I will undertake that the mother may retain the difference between $4,866 and the sum which is paid pursuant to paragraph 3 above.  The balance will be paid to the mother upon her taking up her new accommodation;

5.  If the mother wishes to return to the apartment at [address] I would undertake that myself and my tenant will vacate the property not later than 3 days prior to her return;

6.  I will undertake to pay for the economy class flights of the mother and W to Australia and will arrange for the information regarding the flights and/or the tickets, whichever is required, to be delivered to the mother not less than 7 days before the date of the flight.

7.  If the mother returns to the apartment at [address] to agree to the mother retaining the bond paid for the property of $2,433;

8.  If the mother does return to the apartment [address] in addition to paying 2 months rent in advance on the apartment I will also undertake to pay the sum of $1,333 per month, towards payment of the rent, until a first inter partes hearing;

9.  I will also undertake to pay the sum of $300 per month, for maintenance for W, upon the mother's return;

Other Undertakings

7.  In addition to the financial undertakings set out above, I am also willing to provide the following undertakings:

1.  Not to prosecute or support any criminal or civil proceedings against the mother arising from her wrongful removal of W from the jurisdiction of Australia;

2.  Not to attend at the airport upon their return;

3.  Not to remove W from the physical care of the mother save by an Order of a Court of competent jurisdiction in Australia or by agreement between us, and for the purposes of contact, until a first inter partes hearing in Australia;

4.  Not to make any applications concerning W to an Australian Court save on notice and to ensure that the mother is given not less than 7 clear days' notice of the hearing;

5.  Not to contact the mother in Australia, save through Solicitors;

6.  Not to enter or attempt to enter the accommodation at which the mother and W will live on their return to Australia, nor to approach within 250 metres of that address;

7.  In the event that the mother resides at a confidential address in Australia, not to take steps designed to learn that address and not to attend any workplace at which the mother may be employed, until an inter partes hearing in Australia;

8.  If the mother does return to the apartment at [address] to provide a cot and a changing table prior to their return;

9. To lodge a copy of any final Order made, in these proceedings, with the local Australian Family Court, 7 days prior to their return."

19. Of these undertakings the Judge said in paragraph 53:-

"I therefore proceed on the basis that on a return to Australia the mother and W would have a home and a full and appropriate package of support in and outside it from professionals in Australia."

20. He then reviewed the mother's vulnerability and posed and answered the key question:-

"…asking myself what I believe to be the essential question, namely whether a return to Australia with the protection offered by the undertakings and the protective measures in Australia I have referred to would be one that would nonetheless give rise to the grave risk referred to in Article 13b, my answer, is yes, it would."

21. That said in paragraph 60, led him to state in paragraph 64:-

"Accordingly, on the approach dictated by the direction of Coleridge J I have concluded that article 13b is satisfied.  In this case, that conclusion on that basis would dictate the exercise of the discretion it triggers and I would refuse this application."

22. He then asked himself what would be his conclusion if the disputed account by the mother were not true.

23. His answer to that question in paragraph 71 was equally succinct:-

"So, such an approach to the disputed allegations on the assessment and management of risk would on effectively the same reasoning process found the same conclusion on article 13b as that based on the assumption that the mother's allegations of abuse were true."

24. Charles J refused permission to appeal and the Appellant's notice was filed in this court on 16 September.  The papers were referred to me without transcripts of judgment and without skeleton argument and on 6 October I directed an oral hearing on notice with appeal to follow on 26 October.

25. Mr Anderson, who represented the father below, distilled his written skeleton during the course of his oral submissions to make 3 criticisms of the judge.

26. First he submitted that Charles J misdirected himself in law in concluding that the intention and effect of the judgment of the Supreme Court in Re E was to raise the bar against Applicants seeking a return order where the Respondent relied on a subjective perception of the risks and consequences of return that would undermine her psychological stability and thus place her child in an intolerable situation.

27. Second Mr Anderson submitted that the Judge arrived at a disproportionate conclusion when he held that, despite the protective measures offered, the return would place the child in an intolerable situation.

28. His third submission is that the Judge misdirected himself by bringing into account the emotional toll of relocation proceedings that the mother would belatedly bring on return.

29. Mr James Turner QC, in realistic and forceful submissions agreed that paragraph 36 of the leading judgment in Re E should not have spawned the determination of a preliminary issue as directed on 30 June.  Equally he accepted that the judgment in Re E was not intended to change the law.  The effect of the decision was only to support the accepted construction of the Convention, to explain that the exceptions to return are welfare based, and thus in the construction of those exceptions no judicial gloss was required.  

30. However Mr Turner emphasised the concluding sentence of paragraph 34 of the judgment in Re E which records the concession he had made at the bar:-

"If there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child."

31. That leads Mr Turner to the submission in his skeleton argument to the effect that an evaluation of the protective measures advanced was almost irrelevant, since nothing would satisfy the mother's subjective anxiety arising from her subjective perception of the risks and consequences of return.

32. Did Charles J misdirect himself in his application of the judgment in Re E?  I conclude that he did consider that its effect militated against the father's application.  I instance paragraph 9 of the first judgment:-

"It seems to me that pre Re E the court may well have been persuaded to take the robust approach sought on behalf of the applicant father in this case, saying that the mother has had her opportunity to put in medical evidence, valid criticisms can be made of the medical evidence and the court therefore should attach reduced weight to it.  Also, and this is powerfully argued on behalf of the father and I do not gainsay it, the court is in a position to make assumptions as to what is likely to happen in a Hague Convention country."

33. I also instance his observation in  discussion in post-judgment:-

"I think probably all of us are learning where one goes as a result of Re E in these cases."

34. Clearly at the trial Re E was much relied upon by the Respondent's counsel In this court it is conceded that, and therefore common ground, that re E is a restatement and not an evolution of the law of the Convention.

35. As a matter of history, the appeal in Re E was brought to resolve wide ranging debate as to the consequence of recent decisions of the  European Court of Human Rights and as to whether return orders at the conclusion of summary proceeding breach rights within the ECHR.  The mother's primary case in our court so asserted.  Her secondary case was that in any event the return order in the court of first instance was inconsistent with the proper application of the convention.  

36. By the time the case reached the Supreme Court the Appellant's primary case was weakened as a result of an extra judicial statement by the President of the European Court of Human Rights explaining the proper interpretation and effect of the recent cases in his court.  Hence, what had been the Appellant's secondary case in our court was elevated in the Supreme Court and resulted in the clear review and restatement of the construction and application of the Hague Convention.

37. Of course the Hague Convention is an international instrument and in its construction and application domestic courts in all states party must search out and apply the autonomous law of the Convention.  Our Supreme Court is only one such, although particularly respected throughout the common law world.  I read within the judgment below indications that Charles J received the judgment as though the court were operating in its more usual role of settling the domestic law of our jurisdiction and had effectively introduced a lower standard for the Respondent advancing an Article 13(b) defence.

38. As to Mr Anderson's second criticism I conclude that there is a deficiency in the judge's evaluation.  In his first judgement he recognised that the real threat to mother's equilibrium  was the fear that her space would be invaded.  That is clear from paragraph 18 cited above.

39. What then was the further medical evidence?  That the parties saw this issue of protection from the invasion of her space as crucial is demonstrated by the third question that they had drafted for Dr Kampers.  He was to have regard to protection by the provision of psychological treatment, the provision of a safe house, family support or any other measure.  His failure to address this question worried the Judge, who regretted that the doctor was not available to answer the question.  For the father Mr Anderson took the tactical decision to ask no more, being content with the answers given to first and second questions.  The expert's silence on this crucial third question went to disadvantage the Respondent who needed the expert support in the form of a statement that none of these protections would meet the mother's fear of invasion.

40. Since the expert had not answered the question, in my opinion it was particularly incumbent upon Charles J to explain why the father's undertakings 5-7 were not sufficient to protect the mother from his presence, proximity, contact and communication.  

41. Particularly is that so when this was not a case in which there could be any question or anxiety surrounding the enforceability of the undertakings on return.  Undertakings are most useful when the jurisdictions concerned share the Common Law.  

42. Furthermore judicial collaboration is particularly well developed between our jurisdictions.  Bennet J is the nominated network judge for Australia who has fully maintained the high standards of communication and collaboration introduced by Mr Justice Kay.  The mother's protection on return I have no doubt, will be secured, not just by undertakings given to a London judge but by enforceable orders made in the appropriate Australian court.

43. Nor would I accept Mr Turner's submission that his recorded concession in paragraph 34 of the judgement in Re E is authoritive for the proposition that it is unnecessary for the court to weigh objective reality of asserted anxiety.  The crucial question for the judge remained:  were these asserted risk, insecurities and anxieties realistically and reasonably held in the face of the protective package the extent of which would commonly be defined not by the Applicant but by the court?

44. As to Mr Anderson's third submission I am also troubled by the Judge's consideration that the anticipated relocation application upon return was a factor elevating the Article 13(b) defence.  To record the Judge's approach it is necessary to incorporate all of paragraphs 58 and 59 of his second judgment:-

"58.  On the basis of the direction given by Coleridge J I have to consider whether the impact of such a protected return to Australia of W with his mother:
(i)  who, on that direction, must be assumed to have suffered severe abuse at the hands of the father and thus has a sound factual base for her expressed fears and anxiety, that she and her son would be at significant risk from the father should they return to Australia,   

(ii) who has a history that includes bouts of diagnosed depression,

(iii)  who has been referred to a psychologist in Australia, who has concluded that she is predisposed to suffering anxiety and stress and has been observed by her to have panic attacks,  

(iv)  who, as is essentially common ground, will be isolated on a return to Australia, albeit that she has lived there for some time, and whose only support network outside professional help would be friends and acquaintances rather than family members and who would be living in circumstances in which her financial position would be precarious and

(v)  who would be involved in emotionally draining litigation will create the situation set out in article 13b.  

59.  As to that issue, a submission was made on behalf of the father, I think on the last occasion, which seemed to me to have force, that her position would be no different to what it would have been if she had simply left the father and remained in Australia.  One can see the attraction of that in the context of the underlying purpose of the Hague Convention but I think one has to go on and ask, whether that situation would be one which placed the child in a situation that he should not be expected to tolerate?  My answer to that would on the basis of the direction made by Coleridge J would be "yes".  This is because it would have placed this mother, in my judgment on the evidence and that assumption, in a situation in which there was a grave risk that:
(i)  she would suffer significant stress of the type described by Dr. Kampers and thus would herself suffer psychological harm, and that 
(ii)  the knock on effect of that would have been to place W in an intolerable situation."

45. In my judgment that approach makes an allowance for the Respondent which she did not merit.

46. Once the relationship broke down an issue quickly emerged as to whether W should be brought up in Australia or in England.  Absent agreement the issue had to be decided by a Judge of the child's habitual residence.  It was incumbent upon the mother to apply for a judgment which would reflect all factors relevant to the paramountcy of child welfare.  The application might succeed or it might fail.  The process culminating in trial would be inevitably stressful to the Applicant.  The mother avoided that stress and the risk of failure by abducting.  If on return she elects to bring the application belatedly I do not see why it should prove more stressful than had it been brought at the proper time.  Otherwise she achieves the fundamental shift in the child's habitual residence without the necessary profound welfare investigation.  If the father's application is refused under the Convention it seems to me that the observation that the father could commence proceedings under the Children Act 1989 seeking either a residence order or more realistically a direction for the mother's return to Australia is mere theory.

47. Mr Turner submits that her by-pass of the proper application for a relocation order is not culpable because she was beside herself.  To that Mr Anderson responds by referring to the account of her withdrawal that the mother gave to her psychotherapist as recorded at page 4 and 5 of the report of 6 July.  Those passages included this paragraph:- 

"I was concerned she find out about her legal standing with this plan.  She saw it as like a holiday and a rest."

48. Mr Turner invited us to remit the case for retrial if we rejected his submissions in support of the Judge.  Such course is never lightly to be ordered.  In my judgment had Charles J directed himself correctly in his understanding of the impact of Re E, had he focused on the protection designed to achieve the mother's freedom from communication or approach, had he perceived the need for a judicial determination of the root parental dispute in the courts of the child's habitual residence, he would have ordered the return and that order is plainly open to us in a case where there has been no oral evidence below.

49. This is a paradigm case for a return order to achieve the objectives of the Convention.  Although Mr Turner asserts that effect of a respondent's clearly subjective perception of risks on return leading to an intolerable situation for the child is a permissible ground for refusing a return order he has been able to cite no reported case with that characteristic.  In his skeleton he referred to the case of Re G (Abduction: Psycological Harm) [1995] 1 FLR 64.  However in that case the return was refused on the consideration of expert evidence from two consultants.  The judge preferred the evidence of one to the other.  That evidence was to the effect that were the mother forced to return there was not only risk but the likelihood that she would become psychotic.  That expert evidence having prevailed, the application was almost bound to fail.

50. I would finally like to record the universal consensus that the trial over which Charles J presided was bedevilled by the directions of 30 June.  Charles J steadfastly accepted the yoke and delivered ultimately an extempore judgment of admirable concentration.  However he disapproved of the direction.  I fully agree with his words.  Both Mr Anderson and Mr Turner submit that this practice should not prevail.  Mr Anderson informs us that this is not the only example but rather that this has become the norm.  I do not believe that the Supreme Court intended that paragraph 36 of the leading judgment should introduce a new practice.  If this practice has sprung up since June it should be immediately stifled.

51. I would therefore allow this appeal and order the return that Charles J refused.  I would hope that counsel can agree the many incidental issues surrounding the implementation of the return order. 

LORD JUSTICE MCFARLANE:
 I agree.

LORD JUSTICE LONGMORE:
I also agree.