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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (Children) [2018] EWCA Civ 614 (27 March 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/614.html Cite as: [2018] 2 FLR 663, [2018] EWCA Civ 614

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, FAMILY DIVISION
HHJ GARETH JONES
FD17P00471

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 March 2018

Lord Justice Peter Jackson:

1. This is an appeal from an order made on 29 November 2017 by His Honour Judge Gareth Jones, sitting as a Deputy High Court Judge, by which he dismissed an application by a mother seeking a summary return of three children to Spain under the Hague Convention on the Civil Aspects of International Child Abduction 1980. The children had been wrongfully retained in England by their father at the end of a short, agreed holiday. However, the judge determined that the father had made out two of the Convention defences: grave risk of harm under Art.13(b) and child's objections under Art.13, and he exercised his resulting discretion in favour of dismissing the application. The mother appeals with the permission of Moylan LJ against the judge's conclusion in relation to Art. 13(b), to the child's objections determination in the case of one of the children, and to the judge's exercise of discretion.
2. The background is that the parents, who are British, met in 2000, began to cohabit in 2005 and married in 2010. There are four children of the family. The eldest, G (17), now resident in England, is the mother's child, but the father has always treated him as if he was his own son. The parents have three children of their own: D (a girl aged 12), M (a boy aged 11), and A (a girl aged 8). In 2010, the family moved to live in Spain, where the father bought and ran a business. Between 2013 and 2016, the mother and children returned to live in England, with the father dividing his time between the two countries. In September 2016, the mother and children rejoined the father in Spain and the children went to an international school where Spanish is the teaching medium. The children speak Spanish to varying degrees, but English is very much their first language. The marriage broke down in great acrimony in May 2017. Each parent made allegations to the police about the behaviour of the other; in addition, the father was arrested for an assault on a third party in March 2017, that matter remaining unresolved.
3. On 1 June 2017, the mother travelled to England with the children for a wedding, returning on 6 June. On 1 July, she and the girls travelled to England for two nights for a pop concert.
4. Between 11 and 21 June, the father travelled to England to consult his general practitioner and was referred to a psychiatrist at the Priory Hospital. He sent a card and a number of messages to the mother apologising to her for what he described as his unacceptable behaviour. These messages on any view corroborate the mother's account of being the victim of serious domestic abuse.
5. On 21 July, the three children travelled to England with their father for an agreed holiday. They were due to return on 5 August. However, it became clear that the father was intending to keep the children in England and the mother therefore came over on 3 August to bring them back to Spain. On that date there was an incident between the mother and M to which I shall return. However, later in August the children, including M on his own, had staying contact with the mother in England for several nights. Unfortunately, there has been no contact since then.
6. On 21 August, the father issued proceedings in the local family court in an attempt to prevent the children's removal. On 24 August, the mother set in train the process under the Hague Convention and on 6 September, her summons under the Child Abduction and Custody Act 1985 was issued. The father filed a defence claiming (1) consent, (2) acquiescence, (3) child's objections and (4) grave risk of harm.

Evidence of the Cafcass officer

7. As part of the preparatory directions, the court ordered a report to be prepared by a Cafcass officer concerning the children's wishes and feelings about returning to Spain; their objections, if any, to that course; their degree of maturity; and the question of whether they should be separately represented. That work was undertaken by Mrs Lillian Odze, an extremely experienced officer, who interviewed the children separately on 23 October and provided a full report on 2 November.
8. Mrs Odze's report describes her meetings with the children. A said that she didn't like school in Spain and didn't "understand stuff", but likes it here; otherwise she said nothing about a return to Spain. D also said that she did not like school in Spain and that she would be upset and unhappy if ordered to return. She could think of nothing that was good about her mother and nothing that was not good about her father. M said that there were some good things about school in Spain, but that he did not like it because they had a lot of exams. He said there was nothing good about his mother and that he would not be happy about a return order. He then described the incident on 3 August, as below.
9. Mrs Odze's summary of her investigations contains these passages:

"The children's wishes and feelings in relation to a summary return to Spain

40. All three children told me they want to remain in the UK simply because they said they did not like the schools in Spain. From their accounts, I understand that they did not know that they were staying here until [the father] had told them about his plan, seemingly after they came here, and they were happy with it. I formed the view that it was the children's understanding that they were returning to Spain after the agreed period of holiday in the UK, which would have been to resume their lives there.

41. In addition, I believe the children were of the understanding that a return to Spain would be to live with their mother…

The children's objections (if any) to a return to Spain

I told D and A at the beginning and end of the interview that I would faithfully report their wishes and feelings to the court, but that I was not able to assure them that they amount to an 'objection' in Hague Convention terms. It will be for the court to determine whether the wishes of all three children amounted to a preference or an objection to a return to Spain.

The children's level of maturity

43. I found D and M to be somewhat naive and to some extent not presenting with a level of maturity commensurate with their respective ages. For example, I was concerned to note D making sweeping statements against her mother, of "lying a lot" for which she struggled to provide examples in support… M too found it hard to give a flowing account of the incident when [his mother] allegedly assaulted him. I had to ask him to repeat it more than once. And this and other allegations did not come first. When asked about his mother, he first recounted about the disagreement between his parents… with details that he could only have heard from his father.

44. To that end, based on Cafcass "Impact of Parental Conflict Tool", it was evident to me that these are children who had been caught in the parents' conflict. This is not only highlighted by the number of examples which can be drawn from my meeting with them as recorded above, but also because neither D nor M had anything positive to say about their mother. The reasons given for the dislike of [their mother] may appear to be justified, but investigation shows them to be flimsy and so too their reasons for not wanting contact with her which had a quality of being rehearsed.

45. As for A… she was not able to hide that she was feeling under pressure as indicated by her deep and repeated sighs and her eagerness to end the meeting…. I came to the conclusion that A too was aware of the parental conflict but was able to be more cautious about what she wanted to tell me because of her loyalties to both her parents."

10. In the remaining pages of her report, Mrs Odze advised that she did not consider that the children should be joined as parties, as it would not be in their best interests to become further embroiled. She further reported, having considered a checklist used by Cafcass, that she believes the children to be resilient – they know that they are loved, that they can count on their family and that things will turn out all right.
11. The hearing took place on 28 November, when the judge heard Mrs Odze's evidence and submissions from the parties, both of whom were represented by counsel. We have read a transcript of the evidence of Mrs Odze. She maintained the position that it was up to the court to decide whether the children's wishes were an objection or a preference. Similarly, the question of whether a return to Spain would be intolerable for the children was a matter for the court. I do not consider that her oral evidence differed in any significant way from her report.
12. At the outset of the trial, the father dropped the defences of consent and acquiescence, there having been no evidence on which they could ever have succeeded.

The incident on 3 August

13. The only other issue of fact concerned the incident on 3 August between the mother and M. Having travelled from Spain that day, the mother was spending time with the children in the father's absence. In her statement, she stated:

"M threw his sister on the floor. I tried to reprimand him, but he became verbally and physically abusive towards me. M called me a bitch and told me to 'F… off back you c….' This upset me and when I started crying, he said, 'Crocodile tears'. He then began to kick and punch me, I had to hold him on the bed to stop him from hurting me anymore. M then calmed down and we later spoke about what happened."

14. M's sparse description of this to Mrs Odze was that an argument took place involving A when he was playing. His mother had chased him out of the garden into the bedroom where she put her fist against his head, causing bruising on his face.
15. The father produced photographs showing a bruise to M's cheek and a 3-4 cm scratch to his stomach.

The judgment

16. The judgment, given on the second day of the hearing, begins with the judge giving a careful account of the facts and a series of accurate self-directions about the relevant legal issues. He recorded the undisputed fact that up until the end of July 2017, the children were habitually resident in Spain, being socially integrated with their parents in the family home and registered at school there.
17. Regarding the children's objections, the judge noted their views on the school and said that he considered their concerns about language issues to be soundly based. Summarising, he said this:

"57. The children's objections appeared to be centred around the dislike of the school in Spain and their opposition to living with their mother. All of the children are aware of the intra-parental conflict and they have been influenced by the events since May 2017, and the marital breakdown. They are certainly old enough to have had intra-sibling discussions (including, with G) and doubtless, they are aware of their father's views and probably they are aware of their mother's position also. However, Mrs Odze did not conclude that the children's views were not their own".

18. In relation to the incident of 3 August, the judge made a finding of fact that M's injuries had been caused by his mother. He said that it was an excessive response by her, whatever the provocation. As an adult, she should have behaved with greater self-restraint. He went on to say this:

"62. In purely domestic terms, the assault would fall within the definition of "harm" under section 1(3)(e) of the Children Act 1989. Accordingly, in relation to M and D, arising from this incident, I would agree with the Cafcass officer, where she indicated that, "the reasons given for the dislike of [the mother) may appear to be justified".

63. On the basis of my conclusion in relation to on 3 August 2017, I do not agree with Mrs Odze's further assessment "but investigation shows them to be flimsy." The facial bruising and the scratch to the torso are of child protection significance. In that respect, the children's reasons for not wanting contact have a factual basis and cannot be "rehearsed"."

18. Concerning domestic violence and parental discord, the judge found that the children were certainly aware of the domestic acrimony and that they could not be present in the same household as both parents without being at risk of harm. He referred to the mother's assertion that she had been a victim of domestic violence from the father for many years, but he said he had very limited evidence about those matters.
19. The judge then stated his conclusions. He found that all three children objected to being returned to Spain and that in the case of the older two they had obtained sufficient maturity to take account of their views in isolation; in particular in relation to the issue of schooling and the incident on 3 August, these concerns had the solidity and strength of feeling of an objection, not merely a preference.
20. As to A, he said:

"In isolation, A's age and consequent maturity have to be considered carefully, but as was observed in the case of Re M where the views of a six-year-old were taken into account, there is a difference between a court taking the views into account and those views being determinative of the outcome. Accordingly, in my judgement, A also surmounts the gateway."

21. Turning to Art. 13(b), the judge expressed his conclusion in this way:

"73. As indicated in Re E, while every child has to put up with a certain degree of rough and tumble, discomfort and distress, there are some things which it is not reasonable to expect a child to tolerate, including physical or psychological abuse or exposure to seeing or hearing such abuse. I do not believe M should be expected to tolerate the infliction of injuries on 3^rd August 2017 by his mother. If unprovoked, as asserted by M, or, alternatively, within the context set out by the mother, the mother went too far. Physical harm resulted which was of significance.

74. The mother's contact with M been visiting contact only at the maternal grandmother's. The mother does not acknowledge any perpetration. So, it is difficult to evaluate the risk of repetition if she had 24 /7 unsupervised care of M.

75. I bear in mind that the episode on 3^rd August occurred in the United Kingdom after the children had been brought here, and the mother was having, seemingly, one of the first contacts following her return from Spain. One might have expected this to be a happy event. And yet, this incidence of significance occurred. I conclude there is a grave risk of harm.

76. In relation to general allegations of intra-parental abuse. If true, there is a grave risk that the children would be exposed to psychological and, perhaps physical harm or placed in an intolerable situation."

22. The judge had correctly directed himself that the Art. 13(b) defence must be considered in conjunction with the provisions of Art. 11(4) of the Council Regulation, so that if adequate protective measures have been made for the child after return, the court cannot refuse to return a child under Art. 13(b). As to that issue, he said this:

"77. If the children returned to Spain in their father's care solely, then M would be protected by his father. The opportunity for intra-parental conflict would be reduced but not wholly eliminated while the parents maintained their separation and the undertakings with regard to molestation would be of some assistance. The involvement of the child protection authorities in Spain, if alerted by Cafcass, might also be of some assistance.

78. If the father, however, were removed from the scene, either by a criminal prosecution involving a third party in Spain which the mother cannot control or, alternatively, by proceedings for abduction which the mother is unwilling to withdraw or prevent (if, indeed, she could do so), then M, in particular, and the children more generally would, presumably, in these circumstances, be cared for in Spain by the mother and the protective measures proposed by the mother would be inadequate. She would be the sole carer for M without any third-party supervision whatsoever."

23. Finally, having found that the two defences were made out, the judge came to consider the exercise of his discretion. He identified as factors the father's wrongful retention and the policy objectives of the Convention, and comity between different jurisdictions as being matters that can properly be taken into account. The children are resilient and have knowledge of Spain and the school there, but not of the mother's new accommodation. As against that, the judge noted the children's clear wishes about the school and about where they want to live and why, based upon experience. He noted that the family is of English origin, and that our legal system could make any necessary orders. The children should not be separated. A summary return might alienate them further from their mother. He then concluded:

"As indicated by Black LJ in Re UB [2015] 2 FLR 1382 at para. 35, sometimes all a judge can do is to place the factors on one side or the other side of the scales and say which way the scales tip. In this instance, in the exercise of my discretion, I conclude that the scales tip in favour of refusing a summary return emanating from the children's objections under Article 13 or under Article 13(b) in relation to M, and the possible inadequacy of protective measures."

24. In the course of the appeal, it was pointed out that there is some uncertainty as to whether the judge found that the Art. 13(b) defence had been made out in relation to all three children, or just in the case of M. The judge's order records that the defence was established in relation to all the children, and this is probably the better view.

The grounds of appeal

25. On behalf of the mother, Mr Harrison QC and Ms Hopper raise four grounds of appeal:

(1) The judge was wrong to find that A objected to returning to Spain.

(2) The judge was wrong to find the Art. 13(b) defence proved.

(3) The judge was wrong to make a finding of fact that the mother had harmed M.

(4) The judge was wrong in the exercise of his discretion:

(a) It was predicated on incorrect conclusions on the above matters.

(b) He did not adequately weigh the policy of the Convention, which is especially compelling in cases of retention after holiday contact.

(c) He wrongly failed to give weight to the evidence of this listing that the children's complaints appeared flimsy and rehearsed

(d) He wrongly described the children's wishes about their schooling as "clear" even though two children had only been at school in England for a week and the third had yet to start.

(e) He failed to consider each child individually.

(f) He failed to take account of the level of age and level of maturity of each child.

(g) He treated the potential prosecution of the father as a reason for refusing to return the children, without having regard to the ability of the Spanish criminal courts to take account of the position of the children, and because the father would face criminal proceedings, whether or not the children were returned to Spain.

(h) He did not give any adequate weight to the ability of the Spanish family courts to make proper welfare decisions, including, if appropriate, allowing the children to return to England.

(i) He did not take into account the ability of the competent welfare authorities in Spain to take steps to protect the children from harm.

26. These grounds of appeal were developed in submissions by Mr Harrison.
27. The father was unrepresented before us. That is always unfortunate in proceedings that depend heavily on the application of legal principles. At the outset of the hearing, he invited us to adjourn the appeal so that the children could be separately represented. This was a matter that had been considered by the lower court and by Mrs Odze and was suggested by the father for the first time on the morning of the appeal. The application was refused for reasons given by McFarlane LJ at the time.
28. The father then made submissions to us, supporting the judge's reasoning, and making reference to the children's views and the abuse that the mother had perpetrated. He emphasised that the children did not have a good word to say about her. They were now settled at home and at school and he himself had obtained employment in England. He was planning to sell the Spanish business. However, if the court allowed the appeal, he would return to Spain with the children, as had been his position before the judge.

Analysis

29. I first address the issue of whether the return of these children to Spain would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation. The judge correctly directed himself with reference to the decision of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2012] UKSC 27, and the synopsis given by Baroness Hale at [31-36]. He based his own evaluation on two issues: the effect on the children of parental acrimony, and the incident on 3 August. I am, however, unable to see how that evidence sustains his conclusion on the first issue. As Mrs Odze pointed out when questioned by the judge, the risk to the children from parental acrimony arises most acutely from the parents living together, and does not in any event depend upon which country the children are in. The judge himself accepted the opportunity for conflict would be reduced but not wholly eliminated by separation.
30. As to the significance of the incident on 3 August, the judge went beyond what was appropriate at a summary hearing in making a formal finding of fact. There was no basis upon which he entitled to reject the mother's account without hearing her. That would not of itself be of great significance, since the proper approach was to treat the father's allegation at its reasonable highest level – Re E (above) at [36] – and ask whether the child could be protected against that risk. Here, however, the judge built upon his finding of fact by holding that he could not evaluate the risk of repetition as the mother did not acknowledge any perpetration.
31. I am also puzzled at the judge's approach to the Art. 11(4) obligation to order a return if adequate protective measures have been made. In this case, a combination of the father's presence and the resources of the Spanish legal and child protection systems, combined with the availability of undertakings by the parents about their behaviour, were all recognised by the judge as being protective features. Even if the father were to be imprisoned, which is by no means an immediate prospect, arrangements to protect the children could easily be devised if the mother was considered to represent a risk to them.
32. However, my unease at the judge's conclusion on this issue is a wider one. The task of the court on a summary hearing of this kind is to attempt to understand what has happened in a family, often on the basis of limited evidence. Here, the judge had the bare chronology and the parents' conflicting accounts, but he also had some sources of illumination: one of these was the body of messages between the father and the mother. In assessing the significance of the incident on 3 August, the judge needed to place it in the context of the family situation as a whole. Even on the mother's account, it was a nasty incident, but it has to be set against a background where she had been the children's main, and sometimes sole carer throughout their lives and up to a fortnight beforehand. Moreover, the father's admissions about his own behaviour gave a clear indication about at least one of the major sources of stress in this family. On top of that, he had unilaterally kept the children in England against their mother's wishes. Against that background, and without in any way condoning an assault on M if it occurred, it seems to me that the judge gave entirely disproportionate weight to this isolated incident. Nor did he explain why it would make it intolerable for M, or the other children, to return to Spain.
33. I therefore consider that the judge was wrong to find that the father had established a defence under Art. 13(b). The evidence fell a considerable way short and even if the defence was made out, protective measures were available.
34. Turning then to the question of the children's objections, I am unable to find any substantial evidence on which it could be concluded that A objected to returning to Spain, even if she were of an age and degree of maturity at which it was appropriate to take account of the views. At the very most, she expressed a mild preference for England over Spain, falling far short of anything that could be described as an objection within the terms of Art. 13. This ground of appeal also succeeds in my view. However, there is no challenge to the judge's findings in relation to the older two children, and accordingly he had a discretion to exercise.
35. As to that exercise of discretion, the judge rightly directed himself by reference to Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55. However, he did not touch upon [45], where Baroness Hale recalled that a discretionary return after a finding of grave risk of harm was inconceivable. That would, as Mr Harrison rightly concedes, have been an end of the matter. Instead, the judge carried out an evaluation of the factors relevant to a child' objections case, as required by Re M at [46]:

"46. In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances."

36. The first and main difficulty with the judge's exercise of discretion is that it was based upon an incorrect conclusion about a grave risk of harm arising from a return. I also consider that he gave far too little weight to the policy considerations underlying the Convention, which he did no more than mention. As was said in Re M at [42], the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. Mr Harrison was right to submit that if parents in similar situations cannot have confidence that they can allow children to go on holidays without risking indefinite and possibly permanent retention, fewer children will be allowed to go on holidays. This was a case of a flagrant wrongful retention, followed by false assertions of consent and acquiescence and an almost immediate cutting-off of the children from the parent left behind. It is exactly the sort of case that the Convention exists to remedy.
37. The judge was right to look at the situations of the children themselves, and in particular to have regard to what he had found to be objections in the older children. I would also accept that their preference for English schooling over Spanish schooling has some rational basis, even if the children's Spanish school is one that the parents chose for them, and which the family seems to have regarded as satisfactory before the parents fell out. However, the issue of schooling was only one element of the overall picture. The judge had to decide what weight to give it in the light of the children's ages and maturity. In that regard, he had invaluable illumination from the Cafcass officer. She is an expert at interpreting the wishes and feelings of children and she was giving a clear picture to the court of children under pressure. She was concerned, and rightly so, that the children did not have a good word for their mother or a word of criticism for their father. Unfortunately, the judge did not take advantage of this evidence. Instead, he cast doubt on the officer's assessment of the children's maturity, appears to have found that the incident on 3 August justified the children's overwhelmingly negative view of their mother, and rejected her impression that their reasons for not wanting any contact had a rehearsed quality. Nor, when evaluating the children's views, did he grapple with an obvious alternative explanation for the views of children who were entirely happy with their mother on 21 July but unwilling to have anything to do with her by the end of the following month, namely that they had fallen victim to parental conflict of such intensity that they were compelled to side with one parent against the other. In this regard, the judge also gave no weight to the fact that the children had had seemingly positive staying contact with their mother after 3 August, which he mistakenly recorded as visiting contact only. These are all factors which the judge ought to have taken into account in determining what weight to give to the objections of the older children. Had he done so, he would necessarily have given significantly less weight to them than he did.
38. For all these reasons, I have concluded that the judge's exercise of his discretion cannot stand.
39. The question therefore arises as to what order should now be made. In my view, there would be no purpose in remitting the matter to the High Court. This court is in as good a position to decide whether a return order should be made, taking into account the situation that now exists. Having heard from the parties, all that has happened since the matter was before the judge is that the situation has continued. The children have now been in their English school for a term and a half. They have continued to have no contact with their mother. The father says that he wants to sell up in Spain. The children's half-brother G has sided with the father and attended the appeal to support him.
40. Balancing these matters up, there are certain obvious disadvantages to the making of a return order. It is contrary to the children's expressed wishes and strongly opposed by their father. It would mean them moving back into the Spanish school system next term for an indefinite period, with probable negative effects on their short-term education. The family would have to reorganise itself in Spain until it resolved its differences. G might decide to remain in England. I do not underestimate the difficulties that a return order might cause. Nonetheless, in my view, a return order should be made. It is not as if the current situation is any more acceptable. The children's welfare is certainly not being served by the arrangements that the father has created, with them living in a different country to their mother and under the father's almost exclusive influence. It is plainly in the children's interests that these issues begin to be addressed, and this is best done in an environment where both parents are present. When one adds the weighty considerations that favour a firm response to unlawful removal and retention, I reach the clear conclusion that this is not a case in which the court should exercise its discretion to decline to return the children to the country of their habitual residence.

Conclusion

41. I would therefore allow this appeal and order the immediate return of the children to Spain.

Lord Justice David Richards:

42. I agree.

Lord Justice McFarlane:

43. I also agree.
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