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||Neutral Citation Number:  EWCA Civ 546
||Case No: B4/2016/0615 and 1201
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Nicholas Francis QC (sitting as a Deputy Judge of the High Court)
||Royal Courts of Justice
Strand, London, WC2A 2LL
||9 June 2016
B e f o r e :
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
LADY JUSTICE ARDEN
Mr Henry Setright QC and Ms Roshi Amiraftabi (instructed by Dawson Cornwell) for the appellant mother
Mr Christopher Hames QC (instructed by Goodman Ray) for the appellant L
Mr Teertha Gupta QC and Ms Mehvish Chaudhry (instructed by Freemans) for the respondent father
Hearing date : 26 May 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Sir James Munby President of the Family Division :
- These are appeals, pursuant to permission given by Black LJ on 26 February 2016, from an order in Hague proceedings made by Mr Nicholas Francis QC (sitting as a Deputy Judge of the High Court) on 2 February 2016.
- The factual background is shortly stated. The proceedings relate to three children, L, a girl born in April 2002, F, a girl born in July 2009 and G, their brother born in January 2012. The children and their parents are Hungarian. The parents' marriage broke down and there were proceedings in the Hungarian court. While those proceedings were on foot, the mother brought the three children to this country. It is not disputed that this was, for the purposes of the Hague Convention, an unlawful removal. The father started Hague proceedings in the Family Division on 23 November 2015. The mother defended the proceedings on two grounds: first, under Article 13, that L and F objected to being returned to Hungary; secondly, under Article 13(b), that there was a grave risk that returning the children to Hungary would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
- On 20 January 2016 there was a pre-trial review before Newton J. By then L had been interviewed by an experienced CAFCASS officer, Mr John Power. The mother submitted that L should be separately represented in the proceedings. Newton J refused her application. There was no appeal against his decision.
- The matter came on for final hearing before the Deputy Judge on 2 February 2016. By then, Mr Power had also interviewed F. As the Deputy Judge recorded in his judgment, both parents were present throughout the hearing, though neither gave oral evidence. The father had the assistance of an interpreter; the mother, who speaks good, fluent English, had no need of an interpreter. The Deputy Judge had the benefit of reading Mr Power's two reports, dated respectively 18 January 2016 and 1 February 2016, and of hearing his oral evidence, of which we have been supplied with the Transcript. At the end of the hearing that afternoon the Deputy Judge delivered an ex tempore judgment. It runs to 33 numbered paragraphs, occupying nine pages of Transcript. The Deputy Judge rejected the defence based on Article 13(b). He found that L and F both objected to being returned to Hungary, but exercised his discretion to order their return. His order provided that the children were to be returned to Hungary by 19 February 2016.
- On 16 February 2016 the mother applied to the Court of Appeal for permission to appeal against the order of the Deputy Judge. A stay of his order was directed by Black LJ on 18 February 2016. Subsequently, L applied to the Court of Appeal for permission to appeal against both the order of Newton J and the order of the Deputy Judge. The matter came back before Black LJ on 26 February 2016. For the reasons she explained in her judgment (Re F (Children)  EWCA Civ 354), Black LJ refused L permission to appeal against Newton J's order but gave both L and her mother permission to appeal against the Deputy Judge's order. In relation to L, Black LJ said this (Re F, para 35):
"Whatever the outcome
at least I hope she will feel that she has had her full say in the process
she needs to be a full participating party with representation."
The father subsequently filed a respondent's notice on 24 March 2016.
- The appeals came on before us on 26 May 2016. The mother was represented by Mr Henry Setright QC and Ms Roshi Amiraftabi, L by Mr Christopher Hames QC, and the father by Mr Teertha Gupta QC and Ms Mehvish Chaudhry. In addition to all the materials which had been before the Deputy Judge, we had two statements by L's litigation friend, JB, dated 18 and 25 February 2016 respectively, setting out L's evidence in some detail, and a statement from the father dated 17 May 2016 exhibiting a bundle of updating material in relation to the Hungarian court proceedings. There was no objection to the introduction of L's evidence and we made an order permitting both L's evidence and the father's updating evidence and material to be filed. At the end of the hearing we reserved judgment.
- Given the way in which the arguments before us were deployed, it is convenient, before I proceed any further, to go in some detail to the Deputy Judge's judgment. First (paragraphs 1-16), he set out the facts and the parents' allegations. In the course of this, the Deputy Judge said this (paragraph 9):
"I should say that the father, in his evidence, denies all of the allegations that the mother makes and equally makes allegations against the mother. In the summary process in which I am engaged, I can do no more than observe that these allegations and counter-allegations have been made."
- Having identified the two defences I have mentioned and recorded that the mother had engaged in the Hungarian proceedings and recognised that the Hungarian courts have authority to make decisions about the children, the Deputy Judge continued (paragraphs 17-18):
Therefore the question that I have to ask is whether those two defences
apply and, if either of them applies, then I have to exercise my discretion in the normal way to decide what orders I should make.
18 It is common ground between the lawyers, and accepted that it is established authority now, that the child objections defence goes as follows: first, it is necessary for the defence to show that the child objects to being returned; secondly, that the child (or children) has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If each of those two limbs, which have been called the "gateway limbs", are established then I have a discretion as to whether or not to order a summary return."
- I must set out the next three paragraphs in full:
"19 The evidence that I heard from Mr Power was clear and unequivocal
it seems to me that the conclusion that I have to reach as a result of Mr Power's evidence is that L does object to being returned to Hungary. I also have to conclude that she has attained an age and degree of maturity at which it is appropriate for me to take account of her views. Of course those findings are not determinative of the decision that I have to make this afternoon. But to summarise just a few of the points that Mr Power dealt with in his evidence, he said that there was no doubt that L really likes her life in England and wants to remain here with her mother, her sister and her brother. He admitted, and accepted under cross-examination, that it probably was true that she had been exposed to conversations with her sister and mother. Mr Power accepted that there may be a degree of emotional encouragement, however subtle, that seeks to support the opinion that has been given. He also accepted that children tend to prefer the education system here to that in East Europe. He said that the children did not go into a great deal of detail about the life in Hungary. The real focus was the life in this country. He observed that L was able to say that she found that the pound went further here than the forint did in Hungary. Having heard from Mr Power, it is clear to me that there are many ways in which L took the view that her life was better here than in Hungary and objected to being returned to Hungary.
20 So far as F is concerned, I am acutely aware of her young age, being only about 6½ years old. I recognise what the Court of Appeal said in Re M about taking into account the wishes of younger children and how the trend is moving towards the ever increasing taking into account of such views. I accept without hesitation what Mr Power told me about L, both in terms of her objections to being returned to Hungary and in terms of her ability to understand what it was that she was saying. So far as F is concerned, it is much more balanced, taking into account how young she is. F had had some health difficulties in Hungary which no longer subsist. For example, she had suffered from constipation which was thought to be the consequence of emotional difficulties. On balance I find that the threshold gateway is triggered insofar as F is concerned as well as L, and that there is an objection which could amount to a defence subject to, as I have said, the exercise of my discretion.
21 In respect of G, who is only 4, I do not think it is seriously contended by anybody that the defence could arise. Accordingly, I do have to exercise my discretion in respect of both L and F."
- In paragraph 22, the Deputy Judge quoted what Baroness Hale had said in In re M (Children) (Abduction: Rights of Custody)  UKHL 55,  1 AC 1288, para 42, referring to and indicating the "general policy considerations which may be weighed against the interests of the child in the individual case." In paragraph 24, the Deputy Judge went on to quote a further passage from Baroness Hale's speech (Re M, para 46):
"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."
- In paragraphs 25-30, the Deputy Judge turned to deal with the Article 13(b) defence and to explain why the mother had not made it out. In the course of this, the Deputy Judge summarised the mother's case as follows (paragraph 28):
"I have been referred to the mother's statement and also to oral evidence which the mother gave to the Hungarian court
which details the circumstances pertaining at the time of their removal from Hungary which placed them at risk of emotional and physical harm. The issues which the mother gave evidence about in those various ways included what she referred to as the father's financial abandonment of her and the children following the parties' separation; the father's controlling and emotionally abusive behaviour towards the mother and his lack of practical support for the children following separation; the consequent impact on the mother's emotional and psychological health; the consequent impact on the children's emotional and psychological health."
- Paragraphs 31-32 are central to the issues which have been debated before us:
"31 My discretion therefore arises out of L's wishes being made out in the way that I have set out and F's being made out, but with the caution that I have referred to already that I must exercise by account of her age. Having regard to the protection, which I am satisfied that the Hungarian court can offer, to the civilised and proper way in which it appears so far to have dealt with the issues relating to the contact and residence of the children; having regard to the fact that the process there is well advanced, with the reports having been ordered; having regard to the father's undertakings and the sophisticated mechanisms that are available in Hungary for the making of financial claims, and having regard to the admission by the mother of the abduction and the payment of the rent in advance, and the other matters to which I have referred, in the exercise of my discretion, painful as I find it, I am satisfied that I should make the order for the summary return of the children to Hungary. I accept all of the father's undertakings that have been offered and carefully crafted and agreed by counsel in advance. When I say "agreed" I mean subject obviously to the judgment that I was going to give.
32 I recognise that the order that I am making will be painful to the mother; that she is making for herself a new life here in England, and that it will be painfully particularly to L. But I also recognise that this is a summary process where my hands are to some extent already tied and I am completely satisfied that, having regard to the principles set out by the Supreme Court and the House of Lords, in the cases to which I have referred, that the proper order is for the return of the children to Hungary."
The grounds of appeal
- The mother and L make common ground in relation to two grounds of appeal. First, Mr Setright and Mr Hames say that the Deputy Judge's use (judgment, paragraph 32) of the phrase "this is a summary process where my hands are to some extent already tied" shows that he misdirected himself and improperly fettered a discretion which, as Baroness Hale had made clear in in In re M (Children) (Abduction: Rights of Custody)  UKHL 55,  1 AC 1288, para 43, was "at large." His hands were not tied, he had a wide discretion; the misdirection meant, they submit, that the Deputy Judge failed to conduct a proper discretionary exercise at all.
- Secondly, they point to the fact that in the previous paragraph (paragraph 31) the Deputy Judge had referred to only three specific factors in summary, first, "the protection, which I am satisfied that the Hungarian court can offer," secondly, "the father's undertakings," and, thirdly, "the admission by the mother of the abduction and the payment of the rent in advance" and had, they submit, failed to take into account a number of other highly relevant factors, thereby basing the erroneous exercise of his discretion on an inadequate and unduly narrow range of considerations.
- Mr Setright identifies no fewer than eight factors to which, he says, the Deputy Judge had no, or at best inadequate, regard: (i) the reasons for L's and F's objections; (ii) the strength of their objections; (iii) the family's circumstances and home environment immediately prior to their removal to England and the impact of those circumstances on the well-being of the mother and the children and their views; (iv) the extent to which the children's views might have been influenced by the mother; (v) the likelihood that the children would be returning to the same circumstances and environment which contributed, significantly in the case of L, to their objections to a return and whether in such circumstances a summary return was contrary to their interests; (vi) the fact that L and F were settled in England and viewed their lives to be better in this jurisdiction; (vii) the impact upon the mother, the children's primary carer, who has achieved financial independence and emotional stability in this jurisdiction; and (viii) in the case of L, as a child rising 14 years and assessed by Mr Power as probably more mature than her age group, any consideration or explanation of the factors which justified no weight being attached to her objections.
- From L's perspective, Mr Hames summarises the Deputy Judges omissions as being his failure to consider: (a) the nature and strength of L's objection; (b) whether those views are authentically her own; (c) whether L's objection coincides or is at odds with her welfare; and (d) the impact a return would have on L's life;
- Mr Hames puts at the forefront of his submissions, however, the complaint that the process before the Deputy Judge was fundamentally flawed and unfair to L in that (i) she was deprived of her right to participate in a decision which fundamentally affected her future, (ii) she was not able to furnish the court directly with "vital information and evidence" which the Deputy Judge needed to take into account in exercising his discretion as Mr Hames put it, this damaged the flow of information to the judge, who was therefore not able to take account of all the relevant evidence, and (iii) the Deputy Judge failed to meet with L despite Mr Power having reported that she wished to meet the trial judge. Mr Power's evidence, he submits, was merely a snapshot of L's views; what he calls the contextual detail was not before the judge.
- Mr Hames emphasises that L no longer challenges the decision not to join her to the proceedings. He seeks merely to demonstrate that her exclusion meant that the process in which the Deputy Judge's decision was taken was fundamentally flawed. Mr Gupta submits that, having been refused permission to appeal against Newton J's order, this line of argument is no longer open to L. The appeal is not, he says, a backdoor to revisiting Black LJ's decision not to give permission.
- Be all that it may, Mr Hames accepts that all the relevant material is now before us. So it is to this that I turn. Given that L has been given permission to appeal, and given that we have admitted all the materials upon which she wishes to rely, the other aspects of her appeal in my judgment fall away. Whatever defects in the procedure there may have been (and even assuming in her favour that it is still open to L to raise them), they cannot in my judgment give her any additional basis of complaint if the challenge, based on the facts, which is before us fails.
- Mr Hames summarises the key points which emerge from L's evidence, as articulated by JB in her statements, as being: (a) how happy and integrated L is with her life in England, particularly in her school in England: she had chosen her GSCE options; she has immersed herself in school activities from choir to athletics, from drama to gymnastics; she has many school friends; (b) how extensive and supportive her social network has been outside school: she attends a local church; (c) how L had changed from a quiet timid girl when living in Hungary to a happy girl in her English school; (d) how deeply unhappy and stressed L was in Hungary: she felt intimidated by her father shouting at her mother; she cried a lot; she always felt stressed and tired; she lost her appetite and suffered weight loss; (e) what a struggle life had been in Hungary after the father left: L's mother did not have the financial support to meet the family's basic costs of living; she struggled to provide financially for the family and meet all of the care needs of the 3 children; the family was forced to move; L fears the family would rapidly descend back into poverty should there be a return to Hungary ordered; (f) how a return to the Hungarian education system would not meet L's educational aspirations, particularly when compared to her English school; (g) how L is aware that while in theory the Hungarian court could give permission for the family to return, the delays inherent in the Hungarian system, coupled with her father's abilities as a lawyer, mean that no decision would be made within a reasonable and child-appropriate timescale; a return now would mean the family is trapped in Hungary in the same old stressful circumstances as before but this time having to cope with the aggravation of prolonged litigation; (h) how her father has effectively rejected L and her siblings: during contact visits he worked or slept; he arranged no family activities for his children; there was no warmth or love in his home; he never helped with their homework; L feels thoroughly let down by him; (i) L had engaged in two face time discussions with her parents to attempt to reach agreement; she proposed professional mediation to assist her parents and her find consensus; (j) any suggestion that her father puts before the court that L has been brainwashed by her mother is both untrue and unfair: he is guilty of not listening to her and not understanding her views, wishes and feelings; (k) Mr Power was wrong to accuse her of not telling the truth about the mother's male friend, P: at the time of her meeting with Mr Power, P was not her mother's boyfriend; (l) since being informed of the judge's decision, L cries all of the time, has had trouble sleeping and eating and has been unable to concentrate at school; a return for her would be a 'nightmare'.
- Mr Hames emphasises that this is merely a summary of JB's evidence and urges us to bear in mind, as I do, everything she has said, for example in paragraphs 20 and 24 of her second statement, where she refers to L as being "terrified" of the prospect of being returned to Hungary and of talking "in a rather panicked way."
- Like any judgment, the judgment of the Deputy Judge has to be read as a whole, and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP  EWHC 3964 (Fam),  1 FLR 228, para 29, there is no need for the judge to "incant mechanically" passages from the authorities, the evidence or the submissions, as if he were "a pilot going through the pre-flight checklist."
- The task of this court is to decide the appeal applying the principles set out in the classic speech of Lord Hoffmann in Piglowska v Piglowski  1 WLR 1360. I confine myself to one short passage (at 1372):
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case
These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
It is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none. The concern of the court ought to be substance not semantics. To adopt Lord Hoffmann's phrase, the court must be wary of becoming embroiled in "narrow textual analysis".
- In the present case it is important also to bear in mind that the Deputy Judge was giving an ex tempore judgment at the end of a hearing which had occupied only one day, and in the presence of the parties who had been present throughout the hearing and who had heard both Mr Power's evidence and counsel's submissions all of which must have been fresh in their minds as they listened to the judgment being delivered.
- I consider first the complaint that the Deputy Judge misdirected himself in law. In my judgment, there is no substance in this complaint.
- It is necessary, as Mr Gupta submitted, to have regard to the structure of the Deputy Judge's judgment. The core of his reasoning in relation to the exercise of his discretion is undoubtedly to be found in paragraph 31 which, it is to be noted, culminates in his conclusion that "I should make the order for the summary return of the children to Hungary." Paragraph 32, Mr Gupta suggests, has the tone of a postscript, in which the Deputy Judge is expressing, for the benefit of the mother, his regret at having had to make a tough decision. But, says Mr Gupta, and I agree, the Deputy Judge is not saying he is constrained in the manner suggested by Mr Setright and Mr Hames. The Deputy Judge's reference to a "summary process", read in context, is plainly to the Hague process, taken as a whole, and not to the ambit of his discretion. It echoes his earlier reference (judgment, paragraph 9) to "the summary process in which I am engaged" which, in context, has nothing whatever to do with the ambit of his discretion. Moreover, and in any event, the phrase when used by the Deputy Judge in paragraph 32 cannot have been intended by him in the way in which Mr Setright and Mr Hames would have us read it, for why, on that footing, should he have extended his discussion of discretion in paragraph 31 as widely as, in my judgment, he plainly did.
- I turn to the attack on the Deputy Judge's exercise of discretion. In my judgment it founders because of the excessively narrow reading of paragraph 31 to which both Mr Setright and Mr Hames would have us subscribe. Their approach, stripped down to essentials, is to treat as the only factors which the Deputy Judge took into account those to which I have referred in paragraph 14 above. But this, with all respect, involves a misreading of paragraph 31; in particular, it ignores what, in my judgment, is the importance, in understanding the Deputy Judge's reasoning, both of the opening words of paragraph 31 ("My discretion therefore arises out of L's wishes being made out in the way that I have set out and F's being made out
") and of the phrase which appears at the end of his list of specific factors ("and the other matters to which I have referred"). Read in context, these are plainly references back to what the Deputy Judge had earlier set out in the passages (judgment, paragraphs 19-21, 28) set out in paragraphs 9 and 11 above. It follows, in my judgment, that, in evaluating whether or not there is substance in their attack on the Deputy Judge's exercise of discretion, the complaints articulated by Mr Setright and Mr Hames have to be considered in the context of the Deputy Judge's judgment read as a whole and, in particular, in the context of paragraphs 19-21, 28, and 31-32 read as a whole.
- In my judgment, an analysis of the Deputy Judge's judgment read as a whole, and in particular if paragraphs 31-32 are read, as they must be, in the context of paragraphs 19-21 and 28, demonstrates that Mr Setright's complaints simply do not stand up. Put shortly, every one of the points to which Mr Setright draws attention, as I have summarised them in paragraph 15 above, is identified by the Deputy Judge and appropriately taken into account by him, if not in paragraphs 31-32 then in paragraphs 19-21 and 28.
- Inevitably, this exercise has lured us into the kind of "narrow textual analysis" against which Lord Hoffmann warned; but, paradoxically, the more we embarked with Mr Setright on this analysis the more it demonstrated, in my judgment, that there was, at the end of the day, really nothing in his argument. Remorseless analysis of each of Mr Setright's eight points is not called for, but I can illustrate my conclusion by making the following non-exhaustive points.
- The reasons for L's and F's objections were clearly summarised by the Deputy Judge (judgment, paragraphs 19 and 20). Mr Setright sought to bolster his argument as to the strength of their objections by taking us to passages in Mr Power's evidence where he said L and F "really want to remain in the UK", and that F "really likes her life here" and is "really worried" about a return. But this is the very language which the Deputy Judge used when he said (paragraph 19) that "L really likes her life in England." And the Deputy Judge recognised (paragraph 32) that the order he was making "will be particularly painful to L." The Deputy Judge dealt with the family's circumstances in Hungary (paragraph 28). He dealt with the issue of the mother's influence on the children's views (paragraph 19) and accepted Mr Power's analysis. Mr Setright sought to bolster his argument on this point by taking us to a passage in Mr Power's evidence where, I note, Mr Power referred to the mother's "subtle emotional encouragement." But again, this is evidence that the Deputy Judge had very much in mind, as demonstrated by his reference (paragraph 19) to "a degree of emotional encouragement, however subtle." The Deputy Judge addressed (paragraph 31) the concern that the children would be returned to the same circumstances in Hungary and explored the protective measures (both judicial and by way of the father's undertakings) that would be in place. He addressed the fact that, as Mr Setright put it, the children were settled in England and thought their lives to be better in this jurisdiction, again a phrase which he picked up (paragraph 19) when he referred to L taking the view that "her life was better here than in Hungary." He addressed the impact on the mother, recognising (paragraph 32) it would be "painful to the mother [who] is making for herself a new life in England." I should add that there is simply no basis for the assertion that the Deputy Judge attached "no weight" to L's objections. He dealt with them in some detail and gave them appropriate weight but, as he was entitled to, refused to treat them as determinative.
- I have set out in paragraph 20 above the matters relied on by Mr Hames. True it is that the new material adds a certain amount of 'colour' and additional detail (for example, Mr Hames' points (b), (c) and (h)) but the fundamentals Mr Hames' points (a), (d), (e), (f), (g) and (j) were all put before the Deputy Judge by Mr Power and, as his judgment demonstrates, they were all matters that the Deputy Judge had very much in mind. I do not see where his point (k) takes Mr Hames, for it is plain that the Deputy Judge accepted Mr Power's evidence that L objected (and as to why that was) and there is no hint of the Deputy Judge's analysis having been tainted by any suggestion that L had not been truthful. Mr Hames' points (i) and (l) are in a sense new but I do not see where they take him. Neither, in my judgment, whether taken on their own or in conjunction with everything else, provides any reason for challenging the conclusions to which the Deputy Judge came or any reason why the order he made should not be implemented.
- In my judgment, no error of fact has been identified in the judgment of the Deputy Judge. Nor has any error of law or principle. The Deputy Judge took into account all the relevant factors and attributed to them, as he was entitled to, such weight as he thought appropriate in the circumstances. He was entitled to decide as he did and for the reasons he gave. This court is not entitled to interfere with his decision nor, even in the light of the additional material which is now before us, with the order he made.
- Both appeals must be dismissed. There is, therefore, no need to consider the 'sibling separation' issue that might otherwise have arisen in relation to G's position (as to which see In re M and others (Children) (Abduction: Child's Objections)  EWCA Civ 26,  Fam 1).
- The appeals will be dismissed. The father has proffered the following undertakings, in addition to those he gave the Deputy Judge, to address the fact that there have, since the date of the Deputy Judge's order, been further developments in the Hungarian court:
"1 On the understanding that the mother will allow direct contact between the children and father in Hungary and that she will fully co-operate in ensuring that a final judgment is obtained as soon as possible in Hungary, the father undertakes not to enforce the Hungarian orders for interim custody pending said final judgment.
2 The father undertakes to lodge a consent order in Hungary staying the interim custody orders until final judgment."
Those undertakings will be included in our order.
Process and procedure
- In deference to his careful submissions I should make some reference to the authorities to which Mr Hames referred us in relation to the question of whether L was given a proper opportunity to participate in the proceedings before the Deputy Judge. Because, as I have said, nothing ultimately turns on any of this, I can take matters fairly shortly, in large part merely identifying the relevant authorities without any elaborate citation.
- The starting point is, of course, Article 12(2) of the United Nations Convention on the Rights of the Child and Article 11(2) of Council Regulation (EC) No 2201/2003, commonly referred to as BIIA, both of which identify the obligation on the court to ensure that the child is given the opportunity to be "heard". Next I refer to the well-known passage in the characteristically prescient judgment of Thorpe LJ in Mabon v Mabon  EWCA Civ 634,  2 FLR 1011, paras 28-29, culminating in his observation that "judges have to be
alive to the risk of emotional harm that might arise from denying the child knowledge of and participation in the continuing proceedings." Thorpe LJ returned to the same theme in Re G (Abduction: Children's Objections)  EWCA Civ 1232,  1 FLR 1645, para 15, a case where (see paras 20-21) Thorpe and Smith LJJ themselves met the child, a 13-year old girl, and again in Re J (Abduction: Children's Objections)  EWCA Civ 1448,  1 FLR 457, paras 33, 42.
- Well before then, in In re D (A Child) (Abduction: Rights of Custody)  UKHL 51,  1 AC 619, paras 57-61, the House of Lords had indicated that merely enabling the child to meet the judge might not be sufficient. Having observed (para 59) that "children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done", Baroness Hale of Richmond continued (para 60):
"There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face-to-face interview with the judge."
I add another possibility, the child giving evidence but without being joined as a party: see Cambra v Jones (Contempt Proceedings: Child joined as party)  EWHC 913 (Fam),  1 FLR 263, paras 10, 14.
- The Supreme Court returned to the topic, this time in the context of care proceedings, in In re W (Children) (Family Proceedings: Evidence)  UKSC 12,  1 WLR 701, holding that there is no longer a presumption, or even a starting point, against children giving evidence in family proceedings. In In re LC (Children) (Reunite International Child Abduction Centre intervening)  UKSC 1,  AC 1038, the Supreme Court considered whether a 13-year old girl, T, should be joined as a party to Hague proceedings. Reversing this court, it held that she should.
- Next, I should refer to In re M and others (Children) (Abduction: Child's Objections)  EWCA Civ 26,  Fam 1, para 155, and, more particularly, to In re D (A Child) (International Recognition)  EWCA Civ 12, paras 41, 44, 47, 48, where the obligation of the court to ensure that the child is given the opportunity to be heard and "the right of the child to participate in the process that is about him or her" were said to be fundamental principles of universal application, "reflected in our legislation, our rules and practice directions and our jurisprudence" and where it was said that "the theme of the case law is an emphasis on the 'right' of participation of those 'affected' by proceedings."
- Finally, I refer to the very recent decision of this court in Re E A Child)  EWCA Civ 473, paras 46-48, 56-63, and, in particular, McFarlane LJ's acid observation (paras 48, 56) that Baroness Hale's judgment in In re W "would seem to have gone unheeded in the five or more years since it was given" and that "the previous culture and practice of the family courts remains largely unchanged with the previous presumption against children giving evidence remaining intact."
- It is apparent that in relation to all these matters there has been a sea-change in attitudes over the last decade and more, even if on occasion practitioners and the courts have been and still are too slow to recognise the need for change or to acknowledge the pace of change. Moreover, and I wish to emphasise this, the process of change continues apace.
- In April 2010, "Guidelines for Judges Meeting Children who are Subject to Family Proceedings" were issued by the Family Justice Council with the approval of Sir Nicholas Wall P:  2 FLR 1872. In December 2011, and following the decision of the Supreme Court in In re W, the Family Justice Council issued Guidelines, endorsed by Sir Nicholas Wall P, on "Children Giving Evidence in Family Proceedings:"  Fam Law 79. More recently, the whole topic, with other related matters, has been considered by the Children and Vulnerable Witnesses Working Group which I established under the Chairmanship of Russell and Hayden JJ in May 2014. Their interim report was published in July 2014 (see  Family Law 1217) and the final report in February 2015 (see  Family Law 443). The Family Procedure Rules Committee is currently considering the extent to which, given limited resources, the recommendations of the Working Group can be fully implemented. Whatever the outcome of that discussion, it is plain that the further changes in our approach to these matters which are now widely acknowledged require to be implemented, and sooner rather than later.
- One thing is quite clear: that proper adherence to the principles laid down in In re W will see ever increasing numbers of children giving evidence in family proceedings.
- One of the drivers for this is the point which this court emphasised in In re KP (A Child) (Abduction: Rights of Custody)  EWCA Civ 554,  1 WLR 4326, paras 53, 56, namely, that a meeting between the child and the judge is "an opportunity: (i) for the judge to hear what the child may wish to say; and (ii) for the child to hear the judge explain the nature of the process;" that the "purpose of the meeting is not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say;" and that if "the child volunteers evidence that would or might be relevant to the outcome of the proceedings, the judge should report back to the parties and determine whether, and if so how, that evidence should be adduced." The corollary of this is that, quite apart from all the other drivers for change, there are likely for this reason alone to be more cases in future than hitherto where the child either gives evidence, without being joined as a party, or is joined as a party.
Lady Justice Arden :
- I agree.
Note 1 This is a reference to In re M and others (Children) (Abduction: Childs Objections)  EWCA Civ 26,  Fam 1. [Back]
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