|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> F (Abduction: Acquiescence: Child's Objections)  EWHC 2045 (Fam) (2 July 2015)
Cite as:  EWHC 2045 (Fam)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
B e f o r e :
sitting as a Deputy High Court Judge
|Re F (Abduction: Acquiescence: Child's Objections)|
Miss Ashley Thain for the father
Crown Copyright ©
'repeatedly told the Applicant that having struggled to support her lifestyle there for nearly 7 years after we had separated, unless she could find a way of supporting herself, all be it with a contribution from me, she would have to return to the UK with the children. I did resume the payments in September and October 2014. The payment was AU$8,000 per month.'
That statement conflicts with an e-mail the father sent to the mother on 5th December in which he says,
'I have never let you down before and I won't this time. I am waiting for a deal to pay out and then I will pay it. If it's not paid in the next couple of weeks I will borrow it from mum.'
'When the Applicant finally realised how determined the children were, she agreed that she would pack the house up and return to live in the UK. She told them that wherever they were, she would wish to be.'
'I was very upset and told him he should return them to their home in Australia. He refused to listen to me and his mind seemed to be made up. He also told me that he was no longer going to pay the mortgage arrears and that I would be evicted'.
'I am writing to advise you that as of February 2015 I have left Australia. I have had to return to the UK to attend court to get my children returned to me, as after a holiday to the UK the children's father refused to return them to our home in Australia. I hope to return to Australia in the future with my children.'
In the latter, the Director of Enrolments began her letter to the mother by saying,
'I am so sorry that this situation has forced you to move to the UK and wish you all the very best for a positive outcome…'
'Having made it absolutely clear that they wish to remain here in the UK, I made application for the children to attend an independent school but sadly they all failed the entrance exams due to the very poor educational standard that they have reached in Australia….I then arranged for Clare, Peter and Harry to attend our local village primary…where they are extremely happy and thriving and for Simon to have weekly home tutoring. I also tutor him myself. Since living with me in the UK all of the children have increased their reading age substantially. Harry has improved by three years, Peter and Clare by two years and Simon by one year as a result of the substantial improvements Simon has now been accepted to start at the independent school in September…'
Steps taken by the mother to recover the children
'didn't know whether the respondent would follow through with his plan. A friend of mine knew a retired High Court Judge in Australia and I asked him what I could do if the respondent failed to return the children to me. He mentioned the Hague Convention; he told me that if the respondent refused to return the children it was a criminal offence and that the federal police would get involved. He told me that he could get arrested for abduction. I was worried as I did not want the respondent to be arrested. He seemed troubled by the fact that I was on the verge of losing the family home as the respondent had told me he would not pay the arrears and that I had been served with an eviction notice. I had told him about the eviction date later in the month. I was very confused and did not know what to do. I was very upset. The retired judge seemed to suggest that I would need to go back to England because of the difficult circumstances my husband had put me in. He did not explain to me the mechanics of the Hague Convention but he did mention it as a way of getting the children back to Australia. I had no access to funds to get proper legal advice.'
The mother took no other steps before leaving Australia.
'I accompanied the children to the UK in November 2014 as the respondent wanted to have them in the Uk for Christmas and he was due to return them to Australia on January 23rd so as they could return to school on the 27th January 2015. The children were not returned to my care. Our property in Australia has since been repossessed as the respondent hasn't paid the mortgage since February 2014. I would like to live back in Australia with the children but have returned temporarily to the UK in order to regularise my domestic/financial affairs. It is my view that the children should be returned to my care as soon as possible.'
A little later in her application she said,
'I am contemplating making an immediate application for the return of the children to Australia through the Central Authority'
' …It is worth repeating Art 16 of the Hague Convention which says:
'After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.'
In Re H (Abduction: Habitual Residence: Consent)  2 FLR 294 Holman J spoke in trenchant terms about the duty of the court to be alert to this provision and to transfer the case to the High Court of Justice if in any doubt. He spoke of 'alarm bells ringing'. This and other authorities cited by him in that case have led to a note in the Family Court Practice (Jordan Publishing, 2013), at p 448 as follows:
'Where the court becomes seised of a matter relating to a child and it becomes apparent that there has been wrongful removal or retention within the meaning of the Convention, the court has a duty to take steps to secure that the parent in the other state is informed of his rights under the Convention. The English central authority should be requested to inform the central authority of the state from which the child has been removed of the circumstances of the case. The court should also communicate with the parent in that state by means of directions to the effect that he should seek legal advice expeditiously as to his rights and communicate with the central authority of his state of which he should be given the name and address.''
It would appear that all of that was overlooked by the judge.
'I am writing this letter because you won't listen when I try to talk. I don't want to go back to Australia because I have friends and family here. I have a baby sister called Molly and I want to grow up with her…I have some lovely friends at my new school…If we go back to Australia we will never see our family again. If we go back we will never see our daddy again. We love it here and we don't want to go back…'
'One of the reasons why I don't want to go back to Australia is because we have got Family and Friends here in England…Another of the reasons is that I have a cute baby sister that has just begun to crawl, named Molly. I would "LOVE" to see her grow up…I want to live in England with my dad. My dad tells me the truth and tells me what is going on. That is why I love him and trust him. If you love us as much as you say you do, why are you trying to move us back to a country where we do not want to live. '
'Clare thinks that her mum has lied to them as she said going to court was nothing about going back to Australia but now it turns out it is. She feels that if they returned to Australia she will be angry with her mum. Clare was also worried about how life would be if they did return as she knew her mum had no money and her dad had paid for everything since they split up. She said she knew this because her mum was always calling him to ask for money when she had none.'
'I would like to stay in England because all are (sic) family is here and I love them very much. Also we have a 10 month baby sister that we also love to bits. So, people might say we are very young to make this big effort in staying in England but, I know what is right for me and I want to stay in England. Please!!!...P.S And I would like to live with Dad.'
'If his mum was not in England, Simon thought he would still want to stay as he feels at home here. He said he has always identified with being English, and his friends in Australia used to comment that he had an English accent (which he has). However, his ideal scenario was for them all to be here, but living with dad and mum being nearby.'
Cafcass' overall assessment
'it was my view that all four children were highly articulate about their current complex situation, and that they demonstrated a great deal of insight and nuanced explanation regarding their needs. There was no sense of a "script" being rehearsed, that you might find with children who have been overtly influenced by a resident parent.
I found Clare to be more mature than the average ten year old. In my view, Simon was particularly mature and articulate for a thirteen year old. It may be that the court considers attaching particular weight to their views given this assessment of their maturity…
Clare and Simon appeared to identify more closely with being English than being Australian…
However, their wish to remain in England appears to go beyond a preference to live with their father in England. The striking feature of all four discussions I had with the children was that it was important to their sense of identity to live within their wider family, to grow up knowing them and having the opportunity to spend time with them…
A return to Australia in the circumstances proposed by the mother would not only result in the children feeling angry about their express wishes being disregarded, but would place them back within a situation that was likely to result in further parental conflict about money…
Should the court decide that the children must return to Australia, the parties must make it clear to the children that this is not a "forever decision". Assuming that the father issues proceedings there, the children should be helped to understand that the court in Australia will make a full assessment and then decide where the children should live long term, as perhaps should have happened in the first place.' [emphasis supplied]
'Simon and Clare have directly expressed the view that they will hold their mum responsible for their unhappiness if they must return to Australia, as she has applied to the court for their return. They feel this would be detrimental to a positive relationship with them.'
Meeting with the children
'it may well be appropriate for the children to be spoken to by the court so that the decision as regards their return can be explained to them in a neutral and objective way, and so facilitate a smooth return with their primary carer M back to Australia, their home.'
'Where a child has been wrongfully removed or retained in terms of Art 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.'
'8. …is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there.'
'Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return established that:
a The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of the removal or retention or had consented to or subsequently acquiesced in the removal or retention..
b There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views…'
'To bring these strands together, in my view the applicable principles are as follows. (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence)  1 F.L.R. 819, 838: "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.'
'…there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted. Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long-term future of the child. No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust…
…in my judgment these exceptional circumstances can only arise where words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting-on the summary return of the child: they must be wholly inconsistent with a request for summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child…'
'It is significant, in my view, on the issue of acquiescence, that the judge found that the father did not ask for M to be returned even after April 1997 until he issued the Convention application. Further, it has never been suggested in any of the documents before us that the father has asked or will ask to take over the care of M himself. The emphasis in this case has been throughout on arrangements for contact.'
'Taking all that together, I find myself compelled to a clear picture of the father taking no steps to procure a summary return, whether by demands made to his wife by himself, nor in any solicitor's correspondence, nor in any form of proceedings, nor in what he said to the court with the court welfare officer. He allowed the state of affairs to run on and decided for himself to settle in England.'
'I take into account and accept the fact that he did not have correct advice about or a detailed knowledge of his rights under the Hague Convention. But those are not a pre-requisite for the establishing of defence of acquiescence. What is important is that he knew he could bring proceedings for their return to France but he chose instead, by April 2007, to accept the situation of the children having returned to their home country. From then on it seems to me he acted in accordance with that decision and the mother cannot but have believed that he had accepted the situation which by then had arisen.'
'34. Where does the law stand in relation to the gateway requirements? Certain features can perhaps be treated as tolerably well established.(1) Factual matters
35. It is established that whether a child objects to being returned is a matter of fact, as is his or her age, see for example Re S  at 782 and Re T at 202. It seems to me that the degree of maturity that the child has is also a question of fact.(2) No chronological threshold
37. A second established feature is that there is no fixed age below which a child's objections will not be taken into account. However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account, Re R (Child Abduction: Acquiescence)  1 FLR 716 at 729/730.(3) Objections and not anything less
38. A further feature about which I think there is, in fact, no real difficulty is that the child's views have to amount to objections before they can give rise to an Article 13 exception. This is what the plain words of the Convention say. Anything less than an objection will therefore not do. This idea has sometimes been expressed by contrasting "objections" with "preferences".(4) Objection to return to country of habitual residence
42. It is said that the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country, although it has been clear from early on that there may be difficulty in separating out the two sorts of objection.(5) Objections are not determinative
46. I referred earlier to the House of Lords decision in Re D. One of the things which it and Re M together made quite clear was that the fact that a child objects to being returned does not determine the application. I will set out in full §§57 and 58 of Baroness Hale's speech in Re D but the message is summed up in the final sentence of the latter paragraph:- hearing the child is not to be confused with giving effect to his views.'
'…the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach [Re T (Abduction: Children's Objections to Return)  2 FLR 192] to the gateway stage should be abandoned.'
Black LJ agreed with the observation made by Wilson LJ (as he then was) in Re W (Minors)  EWCA Civ 520) that this 'straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied' represents 'a fairly low threshold requirement'.
Meeting with the children
'to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the judge has understood their wishes and feelings and to understand the nature of the judge's task.'
'It is Cafcass practice to discuss with a child in a manner appropriate to their developmental understanding whether their participation in the process includes a wish to meet the judge. If the child does not wish to meet the judge discussions can centre on other ways of enabling the child to feel a part of the process. If the child wishes to meet the judge, that wish should be conveyed to the judge where appropriate.'
' The judge is entitled to expect the lawyer for the child and/or the Cafcass officer:
(i) to advise whether the child wishes to meet the judge;
(ii) if so, to explain from the child's perspective, the purpose of the meeting;
(iii) to advise whether it accords with the welfare interests of the child for such a meeting take place; and
(iv) to identify the purpose of the proposed meeting as perceived by the child's professional representative/s.'
'…it is possible to draw together a number of themes which are common to each of the authorities to which we have made reference:
(a) there is a presumption that a child will be heard during Hague Convention proceedings, unless this appears inappropriate…
(b) in this context, 'hearing' the child involves listening to the child's point of view and hearing what they have to say…
(c) the means of conveying a child's views to the court must be independent of the abducting parent…
(d) there are three possible channels through which a child may be heard..
(i) report by a Cafcass officer or other professional;
(ii) face-to-face interview with the judge;
(iii) child being afforded full party status with legal representation;
(e) in most cases an interview with the child by a specialist Cafcass officer will suffice, but in other cases, especially where the child has asked to see the judge, it may also be necessary for the judge to meet the child. In only a few cases will legal representation be necessary…
(f) where a meeting takes place it 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 and, in particular, why, despite hearing what the child may say, the court's order may direct a different outcome;
(g) a meeting between judge and child may be appropriate when the child is asking to meet the judge, but there will also be cases where the judge of his or her own motion should attempt to engage the child in the process…'
' Return orders in respect of a boy on the threshold of escape from the court's Convention jurisdiction and determined to fight enforcement need to be very carefully thought through by any trial judge. There are enough incidents in the report of the distress and general mayhem caused by the making of return orders that were foreseeably bound to provoke dramatic scenes. In these cases an option open to the judge is a meeting at which practicalities, consequences and reassurances can be ventilated. The judge sits above the family turmoil. The judge's authority can be an influence for acceptance. Importantly a meeting gives the judge an opportunity directly to assess where the return order will lead if enforcement will be resisted. Dramatic (and by no means unknown) scenes such as the pilot refusing to take off without the children disembarking or children barricading themselves and threatening suicide cause profound damage to the principal actors and a great deal of disturbance to others in the cast or in the wings.'
' The difference between the two was summed up thus by Thorpe LJ in Cannon v Cannon at para :
'For the exercise of a discretion under the Hague convention requires the court to have regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the child is paramount if the discretion is exercised in the context of our domestic law'
There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thus exaggerating the differences between them…
 My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para  above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
 That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention…
 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 secondly, 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 Art 12 of the United Nations Convention on the Rights of the Child 1989, 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.
'The Hague Convention is clear in its terminology. There must be a very clear distinction between the child's objections and the child's wishes and feelings. The child who has suffered an abduction will very often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, however fragile the bubble may be, but the expression of those wishes and feelings cannot be said to amount to an objection unless there is a strength a conviction and a rationality that satisfies the proper interpretation of the Article.'