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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> W v W [2009] EWHC 3288 (Fam) (10 December 2009) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2009/3288.html Cite as: [2010] 1 FLR 1342, [2010] Fam Law 228, [2009] EWHC 3288 (Fam) |
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This judgment is being handed down
in private on 10
December
2009. It
consists
of 12 pages and has been signed and
dated
by the judge. The judge hereby gives leave
for
it to be reported.
The judgment is being distributed
on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the
children
and the adult members of their
family
must be strictly preserved.
THE HONOURABLE MR JUSTICE BAKER
![]() ![]() ![]() | ||
![]() |
COURT
OF JUSTICE
FAMILY
DIVISION
![]() ![]() Strand, London, ![]() ![]() |
||
B e f
o r e :
____________________
![]() | Plaintiff |
|
- and - |
||
![]() | Defendant |
____________________
David
Williams
(instructed by International
Family
Law Group)
for
the Applicant
Miss Jacqueline Renton (instructed by Bindmans LLP) for
the Respondent
Mr Edward Devereux
(instructed by
Freemans
LLP)
for
the Applicant
Child
C
Hearing
date:
8
December
2009
____________________
MR. JUSTICE BAKER:
Introduction
Summary of background
C's
reasons
for
being joined as a party
(1)C
is a bright, articulate young
woman
![]()
who
is
without
![]()
doubt
![]()
competent
and able to give instructions.
(2)C
informed Miss Hansen that if the
Court
ordered L's return to Australia, her mother
would
![]()
follow
and then so
would
she, otherwise no one
will
be there to protect her brother or mother. She
was
extremely
concerned
as to their
welfare
and her own.
(3)C
told Miss Hansen that she
could
not remember
when
her parents
did
not argue and
fight,
and that her
father
![]()
was
an extremely
domineering
man and
when
annoyed he
would
take it out on either her (in the last
few
years) or her mother or both of them.
(4) Given the level of violence in the home,C
always tried to keep L by her side to protect him and keep him away
from
it all. He is six years younger and she has always protected him as much as she
was
able. They are very
close.
(5)When
asked by Miss Hansen
whether
her
father
had been physically violent to her,
C
said "yes". The
first
time
was
![]()
when
she
was
eleven years old. She had
come
home
from
school to
find
her parents arguing and had shouted at them to stop. Her
father
had told her it
was
none of her business,
C
had replied "yes it is, I live here" and her
father
smacked her across the
face.
She
described
to Miss Hansen how her
father
had seemed to lose
control
and
was
beating and punching her all over her arms and legs and then threw her across the room onto a sofa and
continued
hitting her. After this incident,
C
said that she
was
bruised all over her arms and legs.
(6)C
![]()
described
to Miss Hansen how the
fights
and beatings
continued
![]()
for
a number of years until eventually her mother got the
courage
to separate
from
her husband and the three of them left the
family
home in 2006
when
![]()
C
![]()
was
about
fourteen.
However, she said that this
did
not last
for
long as her
father
visited them regularly.
During
the visits he
would
be rude and offensive to her mother and
would
be horrid and
denigrating
to L
calling
him "
fat"
and telling him that he
was
no good
for
anything.
C
stated that her
father
![]()
would
never take L out but seemed to use
contact
as a
way
of
controlling
her mother and her.
(7)C
stated that her mother had subsequently moved house again, but, to her
disappointment,
had then told her
father
![]()
where
they
were
now living.
C
stated that her
father
![]()
constantly
![]()
demanded
that they move back to live
with
him. She said to Miss Hansen that "they sort of reconciled" and that it
was
"like she [i.e. her mother] had given up".
(8)C
said that things had
come
to a head last year
when
she
was
sitting her exams in June. One evening her
father
![]()
came
round and her parents started arguing again.
C
![]()
could
not
concentrate
and asked him to be quiet,
whereupon
her
father
became
furious
and started hitting her all over her arms and legs. The next morning she
went
to her exam
covered
in bruises and
with
her arms aching. She broke
down
![]()
during
the exam and
could
not
complete
the paper. The school's
counsellor
had taken her aside and
found
her a hostel
where
she
could
stay because she
was
too scared to go home.
(9)C
told Miss Hansen that she
was
![]()
worried
![]()
for
L and knew that she had to move back into the house because of her
concern
and
did
so in about January or
February
of this year. She said: "the last
five
months before
we
left
were
awful. My Mum had tried to protect L a bit but it
did
not really
work.
I
would
therefore argue
with
![]()
Dad
to try to ensure that L
was
protected
from
his
Dad's
usual bullying. I also
felt
I had to protect my mother".
(10)C
![]()
further
said to Miss Hansen: "I am terrified that if L goes back, Mum
would
go back as
well,
and there
will
be no protection
for
either of them. I
will
have to go back too… I
do
not how [L]
would
handle my
father
now. I
do
know that my
father
started hitting me quite regularly
from
the age of eleven onwards and this is L's age now. I believe L
would
suffer the same
fate".
She stated that unfortunately her mother is so scared of her
father
that she
could
not say no to him. She
could
not shut the
door
on him and
could
not report him to the police. In essence,
C
said that the mother
could
not protect her
children
![]()
from
the
father.
Their only protection
was
that of
distance.
![]()
The parties' positions
The Family
Proceedings Rules:
Decision
in S v B
"(a) the person alleged to have been brought into the UK thechild
in respect of
whom
an application under the Hague
Convention
is made;
(b) the personwith
![]()
whom
the
child
is alleged to be;
(c)
any parent or guardian of the
child
![]()
who
is
within
the UK and is not otherwise a party;
(d)
the person in
whose
![]()
favour
a
decision
relating to
custody
has been made if he is not otherwise a party; and
(e) any other personwho
appears to the
court
to have a sufficient interest in the
welfare
of the
child"
(emphasis added).
"(1)Without
prejudice to rules 2.57 and 9.2(A) and to para. 2 of appendix 4, if in any
family
proceedings it appears to the
Court
that it is in the best interests of any
child
to be made a party to the proceedings, the
Court
may appoint
(a) an officer of the service or aWelsh
![]()
family
proceedings officer;
(b) if heconsents,
the Official Solicitor; or
(c)
if he
consents,
some other proper person
to be the guardian ad litem of thechild
![]()
with
the authority to take part in the proceedings on the
child's
behalf.
(2) An order under paragraph (1) may be made by thecourt
of its own motion or on the application of a party to the proceedings or of the proposed guardian ad litem…"
The parties' submissions
(1) "… [T]here is now a growing understanding of the importance of listening to thechildren
involved in
children's
![]()
cases"
(per Baroness Hale of Richmond in Re
D
at para 57).
(2) Baroness Haleconcluded
in Re
D
(at para 58) that the obligation of Article 11 (2) of
Council
Regulation (EC) No 2201/2003 of 27 November 2003
Concerning
Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, repealing Regulation (EC) No 1347/2000, ("Brussels II Revised"),
which
required European Hague
Convention
![]()
cases
(subject to the Regulation) to hear the
child,
unless it appeared inappropriate having regard to his or her age or
degree
of maturity, should be of universal application to all
Convention
![]()
cases.
(3) Save in "settlement"cases
under the second paragraph of article 12 of the Hague
Convention
(
where
joinder of
children
should be "routine"), separate representation of
children
![]()
will
generally not add enough to the
court's
understanding to justify the likely intrusion, expense and
delay
(per Baroness Hale in Re M at para 57). Baroness Hale added, however, that she
would
hesitate to use the
word
'exceptional', as proposed by the
Court
of Appeal in Re
F
(Abduction: Joinder of
Child
as Party) [2007] EWCA
Civ
393, [2007] 2
FLR
313. She added: "the substance is
what
![]()
counts,
not the label."
(4) "If the 'gateway' of thechildren's
objections exception is passed, the
court
must
consider
the
discretion
stage. It is argued that Re M marks a
change
so that the return 'policy' of the
Convention
is a much less potent
factor
to be
considered
at this stage ….
Welfare
![]()
considerations,
including having regard to the
children's
views,
will
now loom larger" (per Ryder J. in Re
C
at para 45).
(1) She is afull
sibling to L and very
close
to him.
(2) She is significantly older and more mature than the non-subjectchild
Y in S v B, and in the opinion of Miss Hansen she is bright and articulate.
(3) She plays a verydifferent
role in the household
from
that played by Y in S v B. She is, it is submitted, a "
critical
protective element"
for
L against the
father's
allegedly violent behaviour. Her role and presence in the mother's household
directly
impacts upon L's
welfare.
(4) The allegations ofdomestic
violence are, it is said, of a more serious
degree
than in S v B.
(5)C
![]()
will
be
devastated
if this
Court
orders L to be returned to Australia and
will
![]()
face
a
difficult
![]()
decision
![]()
whether
to stay here or accompany him.
(6)C
has a position
close
to, but independent of, that of the mother, about
whom
she makes some
criticisms
in her
capacity
to protect L.
(7) A person's right to respectfor
private and
family
life under Article 8 of ECHR incorporates inter alia a right to procedural
fairness,
as recognised in numerous
cases
![]()
from
![]()
W
v UK (1987) 10 EHRR 29 to
CF
v Secretary of State
for
the Home
Department
[2004] EWHC 111 (
Fam),
[2004] 2
FLR
517. Procedural
fairness
requires that
C
be allowed to participate in this process that
will
lead to
crucial
![]()
decisions
about her
future
and that of her
family.