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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> W v W [2010] EWHC 332 (Fam) (04 March 2010) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2010/332.html Cite as: [2010] 2 FLR 1150, [2010] EWHC 332 (Fam), [2010] Fam Law 569 |
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This judgment is being handed down
in private on 4th March 2010. It
consists
of 14 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 MRS JUSTICE BLACK
![]() ![]() ![]() | ||
![]() |
COURT
OF JUSTICE
FAMILY
DIVISION
![]() ![]() Strand, London, ![]() ![]() |
||
B e f
o r e :
____________________
![]() ![]() |
||
- and - | ||
![]() ![]() |
____________________
Devereux
(instructed by Bindmans and
Company
)
for
the Applicant
Ms Annmarie Harris (instructed by Slater Bradley and Company)
for
the Respondent
Hearing dates:
12th
February
2010
____________________
Black J:
"The judicial ….authority may also refuse to order the return of thechild
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."
"In thecase
of Re R (
Child
Abduction: Acquiescence) [1995] 1
FLR
716 the
Court
of Appeal rejected the suggestion that there
was
a halfway house: either the
child
![]()
was
old and mature enough to have her views taken into account or she
was
not. A is 10 ½. This is an age
which
one
would
normally
consider
on the borderline of
whether
views should be taken into account, but
chronological
age is not the only guide. In the
case
of Re S (above) the
Court
of Appeal took account of the objections of a
child
of 9. The evidence here is that A is an intelligent
child.
Her present school
considers
that she is grammar school material. The social
worker
![]()
considered
that she
was
also a mature
child.
She had become so because of her experience and awareness of adult issues, but she
was
not inappropriately adult." [I have emphasised the passage upon
which
Mr
Devereux
relies.]
A was
found
to be sufficiently old and mature
for
her views to be taken into account.
"57. There is evidence, bothfrom
the
CAFCASS
officer
who
interviewed him after the
Court
of Appeal refused him leave to intervene, and
from
the solicitor
who
represents him, that A is adamantly opposed to returning to Romania. Yet until the
case
reached this House, no
defence
based on the
child's
objections
was
raised. This is not surprising. A
was
only 4 ½
when
these proceedings
were
begun. At that age
few
![]()
courts
![]()
would
accept that he has 'attained an age and
degree
of maturity at
which
it is appropriate to take account of its views'. But he is now more than 8 years old and he
was
more than 7 ½
when
these proceedings
were
heard by the trial judge. As any parent
who
has ever asked a
child
![]()
what
he
wants
![]()
for
tea knows, there is a large
difference
between taking account of a
child's
views and
doing
![]()
what
he
wants.
Especially in Hague
Convention
![]()
cases,
the relevance of the
child's
views to the issues in the
case
may be limited. But there is now a growing understanding of the importance of listening to the
children
involved in
children's
![]()
cases.
It is the
child,
more than anyone else,
who
![]()
will
have to live
with
![]()
what
the
court
![]()
decides.
Those
who
![]()
do
listen to
children
understand that they often have a point of view
which
is quite
distinct
![]()
from
that of the person looking after them. They are quite
capable
of being moral actors in their own right. Just as the adults may have to
do
![]()
what
the
court
![]()
decides
![]()
whether
they like it or not, so may the
child.
But that is no more a reason
for
![]()
failing
to hear
what
the
child
has to say than it is
for
refusing to hear the parents' views."
"(a)What
is the
child's
own perspective of
what
is in her interests, short, medium and long term? Self-perception is important because it is her views
which
have to be judged appropriate.
(b) To
what
extent, if at all, are the reasons
for
objection rooted in reality or might reasonably appear to the
child
to be so grounded?
(
c)
To
what
extent have those views been shaped or even
coloured
by undue influence and pressure,
directly
or indirectly exerted by the abducting parent?
(
d)
To
what
extent
will
the objections be mollified on return and,
where
it is the
case,
on removal
from
any pernicious influence
from
the abducting parent? "
"no reports ofDomestic
Violence Incidents have been made to the Garda Siochana in ….. by [M] or [
F].
There is no record of [M] having attended at ….. Garda Station in May, 2009."
I thought that maybe this would
be put to Ms B as evidence that the
children
were
not telling the truth about
what
happened but it
was
not and neither
was
anything much made of this
document
during
the hearing. It is
difficult
to know
what
to make of it in these
circumstances,
and although I have borne its existence in mind, I am also
conscious
that there
can
be many explanations
for
a particular police station not having a record of particular events.
"Children's
objections
16. The
children
![]()
described
a home environment that
was
![]()
characterised
by violence
which
![]()
caused
them to
feel
emotionally unstable and unhappy. They are very protective of the mother
whom
they said tried to keep them safe
from
the
father
but in turn suffered in her attempts because they said the
father
![]()
would
hit her.
17.
D
![]()
was
![]()
fidgety
and anxious
when
he spoke about the prospects of a return to Ireland. G
was
tearful.
From
my
discussion
![]()
with
them they
categorically
![]()
do
not
want
to return to Ireland. However, if they
were
required to
do
so they reluctantly
felt
it should be to an undisclosed place in Ireland, so the
father
![]()
could
never
find
them.
18. The expressed views of
D's
and G's
wishes
and emotional
feelings
![]()
were
age appropriate and their maturity
was
in line
with
their
developmental
ages.
![]()
19. In interview I
felt
the strength of
D
and G's emotions and
convictions
in respect of their view of their
father,
how they experienced him and
why
they
want
to stay in England or at least as
far
away
from
the
father
as possible."