Covid-19 Protocol: This judgment was handed down by the judge
remotely
by email. The date and time for hand-down will be deemed to be on 22 January
2021
MR
RICHARD HARRISON QC:
Introduction
- On 12 January
2021
I joined the two
children
as parties to these proceedings and directed that their solicitor,
Mr
James Netto of the International
Family
Law Group, should
represent
them as both solicitor and guardian. I gave brief
reasons
for
my
decision at the time and indicated that a written judgment would follow. This is that written judgment.
- The application was
made
in the context of proceedings under the 1980 Hague Convention which concern four
children:
A (a boy aged 15 ½), YG (a girl aged 14), YB (a boy aged 11 ½) and S (a boy aged 8 ½). I shall
refer
to the four
children
collectively as 'the
children'
and to the two older
children
on whose behalf the
joinder
application was advanced as 'the older
children'.
The
children's
father ('F') seeks their summary
return
to Canada. The
mother
('
M')
resists
the application. As a consequence of
my
decision on
joinder,
I adjourned the final hearing which had been listed before
me
to 27 and 28 January
2021.
- I will not be dealing with the final hearing and
make
it clear that nothing I say in this judgment for the purposes of what is an interlocutory decision is intended to be a finding which binds the judge before whom the
matter
is to be listed.
- I considered the
material
in the court bundle as well as a statement prepared by
Mr
Netto. I heard oral submissions from counsel:
Ms
Cliona Papazian for the father,
Mr
William Tyzack for the
mother
and
Ms
Anita Guha for the older
children.
I also heard briefly from
Ms
Lilian Odze, an officer of the Cafcass High Court team who interviewed the
children
in person (not
remotely)
on 21 December 2020 and prepared a
report
dated 6 January
2021
(the parties all agreed that
Ms
Odze could address the court for the purposes of giving her views on
joinder
without being sworn).
Context of the application
- It is common ground that the
children
were wrongfully
retained
away from the jurisdiction of Canada by
M
in either August or September 2020. Accordingly, under Article 12 of the Convention the court is obliged to order their
return
to Canada 'forthwith' unless
M
can establish an exception under Article 13.
M
relies
upon two exceptions: grave risk (Article 13(b)) and the
children's
objections (Article 13(2)). If she establishes either one, the court will have a discretion as to whether the
children
should
return
(although if Article 13(b) is established it is 'inconceivable' that the court would nevertheless order a
return:
Re
M
(
Children)
(
Abduction:
Rights of Custody) [2007] UKHL 55 at paragraph 45).
- A crucial aspect of each of the two defences raised is the position of
M
herself; specifically, whether she will accompany the
children
to Canada in the event that a
return
is ordered.
M
has accommodation in Canada. If she
returns,
F agrees to the
children
living with her until the
matter
can be considered by the Canadian courts. Subject to an issue as to the adequacy of the protective
measures
proposed by F, it seems to be that it would be very difficult for
M
to establish an Article 13(b) exception in such circumstances. On the other hand, if
M
refuses
to
return,
the
children
will either have to live with F or be accommodated in foster care. None of the
children
wishes to live with F; during the course of their interviews with
Ms
Odze, all of them alleged that he has been physically abusive to the older three
children
by hitting them as a form of punishment. The older
children
have also
made
allegations of abusive conduct against the paternal grandmother.
- As to the child objections exception,
M's
position is also highly
relevant.
Ms
Odze
made
it clear in her
report
that she did not consider that any of the
children
have expressed objections to
returning
to Canada. A told her that he did not want to go back because of his paternal
family
but also said 'If I was to live with
my
Mum,
I would feel fine'. YG stated 'I want to stay here
all
my
family
is here and I
really
really
like it here. I love Canada but I think we are all better off here'. YB expressed a positive wish to
return
to Canada: 'I kind of want to live with
my
Mum
but live in Canada'. S stated that he wanted to live with
M,
not F, but was neutral as to the choice between England and Canada ('wherever'). Based upon what the
children
said to her, in
my
view,
Ms
Odze was undoubtedly correct to conclude that none of boys expressed an objection to
returning
to Canada provided they lived with their
mother
in that jurisdiction. It is debatable whether what YG told
Ms
Odze amounted to an objection or 'a
mere
preference' to
remaining
in England, but this is not an issue I need to
resolve.
- So far as
M
is concerned, as
Ms
Papazian emphasised, her position has evolved over the course of the proceedings. In her first statement dated 16 December 2020 she stated that 'I cannot countenance
returning
to Canada'. She
referred
to her '
real
fear' of doing so and had no doubt that
returning
would cause her depression to
return,
which in turn she asserted - would have an impact upon the
children.
She did not, however, go so far as to say that she would
refuse
to accompany the
children
in the event that the court were to order their
return.
- On 16 December 2020
M
filed a further statement setting out the protective
measures
she would seek in the event that the court were to order a
return.
These are all predicted on the basis that she would, in that event, go back with the
children.
- During the course of preparing her
report,
Ms
Odze clearly considered that there was some ambivalence about
M's
position. On 23 December 2020 she emailed
M's
solicitors asking for clarification.
M's
solicitors
replied
that same day stating that they were taking instructions. They complained that the undertakings offered by F were unsatisfactory, but did not assert that
M
would not
return.
- In their email of 23 December 2020,
M's
solicitors also asked for
Ms
Odze's views as to the
children
being separately
represented.
Ms
Odze
responded
(a few
minutes
later) that this was not something she would be
recommending
as, so far as she was able to ascertain, the
children
'did not form an objection to
returning
to Canada as long as they lived with the
mother
and not the father' (emphasis in original text). She added that this was the
reason
she had sought information as to
M's
position and went on to explain that in the event that the
mother
refused
to
return
she would need to consider what proposal to
make
given her safeguarding duties and in the light of the allegations of physical harm which the
children
had
made
against F.
- As far as I am aware, thereafter there was no
response
by
M's
solicitors to
Ms
Odze's second email of 23 December 2020. On 6 January
2021,
Ms
Odze filed her
report.
- Following the
receipt
of the
report,
M
did two things. First, she communicated through her solicitors that she would not accompany the
children
in the event of a
return.
Secondly, she provided the older
children
with contact details for
Mr
Netto. I was informed that the older
children
then contacted
Mr
Netto and spoke to him on 8 January
2021;
they instructed him to apply for their
joinder
and to seek an adjournment of the final hearing.
Submissions
- The application for
joinder
was advanced by
Ms
Guha on behalf of the older
children.
In essence, she contended that they are
mature
teenagers who have expressed strong objections to
returning
to Canada; these are set out in both the Cafcass
report
and
Mr
Netto's statement. The Court of Appeal decision in
Mabon
v
Mabon
[2005] EWCA Civ 634 (§§ 26, 28, 29 & 32) emphasises the importance of older
children
having autonomy and a consequential right to participate in a decision-
making
process that fundamentally affects them. She
referred
me
to the summary of the
relevant
principles set out by
MacDonald
J in Ciccone v Richie (no1) [2016]
EWHC
608 (
Fam)
at paragraphs 25 to 43. She submitted that this is a case in which it is in the best interests of the
children
to have a role as active participants as opposed to their voice being communicated to the court through Cafcass.
Ms
Guha was strongly critical of
Ms
Odze's
report,
in particular her failure to identify that the older
children
objected to
returning
to Canada. She described
Ms
Odze's conclusions on this issue as 'a distortion and oversimplification of their views, [which] glosses over the fact that both [YG] and [A] stated in unequivocal terms that they opposed a
return
to Canada for a number of
reasons
' She suggested that
Ms
Odze had failed to grasp 'the principles of the
relevant
case law' and apply them to the facts of this case. She was critical of paragraph 43 of
Mr
Odze's
report
where she expressed the view that A 'came with a script', providing her with accounts which 'flowed non-stop' and appearing to be 'taken aback' whenever she tried to steer him back to the question she had posed.
Ms
Guha submitted that it was to be inferred that
Ms
Odze had thus
regarded
most
of what had been
reported
to her by A as 'irrelevant to her analysis'.
Ms
Guha therefore submitted that it was in the
children's
best interests to be joined (see
Family
Procedure Rules 2010 ('FPR'), r 16.2). She directed
me
to Practice Direction 16A of the FPR and submitted that this was a case of 'significant difficulty' (per paragraph 7.1) arising from: (a)
M's
recent
communication that she is not prepared to
return
to Canada; (b) the obtaining by F of an interim custody order which
remains
in force; and (c) the prospect of the separation of the sibling unit. She contended that the case fell within several of the sub-paragraphs of paragraph 7.2, which are examples of the circumstances in which the court
may
(I emphasise '
may')
consider
joinder
of a child to be appropriate.
Ms
Guha's application was supported by
Mr
Tyzack on behalf of
M.
- The application was opposed by
Ms
Papazian on behalf of F. She emphasised what she described as the evolution of
M's
case. She was strongly critical of
M's
eleventh hour change of position, whereby following
receipt
of the Cafcass
report
she had communicated that she would not
return
to Canada. She submitted that before the
children
were wrongfully
retained
in this jurisdiction F had enjoyed a 'close and loving'
relationship
with them, something approaching joint care. By contrast, over the past six
months
he has been denied a
meaningful
relationship;
indirect contact has become increasingly difficult.
Ms
Papazian stressed that despite F holding parental
responsibility
for the
children,
M
has excluded him from important decisions and events in their lives; examples included the
children's
enrolment in school and
M's
failure to keep F informed when YB broke his finger and needed
medical
treatment or in
relation
to welfare visits that were
made
by the police.
Ms
Papazian submitted (and I paraphrase) that
M's
conduct since
receiving
the Cafcass
report
was a form of tactical
manoeuvring
driven by a
realisation,
upon
reading
the
report,
that her opposition to F's application was likely to be unsuccessful.
Ms
Papazian submitted that it would be contrary to the
children's
best interests to be joined as this would cause them to become directly embroiled in the parental dispute and risk further harming their
relationship
with F. She
reminded
me
that joining
children
in a Hague case is an exceptional course; the
mere
fact that older
children
raise objections is insufficient to justify doing so (a point
made
by Lord Wilson in
Re
LC (
Children)
[2014] UKSC 1). She emphasised that
joinder
would lead to delay, whereas there is an imperative for Hague proceedings to be determined expeditiously. Her case was that the
children's
views were sufficiently
represented
by
Ms
Odze via her
report.
Ms
Papzian also drew
my
attention to the
report
(dated 14 December 2020) of Dr Eldad Farhy, Consultant Counselling and Psychotherapeutic Psychologist, who conducted an assessment of
M.
She submitted that the
report
casts doubt upon
M's
credibility and suggests that the court
may
need to approach her asserted fears about a
return
with caution.
Ms
Odze addressed the court briefly. She
maintained
her view that this was not a case in which
joinder
was appropriate as she had sufficiently
represented
the
children's
views.
Matters
were complicated by
M's
recent
change of position, but in
Ms
Odze's view the court would not normally allow itself to be 'held to ransom' as
M
was attempting to do. I canvassed with
Ms
Odze the possibility of joining the
children
on the basis that she would act as their guardian and
Mr
Netto would be their solicitor (as opposed to the normal course whereby they would be
represented
by Cafcass Legal).
Ms
Odze considered that it would be very difficult for her to work with the
children's
legal team in circumstances where they had been highly critical of her
report.
Analysis and conclusions
- Having listened carefully to the submissions
made
by each of the parties and by
Ms
Odze I came to the clear conclusion that it was in the best interests of the older
children
to be joined.
- I have considerable sympathy for the submissions advanced by
Ms
Papazian as to the evolution of the
mother's
position and her tactical
manoeuvring.
These are
matters
which will need to be considered by the trial judge. The court will need to evaluate the issues raised as to
M's
credibility and consider whether, as a loving parent,
M
is indeed likely to allow the
children
to
return
to Canada without her in circumstances where she contends that this would not only be contrary to their interests but 'intolerable' for them. The court will also need to consider whether, if that is her stance, it is entitled to infer that the circumstances for the
children
upon any
return
fall short of the high threshold in Article 13(b): see in this
regard
the decision of
MacDonald
J in AT v SS (
Abduction:
Art 13(b): Separation from carer) [2016] 2 FLR 1102.
- Ultimately, whatever criticisms
may
be
made
against
M,
the court
must
not lose sight of the fact that it is the
children
who find themselves at the heart of this dispute and whose interests are a primary consideration for the court.
- For the purposes of this interlocutory decision, it seems to
me
that I
must
proceed on the basis that the
mother
is genuine in the stance that she has now adopted. This creates an invidious position for the
children
in which, potentially, they face being separated from their
mother
and having to live with their father or in foster care upon a
return
to Canada. The older
children
also face the possibility of having to be separated from their younger siblings (an outcome to which all of the
children
would have strong objections).
- I do not accept the criticisms which
Ms
Guha has levelled at
Ms
Odze. At the time
Ms
Odze prepared her
report,
in the absence of a clear
response
to her specific enquiries and in view of the content of
M's
second statement, she was entirely justified to prepare her
report
on the assumption that if the court were to order the
children's
return,
M
would go back to Canada with them. I
reject
the suggestion that
Ms
Odze failed to grasp the
relevant
legal principles. On the contrary, it seems to
me
that she was entirely correct to draw a distinction between the
children's
opposition to living with F and an objection to
returning
to Canada. When she was preparing her
report,
this was not an example of a case in which it is 'artificial' to distinguish between those two notions, as
M
had not stated that she would not
return.
As well as
reciting
the
children's
views, part of
Ms
Odze's role was to subject them to scrutiny and analysis. It will be a
matter
for the court to consider her analysis and decide whether or not to accept it.
- However, as a
result
of
M's
changed stance, the position is now different. It does seem to
me
(at least for the purposes of the decision I need to
make)
that the older
children
are clearly expressing objections to
returning
to Canada. The primary
reason
for this is that a
return
would
mean
becoming separated from
M
and, as
matters
stand, having to live with F. In circumstances where that is a
real
prospect, the
children
have described in some detail to
Mr
Netto why this is unpalatable for them. They have provided him with a greater level of detail than they gave to
Ms
Odze.
- It is
relevant,
in
my
view, that the older
children's
objections are rooted in their own experiences of F; the
matters
they have raised are not ones about which
M
has first-hand knowledge. I note that A spent a period of approximately a year living with F (without his siblings), an arrangement about which he has expressed unhappiness. He has
made
clear to
Mr
Netto his opposition to
retuning
to Canada in trenchant terms, stating in effect that he would not comply with any order
requiring
him to do so.
- I have considered the guidance in paragraph 7.2 of PD16A and it seems to
me
that this case falls within the examples identified in the following sub-paragraphs:
(b) Where the child has a standpoint or interest which is inconsistent with or incapable of being
represented
by any of the adult parties.
M
will inevitably be subject to serious criticism by F for her changed position and alleged
manipulation
of the
children.
I do not think she will be able adequately to
represent
the older
children's
standpoint or interests;
moreover,
she does not have first-hand knowledge of the
matters
upon which they
rely
as to the basis of their objections. Self-evidently, F cannot
represent
the older
children's
standpoint as he desires an outcome to the proceedings which they oppose.
(d) Where the views and wishes of the
children
cannot be adequately
met
by a
report
to the court. I have
rejected
the criticism directed at
Ms
Odze's
report,
but in view of
M's
changed position I consider that her
report
is no longer adequate for the purposes of
representing
the older
children's
current views.
Returning
without
M
is now a
real
prospect for them and, in the light of that, they have provided
Mr
Netto with considerably
more
detail which is
relevant
to an understanding of their position and to an assessment of the circumstances they would face in Canada upon a
return.
(e) Where an older child is opposing a course of action. Although this is a factor of
relevance,
it is not decisive as was
made
clear by Lord Wilson in
Re
LC. Otherwise this could lead to all teenagers being joined in Hague proceedings when they raise objections to a
return.
I do consider that the strength of opposition expressed by the
children
and in particular the suggestion by A that he would not comply with an order distinguishes this from the
majority
of child objection cases.
(i) Where the proceedings concern
more
than one child and the welfare of the
children
is in conflict. A complicating feature of the case is that it is clear from
Ms
Odze's
report
that the younger
children
described Canada in positive terms and YB has expressed a wish to
return
there.
- As I
made
clear during the course of submissions, the
matters
listed in paragraph 7.2 provide guidance for the court but are not binding upon
me;
those
matters
I have identified above are strong indictors, however, that this is a case in which
making
the
children
parties is likely to be appropriate. Ultimately the court
must
determine whether
joinder
is in the
children's
best interests. Although FPR r16.2 confers a discretion on the court in
relation
to
joinder
if the best interests test is
met,
as Lord Wilson said in
Re
LC (
Children)
at paragraph 45:
'No doubt it is the sort of discretion, occasionally found in procedural rules, which is
more
theoretical than
real:
the nature of the threshold conclusion will almost always drive the exercise of the
resultant
discretion.'
- I accept the submission of
Ms
Guha that this is a case in which the
children
should be active participants. They are having to deal with a developing situation which
may
develop further still. They are the people, above all, who will have to live with the consequences of a
return
to Canada if that is what the court decides to order. It seems to
me
that as
mature,
articulate teenagers (A is less than 6
months
away from his sixteenth birthday) who wish to participate in the proceedings and communicate their strongly held position to the court, it would be wrong in the circumstances I have described above to deny them the ability to do so.
- Delay is a very important consideration which
militates
against
joinder.
Fortunately, the Clerk of the Rules has been able to list the
matter
on 27 and 28 January
2021,
which is just over two weeks away.
Joinder
will not therefore lead to significant delay.
- I accept the general proposition that
joinder
can cause
children
to become embroiled in the dispute and that it
may
have the detrimental effect of placing them in direct opposition to one of their parents. This is especially
relevant
in a case such as this where it is apparent that the
children's
relationship
with that parent has already been substantially harmed. I consider that this factor is outweighed in this case by the
matters
to which I have
referred
above which point in favour of
joinder.
- I gave careful thought to whether, instead of appointing
Mr
Netto as the
children's
solicitor and guardian (the FPR do not permit a child to be a party to Hague proceedings without a guardian), I should appoint
Ms
Odze as their guardian. I accept
Ms
Odze's position that it would be very difficult for her to work with the older
children's
legal team in circumstances where they have been strongly critical of her; if she were to become the
children's
guardian she would
reasonably
wish to instruct Cafcass Legal to act on their behalf. In
my
view this would be the right course in the vast
majority
of cases in which a child is joined as a party. I do not think it is appropriate in this case for the following
reasons:
(a) The adjourned final hearing is to be listed in just over two weeks' time. The
children's
legal team wish to adduce further evidence and this will need to be done within a very tight timescale. I consider that it would be very difficult for Cafcass Legal to take on a new case from a standing start on the basis of such a tight timetable.
(b) The
children
have only
recently
met
Mr
Netto (albeit
remotely)
and have spent some time describing their experiences to him and giving him instructions. I consider it would be difficult for them to comprehend why they were not permitted to continue to instruct the lawyer they had chosen. It would not be in their interests to have to instruct a new lawyer and potentially
relay
the same account for a third time to a new person.
- The
requirement
in the rules for
children
who are
made
parties to Hague proceedings to have a guardian has been described is a lacuna. There is no logical
reason
why this should be so given that, for example, the same rule does not apply when a child's
return
is sought under the inherent jurisdiction to a non-Hague state. In
response
to this lacuna, a practice has developed whereby the solicitor who is to act for a child is also appointed as their guardian; this was given approval in
Re
LC (
Children)
at paragraph 46.
- Where a solicitor is appointed as a guardian, this should not be
regarded
as a
mere
tick box exercise. Although solicitors do not have the same training as Cafcass Officers, where they are appointed as guardian for a child they assume the
responsibilities
of a guardian. In
my
view, their role is not confined to communicating the
children's
standpoint to the court; they
must
also bring to the court's attention
matters
of potential
relevance
to the
children's
welfare (including indicators that the
children
may
have been subject to
manipulation).
- In S v S (
Relocation)
[2017]
EWHC
2345 (
Fam)
Peter Jackson J (as he then was) at paragraphs 31 to 32 set out the duties of solicitors who are instructed by
children
without a guardian in the context of private law proceedings (where the instruction occurs without the knowledge of one of their parents). Among the
matters
recited
at paragraph 31 was the following: 'The SRA Practice Note Acting in the absence of a
children's
guardian suggests that the solicitor is
mindful
of a guardian's PD16A duties'. Solicitors who assume the role of guardian become subject to those duties which goes beyond a
requirement
merely
to be
mindful
of them. As paragraph 7.6 of PD16A
makes
clear, a guardian has a
responsibility
to act not simply on the child's instructions; rather, all steps and decisions which they take in the proceedings '
must
be taken for the benefit of the child.'
Mr
James Netto is a solicitor of great experience who specialises in international child
abduction
proceedings. I am confident that he will properly discharge his duties as guardian to the older
children and conduct proceedings on their behalf in accordance with their interests. As I have said, I consider that it is in their best interests that he be appointed to fulfil that role.