Judgments - In re J (a child) (FC)

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    32.  The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.

    33.  One important variable, as indicated in Re L, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his 'home' country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this.

    34.  Another closely related factor will be the length of time he has spent in each country. Uprooting a child from one environment and bringing him to a completely unfamiliar one, especially if this has been done clandestinely, may well not be in his best interests. A child may be deeply unhappy about being recruited to one side in a parental battle. But if he is already familiar with this country, has been here for some time without objection, it may be less disruptive for him to remain a little while longer while his medium and longer time future is decided than it would be to return.

    35.  This brings me to the question of different legal conceptions of welfare. The first reported cases in this area which came after Re L [1974] 1 WLR 250 and Re R [1981] 2 FLR 416 were concerned with removals from countries in the common law or western European traditions: G v G (Minors: Abduction) [1991] 1 FLR 506 (Kenya); Re F (A Minor) (Abduction: Custody Rights) (Jurisdiction) [1991] Fam 25 (Israel); see also Re M (Abduction: Non-Convention Country) [1995] 1 FLR 89 (Italy). It is not surprising that the courts here were prepared to assume or accept that the approach in those countries would not differ significantly from that of the English courts.

    36.  Nevertheless, in Re F [1991] Fam 25, at p 31H, Lord Donaldson MR referred to 'whether the other court will apply principles which are acceptable to the English courts as being appropriate'. There followed cases from other countries in which principles which were not necessarily the same as those applied here were considered 'appropriate' because of the family's close connection with that country: see Re S (Minors)(Abduction) [1994] 1 FLR 297 (Pakistan); and Re M (Abduction: Peremptory Return Order) [1996] 1 FLR 478 (Dubai), in which the court went so far as to refuse to admit evidence of the legal system in the other country and assumed that the wife would receive a fair hearing there. These culminated in the difference of view expressed in Re JA (Child Abduction: Non-Convention Country) [1998] 1 FLR 231 (United Arab Emirates), Osman v Elasha [2000] Fam 62 (Sudan), and again in the present case.

    37.  Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. Once upon a time it was assumed that all very young children should be cared for by their mothers, but that older boys might well be better off with their fathers. Nowadays we know that some fathers are very well able to provide everyday care for even their very young children and are quite prepared to prioritise their children's needs over the demands of their own careers. Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery were only fit to care for their children if the father agreed to this. Nowadays we recognise that a mother's misconduct is no more relevant than a father's: the question is always the impact it will have on the child's upbringing and wellbeing. Once upon a time, it may have been assumed that there was only one way of bringing up children. Nowadays we know that there are many routes to a healthy and well adjusted adulthood. We are not so arrogant as to think that we know best.

    38.  Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known 'check-list' in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to met those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child's point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.

    39.  In a case where the choice lies between deciding the question here or deciding it in a foreign country, differences between the legal systems cannot be irrelevant. But their relevance will depend upon the facts of the individual case. If there is a genuine issue between the parents as to whether it is in the best interests of the child to live in this country or elsewhere, it must be relevant whether that issue is capable of being tried in the courts of the country to which he is to be returned. If those courts have no choice but to do as the father wishes, so that the mother cannot ask them to decide, with an open mind, whether the child will be better off living here or there, then our courts must ask themselves whether it will be in the interests of the child to enable that dispute to be heard. The absence of a relocation jurisdiction must do more than give the judge pause (as Mr Justice Hughes put it in this case); it may be a decisive factor. On the other hand, if it appears that the mother would not be able to make a good case for relocation, that factor might not be decisive. There are also bound to be many cases where the connection of the child and all the family with the other country is so strong that any difference between the legal systems here and there should carry little weight.

    40.  The effect of the decision upon the child's primary carer must also be relevant, although again not decisive. A child who is cared for by nannies or sent away to boarding school may move between households, and indeed countries, much more readily than a child who has always looked to one parent for his everyday needs, for warmth, for food, clean clothing, getting to school, help with homework and the like. The courts are understandably reluctant to allow a primary carer to profit from her own wrong by refusing to return with her child if the child is ordered to return. It will often be entirely reasonable to expect that a mother who took the risk of uprooting the child will return with him once it is ordered that he should go home. But it will sometimes be necessary to consider whether it is indeed reasonable to expect her to return, the sincerity of her declared refusal to do so, and what is to happen to the children if she does not.

    41.  These considerations should not stand in the way of a swift and unsentimental decision to return the child to his home country, even if that home country is very different from our own. But they may result in a decision that immediate return would not be appropriate, because the child's interests will be better served by allowing the dispute to be fought and decided here. Our concept of child welfare is quite capable of taking cultural and religious factors into account in deciding how a child should be brought up. It also gives great weight to the child's need for a meaningful relationship with both his parents. It does not follow, therefore, that a Saudi Muslim boy who is mainly cared for by nannies and nursery schools will be better off living with his mother and maternal grandparents in multi-cultural London than with his father or some other female relative in his home country.

    Human rights

    42.  The fact remains that the unchallenged evidence before the trial judge was that the law in Saudi Arabia treats fathers and mothers differently and in significant respects the mother is in a less favourable position than the father. Under articles 8 and 14 of the European Convention on Human Rights, the right to respect for family life is to be enjoyed without discrimination on grounds of sex. The Court of Appeal held, at para 34, that the fact that the mother might experience in Saudi Arabia what would be regarded here as breaches of her Convention rights did not render the English court in breach of those rights if it returned F to Saudi Arabia. In reaching that conclusion the Court relied principally on the decision of the Court of Appeal in R (Ullah) v Special Adjudicator [2002] EWCA Civ 1856; [2003] 1 WLR 770: our obligations were only engaged if the likely treatment in another state would engage the prohibition against torture and inhuman or degrading treatment or punishment in article 3 of the Convention. This House has since held that our obligations may be engaged where there is a real risk of particularly flagrant breaches of other articles in the foreign country: see [2004] UKHL 26; [2004] 2 AC 323. This is not a case of such a risk. In relation to article 8, however, a distinction has also been drawn between 'domestic' cases, where a family life established here may be disrupted by a forced return to another country, and 'foreign' cases, where the only breach would take place abroad: see Lord Bingham of Cornhill, at paras 7 - 9. In practice, this adds nothing to the welfare inquiry, once it is accepted that the strength of the child's connection with this country, and the effect upon his parent here, are relevant to whether a summary return will be in his best interests.

    43.  However, there is another way in which the human rights considerations might have been relevant. Article 20 of the Hague Convention provides that:

    "The return of the child under the provisions of article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms."

    44.  This was not included in the provisions incorporated into our law by the 1985 Act because at that time it would have been difficult to say what our fundamental principles relating to the protection of human rights and fundamental freedoms were. Now that we have incorporated the European Convention on Human Rights, that is no longer a problem. Mr Setright acknowledged that had the Human Rights Act 1998 preceded rather than followed the 1985 Act there would have been no reason not to incorporate article 20.

    45.  The importance of article 20 is that it asks whether what might happen in the foreign country would be permitted under those fundamental principles were it to happen here. (It thus goes further than the principle under consideration in Ullah, which asks whether it is a breach of this country's obligations to send a person away to a country where his human rights may be violated.) In this country, it would not be acceptable to distinguish automatically between father and mother in their relationship with their children. Non-discrimination between the sexes is a fundamental principle of our law. Were article 20 of the Hague Convention to be incorporated, we would be entitled, though not obliged, to decline to return a child on that ground alone. If we were, therefore, to be applying the spirit of the Hague Convention in a non-Convention case, there would be no reason not to apply the whole of the Hague Convention, including article 20. Any discrimination in the foreign country which was contrary to article 14 of the Convention on Human Rights would allow, but not require, the court to refuse to return the child. This consideration serves to reinforce the view that the legal system in the foreign country cannot be irrelevant to the issue of summary return.

    Conclusion

    46.  For all those reasons, I would hold that the Court of Appeal was wrong to interfere with the exercise of the trial judge's discretion in this case. But I would also hold that the trial judge was wrong to leave out of account the absence of a jurisdiction in the home country to enable the mother to bring the child back here without the father's consent. The approach adopted by Lord Justice Ward in Re JA [1998] 1 FLR 231 is to be preferred to that of Lord Justice Thorpe in Osman v Elasha [2000] Fam 62. It was, along with everything else, a factor to be weighed in the balance in deciding whether summary return to Saudi Arabia was in the best interests of this little boy.

    47.  I would therefore allow the appeal and restore the orders made by the trial judge. It has been suggested that we might remit the case to him on the ground that the evidence before him on Saudi law, although unchallenged by the father at the time because it also accorded with the father's understanding of the position, may not have given the full picture. Mr Setright very properly acknowledges that he has no basis for inviting this court to admit fresh evidence which both could and should have been adduced before the trial judge. We cannot use the mere suggestion that he might have made different findings about the foreign law as a basis for asking him to make his decision on the application for summary return again. There is, of course, nothing to prevent the father from making another application about the child's future in which such evidence might be adduced. Whether it would be in F's best interests for him to do so is another matter.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    

 
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