Judgments - In re D (a child)

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    44.  Indeed, article 15 might be thought to go further. The foreign court is asked to rule on whether the removal is wrongful in Convention terms. The Court of Appeal relied upon the decision of this House in In re J (para 38 above), the authority cited by Lowe, Everall and Nicholls, International Movement of Children (2004), para 15.9, in support of their proposition that "a declaration made under article 15 can be no more than persuasive, and cannot bind the parties or the authorities of the requested state, who will accept as much or as little of the judgment as they choose." But In re J was not an article 15 case. It is one thing to fail to give effect to a foreign custody order which is not binding upon the courts of this country. It is another thing to fail to give effect to a ruling, which the courts of this country have themselves requested, as to the content and effect of foreign law. Given, however, that the Convention terms have an autonomous meaning, it is possible to contemplate the possibility that the foreign court's characterisation of the effect of its domestic law in Convention terms is mistaken. We are here concerned, not with domestic law, but with the effect given domestically to autonomous terms in an international treaty which are meant to be applied consistently by all member states. We, just as much as they, are bound by Lord Steyn's injunction, in the context of the Refugee Convention, in R v Secretary of State for the Home Department, Ex p Adan [2001] 2 AC 477, 517:

    "In practice it is left to national courts, faced with a material disagreement on an issue of interpretation, to resolve it. But in doing so it must search, untrammelled by notions of its national legal culture, for the true autonomous and international meaning of the treaty. And there can only be one true meaning."

    The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms. Only if its characterisation of the parent's rights is clearly out of line with the international understanding of the Convention's terms, as may well have been the case in Hunter v Murrow, should the court in the requested state decline to follow it.

    45.  While ultimately, therefore, the decision is one for the courts of the requested state, those courts must attach considerable weight to the authoritative decision of the requesting state on both issues. I do not share the view of the Court of Appeal that article 15 would be more useful were it directed solely to ascertaining rights under the domestic law of the requesting state. It could with advantage draw a clearer distinction between the two issues. The reasons for rejecting a determination of the first issue will be different from the reasons for rejecting a determination on the second. But we still have something to learn from the requesting state's characterisation of the position.

    46.  Perhaps one day, the problem will disappear. All member states will accord equal parental responsibility to all parents, with universal rights of veto, and all will regard these as rights of custody. There is a general trend towards shared parental authority - and even shared parenting - after separation and divorce, but it is not universal. It is not so very long ago that the law of this country was very different. Particularly when a country first accedes to the Convention, it may be useful in cases of doubt to obtain an authoritative ruling on the content and effect of their law. It is in their interests, and those of the applicant, that this be obtained as quickly as possible. It is sad that it took so long in this case, but the Romanian authorities must be mystified indeed that the English courts have ordered the return to Romania of a child whose removal the Romanian final court of appeal has authoritatively and irrevocably determined was not wrongful.

    47.  For these reasons, essentially the same as those of my noble and learned friends, Lord Hope of Craighead, Lord Carswell and Lord Brown of Eaton-under-Heywood, I would allow this appeal and dismiss the proceedings, on the ground that the father did not have "rights of custody" for the purpose of the Hague Convention when A was removed to this country in December 2002, that accordingly the removal was not wrongful, and that no obligation to return the child arises under article 12 of the Convention. That is all that need be said to dispose of this appeal. But many other matters have been canvassed before us and some require comment.

Resisting return

    48.  The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed. That object is negated in a case such as this where the application is not determined by the requested State until the child has been here for more than three years.

    49.  Article 12 of the Convention caters for delay in making the application for return. If an application is launched more than 12 months after the wrongful removal or retention, the child is nevertheless to be returned "unless it is demonstrated that the child is now settled in its [sic] new environment". The choice of the date of application rather than the date of decision is deliberate: the left behind parent should not suffer for the failings of the competent authorities (see Professor Pérez-Vera, op cit, para 108). It is not possible, therefore, to argue that cases such as this fall outside the Convention altogether.

    50.  Nevertheless, article 13 provides that there are circumstances in which the authorities of the requested state are not bound to order the return of the child. These are (a) where whoever had rights of custody was not actually exercising them at the time or had consented to or later acquiesced in the child's removal or retention; or (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." Article 13 also provides that the judicial or administrative authority may refuse to return 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 [sic] views".

    51.  It is obvious, as Professor Pérez-Vera points out, that these limitations on the duty to return must be restrictively applied if the object of the Convention is not to be defeated (op cit, para 34). The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. There is a particular risk that an expansive application of article 13(b), which focuses on the situation of the child, could lead to this result. Nevertheless, there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it. A restrictive application of article 13 does not mean that it should never be applied at all.

    52.  In this case, it is argued that the delay has been such that the return of this child to Romania would place him in an intolerable situation. "Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of Article 13(b) "if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No-one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm.

    53.  In this context, a delay of this magnitude in securing the return of the child must be one of the factors in deciding whether his summary return, without any investigation of the facts, will place him in a situation which he should not be expected to have to tolerate. He is not responsible for the passage of time. But the passage of time has contributed to a situation in which he is adamantly opposed to returning to Romania. As reported by the very experienced CAFCASS officer, these views are "authentically his own". They are confirmed by the very experienced solicitor who now acts for him. It is not simply that he is settled here within the meaning of article 12. He has spent nearly half his life here and has no life that he can recall in Romania. While the father has offered certain undertakings about his life there, it is quite clear that the father intends to oppose his return to the country which he now regards as his home and that if returned to Romania he will face months if not years of further litigation between his parents.

    54.  His situation is not comparable with that of a child whose primary carer wishes to relocate to another country. In those cases it is axiomatic, not only that the parent wishes to relocate but also that she has made sensible and practical plans to do so. If relocation is permitted, the child should not be exposed to further litigation between his parents. These features are completely absent in a case such as this, although happily it is not a case where the mother has said that she will not return if the child is ordered to do so.

    55.  As the question does not arise for decision in this appeal, it is unnecessary for us to express a view upon whether the courts below placed sufficient weight upon this consideration in their evaluation of the article 13(b) issue. They were certainly well aware of it. But two further observations must be made in the light of the arguments which have been addressed to us. It is common in article 13 cases to divide the issues into two. First, is one of the so-called "defences" there provided made out on the facts? Secondly, if it is, should the court exercise its discretion not to order the summary return of the child? It is possible to envisage circumstances in which a child should be returned despite the consent or acquiescence of the other party or the child's own objections. But, as my noble and learned friend, Lord Brown of Eaton-under-Heywood, pointed out in the course of argument, it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate.

    56.  Secondly, the policy of the Convention is, of course, a reason for giving a restrictive application to the article 13 "defences". But it has nothing to do with whether or not any of those defences is made out on the facts of the individual case. Nor does the court's view of the morality of the abductor's actions. By definition, one does not get to article 13 unless the abductor has acted in wrongful breach of the other party's rights of custody. Further moral condemnation is both unnecessary and superfluous. The court has heard none of the evidence which would enable it to make a moral evaluation of the abductor's actions. They will always have been legally wrong. Sometimes they will have been morally wicked as well. Sometimes, particularly when the abductor is fleeing from violence, abuse or oppression in the home country, they will not. The court is simply not in a position to judge and in my view should refrain from doing so.

    The child himself

    57.  There is evidence, both from 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 four and a half 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 eight years old and he was more than seven and a half 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.

    58.  Brussels II Revised Regulation (EC) No 2201/2003 recognises this by reversing the burden in relation to hearing the child. Article 11.2 provides:

    "When applying articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."

    Although strictly this only applies to cases within the European Union (over half of the applications coming before the High Court), the principle is in my view of universal application and consistent with our international obligations under article 12 of the United Nations Convention on the Rights of the Child.. It applies, not only when a 'defence' under article 13 has been raised, but also in any case in which the court is being asked to apply Article 12 and direct the summary return of the child - in effect in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is, as already stated, not to be confused with giving effect to his views.

    59.  It follows that children should be heard far more frequently in Hague Convention cases than has been the practice hitherto. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child's views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child's own or give them very little independent weight. There has to be some means of conveying them to the court independently of the abducting parent.

    60.  There are three possible ways of doing this. They range from full scale legal representation of the child, through the report of an independent CAFCASS officer or other professional, to a face to face interview with the judge. In some European countries, notably Germany, it is taken for granted that the judge will see the child. In this country, this used to be the practice under the old wardship system, but fell into disuse with the advent of professional court welfare officers who are more used to communicating with children than are many judges. The most common method is therefore an interview with a CAFCASS officer, who is not only skilled and experienced in talking with children but also, if practising in the High Court, aware of the limited compass within which the child's views are relevant in Hague Convention cases. In most cases, this should be enough. In others, and especially where the child has asked to see the judge, it may also be necessary for the judge to hear the child. Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child's views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.

    61.  Hitherto, our courts have only allowed separate representation in exceptional circumstances. And recently in In re H (A Child) [2006] EWCA Civ 1247, the view was expressed in the Court of Appeal, that if the test for party status were to be revised in any direction, it should in future be more rather than less stringently applied. But Brussels II Revised Regulation requires us to look at the question of hearing children's views afresh. Rather than the issue coming up at a late stage in the proceedings, as has tended to take place up to now, European cases require the court to address at the outset whether and how the child is to be given the opportunity of being heard. If the options are canvassed then and there and appropriate directions given, this should not be an instrument of delay. CAFCASS officers and, in the few cases where this is appropriate, children's representatives are just as capable of moving quickly if they have to do so as anyone else. The vice has been when children's views have been raised very late in the day and seen as a 'last ditch stand' on the part of the abducting parent. This is not the place they should take in the proceedings. There is no reason why the approach which should be adopted in European cases should not also be adopted in others. The more uniform the practice, the better.

    62.  That is not, of course, this case. When the proceedings began, it might well have been considered inappropriate to hear A's views. When the proceedings should have been completed, in August 2005, this may still have been the case. But once the proceedings were prolonged beyond then, A had reached an age where it could no longer be taken for granted that it was inappropriate for him to be given the opportunity of being heard. Consideration should then have been given to whether and how this might be done. It could scarcely by then have been said that seeking his views, or allowing his legal participation, would add to the already inordinate delay. It goes without saying that, if having heard from the child, an issue arises under the Convention which has not been raised by either of the parties, the court will be bound to consider it irrespective of the pleadings.

    Human Rights

    63.  Two human rights issues have been canvassed before us. First are the article 8 rights of all the parties to this case to respect for their family life. Second is the article 6 right of the mother to a fair trial of the issue between her and the father. On the one hand, the plaintiff in a Hague Convention case has the benefit of automatic legal aid, without merits or means test, enhanced by the services of the specialist practitioners to whom these cases are referred by the central authority. On the other hand, the defendant is only entitled to legal aid on the usual means and merits tests, and may well not find his or her way to a specialist solicitor in the early days when crucial decisions have to be taken and affidavits filed. This, it is argued, it not the 'equality of arms' which is inherent in the concept of a fair trial.

    64.  In this case, however, the mother has been adequately represented throughout. It is by no means clear that had counsel been available when the case took a wrong turn on 1 August 2005 the outcome would have been any different. Nor is this the case in which to explore whether the outcome either way would represent a disproportionate interference in the right to respect for the family lives of either of these parents with their child.

    65.  Such arguments are not, however, always irrelevant in Hague Convention cases. Article 20 of the Convention reserves the right of member states to refuse to return a child if "this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms". Article 20 is not incorporated into the Child Abduction and Custody Act 1985. At that stage, there was no human rights instrument incorporated into United Kingdom domestic law. The Human Rights Act 1998 has now given the rights set out in the European Convention legal effect in this country. By virtue of section 6 of the 1998 Act, it is unlawful for the court, as a public authority, to act in a way which is incompatible with a person's Convention rights. In this way, the court is bound to give effect to the Convention rights in Hague Convention cases just as in any other. Article 20 has been given domestic effect by a different route.

    Rights of access

    66.  In many Hague Convention cases, the 'left behind' parent is seeking, not the day to day care of the child, but to keep the same sort of relationship which he or she enjoyed with the child before the abduction. Sometimes this could never be done unless the child returns to live permanently in the home country. Not all countries are as sanguine about allowing the primary carer to relocate to another country as we have been. Sometimes, however, sensible arrangements could be made to translate the contact which was enjoyed in the home country into contact across international borders. Now that travel within Europe is so accessible and inexpensive, and so many other means of communication at long distance exist, this should be a real possibility in many cases. It is thought that many Hague Convention cases could be settled on this basis were the machinery available to do so. Such settlements would be much more likely if the parties have not become entrenched in their hostility as a result of the Hague Convention proceedings.

    67.  At the moment, however, the claim for return under the Hague Convention proceeds in its summary and (usually) speedy way. Any application for a residence, care or supervision order under the Children Act 1989 (or their equivalents elsewhere in the United Kingdom) has to await the determination of the Hague proceedings: see the 1985 Act, s 9. Under article 16 of the Convention, the court cannot decide upon the merits of rights of custody until it has been determined that the child is not to be returned under the Convention. But this does not apply to contact and rights of access. I notice that in Hunter v Murrow (para 42 above), at para 31, Thorpe LJ canvassed the possibility of revisiting the decisions in In re G (A Minor) (Enforcement of Access Abroad) [1993] Fam 216 and In re T and Others (Minors) (Hague Convention: Access) [1993] 2 FLR 617 in the light of more recent international jurisprudence. It would not be beyond the wit of man to devise a procedure whereby the facilitation of rights of access in this country under article 21 were in contemplation at the same time as the return of the child under article 12.

    Conclusion

    68.  The United Kingdom may be justifiably proud of its record in speedily returning abducted children to their home countries. Brussels II Revised Regulation was designed to strengthen the application of the Convention throughout Europe - but the United Kingdom needed no encouragement vigorously to apply the Convention's principles. It was already doing so. However, the Convention does not require the return of each and every child brought to this country without the consent of the other parent. There are some cases, albeit few in number, where this is not required. This was clearly one of them: the child's removal to this country was not wrongful. I would allow this appeal and dismiss the proceedings.

LORD CARSWELL

My Lords,

    69.  I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Baroness Hale of Richmond. I too would allow the appeal, for the reasons which she has given on the article 15 issue, and the remarks which I wish to add are very limited.

    70.  When Johnson J found himself faced with opinions from experts on the content of Romanian law containing a conflict of view which he was unable to resolve, he invoked the article 15 procedure to obtain a "decision or other determination" from the Romanian court. As my noble and learned friend Lord Hope of Craighead observes in paragraph 6 of his opinion, great care should be taken to keep resort to this procedure to the absolute minimum, because of the delay inevitably involved, tending to impair the usefulness of what is envisaged as a speedy and relatively summary procedure under the Hague Convention. Once resort is had to the procedure - which I have no doubt was quite justified in the present case -- the issue arises how the courts of the requested state should treat the determination.

    71.  The terms of article 15, that the requested state may seek from the authorities of the state of the habitual residence of the child "a decision or other determination that the removal was wrongful within the meaning of article 3 of the Convention", are such as to convey the implication that the determination is to be binding on the courts of the state which has sought it. But that construction could conceivably lead to difficulties if the foreign tribunal or agency made a determination on the wrongfulness of the removal which could not be supported under the terms of the Convention but had to be treated as canonical. It is for this reason that the determination made by the foreign court is not treated as final and binding on the issue whether the rights of the parent within its jurisdiction and the courts of the requested state reserve some measure of right to decide that issue. The synthesis in English law is to be found in the practice, exemplified in Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976; [2005] 2 FLR 1119, of regarding the foreign court's determination of the content of a parent's rights as binding, but not necessarily accepting as definitive any conclusion whether those rights amounted to rights of custody in the autonomous Convention sense. I think that it is desirable that the courts of the requested state should be able to reach their own decision on the latter issue, which they will wish to ensure is consistent with the proper interpretation of the Convention. I agree, however, with the view expressed by Lady Hale in paragraph 44 of her opinion, that those courts should be slow to reject a conclusion on the existence of rights of custody expressed by the court or administrative authority of the foreign state. As she there points out, the foreign court is much better placed than the court of the requested state to understand the true meaning and effect of its own laws in Convention terms. For this reason the determination of the foreign court should ordinarily be accepted, unless it clearly runs counter to the conclusion which would flow from applying to the parental rights set out by the foreign court the autonomous Convention meaning of such concepts as rights of custody.

 
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