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|Judgments - In re M (FC) and another (FC) (Children) (FC)
HOUSE OF LORDS
 UKHL 55
on appeal from:  EWCA Civ 992
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re M (FC) and another (FC) (Children) (FC)
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Henry Setright QC
(Instructed by Dawson Cornwell)
Marcus Scott-Manderson QC
(Instructed by Reynolds Porter Chamberlain LLP)
(Instructed by Lawrence & Co)
21-22 NOVEMBER 2007
WEDNESDAY 5 DECEMBER 2007
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re M (FC) and another (FC) (Children) (FC)
 UKHL 55
LORD BINGHAM OF CORNHILL
1. For the reasons given by my noble and learned friend Baroness Hale of Richmond in her opinion, which I have had the advantage of reading in draft and with which I agree, I would allow this appeal and make the order which she proposes.
LORD HOPE OF CRAIGHEAD
2. I have had the advantage of reading in draft the speech of my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, I would allow the appeal. I add these brief comments simply to explain why I agree with her that, where it has been demonstrated that the child is settled in its new environment, article 12 nevertheless implies that there is a discretion to return the child within the procedures of the Convention.
3. I think that it is reasonably clear, as a matter of language, that article 12 can be read as implying that there is a discretion to return a settled child under the Convention. Two situations are envisaged by the article in which there is plainly no discretion. The first is where, at the date of the commencement of the proceedings, a period of less that one year has elapsed from the date of the wrongful removal or retention. In that situation the first paragraph states that the authority concerned shall return the child forthwith. The second is where the proceedings have commenced after the expiration of one year and it has not been demonstrated that the child is settled in its new environment. In that situation the second paragraph states that the authority shall also order the return the child. Then there is the coda to that paragraph, which is introduced by the word unless". The coda does not say in terms what is to be done where it applies. But there are only three possibilities: (a) that return of the settled child must be ordered, (b) that return of the settled child must not be ordered and (c) that there is a discretion to return the child.
4. The coda would be pointless if (a) applied, as it would lead to exactly the same result as the main part of that paragraph. The consequence, if (b) applied, would be the complete opposite. This risks requiring the relevant authority to do something which may not be in the interests of the child. So one would have expected it to be spelled out expressly if this was nevertheless what was intended. The absence of any such words is a clear indication against this alternative. This leaves (c) as the only remaining possibility. The absence of a direction that the settled child shall not be returned, in contrast to the direction shall in the main part of the paragraph, indicates that in the situation to which the coda refers there is nevertheless a discretion to return the child under the Convention. At the very least, the matter is left open by the wording of the article.
5. The argument in favour of there being a discretion under the Convention as a mere matter of language is reinforced by the fact that this reading of article 12 is consistent with articles 13 and 20, both of which expressly confer a discretion on the relevant authority. The policy of the Convention as a whole is to ensure that full weight can be given in a variety of circumstances to the interests of the child, to which paramount importance must always be attached. The argument is reinforced too by the other factors that are referred to by Baroness Hale. In particular, in contrast to the exercise of powers outside the Convention which are referred to in article 18, it ensures that the general policy considerations of the Convention will continue to be relevant.
LORD RODGER OF EARLSFERRY
6. I have had the privilege of considering in draft the speech which is to be delivered by my noble and learned friend, Baroness Hale of Richmond. She sets out the arguments both for and against the construction, which she has come to prefer, of article 12 of the Convention as containing a discretion to return a settled child within the Convention procedures.
7. Having regard to the purpose of the Convention and to the language of articles 12 and 13, I prefer the competing view that, once a child has become settled, precisely because the purpose of the Convention to promote speedy return can no longer be achieved, the Convention ceases to play a role. Then, as article 18 envisages, the court is to have resort to its powers outside the Convention. Those powers fall to be exercised in accordance with the guidance given by the House in Re J (A Child) (Custody Rights: Jurisdiction)  1 AC 80. It would serve no useful purpose, however, for me to elaborate the point since Baroness Hale has fully rehearsed the relevant arguments, which are very largely those which appealed to Singer J in Re C (Abduction: Settlement)  1 FLR 127. Happily, for the reasons which she gives, it may not make very much difference in practice whether the discretion is exercised under or outside the Convention.
8. On all the other matters I agree with Baroness Hales reasoning. I would accordingly allow the appeal and make the order which she proposes.
BARONESS HALE OF RICHMOND
9. The question before us is whether two girls, now aged 13 years and 3 months and 10 years and six months, should be summarily returned to Zimbabwe under the Hague Convention on the Civil Aspects of International Child Abduction 1980, given effect in United Kingdom law by the Child Abduction and Custody Act 1985. The trial judge held that they should be returned:  EWHC 1820 (Fam). The Court of Appeal upheld his decision:  EWCA Civ 992. There is no dispute that the children were brought here in breach of their fathers custody rights. The dispute is as to the scope and application of the exceptions to the duty to return them and in particular the proper approach to the exercise of discretion once one or more of those exceptions has been established.
10. The judge heard a great deal more evidence than is usual in child abduction cases and made full and careful findings of fact. We need repeat only the bare essentials. The girls were born in Zimbabwe to Zimbabwean parents and lived there with their father after their parents separated early in 2001. In March 2005, while on a visit to their mother, they were brought secretly to this country, where their mother claimed asylum. Since then they have been living in this country with their mother and her partner, who arrived here shortly after they did. From at least September 2005 the father has known where the children are. He did not notify the Zimbabwean central authority of his claim until September 2006. The English central authority did not receive notification from them until January 2007. These proceedings were not issued until May 2007, more than two years after the children had been removed. The mothers asylum claim was refused in April 2005 although she has since been advised to make a fresh one. The family remain here because of a moratorium on the return of failed asylum seekers to Zimbabwe.
The Convention and the issues
11. The Hague Convention on the Civil Aspects of International Child Abduction 1980 is an admirably clear and simple instrument. Its twin objects are set out in article 1: (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States". However, as the Explanatory Report of Professor Elisa Perez-Vera (April 1981, paras 16 and 17) points out, as to rights of custody, the second object is attained only indirectly, through the first.
12. But it should not be thought that the Convention is principally concerned with the rights of adults. Quite the reverse. The Preamble explains that the Contracting States are firmly convinced that the interests of children are of paramount importance in matters relating to their custody and desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access". These two paragraphs, as Professor Perez-Vera explains,
reflect quite clearly the philosophy of the Convention in this regard. It can be defined as follows: the struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be based upon an interpretation of their true interests. Now, the right not to be removed or retained in the name of more or less arguable rights concerning its person is one of the most objective examples of what constitutes the interests of the child. (para 24)
The Convention recognises the need for certain exceptions to the general obligations assumed by States to secure the prompt return of children who have been unlawfully removed or retained. For the most part, these exceptions are only concrete illustrations of the overly vague principle whereby the interests of the child are stated to be the guiding criterion in this area. (para 25)
Hence the Convention is designed to protect the interests of children by securing their prompt return to the country from which they have wrongly been taken, but recognises some limited and precise circumstances when it will not be in their interests to do so.
13. The basic obligation to return the child is spelled out in article 12:
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
As Professor Perez-Vera points out, article 12 and article 18 are complementary, despite their different character (para 106). Article 18 reads:
The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.
14. Thus one of the exceptions to the duty of return is contained within article 12 itself. If the proceedings are begun within a year of the removal, there is a duty to return forthwith". Even if they are begun more than a year later, there is still a duty to return, but not forthwith", unless the child is now settled in its new environment. These proceedings were begun more than two years after the children had been removed. Notwithstanding the precarious immigration position, the trial judge found that overall and on fine balance the children were now settled in their new environment. Hence there is no duty under article 12 to return them.
15. This gives rise to the two most important issues in the case: (1) once the children are settled, is there a discretion nevertheless to return them under the Convention or must their return be sought and ordered under some other jurisdiction; and (2) if there is such a discretion, on what principles should it be exercised and how far, if at all, do they differ from the principles which would apply to the courts power to return them under some other jurisdiction?
16. Three further exceptions are spelled out in article 13:
Notwithstanding the provisions of the previous Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -
(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.
The judicial or administrative authority may also refuse to order the return of 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 views.
17. As to the third of these exceptions, the judge found that the children did object to a return to Zimbabwe. He also found that they were of an age and maturity which made it appropriate to take account of their views. Nor could he find that they had been coached in the views they had expressed to the CAFCASS officer. But he bore in mind the overall context, living with a mother and her new partner who did not wish to return and who were more likely than not to have given the children comparatively negative views about Zimbabwe. He did not regard the childrens views as sufficiently strong to be determinative. If wrong about that he would still have exercised his discretion to return them. This raises issue (3): the proper approach to the consideration of the childrens objections under article 13.
18. The judge rejected the mothers allegations that the father had consented to or acquiesced in the childrens removal within the meaning of article 13(a). That allegation has not been pursued. The judge also rejected the mothers allegations that the particular risks which she and her partner would face on return to Zimbabwe, and/or the general situation prevailing in that country, would put the children at grave risk of physical or psychological harm or otherwise place them in an intolerable situation for the purpose of article 13(b). Despite the difficulties of life in Zimbabwe, he held that it was not a failed state and their father would be able to insulate them from the risks and privations suffered by other Zimbabweans. The mother still pursues the allegation, thus raising issue (4): whether the judge should have held the article 13(b) exception made out on the facts of this case; and issue (5) the proper approach to the exercise of the courts discretion in such cases.
19. The final exception is provided for in article 20:
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.
Unlike all the other articles quoted above, article 20 did not become part of United Kingdom law by virtue of section 1(2) and Schedule 1 to the 1985 Act. But in Re D (Abduction: Rights of Custody)  UKHL 51;  1 AC 619, para 65, this House pointed out that, under the Human Rights Act 1998, it is now unlawful for the court as a public authority to act incompatibly with the human rights and fundamental freedoms guaranteed by the European Convention on Human Rights. This applies in a Hague Convention case just as in any other. Article 20 has thus been given domestic effect by a different route. Hence a final issue is whether a return would be incompatible with the Convention rights.
Settlement and discretion
20. On one view, adopted by Singer J in Re C (Abduction: Settlement)  EWHC 1245 (Fam),  1 FLR 127, where the second paragraph of article 12 applies, a finding that the children are now settled in their new environment takes the case outside the Hague Convention altogether. Article 12 defines the scope of the duty to return. It contemplates that that duty may continue indefinitely, provided that the proceedings have begun in time. It also contemplates that the duty will continue even if the proceedings have not begun in time. But the latter duty only applies unless the children have become settled. Article 12 thus tries to draw a principled line between the claimant who does bring proceedings in time, who should not be prejudiced by delays in the system, and the claimant who does not, who should not succeed under the Convention once the child has become settled. As Professor Perez Vera explains,
...insofar as the return of the child is regarded as being in its interests, it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it - something which is outside the scope of the Convention. (para 107)
The rule while perhaps arbitrary was the least bad solution to the problem.
21. Furthermore article 12 does not expressly contemplate a residual discretion to return. Its wording is different from the qualifications in article 13. Article 18 does not confer any new power to order the return of the child, but simply provides that the provisions of the Convention do not limit any other power which the court may have to order the childs return. It is contemplating powers conferred by the ordinary domestic law rather than by the Convention itself. As Professor Perez Vera explains,
This provision,...which imposes no duty, underlines the non-exhaustive and complementary nature of the Convention. In fact, it authorises the competent authorities to order the return of the child by invoking other provisions more favourable to the attainment of this end. This may happen particularly in the situations envisaged in the second paragraph of article 12, i.e. where, as a result of an application being made to the authority after more than one year has elapsed since the removal, the return of the child may be refused if it has become settled in its new social and family environment. (para 112)
22. Support for this view can therefore be drawn both from the wording of the Convention itself and from the Explanatory Report. It is also the view taken by those academic commentators who have considered the matter. In an early article on the Convention, International Child Abduction by Parents (1982) 32 University of Toronto Law Journal 281, at 314, John Eekelaar states that if the abductor succeeds in showing that the child is settled, the court will be free to decide the case on a full review of its merits". It is also supported by Paul Beaumont and Peter McEleavy, The Hague Convention on International Child Abduction, 1999, at p 209, who suggest that article 18 should be ignored entirely in this context, as an unfortunate example of a provision having been accepted only by a wafer-thin majority at the drafting stage", and by Nigel Lowe, Mark Everall and Michael Nicholls, International Movement of Children: Law, Practice and Procedure, 2004, at para 17.33. It was certainly the view of the late Professor Peter Nygh, formerly Nygh J of the Family Court of Australia, in the passage cited at para 28 below.
23. Judicial support can be found in the observations of Kay J in the Family Court of Australia in State Central Authority v Ayob (1997) FLC 92-746 and again in State Central Authority v CR  Fam CA 1050. On the other hand, other Australian cases had assumed the existence of a discretion: see Director-General of the Community Services v Apostolakis (1996) FLC 92-718 and Director-General, Department of Families, Youth and Community Care v Thorpe (1997) FLC 92-785 The point was, however, left open in two cases before the full court: see Director-General of the Community Services v M and C (1998) FLC 92-829 and Director-General, Department of Families, Youth and Community Care v Moore (1999) FLC 92-841.
24. The contrary view was taken by the Court of Appeal in Cannon v Cannon  EWCA Civ 1330,  1 FLR 169, on appeal from Singer J in Re C. On this view, article 12 merely establishes when the mandatory duty to return exists. What is to happen when it does not is left to implication. The wording shall also order the return of the child, unless... is just as capable of supporting the inference of a discretion thereafter as is the wording is not bound and may also refuse in article 13. Each article limits or qualifies the duty of return and if the one imports a discretionary power of return into the Convention then the other can do so too. Article 18 is as capable of referring to powers arising under the Convention as it is to powers arising from other sources. Indeed, the wording at any time may be more consistent with powers arising under the Convention, because article 16 expressly precludes the courts of the requested state from deciding on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention".
25. Before Re C there were dicta to this effect in cases where the one year time limit had been exceeded but settlement had not been found: see Re S (A Minor) (Abduction)  2 FLR 1, per Purchas LJ at 24, Re N (Minors) (Abduction)  1 FLR 413, per Bracewell J at 416, and also obiter but for different reasons in Re M (Abduction: Acquiescence)  1 FLR 315, at 320, per Thorpe J and in Re L (Abduction: Pending Criminal Proceedings)  1 FLR 433, at 440, per Wilson J.
26. In Scotland, the Inner House, in Soucie v Soucie 1995 SC 134, cited Re N and assumed that a discretion would have arisen under article 18 had settlement been found. In Ireland, the Supreme Court, in P v B (No 2) (Child Abduction: Delay)  4 IR 185, also cited Re N, but found settlement and declined to return the child. In the United States, the authorities reviewed by Singer J in Re C suggest that the debate has centred around whether the one year period in the second paragraph of article 12 should be extended by a principle known as equitable tolling so as to ignore the passage of time while the childs whereabouts have been actively concealed from the claimant parent. In New Zealand, the Convention has been given effect, not by scheduling the relevant articles to an implementing Act, but by translating its provisions into domestic legislation. The Care of Children Act 2004, in section 106(1), provides that the court may refuse to make an order for the return of the child in each of the situations provided for in articles 12 and 13; thus it is clear from the language of these provisions that although a court is not obliged to return a child who is settled in New Zealand if application for return has been made more than a year after the childs wrongful removal, it may nevertheless do so if it thinks it appropriate": see Secretary of State for Justice (as the New Zealand Central Authority on behalf of TJ) v HJ, SC 36/2006  NZSC 97, per Elias CJ at para 9. This indicates, therefore, the view of the New Zealand legislature rather than the New Zealand judiciary as to the meaning of article 12.
27. This is as far as the comparative researches of counsel have taken us. It would be putting it too high to say that there is a strong tide of international judicial opinion in favour of a discretion in settlement cases. On the other hand, Kay J in Australia and Singer J in England are the only judges to have expressed a contrary view. When the decision of Singer J was reversed and the case sent back for the issues of settlement and the exercise of discretion to be decided afresh, Kirkwood J found that the child was settled here and in the exercise of his discretion refused to order her return: see Re C (Abduction: Settlement)(No 2)  1 FLR 938. There appears to be no case until this in which the return of a settled child has been ordered.