Judgments - In re M (FC) and another (FC) (Children) (FC)

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28.  That, therefore, is how things stand in the United Kingdom, unless your lordships accede to the invitation of both Mr Henry Setright QC on behalf of the mother and Mr Teertha Gupta on behalf of the children to overrule the decision in Cannon v Cannon. We have not been invited to overturn the long line of authority holding that, once one of the exceptions in article 13 has been made out, there remains a discretion to return the child under the Hague Convention rather than under the ordinary law. However, our attention has been drawn to the contrary view expressed by Professor Nygh, in “The international abduction of children", in Children on the Move, How to Implement their Right to Family Life, edited by the distinguished team of Jaap Doek, Hans van Loon (Director of the Hague Conference on Private International Law) and Paul Vlaardingerbroek, 1996, at p 42:

“There is no doubt that the court in such a case is not bound to keep the child within the requested state. The question is: can it order the removal of the child in a summary proceeding without consideration of the merits of the dispute?

The English Court of Appeal has taken the view that there does arise a residual discretion upon a ground of opposition to return being established which must be exercised before the court can proceed with the hearing of the merits of the custody dispute. This discretion must be exercised balancing the interests of the child, which should not be treated as paramount for these purposes, against the intention of the Convention that children who have been unlawfully removed or retained should be returned promptly to the country of habitual residence. This practice appears to be contrary to the assumption in para 107 of the Perez-Vera Explanatory Report that in such a case the child’s return “should take place only after an examination of the merits of the custody rights exercised over it.” The better view may well be that a decision upholding a ground of opposition means that the court of the requested State should assume jurisdiction to deal with the merits of the custody dispute.”

29.  In theory at least, therefore, there are three solutions: (1) once any ground of opposition has been made out, so that there is no duty to return the child, the court must consider whether to use other powers, outside the Convention, to return the child; or (2) the article 13 and 20 grounds, being permissive only, contain within them a discretion nevertheless to return the child, but the article 12 ground, not being so limited, does not; or (3) all of the grounds contain within them a discretion to return nonetheless.

30.  Despite its attractive simplicity and the distinction of its source, solution (1) can be rejected. A discretion not to return is imported into the words of article 13 itself. The passage cited from Professor Perez-Vera is taken, as already seen, from her discussion of articles 12 and 18; when discussing articles 13 and 20, she states:

“In general, it is appropriate to emphasise that the exceptions in these two articles do not apply automatically, in that they do not invariably result in the child’s retention; nevertheless, the very nature of these exceptions gives judges a discretion - and does not impose upon them a duty - to refuse to return a child in certain circumstances.” (para 113)

Thus article 13 clearly envisages that the discretion may result in a decision to return within the Convention procedures. Those procedures, involving as they do the central authorities of each Contracting State and, in this country at least, favourable legal aid for the claimants, are different from those of the ordinary law. The same applies to article 20.

31.  The choice between solutions (2) and (3) is much more difficult. As judges at all levels have acknowledged, there is much to be said for either view. However, I have reached the conclusion, not without considerable hesitation, that article 12 does envisage that a settled child might nevertheless be returned within the Convention procedures. The words “shall...unless” leave the matter open. It would be consistent with all the other exceptions to the rule of return. It would avoid the separate and perhaps unfunded need for proceedings in the unusual event that summary return would be appropriate in a settlement case. It recognises the flexibility in the concept of settlement, which may arise in a wide variety of circumstances and to very different degrees. It acknowledges that late application may be the result of active concealment of where the child has gone. It leaves the court with all options open. Furthermore, the difference between the two solutions is by no means as great as is sometimes assumed. This depends upon the scope of the discretion to be exercised both within and without the Convention procedures.

Discretion under the ordinary law and under the Convention

32.  The difference between the two was summed up thus by Thorpe LJ in Cannon v Cannon, at para 38:

“For the exercise of a discretion under the Hague Convention requires the court to have due regard to the overriding objectives of the Convention whilst acknowledging the importance of the child’s welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law.”

There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thus exaggerating the differences between them.

33.  On the one hand, it is sometimes suggested that, outside the Convention, the court is bound to conduct a full merits inquiry into the dispute between the parties; not only will the welfare of the child be the paramount consideration, but the checklist of factors relevant to that consideration, set out in section 1(3) of the Children Act 1989, will have to be fully considered. In the words of Mr Scott-Manderson QC, appearing for the father, it operates as a “fetter on the court’s discretion", limiting it to the welfare of the child and excluding independent consideration of the policy of the Hague Convention, including the policy that the merits of the parental dispute should be decided in the courts of the child’s home country.

34.  On the other hand, it has sometimes been suggested that in Convention cases the policy of the Convention requires that the discretion be exercised in favour of return in all save the most exceptional cases. When discussing discretion in this case, the trial judge cited the recent case of Zaffino v Zaffino [2005] EWCA Civ 1012, [2006] 1 FLR 410, where at para 18 Thorpe LJ described the following passage from the judgment of Balcombe LJ in Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242, at 251, as “authoritatively stat[ing] the proper approach":

“The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongly removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Hague Convention - see In re A (Minors) (Abduction: Custody Rights) [1992] Fam 106, 122E per Lord Donaldson of Lymington MR.”

However, the judge also referred, under the heading of discretion, to Vigreux v Michel [2006] EWCA Civ 630; [2006] 2 FLR 1180, in which “the Court of Appeal further emphasised the exceptional nature of the case that would be required to fall outside the return net.” (para 53) He may well have had in mind the observation of Wall LJ at para 66:

“Following Re S, the first question I have to ask myself is, I think: what is it about this case which renders it exceptional and requires the court to exercise its discretion not to return PM to France?”

Earlier, when summarising the law relating to child’s objections, the judge referred to the observations of the Court of Appeal in Klentzeris v Klentzeris [2007] EWCA Civ 533, “for a recent reaffirmation that non-return is appropriate only in cases which fall into ‘a most exceptional category', in that case the court basing its decision upon ‘the extraordinary strength of the evidence of the CAFCASS officer'.” (para 49)

35.  When it came to the actual exercise of his discretion, the judge clearly indicated that he considered that he had to find something exceptional in the case, over and above the two grounds of opposition which he had found established, before he could refuse to order a return: “I have gone on to consider whether or not this case is an exceptional case such that I should exercise my discretion to refuse to order an immediate return...Having set out at length the facts as I find them to be, I can find nothing in this case which would qualify it as exceptional, and thus decline to exercise my discretion against a return,... Ultimately, there is nothing exceptional about this case on any view.” (paras 119 to 121)

36.  Mr Setright points out that it is scarcely surprising that the judge took this view, in the light of certain passages from the most recent Court of Appeal cases, Zaffino v Zaffino, Vigreux v Michel and Klentzeris v Klentzeris He further points out that, although both Thorpe LJ (para 12) and Longmore LJ (para 27) in this case considered the judge’s use of the word “exceptional” as “descriptive rather than prescriptive", Moore-Bick LJ, having canvassed the recent authorities, concluded, at para 38, that:

“in deciding whether there are sufficient grounds for not returning a child, the court must take account of the underlying policy of the Convention with the result that, in order to justify exercising its discretion against returning the child, it must be satisfied that viewed overall the case can properly be regarded as exceptional.”

The most recent passage cited by Moore-Bick LJ was from the judgment of Sir Mark Potter P in Re M (Abduction: Child’s Objections) [2007] EWCA Civ 260; [2007] 2 FLR 72, at para 80:

“That leaves only the question of whether the objection of M is such that this is one of the ‘exceptional’ cases justifying the court in using its discretion to refuse to order an immediate return.”

37.  Those passages leave one in little doubt that a view has crept in that “exceptional” is not merely a description, to be applied to the small number of exceptions in which the court has power to refuse to order a return, but also an additional test to be applied, after a ground of opposition has been made out, to the exercise of the court’s discretion.

38.  In my view, each of the extreme positions outlined above is incorrect. In the recent rather oddly entitled case of Re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40, [2006] 1 AC 80, this House made clear the approach to be adopted in wrongful removal or retention cases falling outside the Hague Convention. The child’s welfare is indeed the paramount consideration. But the court does have the power to order the immediate return of the child to a foreign jurisdiction without conducting a full investigation of the merits. As Ormrod LJ put it in Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416, at 425:

“'Kidnapping', like other kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, to the prompt return of the child to his or her own country, but not the sacrifice of the child’s welfare to some other principle of law.”

39.  Thus there is always a choice to be made between summary return and a further investigation. There is also a choice to be made as to the depth into which the judge will go in investigating the merits of the case before making that choice. One size does not fit all. The judge may well 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 factor and to all the other relevant factors, some of which are canvassed in Re J, will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal systems and principles of law of the two countries will be much less significant than they might be in cases which fall outside the Convention altogether.

40.  On the other hand, I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.

41.  But there remains a distinction between the exercise of discretion under the Hague Convention and the exercise of discretion in wrongful removal or retention cases falling outside the Convention. In non-Convention cases the child’s welfare may well be better served by a prompt return to the country from which she was wrongly removed; but that will be because of the particular circumstances of her case, understood in the light of the general understanding of the harm which wrongful removal can do, summed up in the well-known words of Buckley LJ in Re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250, at 264:

“To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education...are all acts...which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted.”

42.  In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another’s judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.

43.  My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child’s rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word “overriding” if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

44.  That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.

45.  By way of illustration only, as this House pointed out in Re D (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619, para 55, “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.” It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country.

46.  In child’s objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.

47.  In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer “hot pursuit” cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child’s objections as well as her integration in her new community.

48.  All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.

This appeal

49.  My lords, I cannot share the opinion of the majority of the Court of Appeal that the trial judge was using the term “exceptional” simply to describe the overall characteristics of a case in which it would be appropriate to refuse a return. He regarded it as a test to be applied in the exercise of his discretion. For the reasons already given, he is not to be blamed for this. But it is open to us, therefore, to set aside the exercise of discretion in the courts below and to reach our own conclusions.

50.  The judge specifically referred to the following factors in deciding whether this was an exceptional case:

“I have considered the nature and seriousness of the wrongful removal, including the many layers of deception deployed by the mother in bringing about that wrongful removal, keeping the children at an address unknown to the father for many months; wrongly refusing to return the children to Zimbabwe when the father so requested …; that on the father’s proposals the mother (and her new husband) could return to Zimbabwe with the children to care for them; and that even if the mother and or her new husband declined to accompany the children, they would be properly cared for in the home of their father; that their cultural and social roots (including their wider paternal and maternal family) are all still in Zimbabwe. I have also considered the children’s objections.” (para 121)

51.   In the Court of Appeal, Moore-Bick LJ considered that the judge should at this point have weighed the competing factors: in particular the fact that the children were settled here, that they objected to return, and the economic conditions in Zimbabwe. However, both he and Thorpe LJ would have exercised the discretion in the same way, adding to the factors mentioned by the judge the precariousness of the family’s position in this country, of which the children may be unaware, and the strength of their relationship with their father.

52.  My Lords, in this court we have had the benefit of counsel’s representations on behalf of the children themselves, who have also been with us for some of the hearing. Mr Gupta argues powerfully on their behalf that the “child-centric” exceptions of settlement and objection have been analysed more from the parents’ perspective than from the children’s. The comparative moral blameworthiness of mother and father has had an effect upon the judgments in both of the courts below. But from the children’s point of view, they have had to suffer all the upset of being brought to this country secretly. They were unsettled at first and in September 2005 the older child sent her father an email asking for him to come and take them home. But, as counsel puts it, “the father’s responses to this plea both in his emailed responses and in his actions were miniscule". For whatever reason, he did not come and fetch them home; he did not start proceedings until more than a year later. When he did start the ball rolling in Zimbabwe, the central authorities between them took more than eight months before the proceedings were brought. What were the children to do during all this time? They settled down and got on with making their lives here, where they are happy and have become fully integrated in their local church and schools. They feel fully settled here whatever the courts may think. Their views have changed from wanting to go home to objecting to this further disruption in their short lives. Not only this, their father’s emails have given them the impression that he has moved to Zambia. Although he now states that he was only spending some of his time there on business and would restrict his visits there should the children return, they are understandably confused about the position. They certainly do not want to be left in the care of their father’s new partner. In short, having been the victims of one international relocation contrary to their wishes, they stand to be the victims of another should the father’s application succeed.

53.  To all of these powerful child-centric considerations might be added the uncertainties and volatilities of life in Zimbabwe, to put it no higher than that. Their mother and her partner claim that they will be at risk of persecution if they return. So far this claim has been rejected, but their reluctance to return is understandable. What is certain is that, if they do return to Zimbabwe, they will not be readmitted to the United Kingdom. If both they and the children are in Zimbabwe there will be no question of the family being allowed to return here for the children to complete their schooling. These are powerful considerations in favour of any dispute on the merits between the parents being conducted here rather than in Zimbabwe.

54.  Against all this, the policy of the Convention can carry little weight. The delay has been such that its primary objective cannot be fulfilled. These children should not be made to suffer for the sake of general deterrence of the evil of child abduction world wide. I would therefore allow the appeal and dismiss the father’s Hague Convention proceedings, without prejudice of course to his right to bring any other proceedings to resolve his dispute with the mother.

Other issues

55.  It is unnecessary therefore to express a view on the other issues in the case. I would not, however, have set aside the judge’s conclusions on the article 13(b) exception. It is not disputed that the initial threshold in such cases is a high one. The judge considered all the material before him very carefully. He eschewed any “knee-jerk” condemnation of Zimbabwe as a failed state. He had good reasons to conclude that this father, whom he had had the unusual benefit of hearing give oral evidence, would be able to provide properly for his children in Zimbabwe despite the current difficulties. I do not accept Mr Setright’s argument that the moral and political climate in Zimbabwe is such that any child would be at grave risk of psychological harm or should not be expected to tolerate having to live there. I might add that the father’s business in Zambia and elsewhere suggests that he has the means to remove his children from trouble should the need arise.

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