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Family Law

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28 JUN 2016

Re S (Child Abduction: Joinder of Sibling: Child's Objections) [2016] EWHC 1227 (Fam)

Re S (Child Abduction: Joinder of Sibling: Child's Objections) [2016] EWHC 1227 (Fam)
(Family Division, Cobb J, 27 May 2016)

Abduction – Hague Convention – Joinder of 17-year-old sibling – Child’s objections – Whether a return order should be granted.

The 17-year-old sibling of a child subject to Hague Convention proceedings was granted party status.

The French father and English mother married in England and spent the early years of their marriage here. When the younger child was 4 the family moved to France. When the marriage broke down the mother and her two children, now aged 17 and 13, moved to England without the consent of the father. The father issued Hague Convention proceedings seeking a return of the younger child. The older child sought to be joined as a party to the proceedings.

The mother accepted that her removal of the child was wrongful and was opposed to a return order on the basis of a grave risk of harm if the child were returned and the child's objections to a return pursuant to Art 13 of the Convention.

In relation to the joinder of the older child the situation was unusual in that the court had to consider not the participation of the subject child, but party status of a young person who fell outside the scope of the Convention but was a full sibling. To succeed in her bid for party status, she had first to demonstrate that she fell within the category of a person who appeared to the court to have sufficient interest in the welfare of the subject child: FPR 12.3(1). Secondly, she needed to demonstrate that it was in her interests to be joined as a party to the proceedings under FPR 16.2.

In the circumstances the court was satisfied that the older child did deserve an independent voice in the proceedings relating to her sibling and that she had an opinion which was probably incapable of being voiced by any of the adult parties. Her application to be joined as a party to the proceedings was successful. Her solicitor agreed to act as her litigation friend.

After considering all of the evidence the court determined that the younger child did object to a return to France and there was no challenge as to whether she had attained an age and degree of maturity at which it would be appropriate to take account of her views.

However, after weighing all of the evidence, Cobb J made a return order in respect of the younger child.

Case No: FD16P00172
Neutral Citation Number: [2016] EWHC 1227 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: 27/05/2016



Before :


THE HONOURABLE MR JUSTICE COBB


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Re S (Child Abduction: Joinder of sibling: Child’s Objections)


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Robin Barda (instructed by Jones Myers Ltd.) for the Applicant (father)
Alistair G Perkins (instructed by Lanyon Bowdler) for the First Respondent (mother)
Victoria Clifford (instructed by Mortimers) for the Second Respondent (R)


Hearing dates: 17 May 2016


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Judgment

The Honourable Mr Justice Cobb
:

[1] The subject of these proceedings is S; she is 13 years, 10 months old. On 3 March 2016, S left her home and school in France and travelled to England in the company of her mother and 17 year old sister, R. This was done without the knowledge or consent of S’s father.

[2] There is now before the Court an application brought under the Child Abduction and Custody Act 1985 incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (“the 1980 Hague Convention”), and under the Council Regulation 2201/2003 (“BIIA”), for an order for the return of S to France. The application, dated 5 April 2016, is made by S’s father (“the father”); it is opposed by S’s mother (“the mother”).

[3] By separate application issued on 3 May 2016, R seeks party status in these proceedings; by virtue of her age, R is not the subject of these proceedings (per Article 4 of the 1980 Hague Convention). The application is supported by a statement from the solicitor instructed by R, and by a statement from R herself. I granted that application after considering argument at the hearing, and invited R’s solicitor to act as her litigation friend. R did not apply to the court for an adjournment of the case for her to prepare more fully; she and her lawyers realistically recognised the summary nature of these proceedings, and the timeframes within which the court is operating.

[4] For the purposes of determining this application, I read the documentation filed, and heard oral evidence from Ms Roddy the Cafcass officer; I received oral submissions from the three advocates, and requested further information about the divorce proceedings in France which was furnished in writing on the day after the hearing. At the outset of the hearing, I was told that S had come to court and wished to meet with me. Having discussed with counsel the proposed purpose of such a meeting, and the parameters, I agreed to do so. I saw her straight away (i.e. before hearing argument) and – as agreed – explained to her the procedure involved in the hearing. I did not discuss with her the substance of the case, or indeed her wishes as to outcome. She is, as the Cafcass officer independently and rightly observed, a “charming, polite and bright young woman”.

Background


[5] The background can be shortly stated. The father is French, and the mother English. The parties married in England in 1996, and lived for the first years of their marriage in rural England. In February 2007, when S was 4 years old, the family moved to northern France, where they have lived ever since. The father works in business; the mother is an English teacher. The marriage deteriorated towards the tail-end of 2015; divorce was, it appears, first discussed at or about Christmas 2015. On 16 February 2016 the father presented a petition for divorce in the courts of France. Against the background of a domestic “undercurrent of unease” (a description from the Cafcass report, acknowledged to be accurate by both parents), on 17 February there was a scene at the family home; the parents argued in front of R. The mother called the police who advised her to leave the home and she did so, taking the two children with her. She found a room at a local hotel, where she remained for several days; the mother’s brother (maternal uncle to S) joined the mother for a while to offer emotional and practical support; indeed, together they returned to the matrimonial home and collected items while the father was at work. On 3 March 2016, the mother took the children out of school in France and brought them to England, where they have been ever since, living with her parents (maternal grandparents). A ‘round table’ meeting had been scheduled to take place in France between the parties and their lawyers on 9 March 2016; this did not happen. Both girls have entered school here. There has been minimal contact between the father and the children since 3 March.

[6] The mother wishes to remain here in England, but has informed me that in the event that I order a return of S to France, she will return with her, and seek the French Court’s leave to relocate permanently to England.

[7] I am further advised that there is to be a hearing in the French Court on 23 June 2016 at 3pm; the hearing is described as a ‘conciliation’ hearing before the ‘Juge aux Affaires Familiales’ and is expected to deal with a range of interim issues, including maintenance allowance, occupation of the matrimonial home, and child arrangements. The parties are expected to bring evidence of their income and expenses. I suspect that it is no more than a first appointment, and it may be that little of substance is actually achieved at that time. I am advised that at that hearing, the judge will consider whether he/she will meet the children, or either of them. Both parents have retained lawyers in France.

The issues


[8] The mother does not contest that the removal of the children from France on 3 March was wrongful, and in breach of the father’s rights of custody in France under Article 3 of the 1980 Hague Convention. It is further not disputed that my primary obligation is therefore to return S forthwith to France under Article 12. The issue in the case is whether grounds are made out under Article 13 of the Convention so as to create an exception to this requirement to return. In this case, it is submitted by the mother that exceptions are made out in that:

i) There is a “grave risk” that a return of S to France would expose her to psychological harm, or otherwise place her in an intolerable situation;
ii) S objects to returning to France, and is she of an age and maturity at which I should take account of her views.

If either of these exceptions are made out, this opens the door to the exercise of my discretion as to whether to return S, and the mother contends that I should exercise it by refusing the application.

[9] The mother contends that ‘grave risk of psychological harm’ or intolerability (see [8](i) above) would be established by:

i) The likely separation of the siblings, R having indicated her firm intention to remain living in England;
ii) The lack of accommodation or financial support for herself and S in the event of a return.

Joinder of R

[10] Before discussing the substantive issues, I wish to address my decision to accede to R’s application to join her as a respondent to this application (see [3] above). As Black LJ observed in Re M & Others (Abduction: Child’s Objections) [2015] EWCA Civ 26 (‘Re M’) at [140] “[i]t is imperative that consideration is given at the earliest possible stage in Hague Convention proceedings to whether the appropriate parties are before the court”; in that case, Black LJ was specifically considering the position of a young person, D, who was a sibling to the subject child and who, like R, was a ‘child’ between the ages of 16 and 18, therefore outside the scope of the Hague Convention. D had not been joined as a respondent until the case was before the appellate court.

[11] In this case, the mother expresses her wish to shield both children from the litigation, but recognised R’s wish to have a voice; she did not object to R’s formal intervention in the proceedings. The father opposed R’s application.

[12] There are many recent and now well-known judicial pronouncements on the importance of child participation in Hague Convention proceedings, of which In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, In re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, and In the matter of LC [2014] UKSC 1 [2014] AC 1038 (“Re LC”) are among the most important. But the situation in those cases was different from that which obtains here; I am not considering the participation of the subject child, but party status of a young person who falls outside the scope of the Convention but who is a full sibling. To succeed in her bid for party status, R has first to demonstrate that he or she falls within the category of a “person who appears to the court to have sufficient interest in the welfare of the [subject] child” (Rule 12.3(1) of the FPR 2010). Secondly, she (as any child in her situation) needs to demonstrate that it is in his or her interests to be joined as a party to the proceedings under rule 16.2 of the FPR 2010. If the two threshold tests are satisfied, the door is open for me to exercise my discretion to join the young person to the proceedings, though, as Lord Wilson observed in Re LC (an observation which is probably germane here) that “… is the sort of discretion, occasionally found in procedural rules, which is more theoretical than real: the nature of the threshold conclusion will almost always drive the exercise of the resultant discretion” (see [45]).

[13] All counsel submitted to me that in deciding the joinder question (either at threshold stage or discretion stage) the provisions of para.7 of PD16A of the FPR 2010 apply. That they were right to direct me to this Practice Direction was justified by the words in brackets at the end of rule 16.2 viz. “(The Practice Direction 16A sets out the matters which the court will take into consideration before making the child a party under this rule).” However, I find it hard to accept the submissions of counsel that para.7 of PD16A directly applies to the issue of joinder of a non-subject child. Para.7 falls within Part 4 of the PD16A under the heading “Appointment of Children’s Guardian under Rule 16.4”; Rule 16.4 applies to children who are the subjects of the proceedings. That said, I recognise the relevance of some of the contents, and as Lord Wilson observed in Re LC “much of” PD16A “is directly apposite to” Hague Convention proceedings (see Re LC [50]). For instance, the introductory words of para.7.2 can obviously apply to the instant issue (i.e. “the decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case”). Of the illustrations which follow in the Practice Direction, those at para.7.2(b), (c), (e), (g), and (i), may of course have some relevance to this case, or similar cases, i.e.:

“(a)…(b) where a child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;
(c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;
(d)…(e) where an older child is opposing a proposed course of action;
(f)…(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;
(h)…(i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position
(j)…”.

[14] Is the joinder ‘threshold’ crossed in the instant case? It will, I suspect, be a rare case in which the first of the threshold tests (i.e. the ‘sufficient interest’ test in Rule 12.3(1) of the FPR 2010 – see [12] above) is not satisfied on an application for joinder by a sibling of a child in Hague Convention proceedings. In this particular case, I am satisfied that R is close to S, and has an undoubted and anxious interest in S’s welfare and future. The more difficult question is whether it is in R’s interests that she be joined to the litigation. R is determined to remain living in England whatever decision I make in relation to her sister; she is nonetheless (indeed perhaps for that very reason) concerned that I should fully comprehend the implications for herself and her sister if the effect of my decision is that they are separated by S’s return to France. R and S currently benefit from real and mutual Article 8 ECHR rights to respect for their family life together; these rights operate separately from (but simultaneously with) their joint and independent Article 8 rights for respect for their family life with their parents. I am conscious that there is a value to a young person such as R of participation in family proceedings which concern them, either as subjects or as affected parties (see Mabon v Mabon [2005] 2 FLR 1011 at [44]), and this is materially reinforced by her rights under Article 12 of the United Nations Convention on the Rights of the Child 1989, including her right to express her views freely on matters which affect her, and her “opportunity to be heard in any judicial and administrative proceedings affecting the child”.

[15] I am also conscious, as Mr. Barda has highlighted in his submission, of the countervailing importance of protecting children from the worst extremes of their parents’ disagreements; in this respect I was taken to Lord Wilson’s further comments in Re LC at [48]:“The intrusion of the children into the forensic arena, which enables a number of them to adopt a directly confrontational stance towards the applicant parent, can prove very damaging to family relationships even in the long term and definitely affects their interests.”These views were echoed by Black LJ in Re M at [155]: “it must be recognised that direct participation in proceedings can be harmful for children”.

[16] Having weighed the arguments, I was satisfied that it was right for R to be joined as a party. I was persuaded that she did indeed deserve to have an independent voice in these proceedings concerning her sister; the implications for their family life, and relationship, are significant. I took the view that she has an opinion which is probably “incapable of being represented by any of the adult parties”, even the mother. Having considered with counsel, during the submissions, the proposed limits on the extent of R’s participation in the proceedings (see [18] below) I was satisfied that she would be protected at least to some degree from unnecessary exposure to the parental conflict.

[17] Unlike the position of a subject child party in Hague Convention proceedings who must appear by a Children’s Guardian, (see FPR 2010 r 16.6(2), and Re LC at [46]), R must appear in the proceedings by a litigation friend (rule 16.2, rule 16.5, and rule 16.6 FPR 2010). Once the parents confirmed (on my enquiry) during the hearing that they would not, under any circumstances, pursue a claim for costs against R (see rule 16.9(2)(c)), R’s solicitor agreed to be her litigation friend, thus avoiding the involvement of another family member (a maternal uncle) who had otherwise volunteered. One of the values of appointing a litigation friend was that I could ensure that R’s own participation in the proceedings was guided and regulated (see [155] of Re M): “He or she will no doubt determine which documents filed in the proceedings should be shown to the child and take decisions, in consultation with the child, about whether the child should attend the court hearing.” There is nothing controversial about that: as Lord Wilson observed in Re LC, the joinder of a child can be qualified / regulated by arrangements as to her participation (see Re LC [55]), within the “wide discretion” of the court (see also Peter Jackson J in A City Council v T, J and R [2011] EWHC 1082 (Fam) [2011] 2 FLR 803). Where party status has been given to a non-subject child, particularly one who is a mature 17-year old, I would limit the extent of her participation only cautiously. R has rights under Article 6 which must be carefully observed. However, for her – as for any party – an entitlement to a fair trial under Article 6 of the ECHR does not mean an absolute and unqualified right to see all the documents (see, for a discussion of that proposition, Munby J as he then was in Re B (Disclosure) [2001] 2 FLR 1017).

[18] 
As it happened, on the day of the hearing, R was taking a GCSE at school and could not be present at court; there was no request for an adjournment. R recognised that her participation would, perforce, be limited. Therefore although Miss Clifford could access the documents once R was joined, R could not realistically do so; Miss Clifford acknowledged that there would be little material benefit in R having access to the parents’ statements after the hearing, and such benefit as there may be is likely in my judgment to be outweighed by the potential detriment of exposure to her parents’ dispute. I therefore directed that the parents’ statements and exhibits should not be shared with R without further application to the court. I directed that the Cafcass report, which contains a summary of a discussion between R and Ms Roddy, should nonetheless be available to her.

The Article 13 ‘exceptions’


[19] I turn to the mother’s case on ‘exceptions’.

[20] ‘Grave risk of psychological harm’: The mother’s case is that a return of S to France would inevitably impose a separation of the siblings and that this would be ‘intolerable’ for S, and/or cause her psychological harm; she further contends that a return will place S in an intolerable financial situation. The burden of establishing this exception on the balance of probabilities rests on her; it is for her to produce evidence to substantiate these exceptions.

[21] The threshold for proving an exception under Article 13(b) remains high notwithstanding the removal of judicial gloss on the words of the exception by the Supreme Court in the cases of Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758 and Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442. It is to be noted that (Re E at [33]):“Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm”It is also the case (Re E at [35]) that I must consider:“… the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home”.

[22] I proceed, in determining this application, on the basis that R has made a firm, albeit I consider somewhat surprising, decision to stay in England to live and study come-what-may. It is of course entirely possible that she may reverse her intentions in due course, I am not in a position to say. For the purposes of my decision, I accept that a return of S will indeed impose a separation of the siblings. I accept the evidence that R and S are close; however the girls are 3½ years apart in age. They are at a very different stage of their emotional and educational development. In the event that S is returned to France, the sisters will be able to see each other in holidays, for significant periods; although in different countries, they would be living reasonably easy travelling distance apart which would make even weekend meetings feasible. The separation may – subject to the views of the French Court on the relocation question and/or R’s change of mind (as to which see [23] below – be only temporary.

[23] It is of course as much R’s decision as it is mine which forces any immediate separation. R has declared a choice to be in England. In this respect, she is exercising some newly-developed autonomy. That is a matter over which I have no influence let alone jurisdiction. R could just as easily decide to return to France to return to school there at least for the next year; she is after all nearly at the end of her education, and may ultimately decide to complete it within a curriculum which she has thus far followed for all her school life.

[24]The mother relies on financial difficulties to establish an exception under Article 13(b) (see [9(ii)] above); indeed, her case is that it was only her financial vulnerability immediately post-separation which caused her to move in the first place; she said in terms:“ If I had a safe place to live with the children in France, with financial assistance from the Applicant, I would not have considered returning to the UK”. I am not satisfied that the parents’ financial situation is likely to be materially worse if they are both living in France than it would be if the mother remained in England; regrettably, parental separation imposes additional pressures on the household budget to which adjustments need quickly to be made. I acknowledge that the mother is currently able to live rent-free with her parents, but this is only a short-term solution. The mother has the scope to work in both countries; although she has given up her work in France, she indicates that her previous employer would try to provide agency work to assist her to build up her practice again should she return; when she was working, she was earning up to €1,000 per month. The father has offered to provide to the mother (until the French Court can attend substantively to the issue) the sum of no less than €510 per month, in the event of her return to France with S, in addition to (i) covering the rental costs of a modest apartment for the mother and S in the local town, (ii) providing a deposit for the same and (iii) continuing to pay the mortgage on the former matrimonial home. While there is an obvious disparity of accommodation for as long as the father occupies the former matrimonial home (a decision which may well, I recognise, aggravate relations) this offer seems to me to be reasonable, and neutralises the argument that S and her mother would be placed in intolerable financial hardship in the event of a return. The father’s offer represents, in short, “adequate arrangements” to secure the financial protection of S in the event of a return (see Article 11(4) of BIIR).

[25] ‘Objections’: I am satisfied that I have fully and effectively received S’s views in accordance with the obligations under Article 11(2) of BIIA (“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”), and Article 12 of the United Nations Convention on the Rights of the Child 1989. Although S has not been joined as a party, she has (a) spoken with the Cafcass officer (Ms Jacqueline Roddy), who has fully and clearly set out her views (in some respects verbatim) in a detailed report, and (b) S has written a letter to the court.

[26] I have approached the issue of S’s ‘objection’ by first considering two questions of fact – namely, whether (a) S does indeed object to being returned to France, and (b) S has attained an age and degree of maturity at which it is appropriate to take account of her views; determination of these facts represents the ‘gateway’ stage. Black LJ has described this gateway stage in Re M at [69] as being:“… confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in 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 his or her views. Sub-tests and technicality of all sorts should be avoided.” Later at [77] in Re M, Black LJ cautioned judges against adopting “an over-prescriptive or over-intellectualised approach to what, if it is to work with proper despatch, has got to be a straightforward and robust process”. I proceed on the basis that the word ‘object’ is an ordinary English word with autonomous, and no special, meaning.

[27] S spoke “increasingly confidently and passionately” about the issues involved in this situation when she met with Ms Roddy (Cafcass) two weeks ago. She was said to be “very clear from the outset that she wishes to remain in England with her mum and sister”. She said that she loves her father, and “wishes this whole episode hadn’t happened”; S told Ms Roddy that she hoped that the father would seek her full-time care in the event of a return to France, as this would prove to her that he loves her. The father does indeed seek her care.

[28] S told Ms Roddy that she wished to remain in England, with her family here, but admitted to missing her French friends, and spoke happily of life there. She said that she would like to see her father in the holidays. S had prepared a letter for me, in which she said this:

“I would like to stay in England because I would like to see my family more often, stay with my sister (she has decided to stay in England) and my dad hasn’t been fair to me. I would maybe like to see him in the holidays when the situation is sorted. I don’t want to go back to France because I don’t want to live with my dad but also because that means I am separated from my mum and sister which I would be extremely sad (sic.). I think as well changing schools from France to England isn’t easy at all because of language and because I need to start to learn the lessons all over again”. (Emphasis by underlining added).

[29] Ms Roddy was of the opinion that S’s views “might be seen as reflecting those of her mother”, specifically placing the blame for the current situation at the father’s door. Although reflecting that S was “determined” that she does not wish to return to France, objects to being separated from her sister, and adopts a “strongly held position”, Ms Roddy nonetheless concluded that S’s views amounted to no more than a “clear preference” to remain in the UK rather than an objection to return to France. That conclusion was intended to convey to the court that S’s views (‘preference’) fell short of an objection (see Re M at [38]-[41], and see Re LC at [8] and [71] – accepting the distinction between these expressions of view).

[30] In oral evidence, Ms Roddy told me that she considered S to be “insightful” about her situation, and that S is a young person who had formed her “own opinion”, reaching a “considered decision of what she wanted”. She was of the view that S had a reasoned and balanced view of the options, and had some sorrow and regret at the current situation; she was also angry at her father. Significantly, it became apparent in Mr. Perkins’ questioning of Ms Roddy that she had considered and interpreted the word ‘objection’ to mean something which was “absolute” in quality, something which “could not be contemplated, distasteful … not find favour under any circumstances”. She added (my note of her evidence):

“It was not my sense that [S] ‘objected’ having talked to her; she very clearly objects to returning to the family circumstances which were unpalatable, and which I hope has not led to lasting damage. Ultimately it is for the court to decide. She has a very clear preference to be with her mother and sister wherever that may be. Her sister will be here; she knows that.”

Ms Roddy went on to describe having observed S’s meeting with her father outside court on the morning of the hearing; she commented on how they had chatted easily and amicably for approximately 30 minutes, albeit that they had stuck (apparently) to “safe topics”; they had warmly embraced at the end of the conversation.

[31] Having considered the evidence as a whole, I am satisfied that S does object (per Article 13) to returning to France. I draw, in reaching this conclusion, on the evidence garnered in, and reflected by, Ms Roddy’s helpful assessment, but not on her ultimate conclusion on this question. I was particularly struck by the passage in the report indicating that S was “determined” that she does not want to return to France; in stating her view forcefully in this way, I recognise that S may well be conflating her feelings about returning to the country with her feelings about her father and the situation which she left behind, but consider this below when exercising my discretion. It seems to me that Ms Roddy had probably attributed to the term and concept of ‘objection’ a loaded quality which it did not deserve. Her evidence that she understood ‘object’ to be something ‘absolute’ or not finding favour ‘in any circumstances’ is reminiscent of the erroneous approach taken by counsel and the judge to the term in the trial at first instance in Re F [2015] EWCA Civ 1022, in which Black LJ said at [35]: “It is not necessary to establish that the child has "a wholesale objection" to returning to the country of habitual residence and "cannot think of anything positive to say about that other country". The exception is established if the judge concludes, simply, that the child objects to returning to the country of habitual residence. … Whether a child objects is a question of fact, and the word "objects" is sufficient on its own to convey to a judge hearing a Hague Convention case what has to be established; further definition may be more likely to mislead or to generate debate than to assist.”

[32] S’s objection to returning to France nonetheless has complex roots, influenced, I am satisfied, by a number of factors which I have collected from the Cafcass report, and elsewhere. Those factors include:

(a) S’s unhappiness at the thought of being separated from her sister and her mother,
(b) her perception of a change in her father’s behaviour towards her and the family in the end of 2015,
(c) her dislike of domestic disharmony between her parents (in particular her father’s shouting), 
(d) her blame of her father for the current situation (including his stance on financial provision which had caused the mother to leave France) and anger towards him,
(e) her anger towards her paternal grandparents (in France) for allegedly ‘covering’ for her father’s behaviours,
(f) the influence (whether intentional or otherwise) of her mother who has (she accepts) spoken with S about the issues, and
(g) her worry about not having anywhere to live in France. I return to these factors when considering the discretionary stage.

[33] It is rightly not challenged in this case by the father that S has attained an age and degree of maturity at which it would be appropriate to take account of her views, whatever they may be.

Exercise of discretion


[34] Having found that S objects to a return to France, I must now consider whether, in the exercise of my discretion, she should be ordered so to return. In exercising this discretion, I consider matters in the round; as Baroness Hale advised in Re M and another (Children)(Abduction: Rights of Custody) [2007] UKHL 55 (‘Re M’), 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”. (Emphasis by underlining added). I am not obliged to treat S’s views as determinative: ‘taking account’ means no more than what it says (Re W (Minors) [2010] EWCA Civ 520 [2010] 2 FLR 1165). In Re M, it was said at §46 that:

“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.” (Emphasis in the original).

[35] I start with the objection itself; this weighs significantly in the balance against an order for return. In this case it is apparent to me that S’s objection has been shaped by a number of factors, which I have identified at [32] (above); some of those factors have an invalid or insecure factual foundation yet have contributed to the formulation of S’s views. For instance,

i) Perhaps most importantly, and contrary to her belief, S would not in fact be separated from her mother if she is ordered to return to France as her mother has indicated that she would return too; (see [32(a)] above);
ii) Objection to return to France is mixed to a significant extent in my judgment with objection to returning to the “unpalatable” situation which she left behind (see [30]/[31] above); in the event of a return, the parents would be living separately, and S would therefore be spared exposure to daily parental conflict; (see [32(c)] above);
iii) The father has offered to fund accommodation for the mother and S in the event of a return (see [32(g)] above); so she would be relieved of the anxiety of being homeless.In some respects, S’s view has been shaped by and or reflective of those of her mother (see [29] above) with whom S has spoken about the issues, a factor which I have also considered.

[36] I weigh carefully in the balance that the siblings would be separated in the event of an order for S’s return to France, and have conscientiously reflected on the impact this may have on the Article 8 rights of R and S to family life together, and the similar rights possessed by S and her father to a full family relationship with each other. While this is a powerful factor, as I indicated above (see [22]) any sibling separation which follows an order for return will be mitigated by the likely opportunities which will exist for the sisters to spend time together in the holidays, and maybe even for some weekends.

[37] In reaching my conclusion, I am guided by the fact that the mother does not describe any unsatisfactory aspect of life in France for the children before her departure in March 2016, and clearly indicates (see [24] above) that had it not been for her financial worries, she would not have moved the children to England in the first place. The father has made an offer of financial support to the mother at this hearing, which is in my judgment adequate to meet her short-term needs. It is significant that the mother would be returning to France with a package of financial support not previously available to her.

[38] There are proceedings afoot in France, in respect of which both parties have retained lawyers; these proceedings will provide an appropriate vehicle for resolution of all the family disputes in the jurisdiction in which the children are habitually resident. There is a hearing within an acceptably short time of this hearing; if the mother wishes to do so, she could of course make an application for permanent relocation.

[39] At the time of her removal, S was integrated into life in France, where she has been in education throughout her life. If I have correctly understood the final sentence of her letter to me at [28] above, she has not found her transition from French to English schooling all that easy (viz: “I think as well changing schools from France to England isn’t easy at all because of language and because I need to start to learn the lessons all over again”). If ordered to return, she would (I hope) be able to settle back reasonably easily into French schooling after the Whitsun break, having missed relatively little of her curriculum there. In France, S enjoys a range of pastimes and hobbies described by both parents from which she plainly derives many benefits.

[40] Her current expressions of anger at her father need to be addressed before positions become entrenched. I recognise that there is a risk that by ordering her return, I may cause S to feel additional resentment towards him for his part in separating her from her sister, and thwarting her mother’s plans for a new life in England. However, I bear in mind that S had expressed the hope to Ms Roddy that her father would seek her long-term care (thus, poignantly, indicating his love for her: see [27] above), and am much encouraged by Ms Roddy’s description of the meeting between father and daughter outside court on the day of the hearing. Geographic proximity of one another in France – at this crucial time even if not permanently – may encourage an easier re-establishing of the father/daughter relationship, which I am satisfied (having seen the messages and cards which have passed between them even in relatively recent times) has been extremely close and loving.

[41] In exercising my discretion, I am entitled of course to have regard to the general philosophy of the convention, which 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 to the evidence which will mostly be there rather than in the country to which they have been removed." (See Re D (A Child) (Abduction: Rights of Custody) [2006] (see above) at paragraph [48]).

[42] In the circumstances outlined in [34]-[41] above, I have reached the clear conclusion that I should accede to the father’s application and order the return of S to France. I will make orders in relation to financial provision which will have effect under the 1996 Hague Child Protection Convention in order to give the mother maximum interim financial protection pending determination by a French Court. I will invite counsel to agree, if possible, a form of order.

[43] That is my judgment.

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