Family Law Hub

NG v OG [2014] EWHC 4182 (Fam)

Applications by mother for registration and enforcement of Russian orders concerning residence her two children where she alleges the children have been unlawfully retained in the UK by the father. Applications dismissed and finding made that both children habitually resident in the UK.

  • Neutral Citation Number: [2014] EWHC 4182 (Fam)

    Case No: FD14P00740

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 9th December 2014

    Before :

    HER HONOUR JUDGE JAKENS

    (Sitting as Deputy High Court Judge)

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    Between :

    NG (Applicant)

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    OG (Respondent)

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    Ms Clare Renton (instructed by Just Family Law ) for the Applicant Mother

    Ms Rachel Gillman (instructed by Duncan Lewis ) for the Respondent Mother

    Hearing dates: 10th November 2014

    Judgement: 9th December 2014

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    Judgment

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Her Honour Judge JAKENS:

    1. The children I am concerned with are AG a girl born on 30th November 2004 who is approaching her 10th birthday, and SG, a girl born on 21st March 2007 who is now 7.

    2. Their mother the Applicant is NG represented by Miss Renton and their father is OG, represented by Miss Gillman.

    3. The mother applies for the registration and enforcement of the custody order in relation to SG declared by the Russian Court in Moscow on 2nd April 2014 to take effect on 7th May 2014. She brings that application pursuant to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, and requests the summary return of SG, though not of AG.

    4. She applied in this court on 5th November 2014 for contact to both girls. That issue, pending the determination of the application for SG's return has been transferred to the Central Family Court for a FHDRA hearing, and interim arrangements have been agreed between the parties on the basis that neither of them will seek to involve either child in discussions about this unfortunate case.

    5. I heard the matter on 10th November 2014, when I heard submissions and also allowed the evidence of the CAFCASS Officer Ms Sivills. I was concerned that no interpreter was available for the mother but she was assisted by her father who is a good English speaker and as she did not seek to adjourn: she had the representation of experienced Counsel I proceeded to hear the matter. I hand down this reserved judgment on 9th December 2014.

    6. A preliminary issue arose as to the need for the separate representation of the children in circumstances where the mother's proposed solution to the case would potentially result in these two sisters who have always lived together being permanently cared for apart in two different countries. I shall deal with that below.

    Relevant Background

    7. The parents were married on 25th October 2003 in Moscow. Both are Russian by origin: the father was born in the Ukraine and the mother in Russia. The father has lived in the UK since 1977 and has a British Passport.

    8. The mother moved here after they married in 2004. They lived together in London, where the father still lives with his mother. The mother now lives in Russia. She holds a Russian Passport. Both have parental responsibility for their daughters.

    9. Both children were born in London and are British Citizens. On 1st August 2007 both girls became citizens of the Russian Federation with the consent of both their parents.

    10. The marriage was dissolved in February 2012 in Moscow.

    11. The mother returned to Russia with the girls in December 2009 when the parties separated – on her account with the father's agreement, on his, that it was an agreement, but one where he had no options, and specifically refused to sign any agreement to that effect. He was of the view at the time that the children's best interests would be best met by their mother.

    12. The mother found employment as an accountant in Moscow. Contact with the father took place in England, it being agreed that they spend 2 months here during 2010, 2011, and 2012. I note that only AG came during 2011. The father travelled to Russia on a number of occasions to see the children. On his account AG expressed a consistent and increasing desire to remain in the UK.

    13. On 5th June 2013 the children came for contact in London and should have returned to their mother's care on 21st August 2013 but the father failed to effect their return. He suggests that this was because AG refused to go, not SGF. They have been in the UK since that time. There is no dispute that at the time they were retained in the UK by their father, they were habitually resident in Russia.

    14. The mother issued proceedings for Lubyanska Regional Court in Moscow for custody and child support in Russia on 12th September 2013. The father took no issue with the jurisdiction of the Russian Court. His case was that the children had voted with their feet. Ultimately the mother only pursued her case in relation to SG, the application being amended on 19th February 2013.

    15. Days later the mother sought an order for the summary return of both children to Russia on 18th September 2013 in wardship in this court, Russia not being signatories to the 1980 Hague Convention., and the 1996 Convention not being in force at the time. The father resisted this.

    16. The proceedings began with directions for a CAFCASS report at an on-notice hearing but the mother was daunted by the costs and asserts that she did not have the means to peruse her application. On her case she was very concerned that the father would behave obstructively as regards future contact but in any event the application was compromised by agreement on 3rd December 2013.

    17. The father asserts that there was an agreement that the children would remain living in the UK with their father and that the mother would withdraw her application for their return.

    18. The document reflects, firstly, that the issue of residence was not resolved by the agreement. It reads in the preamble:-

    "Whereas the Mother and Father have not reached any residence or contact agreement in the wardship case FD1 P01767 in the High Court of Justice, Family Division"

    19. Secondly it reflects the fact that the Russian court was seized of the matter: in the preamble it reads as follows:-

    "Whereas the Father does not object to the mother having interim contact in London while Russian custody proceedings is pending. No judicial decision has been made so far in the Russian custody proceeding".

    20. On 17th October 2013, Peter Jackson J dismissed the originating summons and the children were thereby de-warded with the direction for a CAFCASS report being discharged.

    21. On 22nd January 2014, a request was made to the Central Authority for England and Wales pursuant to Article 32 of the 1996 Hague Convention.

    That provides as follows:

    Article 32

    On a request made with supporting reasons by the Central Authority or other competent authority of any Contracting State with which the child has a substantial connection, the Central Authority of the Contracting State in which the child is habitually resident and present may, directly or through public authorities or other bodies,

    a) provide a report on the situation of the child;

    b) request the competent authority of its State to consider the need to take measures for the protection of the person or property of the child.

    22. The originating request for a report appears to have come from the Lublinsky District Court and was specifically a request for a report

    "on the situation of the children in England and to obtain their views and wishes as to (with)–{ my addition} which parent they wish to reside".

    23. The request stated that Russia was the children's habitual residence.

    24. In the report from Victoria Damrell the ICACU Case Manager of the 7th February 2014, the request is denied as it falls outside the scope of Article 32 because the children were habitually resident in Russia. A request for further information to assist in clarifying how the case fell within its scope was made.

    25. Miss Damrell observes that a direction for a CAFCASS report was discharged on 17th October 2014: "…a pity, as this report would have contained the information requested by the Moscow Lublinsky District Court".

    26. The Russian court sought to obtain a report on the children and their wishes and feelings, but that avenue was closed to them given the terms of Article 32 and the fact that the children were habitually resident in Russia. The Court therefore proceeded to a hearing but without any independent information as to the views and wishes of the children.

    The decision in Russia of 2nd April 2014

    27. On 2nd April 2014 the court in Moscow determined that SG should reside with her mother. The court was chaired by Presiding Judge Vorobyeva. The court also dealt with child maintenance. The father did not attend although he filed a defence asserting that the separation of the children was inconceivable, amounting to a crime, and there was no evidence of the children's views before the court. A number of witnesses gave evidence and the father's objections were taken into account. The children were not represented. A report prepared by the Department of Social Protection was prepared which went to the living conditions and social circumstances of the mother and her intention to promote contact.

    28. As regards the judgment, firstly, for the avoidance of doubt I have deduced that the child referred to in the translation into English as "G… C.O. born on 21st March 2013" is in fact SG, the letter C, the Cyrillic equivalent of Roman S, failing to have been correctly translated.

    29. I note the following passage in the judgment which is a word for word citation of the requirements of Article 65 (3) of the Family Code of the Russian Federation1:-

    "If there is no agreement the dispute between the parents shall be resolved by the court having the children's best interests at heart and taking into consideration the children's opinion. Herewith the court shall take into account the child's affection towards each of the parents, brothers and sisters, age of the child, moral and other qualities of the parents, relationship between each of the parents and the child, possibility of creating conditions for the child for upbringing and development (Occupation, work pattern of the parents, financial condition and family status of the parents etc.)

    30. It is quite clear that the court is required by the code to take the child's opinion into consideration. I had been unable to do so in the absence of a report and in circumstances where the children were present in another contracting state. There was reference to the evidence of the witnesses called but that cannot amount to the same exercise as taking the children's opinion into account.

    31. There is no mention at any point in the judgment either of the attempts to obtain a report in the UK, nor of the requirement to take into consideration the children's opinion.

    32. There was no appeal, on the father's account because he did not receive the judgment in time to lodge one, the period for appeal being stated as one month.

    The present application.

    33. Mother applied on 2nd July 2014 for the recognition and enforcement of the order granting her custody of SG. She maintains that the delay between April and July was as a result of the need to provide authorised documentation in support of her case and that has lead to some delay, albeit minor.

    34. The mother now seeks to rely upon the ratification by Russia of the Hague Convention which was brought into force on 1st June 2013.

    35. Roberts J made directions on 18th October 2014. She considered Article 32(2) of the Convention and decided that the views of the child should be sought, prior to proceeding to the question of the registration and enforcement of the Russian Order. Both parties consented to that direction which required CAFCASS to address the views of SG as to the order for her to live in Moscow, as well as AG's views, and their views as to spending time in the UK with the mother

    36. Interim contact was ordered between the mother and the children on agreed terms.

    37. Ms Sivills of CAFCASS reported on 30th October within these proceedings. She also gave evidence to me. She specifically indicated she was aware that the report was not an "objections" report. She was so concerned by the situation that she sought advice from CAFCASS Legal as regards the separate representation of the children, which gave rise to the submission by the father that is course of action should be followed in these circumstances.

    38. Her enquiries of the school revealed that staff at the children's school took the view that the children were "petrified" of returning to Russia.

    39. AG recounted harsh treatment by her mother when she was about to take a belt to hit her, which SG witnessed. They reported the mother as being cross sometimes.

    40. SG said: "it does not make sense, she only wants me back"

    41. They both expressed a "huge scary worry" at the highest assessed level about how the would feel if their mother came into the room. They both said she told lies and gave the example that she had said they could remain in London, but then went to court. Both felt angry that their mother had gone to court, and if the case finished each would feel happy and excited. If SG were to return to Russia they would both feel sad. When asked how they would feel if the Judge decided that SG should go back, they both said "scared".

    42. AG express a strong desire that her sister not be returned and expressed anger at her mother for not understanding how she feels. Sophie expressed similar views, and said she would be sad if returned; that she would feel lonely of she were to return to Russia without her sister. She could not imagine living away from her father, sister and grandmother. She said that if she were in Moscow she would ring the father and ask him to take her back. She also asked that the judge be told that she had been smacked with a real belt twice.

    43. The report illustrates the high degree of closeness between the sisters.

    44. This is a summary of what was clearly a highly sensitive exercise undertaken by the CAFCASS Officer. From her oral evidence I accept that she saw each child separately. She told me that SG is a very resilient child and mature according to her chronological age. She described her as "self-aware" and told me that she was able to give her a very realistic account of how she was feelings, and that her wishes and feelings best reflect her welfare needs. She had no doubt about the strength of the wishes and feelings expressed to her by the girls to both herself and the staff at their school. Ms Sivills reports that had this been a welfare case she would have recommended that they girls remain together in England.

    45. She told me she had no doubts that it was not in the best interests of SG to be returned to Russia, and if she did have to go she would look to her father to get her back again.

    Separate representation

    46. I do not accept that there is a need for separate representation in this case. The children have seen the CAFCASS Officer, and she has sought advice on that very point.

    47. Within the context of this application, which does not include scope for a welfare analysis, and where there the CAFCASS Officer has in my judgment conducted a highly competent enquiry, I do not see that this case could fall into the category of one where the children needed to be a party and separately represented. The preliminary application is therefore refused.

    The respective arguments

    48. The mother argues in relation to SG that there has been a wrongful retention for the purpose of Article 72 of the 1996 Convention. She argues that Article 7 bites here and Russia is the state of primary jurisdiction for at least a year even if habitual residence changes. Pursuant to Articles 22- 23 orders made in one contracting state must be recognised unless recognition is refused under Article 23 (2) as set out below:

    Article 22

    The application of the law designated by the provisions of this Chapter can be refused only if this application would be manifestly contrary to public policy, taking into account the best of the child.

    Article 23

    (1) The measures taken by the authorities of a Contracting State shall be recognised by operation of law in all other Contracting States.

    (2) Recognition may however be refused –

    a) if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II;

    b) if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;

    c) on the request of any person claiming that the measure infringes his or her parental responsibility, if such measure was taken, except in a case of urgency, without such person having been given an opportunity to be heard;

    d) if such recognition is manifestly contrary to public policy of the requested State, taking into account the best interests of the child;

    e) if the measure is incompatible with a later measure taken in the non-Contracting State of the habitual residence of the child, where this later measure fulfils the requirements for recognition in the requested State;

    49. She refers me by way of illustration to the case of Re F, [2014] EWHC 749, a decision of Holman J of 12th March 2014 for the proposition that the passage of time may not be determinative when enforcing orders made in signatory courts.

    50. She argues that a cogent case for non-enforcement must be made by the father, who is responsible for this situation, and that no blame can attach to the mother that there was no report on the child for the Russian court; the father can apply there to set aside the order.

    51. Miss Renton has highlighted the potential obstacles to the application, under Article 23 (2) (b), but argues that despite the current report this court should take notice that the views of a 7 year old are not sophisticated and are unlikely to be free of heavy paternal influence, and the views of the child are not determinative of outcome in any event and the likelihood is that the children have "polarised temporarily" to the father – if this were a Brussels II Revised case; a child of 7 would be at the lower range where the voice of the child would be of great weight, let alone determinative.

    52. Effective operation of the convention is a fundamental principle and therefore she argues that SG should be returned without more to the mother's lawful custody in Russia, where she will continue to promote contact between the child and her father.

    53. The father resists the application. It is his case that both children have been afraid of being removed by force by the mother from a situation where they are settled and thriving.

    54. He seeks a declaration that the children are habitually resident in the UK and a declaration that any further litigation concerning the children's welfare should be dealt with in by this court; an order preventing any further application by the mother to progress/enforce the existing residence order in relation to SG or seek further orders/applications in relation to either child in the Moscow Court; a child arrangement order that the children live with the father and registration of any orders of this court in the Lyublinsky District Court by the mother before any staying contact in Russia is considered.

    55. Miss Gillman makes the point that the mother consented to the CAFCASS report directed by Roberts J, flying in the face of any argument that SG is too young to have her wishes and feelings canvassed.

    The law

    The 1996 Hague Convention

    56. The 1996 Hague Convention is accompanied by the 1996 Practice Guidance, which I have borne in mind, and as regards Recognition and Enforcement I have specifically borne in mind Chapter IV of the Guidance.

    57. There are no grounds for non-recognition based on any review of the merits of the measure taken in Russia and welfare issues are not to be revisited where Article 7 bites.

    58. There is no ground of refusal based upon the jurisdictional basis on which orders in contracting states are made.

    59. I have been referred by Miss Renton (who rightly points out that the purpose of the convention is to support and enforce orders of signatory courts) to the case of Re Y ( A Child) [2013] EWCA Civ 129 where Thorpe LJ stated:

    "the whole purpose of the 1996 Convention was to support and supplement the effective operation of its parent the 1980 convention…."

    60. I fully acknowledge the force of the mother's argument as regards the importance of giving full weight to the policy behind the Convention.

    The voice of the child

    61. Turning to my consideration of the discretion to refuse recognition, the question of how this court should approach the application of Article 23 (2) (b) is my first consideration and I have considered the following matters:

    62. I have been referred to the case of Re D ( Abduction: Rights of Custody) [2006] UKHL 51, and in particular paragraph 5 of the Headnote:

    "Children ought to be heard more frequently in Hague Convention cases than had been the practice hitherto. The principle set out in Council Regulation (EC)2201/2003 of 27th November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II Revised)that children should be given an opportunity to be heard when applying the Arts 12 and 13. although strictly only applicable to cases within the European Union was of universal application and consistent with obligations under Article 12 of the United Nations Convention of the Rights of the Child 19893. There was a large difference between taking account of a child's view and doing what the child wanted, but there was a growing understanding of the importance of listening to children involved in children's cases. In most cases an interview with a CAFCASS Officer would be sufficient, but in other cases it might be necessary for the judge to hear the child, especially if the child had requested this. Only in a few cases would full scale legal representation be necessary, but wherever it seemed likely that the child's views and interests might not be properly presented to the court, in particular if there were legal arguments which the adult parties were not putting forward, the child should be appropriately represented. Brussels II revised required the court to address at the outset whether and how the child was to be given the opportunity of being heard and there was no reason why this should not happen in non-European cases as well; the more uniform the practise the better, and the earlier the issue of the child's views was addressed, the less likely that the issue would cause delay.

    63. I may have regard to the Explanatory Report of Paul Lagarde. In particular I have been referred helpful to paragraph 123 b:

    Sub-paragraph b

    123. The refusal of recognition is possible if, except in a case of urgency, the measure was taken without the child having been provided the opportunity to be heard in violation of fundamental principles of procedure of the requested State. This ground for refusal is directly inspired by Article 12, paragraph 2, of the United Nations Convention on the Rights of the Child. It does not imply that the child ought to be heard in every case. It was pointed out, with good reason, that it is not always in the interest of the child to have to give an opinion, in particular if the two parents are in agreement on the measure to be taken. It is only where the failure to hear the child is contrary to the fundamental principles of procedure of the requested State that this may justify a refusal of recognition (my emphasis) but no distinction should be made on this point according to whether the measure is taken in the framework of a judicial procedure or an administrative procedure. This amounts to a special clause of procedural public policy. It does not apply in cases of urgency, for which the requirements of procedural due process of law ought to be interpreted more flexibly.

    64. I have also taken into account the case of MD v AA and DD of 13th July 2014, [2014] EWHC 2756 (Fam), a recent decision of Peter Jackson J to which I shall return below. It appears to me to illuminate the issues in this case.

    Best interests of the Child

    65. There is a further adjunct to the mix in this case provided by Article 23 (2) (d), namely that recognition may be refused:

    "If such recognition is manifestly contrary to public policy of the requested state, taking into account the best interests of the child".

    66. This is not a route which I intend to explore in this judgment although Miss Renton has helpfully pointed me in its direction.

    The voice of the child as it features in this case.

    67. In this case SG wishes to remain with her father and sister and her voice is freshly contained in the CAFCASS report dated 29th October 2014. She has been here for one year and more, living with her father and going to school.

    68. Miss Renton argues that if Brussels II revised were the jurisdiction here, SG would be at the lower range where the child's voice would be of great weight. She argues that the father has not supported SG's relationship with her mother, influenced SG's wishes together with their grandmother. I do not accept this submission because it is clear to me that SG's clear right, at age 7 and on what I have heard from Ms Sivills, is to have the opportunity to be heard.

    69. Some help is available to me in the form of the judgment of Peter Jackson J in the case of MD v AA and DD of 13th July 2014, [2014] EWHC 2756 (Fam) in which he considers Article 23(b) of Brussels IIR which provides that:-

    A judgment relating to parental responsibility shall not be recognised:

    (b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;

    70. The case concerned the recognition and registration of a decision of the Romanain Court in this jurisdiction. The child in that case, David, was 7 years old, and the court dismissed the claim for "hearing the minor, which it deems not useful given the age of the minor". It was held that: "In summary, the Romanian court's conclusion about David's wishes and feelings cannot be said to have arisen from any direct or indirect enquiry involving David himself".

    The judgment continues:-

    84. "I next approach the concept of "an opportunity to be heard" in the context of this court's "fundamental principles of procedure".

    85. Different parents and legal systems take a variety of approaches to hearing a child's point of view. Indeed, the recent report from the Commission to the European Parliament on the application of BIIR (Com (2014) 225, 15 April 2014) at page 10, states that:

    [A] frequently raised ground of opposition has been the fact that the judgment was given without the child having been given an opportunity to be heard. In this connection, particular difficulties arise due to the fact that Member States have diverging rules governing the hearing of the child.)

    The report goes no further than to identify the issue.

    86. In interpreting Article 23(b) it is the fundamental principles in this jurisdiction that must be applied. These are not formed in isolation; they have been influenced by international instruments and their pedigree can be clearly traced.

    87. Article 12 of the United Nations Convention on the Rights of the Child 1989 provides that:

    (1) States Parties shall assure to the child who is capable of forming his or her own views the rights to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    (2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or appropriate body, in a manner consistent with the procedural rules of national law."

    71. The judgment refers to the extract from the Lagarde report cited at paragraph 63 above. It continues:-

    89. "Article 11(2) of BIIR itself imports this concept into child abduction cases:

    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.

    90. These principles are now firmly established in our law. Section 1(1) of the Children Act 1989 requires that when a court determines any question with respect to the upbringing of a child, the child's welfare shall be the court's paramount consideration. Section 1(3) requires the court to have regard in particular to a number of matters, including the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).

    91. The importance of listening to children was articulated by the House of Lords in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619. This was, as it happens, a child abduction case in which a father sought the return to Romania of an eight-year-old boy who had lived in Romania until the age of four before being abducted to England by his mother. I note in passing the observations of Lord Hope at paragraph [4]:

    The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.

    92. Baroness Hale of Richmond, describing the facts of Re D as extraordinary, said

    this at paragraph [57]:

    [T]here 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 that do listen to children understand that they often have a point of view which is quite distinct from that 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 reason for failing to hear what the child has to say than it is for refusing to hear the parents' views.

    93. At paragraph [60], she considered the range of possible ways of hearing a child:

    interview by a social worker, meeting with a judge, and, in a few cases only, by

    separate representation.

    94. Very shortly after the decision in Re D, the Court of Appeal decided the case of

    Re F (Abduction: Child's Wishes) [2007] 2 FLR 697. This was concerned with Article 11(2) of BIIR in the context of an application for the summary return of a seven-year-old. The case is of assistance for certain observations of Thorpe LJ at paragraphs [16], [17], [19] and [24]:

    [T]here was no enquiry as to J's wishes and feelings, which is the ordinary interpretation of the court's obligation to 'hear the child'.

    [T]he court is not concerned and certainly not ruled by the litigation strategy of either of the parties. It has an obligation ... to hear the child, whatever may be the consequences.

    [T]he deficiency… cannot be ignored. It is a fundamental deficiency and it cannot be shored up or papered over.

    [I]t seems to me to be necessary that in future the question of how and when the court will hear the child, in discharge of its obligations under Article 11(2), must be considered at the first directions appointment and any subsequent directions appointment to ensure that have that this central ingredient of the case is never out of the spotlight.

    95. It is further clear from decisions such as Re W (Abduction: Acquiescence: Children's Objections) [2010] EWHC 332 (Fam), [2010] 2 FLR 1150, that the views of children as young as David must be taken into account.

    96. The opportunity for a child to be heard therefore requires an age-appropriate enquiry into his wishes and feelings to enable the decision-maker to understand the child's distinct point of view. The child's entitlement to a voice is a fundamental procedural principle in our system. If he is old enough, it will be his voice and his words. An adult voice will convey the younger child's point of view. Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought."

    72. As regards the absence of a report, the court commented as follows "Far from being unusual, such a report would be fundamental".

    73. That gives a clear and helpful view as to the primacy of the importance of giving the child an opportunity to be heard and fact that this is a fundamental requirement, and the right of the child, even at such a young age .

    74. Article 23(b) of Brussels II R is consonant with Article 23 (2)(b) of the 1996 Convention.

    75. The Russian court did not succeed in obtaining a report on the child's views to give her the opportunity to be heard because she was in the UK but had been identified as habitually resident in Russia and therefore no report could be provided. Whilst the parties and witnesses were able to express their views as to the children's situation the child could not do so directly. The Russian court did not explore any other means to afford the child the relevant opportunity.

    76. Further the requirement under the Russian code clearly envisages and enshrines the importance to the decision making process of hearing from the subject child or children.

    77. In this case, the CAFCASS officer left no room for doubt that a return to Russia would not be in the best interests of SG

    78. The central tension in this case is therefore falls between the fact that SG was not given an opportunity to have her voice heard in the Russian Court before orders were made about her future, and the serious obligations between jurisdictions which exist under the Convention.

    79. I turn then to the basis on which I reach my decision.

    a. I have had regards to the side issues raised in this case but the central question remaining is whether Article 23 (2) (b) permits me to refuse the mother's application.

    b. In this case, the Russian Court was seized of the matter and made orders in relation to SG in her absence.

    c. The Russian Court did not give the child the opportunity to be heard, despite the requirements of the relevant Code in force at the time of the order. SG was not given the opportunity to be heard.

    d. The CAFCASS Officer leaves me in no doubt that SG is a child whose is capable of expressing her views and feelings, and this opportunity was not available to her when the primary decision was made, despite her right to have an opportunity to be heard.

    e. The requirement for the opportunity to be provided is a fundamental matter. This was not overlooked by the Russian Court when it sought a report here, but in the event that did not occur, and I am wholly satisfied that under Article 23 (2) (b) it is open to me to refuse the application for registration and enforcement.

    My orders

    80. The application by the father for the children to be separately represented is refused.

    81. The application for registration and enforcement is refused

    82. The father seeks a declaration that the children are habitually resident in time UK. The factual matrix in this case and at this time is such the at despite the wrongful retention of the children in the UK, they have rooted her and are settled and have been so now for well over a year, since August 2013. They are settled and attending school. Their mere presence in this jurisdiction does not confer habitual residence but I am satisfied, applying the test in Re A (Sexual Abuse: Disclosure) 2013 1 FLR 948. In this case on the facts, SG is clearly integrated in her father's home with her sister and grandmother, and established at school, a situation which the passage of time must have, in this case, consolidated. The same applies in relation to AG.

    83. I therefore make the declaration sought that SG and AG are habitually resident in this jurisdiction.

    84. I have approved directions for the onward progress of this matter as regards mother's application for contact.

    1 In the absence of an agreement, a dispute between the parents shall be resolved in court, proceeding from the children's interests and taking into account the children's opinion. In doing this, the court shall take into account the child's affection for each of his parents and for his brothers and sisters, the child's age, the moral and other personal features of the parents, the relations existing between each of the parents and the child, and the possibility to create optimal conditions for the child's upbringing and development (the parents' kind of activity and work regime, their material situation and family status, etc.).

    2 Article 7

    (1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another State, and a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or

    b) the child has resided in that other State for a period of at least one year after the person, institution or other body having rights of custody has or should have had knowledge of the whereabouts of the child, no request for return lodged within that period is still pending, and the child is settled in his or her new environment.

    (2) The removal or the retention of a child is to be considered wrongful where –

    a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

    b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

    The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

    (3) So long as the authorities first mentioned in paragraph 1 keep their jurisdiction, the authorities of the Contracting State to which the child has been removed or in which he or she has been retained can take only such urgent measures under Article 11 as are necessary for the protection of the person or property of the child.

    3 Article 12

    1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

    2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Judgment, published: 14/12/2014

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Published: 14/12/2014

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