Family Law Hub

S (Children) [2011] EWCA Civ 1748

  • Neutral Citation Number: [2011] EWCA Civ 1748

    Case No: B4/2011/2877





    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Wednesday, 14 December 2011






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    IN THE MATTER OF S (Children)

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    (DAR Transcript of

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    Mr E Devereux (instructed by Tracy Ann Mortimore Young) appeared on behalf of the Appellant mother.

    The Respondent father did not appear and was not represented.

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    (As Approved by the Court)

    Crown Copyright (c)

    Lord Justice Thorpe:

    1. An appellant's notice of 8 November was filed seeking permission to appeal an order made by Hedley J on 19 October for the return of two children aged eleven and nine to Spain following their somewhat stale abduction. The application was put before me on paper last week as an application by an unrepresented litigant and I directed the conventional half hour hearing for oral argument without notice. Given that this is a case brought under an international Convention, I directed that three judges of the Court should hear the application to give the applicant mother every chance of getting through the narrow gate into a full appeal.

    2. Unfortunately for the Court today, Dawson Cornwell, who acted for her during the interlocutory stages but then apparently came off the record at a date which has not been defined, were re-instructed on either 8 or 9 December and sent instructions to Mr Edward Devereux to draft a skeleton argument. That was dated 12 December and I think made available yesterday, so that today's hearing has become an application by a mother represented by very skilled and expert specialists who have advanced the application with every possible argument perceived and defined.

    3. However, before I come to the application which we seek to determine I record that a firm of solicitors, Messrs Freemans, wrote to this Court yesterday to say that they had been consulted by the two children and the writer wished this application for permission to be adjourned. She wished to see the documents in the case to advise as to whether there was a role for the children within the appeal. That application was copied to Messes Goodman Ray who represent the father and they objected in strenuous terms to the application that Mrs Hansen advanced. Today she has written a further letter to the court attaching a report from a social worker, part of the NHS CAMHS team in Essex, recording a visit to the elder child's school and recording her distress at the prospect of the implementation of Hedley J's order and speculating as to what might be the effect. The application for adjournment and release of papers advanced by Mrs Hansen should in my judgment be refused for the very reasons set out in the letter of objection by Goodman Ray. The chronology is all against the belated involvement of solicitors acting independently for the children, particularly in a case in which their views, their wishes and their feelings were fully investigated by a Cafcass officer who was acting on an agreed direction given by a deputy judge of the Division in August.

    4. I turn to consider Mr Devereux's application. He very helpfully distils his essential arguments in paragraph 11 of his skeleton. He says first that Hedley J erred in imposing a gloss on the simple words of the Convention by accepting that an objection required the expression of a strong view that could be readily distinguished from preference. I see no fault in that criticism. As a matter of ordinary language objection and preference are two distinctly different creatures and are legitimately distinguished by a trial judge.

    5. His second complaint is that the judge sat on the fence in a way that is impermissible and recently condemned in a judgment handed down by this Court on 2 December. That is a point to which I will return when citing what seems to me the key passages in the judgment below. However, the point is well taken by Mr Devereux and in a classic judgment it is important that the judge should make a clear finding as to whether the child's objection has been proved as a matter of fact and should not, as it were, conflate two judicial tasks. I am not myself persuaded that Hedley J truly made that conflation in the present case.

    6. Mr Devereux's third point is that the judge misdirected himself in law by citing the cases of Re T [2000] 2 FLR 192 and Re M [2007] 2 FLR 72. He should, says Mr Devereux, have directed himself by reference to the decision of the House of Lords in the Zimbabwe case of Re M [2008] 1 FLR 251. Mr Devereux is plainly justified in his critique of these citations; the later case of Re M should have been the judge's guiding light. However, again by reference to citations to which I will come, I am not persuaded that the judge would have expressed himself any differently or reached any different conclusion had the later case of Re M been before him.

    7. Subsequently Mr Devereux in his fourth ground suggests that the judge failed to take into account some relevant factors and gave undue weight to the policy of a Convention. That is always a difficult submission to advance where the judge below has brought into account what seemed to be the cardinal factors.

    8. Fifthly, and I think that this is his weakest ground, he suggests that the process of trial was flawed by the instruction of a Cafcass officer from Colchester rather than one from the specialist London team. That is not arguable in my judgment in the light of paragraph 19 of the judgment below where the judge specifically notices that the Cafcass officer was new to international family but he notes that she had researched her task by conversation with the High Court team and he particularly commended her performance both written and orally.

    9. The citations which I regard as being determinative of this application come towards the end of the judgment where, in paragraph 23, the judge said:

    "As I have indicated in relation to [K], I have no doubt, on the evidence, that her objections, if such they are, should be taken into account as she is nearly 11, with a maturity that probably exceeds her chronological age. But, of course, her views, though entirely clear and reasonable, do not really extend beyond the inevitable anxieties associated with her education, which would, of course, impact on any child in her situation."

    10. In a similar vein in paragraph 24 he said:

    "As I have said, I doubt whether [K's] views really amount to 'objections' within the meaning of the convention. If they did, I would take account of them, but the weight that I would give them, given their nature, could not begin to outweigh the policy and purposes of this convention, which otherwise require her future to be determined in Spain. As to [O], whilst his views amount to objections, I would have the same doubt about the extent to which they should be taken into account, given his maturity and age. But if they should then they too could not begin to outweigh the policies and purposes of the convention."

    11. It seems to me that the judge has performed the task defined by Baroness Hale in her speech in the case of O (Children) [2011] EWCA Civ 128 when she said in paragraph 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."

    12. Finally I would only like to emphasise that what has been laid on the children's shoulders is not a return to the father from whom they seem to be sadly estranged but only a return to Spain. That is a very important distinction and one that seemingly eluded the writer of the CAMHS Report. I would refuse this application.

    Lady Justice Hallett:

    13. I agree.

    Lady Justice Black:

    14. I agree. I would only add one point. It is important in this area of law which is burdened by so many authorities to remember that this application has been one only for permission to appeal and therefore, speaking certainly for myself, I would not contemplate that it should be cited in subsequent cases pursuant to the practice direction citation authorities [2001] 1 WLR 1001.

    Order: Application refused.

Judgment, published: 14/12/2011


See also

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Published: 14/12/2011


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