(Court of Appeal, Maurice Kay, Black, Treacy LJJ, 27 March 2014)
[The judicially approved judgment and accompanying headnote has now published in Family Law Reports  1 FLR 389
Hague Convention - Abduction - Art 13(b) - Settlement
The full judgment is available below.
The mother removed the 10-year-old child from France where the family had been living and brought her to the UK. In Hague Convention proceedings initiated by the father the judge found the child had been habitually resident in France and that the mother had wrongfully removed her. The mother's defence under Art 13(b) was refused but the judge accepted that the child objected to a return and that she was of an age and degree of maturity at which it was appropriate to take her views into consideration. Nevertheless, a return order was granted. The mother appealed and the return order was stayed.
At the same time the local authority in which the mother and child were living initiated care proceedings due to the mother's poor ill health and the child was placed in the care of the maternal uncle under an interim care order. The mother was detained under the Mental Health Act 1983 and remained there voluntarily for a period but she was now living in assisted accommodation.
On appeal from the return order the maternal uncle, the child and the local authority were joined as parties to the proceedings. The maternal uncle sought to appeal the return order on the basis of the child's settlement in England.
The Court of Appeal refused the maternal uncle permission to appeal on the issue of settlement on the basis that the child had been removed from her home in France where she had lived all of her life and during her time in England her mother's poor ill health had necessitated her living with her uncle. She could not be said to have settled. Further the uncle had not raised the settlement defence at first instance.
The judge's exercise of her discretion to order a return could not be faulted. It appeared at times that the mother's arguments had failed to recognise that in considering whether to order a return the child's welfare was not the paramount consideration and that the judge was not making a final welfare determination. The judge appropriately took into consideration that the mother was making progress but the fact that doctors could not be certain as to a prognosis and there remained a risk of relapse.
Permission to appeal was granted to the mother but the appeal was dismissed.
Where there were concurrent care and Hague Convention proceedings it was extremely valuable, if not indispensible, for the local authority to have input in the latter proceedings.
The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
Neutral Citation Number:  EWCA Civ 375
Case No: B4/2013/3681
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
ALISON RUSSELL QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE MAURICE KAY
LADY JUSTICE BLACK
LORD JUSTICE TREACY
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RE B (A CHILD) (1980 HAGUE CONVENTION PROCEEDINGS)
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Miss Gillian Geddes (instructed by John Fowlers LLP) for the Appellant
Mr Mark Jarman (instructed by Brethertons LLP) for the 1st Respondent
Mr David Ball for the 2nd Respondent
Mr Darren Howe (instructed by Suffolk County Council Legal Department) for the 3rd Respondent
Hearing dates : 12th March 2014
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Lady Justice Black:
These proceedings arise from an application by a father (F) under the 1980 Hague Convention for the return of his daughter (MB) to France. His application was granted on 2 December 2013 by Alison Russell QC, then sitting as a Deputy High Court Judge, but the order for return was stayed by this court when MB's mother (M) commenced an appeal. MB therefore remains in this country.
M accepted that she had wrongfully removed MB from France where she was habitually resident but resisted F's Hague application on the basis of MB's objections to being returned and on the basis of Article 13(b) (grave risk that the return would expose MB to physical or psychological harm or otherwise place her in an intolerable situation). The judge did not accept that the circumstances were within Article 13(b). She accepted that MB did object to being returned and had attained an age and degree of maturity at which it was appropriate to take into account her views but, exercising her discretion, she determined that a return should nonetheless be ordered.
The parents were not the only parties to the Hague proceedings and the Hague proceedings were not the only proceedings concerning MB.
In July 2013, care proceedings had been commenced in relation to MB by the local authority for the locality in which she and M were living (LA).
The Hague proceedings were begun on 13 September 2013. A location order was made that day, together with various other orders designed to discover MB's whereabouts. When the matter returned to court on 25 September 2013, M was present in person and F and LA were represented. The court was told that LA had placed MB with her maternal uncle under an interim care order. The judge joined the maternal uncle, LA, and MB as parties, arranging for a CAFCASS guardian to be appointed for MB.
The final hearing before the judge, which took place on 21 November 2013, was attended by M and her counsel, F's counsel, MB's guardian and solicitor, and the maternal uncle who acted in person at all times in the High Court although he has been represented in front of us. LA's attendance had been excused by a direction given earlier in the proceedings and they did not attend, although the judge had available to her papers from the care proceedings and a statement compiled by the social worker for the purposes of the Hague proceedings. Statements were also available from the parents and the maternal uncle. The only oral evidence that was heard was from the CAFCASS guardian, and briefly from Mr Geraghty
The case was listed before us on the basis that we would consider the question of permission to appeal and then proceed with M's appeal if that was granted. Subsequently, the maternal uncle sought to file a respondent's notice also seeking to appeal. I ordered that the question of permission to file that document out of time and the question of whether the uncle should be granted permission to appeal should also be dealt with at the listed hearing.
The proposed grounds of appeal advanced by M and the uncle fell into two categories:
i) Both sought to appeal against the return order on the basis that returning MB to France was a wrong exercise of the judge's discretion; M added that the judge was wrong in fact not to find that the circumstances were as set out in Article 13(b). We did not seek to determine whether permission should be granted in relation to these grounds as a separate issue at the commencement of the hearing but instead heard full argument on the points.
ii) The uncle sought to advance a further ground of appeal which was formulated in this way in the respondent's notice:
"The judge was wrong as a matter of fact and law by failing to consider the question of jurisdiction further to Article 10 of Brussels IIR and the availability and applicability of the settlement defence under the Hague Convention. "
This proposed ground we did deal with as a preliminary matter. After argument, we refused to grant permission and said that we would give our reasons for this when dealing with the other grounds. They can be found set out later in this judgment.
The factual background and some associated procedural issues
MB was born in May 2003 and is 10 years old. Until June 2012, she had lived in France all her life. F is French; M is English but had lived in France for many years before coming here in 2012. They were married at the time of MB's birth but their relationship ended in 2005. A divorce was granted by the French courts in June 2007 and orders were made about MB who was to live with M "in the context of the exercise of parental authority in common by both parents" (as the translation reads) and to have staying contact with F on alternate weekends plus extra time in the school holidays. The contact provisions in that order were amended, at F's request, in July 2008. There was contact thereafter, although both parents make complaints about the other's attitude to it.
It is now clear that M had increasing mental health problems whilst she was in France. In June 2012, with the assistance of the uncle, she came to England with MB. Initially M and MB stayed with the uncle but they left in acrimonious circumstances at his request a few weeks later. M obtained temporary accommodation from the council on the basis she was homeless. In March 2013, the uncle made a referral to LA because he was concerned for M and MB because of M's mental health and her inability to care properly for herself or MB. Social services carried out an assessment, but with difficulty because M was not co-operative. Judging from the social work evidence filed in the care proceedings, this must have been a thoroughly unsettled and distressing time for MB. Child protection measures were taken by LA. Things came to a head on 11 July 2013, when M and MB were evicted from their accommodation. Such was the concern for MB that day that she was removed from M under a police protection order. M and MB appeared to be acutely distressed (see page C8 in the care proceedings bundle) but this did not continue to manifest itself for long as we can see from page C9. MB was placed with the uncle and has lived with him since then.
From 12 July 2013, there were interim care orders in place continuously until the last one was discharged in the county court on 6 December 2013, following the judge's Hague decision. There were two problems about the care proceedings. The first was that I am not at all sure that the issue of jurisdiction was addressed (although I note the reference to "the jurisdictional issues" in §6 of the order of 10 September 2013). By virtue of Articles 1, 8 and 10 of Council Regulation (EC) No 2201/2003 (Brussels IIR), jurisdiction in relation to proceedings such as this was retained by France, as the Member Sate where MB was habitually resident immediately before she was wrongfully removed to England. I will say a little more about this later when I set out our reasons for refusing the uncle permission to appeal on the basis of his Article 10/settlement ground. The only decisions which the English courts could make were decisions within Article 20 which caters for urgent cases where provisional protective measures are necessary. As it happens, therefore, there was
jurisdiction to grant interim care orders but I suspect, I hope not unfairly, it may have been more by good fortune than by design that this turned out to be so. This serves to underline the need for the parties and the court to consider the basis for jurisdiction whenever a case has a foreign element and for there to be a record in an order of the court's approach to it, see In Re E (a child)
 EWHC 6 (Fam) including in particular §§34 -37.
The other problem with the care proceedings was that F was not served with notice of them because LA were unable to trace him. Miss Russell QC found it far from clear why this situation arose but did not believe that the uncle had been instrumental in it. We have rather more information than she did as LA, considering that they had been unwise not to attend the final hearing, participated actively in the appeal proceedings.
In their position statement for the appeal, LA said that M and the uncle had been unco-operative with LA's extensive attempts to trace F and that M would not allow MB to be seen alone as part of the Core Assessment. Of course, no findings of fact have been made, but on the face of it, it does seem extraordinary if LA were not even able to discover the locality where M and MB had lived and where MB went to school so that they could focus their enquiries with authorities in the right area of France.
It is clear that both LA and the courts were anxious about F not having been traced. LA sought information through the French Embassy and one order recorded that they were going to seek assistance from International Social Services (now in fact Children and Families Across Borders). Another helpful resource might have been co-operation between the central authorities of Member States under Article 55 of BIIR. The central authority for England and Wales for the purposes of BIIR is the International Child Abduction and Contact Unit which is based within the office of the Official Solicitor and Public Trustee.
F's account of M's departure and its aftermath is not easy to put reliably in sequence but includes the following elements. He saw MB towards the end of May 2012. He was telephoned by MB's school in June 2012 to tell him that she had not been to school for a month. He approached the French police on 30 June 2012 and made a complaint, it would seem on the basis that MB had not been available for contact. He then found out that M had vacated her apartment and was told by M's son that she was at the uncle's home in England. He had a difficult relationship with the uncle and was reluctant therefore to call him instantly. He made another report to the police on 13 July 2012. He contacted the uncle just before Christmas 2012; the uncle confirmed that M and MB were living in England but said he would not disclose their whereabouts.
F's account is that he made repeated complaints to the police and the public prosecutor but was not aware of the possibility of a summary return under the Hague Convention. The date at which he approached the French central authority is not apparent but their Hague request is dated 3 June 2013 and the letter of instruction from the International Child Abduction and Custody Unit to the English solicitor who had agreed to act for F in the Hague proceedings is dated 3 September 2013. As I have said, proceedings were begun in the Family Division of the High Court on 13 September 2013.
The present position
M was detained in hospital for treatment for her mental health until 24 September 2013. She stayed on thereafter as a voluntary patient but is now living in supported accommodation. The view of the psychiatrist who has been treating M is that it is likely that she had been unwell for some time, starting when she was living in France. The judge summarised the psychiatric position in this way (§4):
"She suffered paranoid beliefs, mood fluctuation and initially had no insight into her condition when she was admitted to hospital. A specific diagnosis was not given, but it was the doctor's opinion that it was likely to be either a persistent delusional disorder or schizophrenia; there were symptoms of both conditions present. The doctor concluded that there were no longer any symptoms of mental illness at the time the report was written [dated 11 November 2013] and that M was ready to leave hospital, only awaiting a place in supported accommodation. The support was needed to ensure that M was able to make progress in the community, given the level of difficulty she had had over the past few years.
5. As to prognosis, [the doctor] was unable to be certain, despite some positive factors, such as a good response to antipsychotic medication, when M would affect a complete recovery. She is presently engaging well with services and realistic in terms of looking at her future. That realistic outlook is reflected in the fact that she accepts she is not able to look after MB in the short to medium term future. There is also a risk of future relapse, particularly given the long time that she was ill prior to treatment."
M and MB have contact. MB started a local school in September 2013 and has settled in well there as she has with the uncle and his family. The evidence of the guardian was that she had shown resilience and an ability to cope with the difficult situation since she came to England. LA also consider her to be a resilient child.
The uncle is to move with his family to live in Northumberland in April 2014. The plan to move was known to Ms Russell QC, who recorded that the uncle's intention was to move as soon as was practicable, once his house was sold, and that M had indicated that she would move to live near him. There has been conflicting information about what will in fact happen now that the house is sold and the uncle's move is a reality. LA's position statement for this appeal spoke of M seeking to have MB living with her in their area and the uncle moving to Northumberland without her. However, M and the uncle said in their skeleton arguments that the plan was for MB to move to Northumberland with the uncle and for M to travel what would be a considerable distance to stay with them each weekend. It was said that during the summer holidays, she intends to rent accommodation as close as possible to MB's school and the uncle's new home.
There seems to be a common acceptance that MB loves F and vice versa. He had contact with her in England at the end of October 2013 which was of good quality and relaxed; F and MB were said to be happy in each other's presence and they chatted throughout. F had a problem getting to the contact that was meant to take place the next day but he has seen MB since and had substantial Skype contact with her. He set out in his statement in the Hague proceedings what his living arrangements are in France and his plan for MB's day to day care if she retuned to live with him there.
Article 10 Brussels IIR/Article 12 settlement
The foundation of the uncle's proposed argument in relation to both Article 10 of Brussels IIR and the settlement exception under the Hague Convention was that, in his submission, MB is "settled in [her] new environment".
As potentially relevant in this case, Article 10 provides for the retention of jurisdiction in the Member State where the child was habitually resident immediately before the wrongful removal until:
a) the child has acquired a habitual residence in another Member State
b) the child has resided in that other Member State for at least one year after the person with rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment
c) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State to which the child has been removed (see Article 10(b) (i)).
The settlement exception is to be found in Article 12 of the Hague Convention which sets up the normal obligation to return a child forthwith when, at the date of commencement of the proceedings, less than a year has elapsed from the date of wrongful removal and continues:
"The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment." (my emphasis)
The potential significance of the Article 12 settlement exception in this case is readily apparent; more than a year had
elapsed between the wrongful removal of MB to England in June 2012 and the commencement of the Hague proceedings in mid-September 2013.
The potential significance of Article 10 of Brussels IIR is less obvious. After refinement in argument, it was my understanding that the submission was this:
i) if MB is habitually resident in this country, it is the English courts that have jurisdiction in relation to MB;
ii) a return to France would not be a return to the country best placed to make decisions about her future welfare but to a country which would not have jurisdiction so to do;
iii) whereas if MB is not returned, her future can be settled in the English courts which do have jurisdiction;
iv) this factor should have been taken into account by the judge in considering how to exercise her discretion, whether that discretion arose in connection with Article 12 settlement or pursuant to Article 13.
We refused permission to pursue these lines of argument on appeal for two principal reasons. The first was that there was no prospect of establishing that MB was settled in her new environment when the Hague proceedings were begun in September 2013. She had been removed precipitately from France in June 2012, leaving behind all that had been familiar throughout her life, including contact with F. Her time in England had been marked by M's deteriorating mental health, which led to M and MB having to move from the uncle's home into temporary accommodation, and culminated in the crisis of July 2013 which resulted in MB being separated from M whilst M received compulsory in-patient treatment and MB was cared for by the uncle. The documents show that her school attendance was erratic whilst she was with M and, when the Hague proceedings were commenced, she had only just started to attend the school in the uncle's catchment area. A further change was on the horizon because of the uncle's proposed move to Northumberland. In these circumstances, it is no surprise that M did not even attempt to rely on Article 12 settlement.
The second reason was that the uncle had not raised the issue of Article 12 (or of Article 10) at first instance. Mr Ball, who represented the uncle before us, pointed out that the uncle had said in his witness statement that MB was settled with him and is thriving and asserted that the uncle was
raising the settlement exception. He relied on the fact that the uncle was in person and therefore was not aware of the legal technicalities and argued that he had put sufficient material before the court for the court to have to determine the issue.
I cannot agree. The uncle's presentation to the first instance court cannot be seen as raising settlement under Article 12, even allowing a degree of latitude because he was not represented. He was present at the hearing on 18 October 2013 when M expressly abandoned reliance on Article 12 settlement so he would have been aware that such an exception existed. However, his written closing submissions dealt with what he termed as "two main defences", namely grave risk and MB's objections, and not with settlement.
The exercise of the judge's discretion in the light of MB's objections
Quite rightly, it was not argued that the judge was wrong to find that MB objected to being returned to France and had attained an age and degree of maturity at which it was appropriate to take account of her view. Evidence about MB's views was available from the guardian who had been ordered to produce a report dealing with her wishes, feelings and objections and who gave oral evidence on the subject. Material was also available in the statements of M, the uncle and the social worker. MB had told both the guardian and F that she did not want to return to France. There was no suggestion that her views were a result of coaching or pressure from the maternal family. The guardian had concluded that MB had not expressed objections within the meaning of Article 13. However the judge correctly took the view that it was a matter for the court to categorise her view and she disagreed with the guardian.
The picture that emerged and upon which the judge's view was founded was that MB was very happy living with her uncle but sad about not being with M. She liked it here and in France though she did not like the school or the neighbours in France. She had enjoyed seeing F and missed her paternal grandfather. The judge summarised MB's attitude to her father's application as follows:
"14. In relation to her father's application that she is returned to France, she said that she liked it here and in France. She said that, if she had to choose, she would "really like to stay in England". She became weepy (the only time she was emotional) when she said that she was not sure how she would feel if she had to go back to live with her father and would feel sad if she went back without her mother. Ms Odze and Mr Hinchliffe [the guardian and legal representative] were to tell the judge that she would like to stay here a lot...She was asked what she would feel if she was to go back to France and said "middle" and again, became weepy at the thought of going back without her mother, saying she wanted to see her mother every day."
At her second meeting with the guardian, MB told the guardian that she was definite she wanted to live in England. The guardian thought she had obviously enjoyed her contact with F which had taken place the previous day and MB said she wanted to see F if he could visit her. She spoke to F on the telephone in the guardian's presence and told him that she wanted to live in England, but that she wanted him to come and see her and she loved him.
These facts were, of course, not only relevant to whether MB objected in the Article 13 sense; they were also part of the material upon which the judge had to decide how to exercise the discretion that resulted from the conclusion that MB objected to returning to France.
Ms Geddes, who represented M in front of us but not below, did not take exception to the way in which the judge (who cited from Re M (Abduction: Child's objections)
 2 FLR 87 at §60, Re M (Abduction: Zimbabwe)
 1 FLR 226 at §§42-44 and §46, and Re K (Abduction)
 1 FLR 1273 at §24) directed herself that she should go about making the discretionary decision. It follows that we did not need to look critically at the jurisprudence on this subject and nothing that I say in this judgment is intended to alter or develop it. The argument revolved around the judge's application of the principles to the facts of this case.
Ms Geddes argued that the judge's approach to the discretionary stage of the process was erroneous because she considered only two options for MB, namely living with M or F, omitting to give consideration to whether it was in MB's best interests to live with the uncle. She also submitted that the judge had failed to take into account or give proper weight to the various factors that were relevant to her decision (which I will identify shortly) and had arrived at a wrong decision.
M's position was supported by LA and the uncle. Mr Howe, who represented LA before us, acknowledged that it was unattractive for LA now to seek to criticise the judge when they had taken a neutral stance at first instance and had not attended the final Hague hearing. That did not prevent him from making clear and cogent submissions on their behalf. He submitted that the judge had relied erroneously on a "presumption that MB should be in the care of F". He also joined with M in identifying factors which had not, he submitted, been properly taken into account.
Between them, M, LA and the uncle identified the following features which were said to be apparent from the evidence but, it was argued, had not been given any weight or the correct weight by the judge:
i) F's failure to take steps to find MB and have her returned to France sooner, which Ms Geddes said was not the action of a concerned and committed parent and amounted to his having abandoned her;
ii) F's failure to have contact with MB more in this country and particularly his failure to attend the planned contact on 31 October 2013;
iii) F had done little to support or assist M in her care of MB in France when M had been in some difficulty for some time;
iv) MB would not be returning to familiar circumstances in that she had not lived with F since she was very small and did not want to do so now;
v) Doubt as to the ability of F, who had nor been assessed by social services, to meet MB's emotional needs whereas the uncle had been assessed as able to do so;
vi) The strength of MB's attachment to M;
vii) MB's objections;
viii) The significant harm that MB has already suffered by virtue of M's illness, including the distressing events of 11 July 2013, which made it particularly important that MB should not have to endure another separation and change of living arrangements;
ix) The degree of distress and emotional harm that would be caused to MB if she had to return to live in France leaving M here, unable to return with her to visit her in France because of her illness, which would be much more detrimental to MB than living separately from M but with M's blessing, with the uncle with whom she was settled and had found much needed stability, and with M nearby;
x) The impossibility of protecting MB from the impact of the separation from M;
xi) M's improvement, to the extent that MB can now stay with her at weekends, which gave rise to the possibility that she could return to live with M soon;
xii) The possibility that the stress of MB returning to France may precipitate a relapse in M's mental health.
In considering the submissions in support of the appeal, it is necessary to remember that although welfare considerations are important in a judge's discretionary decision in the context of a child's objections within Article 13, welfare is not paramount. The judge is not making the ultimate welfare decision for the child but deciding whether or not to return him or her to the country of her habitual residence from which he or she has been wrongfully removed, in order that the courts of that country can make that decision. M's arguments in particular seemed at times not to recognise that if the parents were unable to agree as to what arrangements would serve MB's welfare in the longer run, the issues would be determined in due course in the French courts and were not the subject of the present proceedings.
Having considered all the various points raised, I have concluded that the judge's exercise of her discretion properly took into account the material factors and that she arrived at a decision that was open to her. I will go through some of the criticisms made in order, I hope, to give substance to my view. In so doing, I will follow roughly the order of the list at §36 above.
There may be some question, in the light of information now provided by LA but which was not available to the judge, whether the judge was justified in taking quite the disapproving view that she did about F's failure to commence proceedings sooner (§6 and 32) and as to his very negative attitude about the maternal family which she thought, on the face of it, unjustified, whereas she did not believe the uncle had deliberately tried to exclude F or to ensure that he had no knowledge of the family (§32). But if that was an accurate assessment and properly to be counted against F, the judge had it in mind in her decision. She was also aware of the limited contact that F had had in this country and of the missed contact on 31 October 2013 but she quite rightly also had took into account the fact that MB had really enjoyed seeing F and loved him (see for example §15).
The complaint that the judge failed to take into account that F had done little to support or assist M in her care of MB in France when her mental health was deteriorating is undermined, in my view, by the lack of a firm factual foundation for criticism of F in this regard. Apart from F, M herself is the sole source of what was happening during this time. The mental illness that was afflicting her is likely to have coloured her recollection and her account of matters has been shown to be unreliable (see her approach to LA's enquiries designed to find F, in particular). Furthermore, although the uncle was intent on assisting M and MB when they came to England, it was obviously not easy to do so and relationships between the adults broke down in December 2012. Although alert to the problems, it was not until March 2013, by which stage M had been here for about 9 months, that the uncle referred matters to social services. I do not cite these facts to criticise the uncle, merely to demonstrate that helping M was not straightforward even for a member of her family to whom she had turned for assistance; it may have been more difficult for an estranged partner. I also note that according to information given to F by MB's school, French social services were involved before M and MB left (§§5 and 12 F's statement).
The judge was well aware that MB would not be returning to familiar circumstances in returning to live with F in France, although of course France itself would be very familiar to her, commenting at §18:
"To return to France, said the Guardian, was to adjust to a life that she already knows. I have to say that this observation is patently not the case. She has never lived with her father full-time, only during school holidays, and it is unclear which school she will attend and some of her care, according to her father, will be undertaken by her older half-sister, or an unknown au pair."
and at §30:
"I must accept that, should MB return to France to live with her father as her main carer, it will be for the first time in her life."
She was also well aware that MB did not want to return, having gone into the matter in some depth and made a finding, against the view of the guardian, that she objected within the meaning of Article 13. However, she was correct to observe (see her second judgment at §8) that MB did not object to being in France or with F but to being away from M so that she would be unable to see her very frequently and check that she was alright. The judge examined the implications of this specifically.
Looking at the respective ability of F and the uncle to meet MB's emotional needs, she recognised that MB had been very happy with the uncle who had offered her a "haven of love and security" where she had thrived and that there she had the benefit of being able to see M regularly and to reassure herself of M's well-being, which the judge thought had contributed to MB settling so well there (§7). She said (§32) that:
"....it may well be that [the uncle] is better placed, both geographically and emotionally, to provide MB with the reassurance that she seeks and needs about her mother."
In contrast, she said at §32 that she had some doubts as to whether F could provide MB with the reassurance she needed about M. She disapproved of his negativity about the maternal family, his having been "somewhat dilatory" in bringing proceedings, and his provision of little support or assistance in France (though I have questioned, above, whether all that criticism was completely justified in the light of the new information available to us).
She was in no doubt about the strength of MB's attachment to M and was acutely aware that little could be put in place in France to protect MB from the "very real distress that will be caused by the geographical distance from her mother and her inability to see her mother and be reassured about her mother as regularly as she is at present" (§30). She said this in an awareness of the fact that M was not going to be able to return to France or probably even visit for some time because of her condition (§29). However, she also observed that MB was already separated from M and that that would be likely to continue for some time and would always be distressing for her (§31). Although her second judgment (J2) was addressed to the issue of Article 13 (b), on the facts of this case that issue was closely related to the discretionary exercise associated with MB's objections and regard can be had to it in determining her reasoning in that context as well. From it (J2 §5) we can see that the judge contemplated MB being regularly reassured about M by frequent contact by Skype or similar, and substantial staying contact here.
The second judgment also shows that the judge recognised the difficult situation in which MB had been whilst M's mental health continued to deteriorate seriously following their arrival in England (J2 §4). There is no question of her therefore having overlooked the damaging nature of this period. However, the CAFCASS officer's evidence was that MB had shown resilience and an ability to cope with that period and with the separation from M (ibid) and the judge accepted that evidence (J2 §§4 and 5 bis). She was certainly entitled to do so and the evidence is validated by LA's opinion, expressed in its contributions to this court, that it is "likely that due to MB's clear resilience, she will manage a return to France". It is now argued that the judge overlooked the part played in this resilience by M being nearby and giving her blessing to MB living with the uncle. However, it was a matter for the judge what weight she gave to that and there is no doubt that, as I have set out above, she had in mind the disadvantage that F would be at in reassuring MB about M in comparison to the situation if MB were to remain living with the uncle in closer proximity to M.
The judge took into account that M was engaging well with the mental health services and there were positive factors such as a good response to antipsychotic medication, but also that the doctor was unable to be certain about the prognosis and there was a risk of relapse, particularly given the long time M had been ill prior to the treatment (§5). The judge reported that M had accepted that she was not able to look after MB in the short to medium term future. It was not suggested that the judge was mistaken about that as things stood at the time of the judgment. In so far as the submission was made to us that M's improvement was relevant and gave rise to the possibility that MB might be able to return to live with M soon, I think that was based upon improvements after the December hearing, and that it was directed at §6 of the second judgment in which the judge said that had a return to M's care been likely in the near future, it was likely that she would have exercised her discretion differently. However, even if it were appropriate for us to take into account subsequent developments, it would take M's case nowhere in the Hague context because we can see from M's plans that MB would stay with the uncle for the present, with M moving north during the summer holidays, that she is not under the impression that she will be able to resume care of MB in the immediate future.
It is fair to say that the judge did not mention the possibility of a relapse being provoked by the stress of MB moving to France, but I do not see this as a material omission in the light of the whole judgment. Furthermore, in so far as it is appropriate to consider events following the hearing in front of Ms Russell, I would observe that although the result of that hearing must have been very stressful, M has not stopped making progress which may give some cause for optimism.
It is also quite correct that F had not been assessed by social services, and I appreciate that once they have intervened in a child's life through care proceedings, English social services would not normally place the child with anyone before an assessment of that person had been carried out. However, the problem which brought social services into this case related to M. F had been having staying contact pursuant to the French court order and there has been no suggestion that there were issues about his care of MB which would prevent him looking after her now. His contact with her has been observed to be good and there is a loving relationship between them. I also note that social services have the contact details of the local French social services (see §7.4 of the February 2014 statement of the social worker) and I would expect that if there were any significant contra-indications to a placement with F, they would have been discovered by that route by now.
The judge was aware that the discretionary exercise she was carrying out was not one that was necessarily determined by what was in MB's best interests. She properly recognised that this was not a hot pursuit case and that the Hague Convention considerations were therefore less weighty than would have been the case had the proceedings been commenced soon after MB was removed from France. She also acknowledged that M was very ill and barely coping at the time she left France and that the removal, although wrongful, was not the act of a rational parent deliberately setting out to circumvent the law (§29). Equally, however, the outcome of the exercise was not dictated by MB's objections. All these matters were factors to be considered, as was the fact that F is MB's parent.
It is fair to observe that the judge did not in terms compare whether MB's welfare would be better served by staying with the uncle or going to live with F in France but it is perfectly clear from her judgment that she was well aware that MB could stay with the uncle and she did compare attributes of the two placements, notably in the important sphere of geographical proximity to M and the ability to reassure her. I do not accept that she made the return order simply because F was the biological parent or on the basis of any presumption in his favour. As I have sought to demonstrate, her judgment covered the material factors and she determined upon a return with her eyes open to the potential problems, as can be seen from her reference to living in France with F as "a situation not without its own difficulties, distress and discomfort". The decision she had to take was not necessarily an easy one, but her solution was not wrong.
On the facts of this case, there is a significant overlap between the matters that fall to be considered by virtue of MB's objections and those which are relevant to Article 13 (b) and I have already referred to the judge's Article 13(b) judgment above. Nothing will be served by going through it again. In my view, the judge dealt appropriately with the Article 13(b) issue and was right to reject the argument that MB would be placed in an intolerable situation by being returned to France.
Permission to appeal has already been refused in relation to the Article 12/Article 10 argument. I would grant permission to appeal in relation to the Article 13 issues, namely the judge's discretionary decision following MB's objections being established and her rejection of Article 13(b) exception. However, I would dismiss the appeal for the reasons I have given.
A general point: the local authority's role where there are concurrent care and Hague proceedings
LA regretted their decision not to participate in the final Hague hearing apart from filing a position statement, which they considered to be an error. They submitted that, whenever a child who is subject to care proceedings becomes subject to Hague proceedings, the relevant local authority should participate actively in the Hague proceedings because they will have important evidence concerning the child's wishes/objections, settlement and welfare. I would not like to lay down any hard and fast rule about this because it is not possible to foresee with certainty what the circumstances may be but it does seem to me likely that input from the relevant local authority will be extremely valuable in many such cases and indispensible in some.
MAURICE KAY LJ
I also agree.