Neutral Citation Number:  EWHC 3964 (Fam)
Case No: FD13P01412
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
MR JUSTICE MOSTYN
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KP (Through her guardian Mr John Power)
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Mark Jarman (instructed by Creighton & Partners Solicitors) for the Applicant
Edward Devereux (instructed by Bindmans LLP) for the 1st Respondent
Teertha Gupta QC (instructed by Freemans Solicitors) for the 2nd Respondent
Hearing dates: 24-26 November 2014
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Mr Justice Mostyn
This is my judgment on the applicant father's application for an order that his daughter Kate, who is now aged 14¼, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as incorporated domestically by the Child Abduction and Custody Act 1985.
Kate is a party to the proceeding. She and her mother strenuously oppose the application relying on Article 13(2) (Kate's objection to return); Article 13(b) (harm or intolerability likely to be suffered by Kate in the event of return); and Article 20 (violation of Kate's human rights in the event of return). Article 20 is in fact not incorporated by the 1985 Act as that was enacted before the enactment of the Human Rights Act 1998. However, there is no doubt that Article 20 is available by operation of the 1998 Act (see Re D
 UKHL 51 at para 65 and X v Latvia
 1 FLR 1135 at paras 106 and 107). The human right which is invoked is the right to a family life in Article 8 of the European Convention on Human Rights 1950 (and the identical right in Article 7 of the European Charter of Fundamental Rights of 7 December 2000, which is in play because the 1980 Convention here operates under the aegis of the European Union Regulation No. 2201/2003, known as B2R, as I will explain).
Before I deal with the facts I set out some of the relevant legal principles, so far as they are relevant to this case.
This is the third judgment which I have recently delivered where I have had to emphasise the very limited purposes and objectives of orders made under the 1980 Convention. In my decision of B v B
 EWHC 1804 (Fam) I said this:
“2.The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone's rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.
3.There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child's homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.
4.Where exceptions come into play, such as for example the exception mentioned in Article 13 of the Convention, which is that the child objects to being returned and has attained a degree of maturity at which it is appropriate to take into account her views, the type and nature of the exception has to be examined in the context of the limited objectives of the Convention. It must be a sound, reasoned and mature objection to being returned to her homeland for the sole limited purpose of enabling the court of that country to determine her long-term future. Equally, if the exception that is relied on is that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation, that again has to be seen through the lens of the objective of the Convention. We are not talking here about long-term risks. We are not talking here about long-term harm. We are talking about risks and harm that would eventuate only in the period that it takes for the court of the child's homeland to determine her long-term future and to impose the necessary safeguards, if necessary, in the interim.”
It is implicit in the terms of the 1980 Convention that an application ought to be made very shortly after the wrongful removal or retention and that it should be heard very quickly. Indeed Article 11.3 of B2R requires the case to be concluded in six weeks. In such a short time frame it may not be possible for the left-behind parent to commence full welfare proceedings about the child's future in the home court. However, if any kind of delay creeps into the case it must be obvious that the left behind parent must actually start the welfare case in the home court which the away court is being asked to make the order that the child should return for. As will be seen, Kate has now been here for nearly 18 months. In that period the father has done nothing at all to commence the welfare case for which he seeks Kate's return. I was told that this was on the advice of his Maltese lawyers, which is scarcely believable. If true it was very strange advice. Had he commenced such a case the Maltese Court could by now have
(1) decided whether Kate actually needed to return in the interim for the purpose of the proceedings;
(2) concluded the case finally; and
(3) disposed of any appeal.
As it is the father has done precisely nothing and even now his counsel was not really able to tell me what he would be seeking in any welfare proceedings. A joint residence order was mentioned but Mr Jarman was not able to give me any details of how the father intended that to operate.
If a final order, or, for that matter, even an interim order had by now been made which required Kate to return to Malta either permanently or temporarily then that order would be almost automatically enforceable without recourse to any of the defences available under the Hague Convention of 1980. This is by virtue of the provisions of Chapter III of B2R which provides the rules for the mutual recognition and enforcement of (inter alia) judgments concerning parental responsibility and rights of access.
It is clear that B2R is modelled on 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, although so far as this country is concerned B2R was incorporated into the law first and the 1996 Convention came a distant second. It is also clear that at least some of the framers of B2R would have preferred to have done away altogether with the 1980 Convention and just have had a regime of mutual recognition and enforcement of orders. Thus in a case of abduction the left behind parent would seek a return order from his home court. If granted that would be transmitted to the away court and be automatically enforced there. Protracted arguments in the away court about Articles 3, 12, 13 and 20 would not happen. The away court would have only limited powers to make an interim provisional order declining a return . One can see the merit of such an approach. In the usual way a compromise was reached. The compromise is reflected in the terms of Recital 17 and Articles 11.6 – 11.8. Recital 17 states:
“In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained.”
Article 11.6-11.8, however, only permits this overreaching or trumping procedure to be available where a defence has been established under Article 13 of the 1980 Convention. The procedure is not available if the Hague application is successfully defended under Article 3 (no breach of rights of custody, or child not habitually resident in home country), Article 12 (settlement), or Article 20 (violation of human rights). It is not completely clear why this overreaching or trumping procedure should be capable of invocation for some, but not all, of the available defences. I am inclined to agree with Mr Gupta QC who points out that apart from Article 13 all of the other defences will involve establishing that the child has put down firm roots in the away country and will have become habitually resident there, literally if not technically. By contrast an Article 13 defence will almost invariably (but not always) be mounted with a clear acceptance that at all relevant times the child was and is habitually resident, in the technical sense, in the home state.
Article 11.6 – 11.8 provide:
"6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.
7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child. Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.
8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."
It can be seen that if a defence is established under Article 13 of the 1980 Convention that can be promptly trumped and overreached by a return order in the home court under Article 11.8 of B2R which would be enforceable in the away state in accordance with Section 4 of Chapter III. This procedure does not even require registration or make available the limited and remote defences mentioned in Article 23.
It can be seen therefore why Mr Gupta QC for Kate, supported by Mr Devereux for the mother, are so keen to establish a defence under Article 20 of the Convention. For if the defence is made out under only Article 13(b) or (2) that may prove to be only a most transient and ephemeral thing. It was for this very reason that the battleground in the famous case before the Supreme Court of Re LC
 UKSC 1 was about habitual residence for the reasons given by Lord Wilson at para 21, where he stated:
“Thus B2R has added a dramatic further dimension to proceedings under the Convention in which the application is for the child's return to a fellow EU state. When, on whatever basis, it refuses an application under the Convention for return to a non-EU state, a court in England and Wales will conventionally embark (or make clear to the unsuccessful applicant that it would be willing to embark) on a merits-based inquiry into the arrangements which will best serve the welfare of the child; and it will reasonably anticipate, particularly in the light of the presence of the child here, that its decision will be fully enforceable. But when, by reference to article 13 of the Convention, it refuses an application for a child's return to an EU state, it is aware that an order for return, immune from challenge, may nevertheless be forthcoming from that state; and that therefore the order for non-return may well provide no more than a breathing-space. Prior to making the provision in article 11(8) of B2R, the Council will no doubt have considered the extra difficulty which faces the court of habitual residence in conducting a satisfactory merits-based inquiry in circumstances in which the child is held abroad and the abducting parent, being also abroad, may decide not to participate or may be unable to fund participation. Practical concerns of this character were presumably overridden by the importance attached to the principle of the primacy of the court of habitual residence (recital 12), to the principle of mutual trust between the courts of member states (recital 21) and to the availability of a power in the court of habitual residence, in specified circumstances of fair width, to request another member state to assume jurisdiction if it considers such to be in the best interests of the child (article 15).”
The dramatic further dimension is not merely confined to proceedings under Article 11.6 – 11.8. Any existing order concerning parental responsibility in the home court is likely to result in recognition and enforcement under Article 23 in the away court, just as any order for access will be certainly enforced under Article 41. Therefore if such a prior order exists proceedings under the 1980 Convention are completely pointless as I myself sought to explain in JRG v EB
 EWHC 1863 (Fam). At para 13 I stated:
“If M were to succeed on her defences there would be nothing to stop F the very next day mounting an application to register and enforce the French order, which would, as I have explained above be highly likely to succeed, thus overreaching M's successful Hague defence. Indeed, F could alternatively seek a subsequent order from the French court requiring return notwithstanding M's success here under Art 11(8) and, if granted, that would be automatically enforceable here without having to invoke the registration/appeal procedure mentioned above (see Arts 40(1)(b) and 42). So, an adjudication at great expense, and over a considerable period of time, of these Hague defences is shown to be utterly pointless.”
And at para 17 I concluded:
“It is my opinion that where there is a residence or other relevant parental responsibility order made in a fellow member state the route of registration/appeal should normally be adopted. Time and again I have been confronted with a similar state of affairs where Hague proceedings have instead been taken. The cost to the tax payer and the demands on court time is heavy indeed. And, as I have sought to explain, the time and money is likely completely wasted.”
It is for this reason that the father's inaction here is so lamentable. Had he actually gone and got on with the case which he wanted his daughter returned for, then these proceedings would have been totally unnecessary.
I now revert to the facts of this case, which are summarised in para 4 of the decision of the Court of Appeal in this case (see Re KP
 EWCA Civ 554). Kate was born on 9 September 2000 and is therefore now 14¼ years old. She is Maltese. With the exception of two periods of separation, her Maltese parents cohabited with each other from 1999 until April 2013. Kate has always lived in Malta, save for a brief period in England in 2003. She has a Maltese grandfather who lives in London. On 12 June 2013 the mother brought Kate to England, without the knowledge or consent of the father. Since that time they have been living with the maternal grandfather in London. The father issued proceedings in England and Wales under the Hague Convention. The final hearing before Parker J occupied two separate court days on 23 September and 26 September 2013. By that stage the mother accepted that the father had rights of custody within the terms of the Hague Convention and that her removal of Kate to England in June 2013 amounted to a "wrongful removal" under Article 3, thereby triggering a requirement under Article 12 for the court summarily to order K's return to Malta unless one or more of the exceptions within the Convention was established. On 5 November 2013 Parker J held that no defence had been established and ordered Kate's return to Malta. The mother appealed. Kate was granted party status and she also appealed. The main ground of appeal was that in a meeting between Parker J and Kate the judge had impermissibly gathered evidence on which she relied when reaching her decision. This ground succeeded and on 1 May 2014 the appeal was allowed (see para 56(v) of the judgment of Moore-Bick LJ).
When allowing the appeal the Court of Appeal could have dismissed the father's application leaving him to make a new one. In fact they remitted the matter for a retrial. That has come before me almost seven months later on 24 and 25 November 2014. As I have said Kate has now been here for 18 months. She is well and truly settled here and is literally and technically habitually resident here. Her guardian Mr Power considers it to be unthinkable that she should be forced to return to Malta for any prolonged period, or even for a short one.
Had the Court of Appeal dismissed the father's application and left him to make a new one then the settlement defence under Article 12 would be available here. That is one of those defences which strictly speaking only opens the door of discretion but where the fact of settlement would almost invariably dictate that the discretion should be exercised in favour of a non-return. An Article 12 defence is not overreachable under Article 11.6-11.8 of B2R. But because the Court of Appeal directed a retrial of the original application the Article 12 defence is not technically available as the father's application for a return order was made well before the 12 month period for settlement had been reached. So in this respect the fate of Kate stands or falls on a legal fortuity.
How should the period of 18 months that Kate has been here be taken into account in circumstances where it cannot be taken into account under Article 12? It is suggested that it should be taken into account in the following ways:
i)Under Article 13(2) as providing an objectively reasonable justification for Kate's objection;
ii)Under Article 13(b) as providing a reason for concluding that Kate would likely suffer serious harm or intolerability were she to be returned after such a length of time; and
iii)Under Article 20 as providing a reason for saying that she has established a family life here which a return would violate.
In addition it is said in relation to each of these heads that the father's inaction in pursuing any kind of welfare case in Malta during the same period should militate against the exercise of any discretion in his favour.
The fact that over a year of the 18 month period that Kate has been here is referable to the time it took to appeal and retry the original decision of Parker J is in my judgment neither here nor there. It cannot be gainsaid that in that period, on the ground and in the real world, Kate has become very strongly established here.
I deal first with the Article 13(2) defence. It is said that this is a three stage process (see Re T
 2 FLR 192) although I consider that this may over-intellectualise the exercise. Obviously, as the words of Article 13(2) require, Kate must be of a sufficient age and maturity to voice an objection that is capable of being taken into account. That she is of sufficient age and maturity is accepted by Mr Jarman for the father. Beyond that she must express, as I stated in B v B
, "a sound, reasoned and mature objection to being returned to her homeland for the sole limited purpose of enabling the court of that country to determine her long-term future." Mr Power's report was focussed more on a permanent or long term return. However, during the course of the case he specifically discussed the correct issue with Kate and she maintained her objection, reasonably in my judgment. This is not a case where the father has pursued his welfare case so that we can foresee a conclusive determination within a few weeks or months after her return to Malta. It has yet even to be started. It could be many months, perhaps over a year, before a final resolution. In such circumstances Kate is well justified, in my judgment, in objecting to a return for what may be a prolonged period where her whole present life including, most importantly, her education would be turned upside down.
For the same reasons I consider that the defence under Article 13(b) is made out. Normally a return for a short finite period to enable a welfare decision to be reached would not give rise to a grave risk of harm or intolerability. But where a child has established a whole new life over a prolonged period in the away state, including the adoption of an educational path in which she is prospering, it is likely to be intolerable and seriously harmful for a return to be ordered where the welfare proceedings that would ultimately decide her future have not even been commenced. Article 11.4 of B2R provides that "a court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". I am not satisfied that the undertakings offered by the father amount to adequate arrangements to secure the protection of Kate after her return. In my view they do not begin to address the serious harm and intolerability which in my judgment she would be likely to suffer.
And for the same reasons I consider that a return would violate Kate's right to family life under Article 6 of the ECHR 1950 (and Article 7 of the CFREU 2000), and that therefore a defence under Article 20 is established also. Kate's family life extends to her direct family, her new home, her society of friends and her education. All this would be considerably disturbed by a return for a prolonged period, as Mr Power's report and his oral testimony so vividly prove. Certainly the non-return of Kate violates, or potentially violates, the father's equivalent right to an aspect of family life namely the society of his daughter, but it is well established that if the same family rights of a parent and child are in competition the child's rights will prevail (see Yousef v The Netherlands
 1 FLR 210). I agree with Mr Jarman that an Article 20 defence can only be established exceptionally as routine use of it would risk undermining the core purposes of the Convention in general and the scope of Article 11.6-11.8 of B2R in particular. However, the combination of the prolonged delay coupled with the father's total inaction in the same period take this case over the threshold of exceptionality, in my judgment.
Finally, and without wishing to pile Ossa upon Pelion, I would mention two final matters. A return under the 1980 Convention may prove to be futile. I have explained that Kate now is literally and technically habitually resident here. The general rule in B2R is that the court of habitual residence has exclusive jurisdiction – see Article 8(1). But this is subject to Article 10 which provides, so far as is material:
“In [a] case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and: (a) each person, institution or other body having rights of custody has acquiesced in the removal or retention …"
Article 10 does not deem Kate's habitual residence not to have changed. Rather, it gives the home state, in a case of abduction, a special exclusive jurisdiction. That special exclusive jurisdiction will be lost if everyone has acquiesced in the removal or retention. The verb "to acquiesce" etymologically means to find rest or quietness in something; it now means to assent tacitly. It is a pure question of fact (see Re H
 1 FLR 872). Obviously the factual question will be determined at the point when a parent seises a court with a lis under Article 16 of B2R i.e. "at the time when the document instituting the proceedings or an equivalent document is lodged with the court". That has not yet happened. Can it be said that notwithstanding that the father has pursued his Hague Convention case here (i.e. the limited ancillary case in the away court) but has totally failed to start let alone pursue his principal case in the home court that he has acquiesced in the removal? In my judgment it is certainly arguable that the father has acquiesced within the terms of Article 10. But that would be for the Maltese Court to decide, if the father succeeds in getting that court first seised within the terms of Article 19. All I would say is that it looks distinctly possible to me that the Maltese Court might decide that it in fact does not have special jurisdiction under Article 10. Were it to do then Kate's return will have been proved to have been pointless.
The second final matter is this. If I were to order Kate to return, say, next Monday and she duly complied with my order then, in the absence of a Maltese Court order preventing her from doing so, there would, in my judgment, given her age, her Gillick competence, and her right to freedom of movement within the EU, be nothing to stop her boarding the very next flight back to London. Were that to happen then, again, these Hague proceedings would have been proved to have been pointless.
These two matters to my mind fortify my decision on the three defences relied on.
For all these reasons the father's application is dismissed. The consequence of my finding that the Article 20 defence is established is that the father will not be able to obtain an order in Malta providing for a return under Article 11.8 of B2R, which order would be virtually unchallengeable here. Were he to obtain an order for return under Maltese domestic law (the Maltese Court being satisfied that it had jurisdiction under Article 10) then that order would be enforceable here subject only to the defences mentioned in Article 23. The first available defence would be that "recognition [of the judgment] is manifestly contrary to the public policy of [England and Wales] taking into account the best interests of the child". It is for another court on another day to decide whether the violation of Kate's family life which I have found would occur were she to be returned would satisfy that defence. All I would say is that it would seem to me to be a strong argument.Postscript
After this judgment was delivered in draft I received what I consider to be a wholly misconceived application by Mr Devereux and Mr Gupta QC for "amplification of inadequate reasons". In the written submission they state:
“It is submitted that, reading the judgment in its totality, it can certainly and obviously be discerned for what reasons the court has decided to exercise its discretion against ordering a return of Kate to Malta. However, no specific reference is made in the judgment to the principles derived from or authority of In re M  UKHL 55 and no discrete part of the judgment deals specifically with the relevant principles set out within that judgment or the specific reasons why the discretion was exercised against a return in this case.”
In re M at para 43 it was said by Lady Hale that where the discretion arises it is "at large". It is as plain as a pikestaff from what I have written above why I have exercised my discretion not to return Kate to Malta. I do not need to repeat it. Nor do I need to incant mechanically passages from Re M
as if I were a pilot going through the pre-flight checklist. Generally speaking, I take the view that where the door is opened under the terms of the Convention under Article 12, Article 13(b), Article 13(2) or Article 20 the discretion is more theoretical than real because in each instance the factual findings that open the door will almost invariably dictate how the discretion should be exercised. That is the case here.LATER (1 December 2014)
I have received an application for permission to appeal by the father. Three grounds are set out namely:
i)In relation to Art 20 the court failed to balance adequately or at all, the rights of the applicant to a family life against the competing rights of the child.
ii)The court was wrong in its approach and consideration to Art 20, focusing on the rights of the child in England and opposed to the rights of the child that fall be considered in Malta should a return have been ordered.
iii)The court failed to give proper or any consideration to the standard of proof required for a defence pursuant to Art 20 to be established. 31.FPR 30.3(7) provides that:
"Permission to appeal may be given only where –
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard."
I do not consider that any of the grounds has a real prospect of success or is even arguable whether taken individually or together. Nor in my judgment is there some other compelling reason why the appeal should be heard.
I disagree that I failed to balance adequately the rights of the applicant to a family life against the competing rights of Kate. On the contrary in para 22 I undertook that very balancing exercise but concluded, inevitably, in the light of Yousef v The Netherlands
, that Kate's rights would prevail.
I disagree that I was wrong in my approach to, and consideration, of Art 20. On the contrary I am convinced that I adopted a classically correct approach. Obviously, Kate's human rights would be considered in Malta should a return be ordered but that truism does not alter the clear reality that a return to Malta would violate Kate's rights to a family life which have arisen here.
I do not recall being addressed on the standard of proof required for a defence pursuant to Art 20 to be established. In all civil proceedings that standard is the balance of probabilities, and nothing but the balance of probabilities (see Re B (Minors)
 3 WLR 1, HL, at paras 62 and 70.) This is the standard which I applied. If it is now being suggested that some higher quasi-criminal standard of proof should apply where an Article 20 defence is raised then I would firmly disagree.
In my judgment this application for permission to appeal is meritless. It would in my opinion by a waste of public funds for legal aid to be granted especially when one considers the singularly misguided course of inaction adopted by the father which I have detailed above. I direct that this addition to my judgment is provided to the Legal Aid Agency so that they may consider it when deciding whether to extend legal aid for an appeal.