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International Family Law Group LLP (iFLG) , 27 AUG 2018

The importance of the child’s voice when enforcing orders under the 1996 Hague Convention

The importance of the child’s voice when enforcing orders under the 1996 Hague Convention
F and M [2018] EWHC 2106 (Fam) is an interesting Anglo Russian child case with a lengthy history. The matter came before Cohen LJ on 3-4 July 2018 whereby he refused to register a Russian order which ordered the child to be returned to Russia on the bases that a) the child had not been heard; b) she would be separated from her mother and her new family because the mother could not go back to Russia as she was at risk of imprisonment. It touches on the importance of the voice of a 10-year-old child being heard when considering the recognition of a Russian order under the 1996 Hague Convention.

Background

The parties separated in September 2009 and subsequently divorced. In 2011 the mother began a new relationship with 'C'. He is a businessman and prominent critic of the Russian Government and President Putin in particular. He is a leading campaigner against what he says is widespread corruption in Russia.

In April 2014 the mother and her daughter ('A') travelled to London to meet C. The following month she gave birth to a son by C; the half-brother of A. Shortly afterwards C received a summons from the Investigative Committee of Moscow accusing C and other activists of embezzling funds.

In August 2014 the father applied to the English courts for the summary return of A to Russia. Hogg J made an order for A to be returned to Russia under the court's inherent jurisdiction. At this time, Russia was not a 1980 Hague Convention signatory. The mother appealed, and the Court of Appeal allowed her appeal on the ground that consideration had not been given to how the voice of the child should be heard. The matter was remitted to the High Court for a further hearing before Moor J in December 2014, this time with the benefit of a Cafcass report. Cafcass’ view was that A would be very distressed to be separated from her mother, having always lived with her, and she had a bond with her half-brother and with C. Cafcass recommended A should not be separated from her mother at that time.

In the meantime, criminal charges had been made against C in Russia. The mother also was under investigation for allegedly diverting monies to fund the anti-corruption campaign. By the time of the hearing before Moor J she had been summoned to attend the Investigative Committee in Moscow but had failed to do so.

Moor J determined that on an interim basis it would be wrong for A to be returned to Russia, however the judge made it clear that he had confidence in the integrity of the Russian court and if the Russian court were to decide that the long-term outcome was that A should be returned to Russia he would be likely to enforce that order.

In March 2015 C was granted asylum in England and on 6 July 2015 the mother and A were informed by the Home Office that they had been granted 'leave in line' with C as his dependents.

On 4 February 2016 the Home Office issued a Residence Permit to A which states that she is a 'refugee with leave to remain until 22 March 2020'. There has been no change to her status since then. The mother was granted asylum in her own right in December 2017. It is clear on the facts that if the mother or C set foot in Russia they would be likely to be arrested and imprisoned.  Article continues below...

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Russian proceedings 

A substantive hearing took place in March 2015 in the Zamoskvoretsky District Court and the court decided that the child was closely attached to her mother, wanted to live with her and that it would be in her best interests to do so. 

The father appealed to the Supreme Court who remitted the case to the Zamoskvoretsky District Court. On 27 September 2016 the District Court held that A’s place of residence with her mother did not conform to the legitimate rights and interests of A.

The mother appealed the ruling of the district court, but the appeal court of the Moscow Municipal Court dismissed her appeal. It thereby upheld the order of the Zamoskvoretsky District Court of 27 September 2016.

Registration 

The father subsequently sought to have the order of 27 September 2016 registered in England. However, District Judge Gibson refused to recognise the order to return the child, as she believed that the child’s views had not been heard.

The matter came before Cohen J on 3-4 July 2018. The mother argued that A has lived with her throughout her life and for the last 9 years, solely with her mother. The mother’s case was that A had become an imbedded part of the family with C and her step-brother. Removal from them would mean a complete separation. She argued that it was unrealistic that any family member could accompany A to Russia and play any part in her life, and this would be so devastating that the court should not be contemplating recognition in the circumstances. Cohen J agreed with the submissions made on behalf of the mother and was of the view that it would be wrong in the circumstances to grant recognition of the order.

The law

The 1996 Hague Convention 

The 1996 Hague Convention on parental responsibility was set up with the fundamental purpose of ensuring that measures were taken to protect children. The measures taken by authorities of a contracting state must be recognised by operation of law in all other contracting states. This means that an order from the contracting state for a child to be returned must be recognised unless the court refuses to do so on the basis of the limited circumstances set out in Art 23 as follows;

'b) 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; ... 
d) if it is manifestly contrary to public policy of the requested State, taking into account the best interests of the child.'
Refugee status 

Mr Justice Cohen came to the conclusion that as the mother had been granted refugee status, the child was also a refugee, and there is no authority at present where a child with refugee status, whether on the child’s own behalf or as a dependent, has been returned to a home country. The court has no power to order the return of a child in this case. This has been established in a growing number of cases, in the recent case of F v M, A and the Secretary of State for the Home Department [2017] EWHC 949 (Fam), [2018] 1 FLR 1217 Hayden J stated that 'the grant of refugee status to a child by the Secretary of State is an absolute bar to any order by the family court seeking to affect the return of the child to an alternative jurisdiction'. Thus, it was this decision that led Cohen J to decide that he was barred from ordering a return. Cohen J stated that 'if the father wishes to mount a challenge {with the secretary of state} that is a matter for him'. 

Child’s wishes

It is well established in English law that the child’s wishes, and feelings are important especially when they are at an age where they can be heard and there are a number of authorities to support this. However, in D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347, the Court of Appeal refused to recognise the order for the return of the child as it was found that the child had not had the opportunity to be heard in Romania. This is the same approach that Cohen J has taken in this case. There has been no interview with the child since Cafcass met with the child in November 2014. Although the father argued that the child had to be in Russia for an assessment to be carried out, Cohen J determined that there were a number of ways the child could be heard without having to enter Russia, this included an independent report in England or a remotely conducted interview. Consequently, the judge found that there was nowhere in the Russian court’s judgment that permitted the conclusion that the Russian court considered the question of the child’s voice. This was in violation of the fundamental principles of procedures of England and Wales.

Article 23(2) states that recognition may be refused if certain events are established and the judge used his discretion not to recognise the Russian judgment, having decided that it would wrong in the circumstances to grant recognition of the order.

Further, Cohen J did not accept the criticism made by the father of the approach made by District Judge Gibson. He felt that whilst it is possible that some judges may have been less diligent than she was, it cannot possibly be a ground of appeal that having identified a gap, she acted upon it. 

Commentary

Although the Hague Conventions exist to support and encourage signatory countries to work together and co-operate, that cannot be at the expense of certain fundamental principles including the right of a child to be heard in proceedings that concern the child. This judgment reinforces the fact that despite the 1996 Hague Convention being in force between England and Wales and Russia, there are well established laws in England and Wales that judges cannot overstep, even if that means that they are unable to comply with an order from the requesting state. 

There is still progress to be made as each state has their own legal, cultural and religious backgrounds. There are huge disparities between contracting states as to the way in which the voice of the child is ascertained. It would be useful if the Hague Conference issued guidance to contracting states regarding 'the voice of the child', its importance for proceedings and if possible any guidance as to common standards as to the way it should be established. This case emphasises the importance of the child’s voice in welfare proceedings. 
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