D (A Child)  EWCA Civ 830
This was an appeal by a mother against an order for the return of her son to Romania after she had wrongfully removed him. The appeal was dismissed.
The case is noteworthy as the return order comes over three years since the removal of the child took place, for which there is no precedent. However, it emerged that the mother had initiated proceedings in Romania concerning the future of her child and this was, according to Thorpe LJ, 'fatal to the argument that the lapse of time permits or requires (the English) court to review welfare considerations'.
Neutral Citation Number:  EWCA Civ 830
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION, PRINCIPAL REGISTRY
(MRS JUSTICE HOGG)
Royal Courts of Justice
Thursday, 25th May 2006
B E F O R E:
LORD JUSTICE THORPE
LORD JUSTICE MOSES
MR JUSTICE HEDLEY
- v -
(DAR Transcript of
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MS E PLATT QC & MS G MORE-O'FARRELL (instructed by Messrs Garson & Co, Monument House, 215 Marsh Road, PINNER, HA5 5NE) appeared on behalf of the Appellant Mother.
MR H SETRIGHT QC & MR M SCOTT-MANDERSON (instructed by Messrs Russell Cooke, LONDON, WC1R 4BX) appeared on behalf of the Respondent Father.
J U D G M E N T
(As Approved by the Court)
1. LORD JUSTICE THORPE: The parties to this appeal were married at the beginning of 1998 and their only child, Alexandru, was born in the second half of July of that year. Sadly, the marriage was of short duration, a divorce being pronounced in their homeland, Romania, on 6 November 2000. In the spring of 2002 the mother visited this jurisdiction and met a man whom she married in the following autumn. Consistent with that, she had commenced a degree course in this jurisdiction in September. Under the terms of the Romanian laws, she had been granted the primary role of residence or care, and her developing connection with this jurisdiction was resolved by her arranging for Alexandru to live with her parents.
2. The father's entitlement to contact continued, and on 19 December he saw the child on a routine contact visit. Without any signal, or indeed any warning sign, the mother removed Alexandru from Romania to this jurisdiction on Christmas Eve 2002. That was undoubtedly in any merit judgment a wrongful act, wrongful to the father and wrongful to the child, at least in that it disrupted his relationship with his father. Romania is a signatory to the 1980 Hague Convention, and through the proper channels application for return was transmitted to the central authority in London and a court application issued on 14 February, a location order being made by the judge on that day.
3. There seems to have been a lapse of approximately three months until the case was listed before Johnson J for trial on 12 May. The mother contested the assertion that the removal had been wrongful, and accordingly submitted that the Convention was not engaged. Johnson J adjourned the case, since he felt unable to resolve a conflict of evidence as to the respective parental rights within the Romanian law. It was not until 2 October 2003 that the case was re-listed. That, of course, is a lapse of a further five months. Johnson J commented adversely on the delay, and further, that the evidence that was garnered in the meantime would have been sufficiently persuasive to have avoided the request for a declaration, a request made under Article 15 of the Convention, which was proceeding at a snail's pace in the Romanian court. It seems that there was a hearing in Bucharest on 5 January, but it was not until 25 May 2004 that the court of first instance in Bucharest answered the Article 15 request with a declaration that, according to the law of Romania, the father had only rights of access. It will be seen that that was 12 months after the issue of Johnson J's request.
4. The next stage was an appeal against the judgment of 25 May, which seems not to have been resolved by the Court of Appeal of Bucharest until 9 June 2005; that is to say, a lapse of a further 13 months. The Court of Appeal upheld the decision of the court of first instance, and that development was duly before the court on a date in mid-June, but could not be considered for absence of an English translation. That was only available on 18 July, enabling the Family Division to consider the consequence at a hearing on 1 August 2005. At that hearing Roderick Wood J acceded to the father's application for an expert opinion as to the law of Romania, presumably either to clarify or to supercede the judgment of the court. His order provided for a report from a jointly-instructed expert.
5. The matter was before Ryder J on 14 September, when he confirmed joint instructions to a Dr Mihai in the expectation that his report would be available for a hearing on 14 October. That expectation was disappointed, and the case was further adjourned to 31 October. At that stage the parties wished Dr Mihai to amplify his opinion and further adjournment was sanctioned by Coleridge J. Seemingly, there were further directions on 8 December, with a final listing for hearing before Hogg J on 28 February and 1 March. So, it is the extraordinary fact that, between the date of issue and the date of final hearing, there had been a lapse of three years and two weeks.
6. Before the judge, the mother's resistance was founded not only on Article 3, but also on Article 13(b) of the Convention. The mother sought to contend that the extraordinary passage of time, the three years and two weeks, resulted in the risk to Alexandru of psychological harm or the creation of an intolerable situation were he to be summarily returned to his homeland. The mother was well able to elaborate that case by pointing to the fact that she had put down roots here, she had developed a career here, she had incurred debts here which she could only hope to discharge if she continued her career here, and, perhaps most significantly of all, she had recently established Alexandru, a seven and a half year old child, in a first class day and boarding preparatory school in the vicinity of his home in Sussex. It was easy to stress the importance to the young boy, with very great potential, of maintaining his expectations, his relationships within and without the school, and his opportunity to develop scholastically and in the round within a prestigious school that opened the prospects of a subsequent admission, either as a scholar or perhaps simply as a fee-payer, to a leading English public school.
7. Hogg J rightly found this to be a very difficult case. It was her task to evaluate whether the father had rights of custody not, as declared by the courts of Romania, but applying the jurisprudence in this jurisdiction as to the autonomous meaning of the Convention. She recognised that there was perhaps no precedent for this court declaring rights of custody where the courts of habitual residence had declared none, and equally there was no precedent for ordering a peremptory return in a case where the judicial authorities in the two states engaged had, between them, managed to extend a litigation process which is meant to be concluded within a span of six weeks into one extending over three years. She had, of course, to evaluate the judgment of the court in Bucharest, and also the expert evidence of the jointly-instructed Dr Mihai. She found for the father on both grounds, and ordered the peremptory return.
8. The father has, of course, had the advantage of public funding, neither means nor merits tested, since he is a Convention applicant. The mother does not enjoy that benefit, and it emerged that she was not entitled to public funding on the application of the means test, maybe at the outset or maybe at some stage in the proceedings. Accordingly, she has had the advantage of pro bono representation. Miss Geraldine More-O'Farrell appeared for her below on a pro bono basis, and in the appellate process the mother has had the very great advantage of pro bono representation by Mrs Eleanor Platt QC leading Miss More-O'Farrell. They jointly signed the skeleton argument supporting the notice of appeal filed on 7 April. On 10 April Wilson LJ granted permission to appeal and fixed the case for hearing today. On 18 May Mr Charles Howard QC, leading Mr Teertha Gupta, applied for permission to join A as an intervener to the appeal.
9. How had Alexandru come to be represented by leading and junior counsel in this court? The answer is that he had somehow found his way to the Children's Legal Centre, who had in turn taken him to Mrs Hutchinson who had instructed counsel. The application failed, for reasons which I gave at the time but, given the extent to which Alexandru had been drawn into the proceedings, and given the expectations inevitably aroused, I requested Mr Mellor in the Thomas More Building to prepare a CAFCASS report for this hearing. He conducted an interview with Alexandru on 22 May, bringing to the exercise his very great skill and experience. In his conclusions he recorded that Alexandru is adamant that he does not want to go to Romania, and is fervent in his desire to remain in this country with his mother at his current school. In the concluding sentences Mr Mellor stated:
"Inevitably given the history of this matter, the dependency relationship with the mother for much of his life, the absence or exclusion of his father, [Alexandru's] views have been strongly influenced by his mother with whom he strongly identifies. However formed, the views he now expresses are authentically his own". [One of the sad consequences of all this litigation delay is that Alexandru has hardly seen his father at all. There was some very tense contact, arranged by another CAFCASS officer, Mrs Verna Jones, but that now is a considerable time ago and there is, obviously, a huge problem in re-establishing a normal relationship between father and child.]
10. One curiosity, perhaps, is that in applying to intervene Mr Howard made it plain that if the application succeeded, he would seek to rely on a defence not run below, namely that Alexandru is a child of sufficient maturity and understanding who strongly objects to return. Although that defence was not relied on before Hogg J, I think it can fairly be observed that there was not a lot of boundary to be drawn on the facts between the Article 13(b) defence that was raised and the alternative presentation, namely the child's objection.
11. The application of 18 May was resisted by Mr Henry Setright QC and Mr Marcus Scott Manderson on the father's behalf. The mother was not there to support the application, but she was represented by solicitors and they heard Mr Howard's criticism of the way the case had been put below, without any stress being placed on Alexandru's objection. On that occasion I indicated that the court would listen sympathetically to an application to extend the grounds of appeal; for the notice that had been filed on 17 April challenged only the judge's findings that there had been a wrongful removal in breach of the father's rights of custody within the meaning of Article 3. The notice of appeal had not challenged the judge's rejection of the mother's Article 13(b) defence, so it was no surprise that, in the interim, an amended notice of appeal and supplemental skeleton argument were submitted by Mrs Platt to challenge the judge's conclusions on both grounds.
12. In further preparation for this morning's hearing, her instructing solicitor, Mr Anthony Bilmes, filed an affidavit in which he made an ambitious attempt to introduce fresh expert evidence as to the law of Romania. I say "ambitious" because that evidence was in his hands, or in the hands of counsel, by 25 March and could therefore easily have been presented to Hogg J before she handed down her reserved judgment on 28 March. That huge obstacle is magnified by the fact that in her judgment Hogg J records that, having issued her judgment in draft to the parties, both sides had sought to introduce fresh evidence as to the law of Romania which she had admitted. So, at the outset, Mrs Platt realistically accepted that the notice to adduce fresh evidence would not receive the same welcome that her notice to amend her grounds.
13. Within the affidavit of Mr Bilmes in support of the application to admit the expert evidence were two exhibits, and on page 2 of the second exhibit is a report to Mr Bilmes made by the mother's advocate in Bucharest. The report records four trials between the parties that are pending in the courts of first instance in Bucharest. The hugely significant process is that which apparently has a designation 9550/299/2006, by which the mother applies for permission to relocate to this jurisdiction. It is very significant that that application was issued on 29 March, the day following her reverse in the Family division and more than a week before the issue of her notice of appeal. The application of 29 March resulted in a judgment of 11 April, the important effect of which was to give her temporary leave for Alexandru to remain in this jurisdiction until the conclusion of the current school term, which is 7 July. A further hearing was set for Tuesday next, 30 May.
14. The other applications are an application by the father issued on 4 April, an application in relation to alimony; and a fourth application which perhaps I need not detail. What is important is to see how briskly and effectively the courts of first instance in Bucharest are addressing current welfare issues. All four applications were given return dates in this month of May. One of them, the money hearing, was fixed to be heard yesterday, and the other three have all got dates next week. This information of the highest relevance only came to Mr Setright when he received the evidence of Mr Bilmes, which was confirmed to him by his client, who arrived in this jurisdiction yesterday.
15. Mrs Platt has done her best to attack the judgment of Hogg J on both grounds. The essence of the judgment below on the Article 3 point is contained in paragraphs 63-67 of her judgment:
"63. In answering the question was it 'wrongful' under Article 3 I have to consider whether the father had rights of custody within the meaning of Article 5.
64. I have come to the conclusion that he did have such rights. He acquired such rights under Article 97 when [A] was born, regardless of the marriage. To decide that he lost such rights upon divorce, and to find himself following a divorce in a worse position than a father who had never married the mother seems a somewhat curious conclusion and in my mind untenable.
65. Under Article 43 he kept his rights to have personal relations with the child as well as 'the right to watch over his growth, upbringing, education and professional training'.
66. This to my mind entails a broader approach than merely being able to have contact. A right to "watch over" a child's development must imply the right to object, or to support, give guidance or advice to the other parent.
67. I remind myself that The Family Code is predicated on Article 1, 'Parental rights are exercised only in the children's interests', and that a right to watch over must include a right to ensure that that which is done by the other parent is in the child's interests."
16. Essentially what the judge concluded was that the father (who has, in addition to a right to contact, "the right to watch over his growth, upbringing, education and professional training") held rights of custody, applying English jurisprudence to the autonomous construction of the Convention. The phrase which I have cited verbatim is taken from the English translation of the judgment of the Court of Appeal in Bucharest, at page E48 in the bundle. What the judge might also have added from that judgment is that, in addition to the right to watch over, the non-custodial parent also has "the general duty to raise the child". Hogg J proceeded to found herself additionally on the evidence of Dr Mihai and on Romanian legislation law 248 of 2005, which came into force on 27 January 2006. It did not have retrospective effect, but Hogg J came to the conclusion that it was more by way of clarification than reform of the local law. Mrs Platt has suggested that that was not a permissible reading. However, in my judgment that point is of little significance, since the judge was fully entitled to conclude, as she did, that the rights enjoyed by the father in his homeland went well beyond mere rights of contact and amounted to rights of custody within the autonomous meaning of the Convention.
17. The endeavour to criticise the judge's ruling on the Article 13(b) case was sustained by Mrs Platt, but the very fact that it formed no part of her original notice of appeal is a revelation of the inherent weakness of the argument. The judge considered all the factors. She had regard to the arguments advanced on behalf of the mother as to her stability in this jurisdiction and the stability of the child in this jurisdiction, but she had equal regard to the destruction of the relationship between father and child and the fact that a defendant in Hague proceedings cannot advance or take advantage of their own wrongdoing in support of an Article 13(b) defence.
18. My review of Mrs Platt's submissions suggests that the resolution of this appeal was a simple matter. That was certainly not my approach as I pondered the implications after understanding the issues at the interlocutory hearing on 18 May. This on its face was an exceptionally difficult case. As Mrs Platt has rightly said, there is no precedent in the international case law for the requested state to disregard a negative answer to an Article 15 request. There is no precedent in the international jurisprudence for the making of a return order following an extraordinary and unforgivable lapse in the expeditious timetable that the Convention requires.
19. But what is absolutely fatal to the mother's appeal is the emergence of the evidence that she has engaged the Romanian courts, which are manifestly the appropriate courts, to tackle the extremely difficult issues that have developed as to A's future country of residence, his future education, his future contact with his father, and the extent of the father's future financial responsibility. Her engagement of the Romanian court process the day after the issue of judgment in the Family division is fatal to the argument that the lapse of time permits or requires this court to review welfare considerations. Such a submission would have been difficult in any event, given the philosophy and objectives of the Convention, but it becomes impossible once it is revealed that the proper courts have been seized and are dealing effectively and expeditiously with the problems that now exist.
20. So, are there any general conclusions to be drawn from this extraordinary appeal? I think there are probably three. First, the experience of this case magnifies existing misgivings as to the utility of the Article 15 procedure, and that is something that I hope and expect will be debated at the next Special Commission in the Hague in October and November next year.
21. My second conclusion is that the obligation on the requested state to ensure expeditious determination of the application is not relieved or even temporarily suspended by delay in the return of the Article 15 request. Precisely because the response to the Article 15 request is not determinative, if the judge in the requested state sees that he is not getting an answer that is either sufficiently clear or sufficiently swift, then it is his duty simply to proceed to decide, on the evidence before him, whether or not rights of custody are established, applying the autonomous law of the Convention. It is not just the parties, or either of them, whose conduct is to be scrutinised to see whether one or the other has, as a matter of litigation strategy, contributed to this extraordinary delay. The responsibility for this delay lies upon the courts of the two states concerned, and it would be quite unrealistic to exonerate the courts in this jurisdiction from some responsibility for having allowed this completely unacceptable state of affairs to develop.
22. My third conclusion is that this is as graphic an instance as one could find of the value and importance of the appointment of liaison judges in all countries that operate the 1980 Convention, and the consequential importance of collaboration between the liaison judges. Had there been a liaison judge appointed for Romania, it would have been perfectly possible for Johnson J at the outset to establish by a series of telephone or email exchanges what was likely to be the timetable for the determination of the Article 15 request, and either perhaps to decide that in the light of the answer it was not worth pursuing, alternatively to ask his brother or sister judge in Romania to ensure that the determination of the request received the necessary expedition. Again, since the issue of judicial collaboration and the extension of the global network of liaison judges will be undoubtedly on the agenda for the next Special Commission, this case will at least provide useful material to guide the debate.
23. Mr Setright has realistically accepted, and indeed his client has in the end reluctantly agreed, that the order for peremptory return made below needs to be varied. Plainly, we respect the temporary leave granted by the court of first instance in Bucharest. Plainly there is no question of return before the end of the school term. There will have to be some consideration of how the order is to be drawn in this court today to reflect the fact that we do not know what will be the outcome in Bucharest next week. We must also provide for the possibility that, if the outcome were the one the mother seeks, there could then be an appeal to the Court of Appeal in Bucharest. We must seek to avoid any unnecessary movement for this child unless it is movement agreed for the purposes of a holiday.
24. But, all that said, I would propose an order dismissing the appeal.
25. LORD JUSTICE MOSES: I agree.
26. MR JUSTICE HEDLEY: I also agree.
Order: Appeal dismissed.