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Home > Judgments > 2011 archive

O (Children) [2011] EWCA Civ 128

Child abduction: exercise of discretion to return when defence under Article 12 (settlement) established.

The mother and father originated from Nigeria but met in the United States. The children and the father had duel US and Nigerian citizenship. In February 2009 the mother took the children to Nigeria for a holiday and subsequently informed the father that she intended to stay in Nigeria with the children. The father swiftly issued proceedings in the United States for the return of the children. The father also issued an application in the US courts for sole custody of the children. In that application he misled the court about the children's whereabouts and his contact with the children. On November 2009 the father issued proceedings in Nigeria.

In July 2010 the mother and children came to England for a holiday. The father made an application under the Hague Convention and the mother and children were prohibited from leaving the UK. The father sought the return of the children to the US. The mother relied on defences under articles 13(a), 13(b) and 12 of the Convention. The judge found that the proceedings had commenced more than 12 months after the wrongful retention and the children were settled in Nigeria. He rejected the mother's other defences. Having found the children settled in Nigeria, the judge nonetheless decided to exercise his discretion to return the children to the US. The mother appealed this decision.

The Court of Appeal, Lady Justice Black giving the lead judgment, upheld the mother's appeal.   Re M (Abduction: Zimbabwe) [2007] UKHL 55 [2008] AC 1288 was the leading authority on this point. Hague Convention policy factors are only one consideration when deciding whether to return children: they are not to be given overriding significance but "their relevance is strictly as part of the whole picture" [para 24].  The immediate needs and general welfare of the children must also be taken into account. The judge had erred in failing to apply with principles in Re M and insofar as he had considered the children's welfare, had adopted a generalised approach rather than considering the individual circumstances of these children.

The Court of Appeal went on to determine the question of whether the children, being settled in Nigeria, should be returned the US. They decided that the mother and children should be allowed to remain in Nigeria. The factors cited as being relevant to this decision were:

• The case was far from being a 'hot pursuit' one and the policy considerations were not a prominent as they might be;

• At no point had the mother concealed the children's whereabouts from the father;

• The children did not view the US as their home;

• Both parents were very familiar with Nigeria and the father had previously had contact with the children there. Many other maternal and paternal relatives (including another child of the father) lived in Nigeria;

• The Nigerian courts were already seised of the matter and were a more appropriate jurisdiction that the US courts;

• The father's immoderate and underhand behaviour since Spring 2009 meant it would be much easier for the mother to cope with the ongoing dispute if she was in Nigeria with the support of her family.

Summary by Ayeesha Bhutta, Barrister, Field Court Chambers

_____________________________

Case No: B4/2010/2748
Neutral Citation Number: [2011] EWCA Civ 128
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Wallwork (sitting as Deputy High Court Judge)
Principal Registry of the Family Division
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/02/2011
Before :

LORD JUSTICE WILSON
LORD JUSTCE PITCHFORD
and
LADY JUSTICE BLACK
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Between :

O O D Appellant



I O Respondent

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Ms Guha (instructed by Kingsley Napely LLP) for the Appellant
Mr Hames (instructed by Hodge Jones & Allen LLP) for the Respondent

Hearing dates : Friday 4th February 2011
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Judgment
Lady Justice Black :
1. This appeal concerns proceedings brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("the Hague Convention") in relation to two girls who were born on 11 December 2003 and on 1 October 2005 and are now 7 and 5. They are the children of the appellant ("the mother") and the respondent ("the father"). The parents were married but their relationship is now over.

2. The parents met in the United States in 2000 although they originate from Nigeria and are Nigerian citizens. The father also has US citizenship and the children have both US and Nigerian citizenship.

3. The parents made their home in the US and the children were born there. On 27 February 2009, the mother went with the children to Nigeria on holiday. Whilst there she decided that she could not continue to live with the father and she told the father, in mid March 2009, that she did not intend to return to the US. It seems that the father hoped that she may still come back on 20 April 2009 as had been the original plan. When the mother and the girls did not return on that day, he contacted the US State Department and a child abduction case was opened on 22 April 2009.

4. The mother and the children were based in Nigeria from then until the events of last summer. On 3 July 2010, they came to England to visit the mother's brother for a holiday. When the father learned of this, he promptly informed the US State Department and an application under the Hague Convention was made here on 22 July 2010. Since that time, the mother and the children have been unable to leave this country by virtue of orders of the High Court of the type that are conventionally made in abduction cases.

5. The case was originally listed, at risk, for a final hearing on 8 September 2010 but there was too much other business for it to be heard that day. It was therefore re-listed for hearing on 29 September 2010 with an estimate of 2 days. On 29 September, it came before HHJ Wallwork sitting as a judge of the Family Division. He heard two days of evidence and argument and reserved judgment. His written judgment was handed down on 17 November 2010, having been circulated to the parties shortly before that. I appreciate that there are enormous pressures on the court system and on family judges but it is particularly unfortunate for there to have been such a substantial delay in a Hague Convention case in relation to which there are special obligations to act with expedition.

6. The mother relied upon three "defences" to the father's application for a summary return of the children to the US. She conceded that they had been habitually resident in the US and that she wrongfully retained them in Nigeria in the spring of 2009 in breach of the father's rights of custody. She argued, however, that he had acquiesced in the retention of the children (Article 13(a) of the Hague Convention). She said that there was a grave risk that their return to the US would expose them to physical or psychological harm or otherwise place them in an intolerable situation (Article 13(b)). She also relied on Article 12, arguing that the proceedings had commenced more than a year from the date of the wrongful retention and that the children had settled in Nigeria. She submitted that if any of these "defences" was made out, the court should decline to return the children to the US.

7. The trial judge rejected the mother's case under Article 13(a) and Article 13(b). He found the mother's argument in reliance on Article 12 established. The proceedings had been commenced more than 12 months after the wrongful retention and the children had indeed become settled in Nigeria; there is no appeal by the father against this finding. However, the judge went on to determine that the children should nonetheless be returned to the US. He dealt with this issue extremely shortly. Apart from one or two passing references in other parts of the judgment, there is only one paragraph of the judgment which is directed to the judge's exercise of his discretion in this respect. I will quote it in full,

"17. In conclusion: the mother has established on paper and in her evidence that over the last 18 months the children were settled in Nigeria. This triggers the court's discretion to allow her to retain the children with her in Nigeria. I do not propose to exercise that discretion in her favour. These are very young children and are of an age where I have no doubt that they are able to adapt more readily than older children who may have established deeper attachments and networks to family, friends and environment. In the circumstances therefore the children should be returned to the USA for the American courts to determine any respective applications of the parties based on welfare principles."

8. The mother appeals against this determination of the judge. In summary, she argues that the judge failed to give sufficient explanation of his decision, failed to apply the correct principles, gave too much weight to the objective of the Hague Convention to secure a swift return of children to their country of origin, and failed to give any or any sufficient weight to the factors which were relevant to the exercise of his discretion in this particular case. 

9. The judge had been referred to the relevant law which should have guided his approach to the issue of whether to return the children. As counsel for the parents agreed, the leading authority on the exercise of the discretion to order the return of children who have become settled is Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] AC 1288, and they both referred the judge to it. Unfortunately, he does not allude to it at all in his judgment either by name or by restating the principles that are to be derived from it.

10. The trial judge in Re M had proceeded on the basis that the policy of the Hague Convention requires that the discretion be exercised in favour of return in all save the most exceptional cases. The House of Lords rejected that approach. Baroness Hale, giving the principal opinion, said:

"[40] ….I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention."

[41] But there remains a distinction between the exercise of discretion under the Hague Convention and the exercise of discretion in wrongful removal or retention cases falling outside the Convention. In non-Convention cases the child's welfare may well be better served by a prompt return to the country from which she was wrongly removed; but that will be because of the particular circumstances of her case, understood in the light of the general understanding of the harm which wrongful removal can do, summed up in the well-known words of Buckley LJ in Re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250, at 264:

'To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education ... are all acts ... which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted.'

[42]     In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states.

[43]     My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para [32] above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

[44]     That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.
….
[47]     In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer 'hot pursuit' cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.

[48]     All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required.

11. The passage in the judgment of Thorpe LJ with which Baroness Hale expresses her qualified agreement in her paragraph 43 is a passage from Cannon v Cannon [2004] EWCA Civ 1330, [2005] I FLR 169 at paragraph 38, which reads as follows:

"For the exercise of a discretion under the Hague Convention requires the court to have due regard to the [overriding] objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the welfare of the child is paramount if the discretion is exercised in the context of our domestic law." [my brackets, indicating the word that Baroness Hale would have omitted] 

12. Miss Guha, counsel for the mother, submits that the judge's determination does not appear to have been approached along the lines laid down in Re M. She submits that he must mistakenly have thought that there was a presumption in favour of the children being returned to the country of their habitual residence and therefore have given Hague Convention considerations overriding weight which was not what Re M contemplated. She relies upon the lack of evaluation, in paragraph 17 of the trial judge's judgment, of other relevant factors as revealing this error but also invites attention to paragraph 18 of the judgment which, she says, underlines the flaw in the judge's reasoning.

13. Paragraph 18 says,

"It may be that this is a Pyrrhic victory for the father. On the face of the papers and in light of my findings, the mother appears to have a strong case on welfare grounds, providing suitable orders are also made in Nigeria to protect the father's interest. These final observations, of course, can form no part of the ruling of this court and I simply make the observation in the hope that it may assist the parties in reaching agreement."

14. Welfare was not only relevant after a return in the way in which the judge approached it in his paragraph 18, says Miss Guha. It was relevant to the decision whether the children should be returned at all and the judge simply failed to examine it in that context. The only factor relating to these individual children that he put into the balance in relation to whether they should return to the US for their futures to be determined was their age in that he said that they are very young and therefore more able to adapt than older children who may have established "deeper attachments and networks to family, friends and environment". Miss Guha invites our attention to the fact that this is not a universal view of the respective ability of older and younger children to adapt to change as Macur J, dealing with a four year old child in RS v KS (Abduction: Wrongful Retention) [2009] EWHC 1494 (Fam) [2009] 2 FLR 1231, was of the opinion, at paragraph 46, that disruption to the living arrangements of such a young child

"would have more far reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next"

15. Mr Hames, for the father, valiantly attempts to persuade us that it would be right to assume that the judge had taken the correct matters into account and weighed them correctly, notwithstanding the terseness of his judgment in this respect. He submits that the essential findings of fact had been made and it was possible to distil from the judgment as a whole the essential thought process by which the judge reached his ultimate conclusion that the children should be returned to the US.

16. He quite rightly reminds us of the summary nature of the Hague Convention jurisdiction and the need for swift decisions which may inevitably lead to shortcomings in the judgment in which the judge's reasons are set out. He also invited our attention to the well known passage in the opinion of Lord Hoffman in Piglowska v Piglowski [1999] 1 WLR 1360, [1999] 2 FLR 763, which, in another context, stresses the caution with which an appeal court must approach an exercise of judicial discretion by a trial judge and underlines that the exigencies of daily courtroom life are such that the reasons for a judgment will always be capable of having been better expressed and

"should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how  he should perform his functions and which matter she should take into account."

17. He also invites our attention to what Thorpe LJ said in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035:

"[11]….For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusions?"

18. He submits that the trial judge's judgment passes this essential test.

19. He refers us to one further passage in the judgment in addition to paragraph 17 which, he argues, can contribute to a conclusion that the judge had the correct matters in mind. This is at paragraph 12, in a section of the judgment headed "Evidence" but in a passage where the judge deals with a legal submission that Mr Hames had made (but has not pursued in this court) about the workings of the settlement defence. To deal with this, the judge looked at "the intention behind the defences in particular the defence of settlement" and said "That defence has the welfare of the children at its heart and gives the court the discretion to say where children are clearly settled in a new environment that they should not be disrupted and uprooted". From this, Mr Hames submits, we can draw the comfort of knowing that the judge viewed welfare as a material component in his decision.

20. Furthermore, he submits, the judge was entitled on the facts of this case to exercise his discretion in favour of a summary return and his decision was not plainly wrong.

21. I am afraid that I cannot agree with Mr Hames' submissions. In my view, the judge's decision stands or falls by what he said in paragraph 17 and, to a lesser extent, paragraph 18 of the judgment. The reference to welfare in paragraph 12 is made in a different context and is separated so completely from the judge's exercise of his discretion in paragraph 17 that I do not consider that it can assist. In so far as Mr Hames would seek to rely on the judge having set out earlier in his judgment facts which could be of relevance to the discretionary decision, I do not consider that, in this case, that establishes that the judge had them properly in mind when making his discretionary decision. The facts did not speak for themselves and the judge needed to collect together those which he considered to be relevant to his discretionary decision and to set out how he balanced the various considerations in arriving at his conclusion that it was appropriate to order the summary return of the children to the US.

22. Only two considerations that were relevant to the proper exercise of the judge's discretion can be extracted from paragraph 17. One I take to be that it tends to be in the interests of children to be returned to their country of origin to have their future determined (an aspect of what might be called "the Hague Convention policy considerations"). The other is the judge's view that these children were young enough to adjust. As will be seen when I come to consider how I would exercise the discretion on the facts of this case, there were many other matters that had to be put into the balance.

23. Even in relation to the two factors that the judge did pick out for consideration, I perceive serious problems with his approach.

24. In relation to the Hague policy consideration, I consider there is force in Miss Guha's submission that the judge appears to have given this overriding significance in the hierarchy of factors in a way that Re M makes clear he should not have done. Hague policy considerations are by no means irrelevant in exercising the discretion that arises in a settlement case but their relevance is strictly as a part of the whole picture. The notion that it would be best for these children to return to the US for their future to be determined had to be tested against the evidence in this particular case, aspects of which might support that course and aspects of which would militate against it.

25. As for the judge's reliance on the adaptability of the children because of their young age, the divergence of judicial opinion about this only serves to show that cases such as this one cannot be determined by a generalised approach and that, as Re M makes very clear, the individual circumstances of the particular child are what matter and must be examined and weighed in the balance when exercising a discretion under the Hague Convention as to whether to return a child. The trial judge's judgment does not give any indication that he engaged in this exercise and I agree with Miss Guha that paragraph 18 of the judgment suggests that, in fact, he did not.

26. In summary, it appears, therefore, that the judge both failed to state the Re M principles and failed to apply them. In the circumstances, I am unable to support his exercise of his discretion as a valid one. It follows that the question of whether the children should be returned to the US remains to be determined. The parties are, very helpfully, agreed that we should undertake this task.

27. In approaching it, I bear in mind that I have not had the advantage of hearing the oral evidence that the judge heard. However, he did make a considerable number of findings which are not challenged and upon which I can rely securely in reaching my own determination. I propose first to set out a short chronology of the relevant events, taken wherever possible from the judgment.

28. I begin at around the time that the mother and the children did not return to the US.

29. The father's evidence to the trial judge was that at around that time, he spoke to the mother and she told him that she was going to have their daughters circumcised. He said he called the US State Department about this and they expressed great concern. The judge says of this at paragraph 9 of his judgment,

"….this point was barely pursued within the hearing before me and vigorously denied by the mother. The allegation appeared to be an emotive attempt to suggest that the children were in danger."

30. The father came to Lagos on 11 May 2009 and had contact with the children during his stay.

31. A family meeting took place on 16 May 2009. The father maintained that it was agreed at this meeting that the mother would return to the US in July; the mother maintained that the meeting ended without any final resolution save for the fact that she made clear that she intended to remain in Nigeria with the girls and it was agreed that so long as they were separated, the children would live with her and the father could have liberal contact whenever he visited Nigeria. The judge made no finding as to whose version of events was right.

32. Also in May 2009, the children were enrolled in a private school in Nigeria. They appear to be settled and were doing well there before they came to England last summer. The judge was satisfied "that the mother has made all appropriate arrangements for their education and for their health". Since the children have been in England, the school has been sending school work for them which they have done here with the mother.

33. In August 2009, the father paid another visit to Nigeria and saw the children. On his return to the US, he began an attempt to enlist the assistance of the American courts, providing them with misleading information of various kinds about the circumstances, designed to establish to the Circuit Court there that the mother was in America, had been served with the proceedings he had begun, and had failed to respond. He first issued an application in the Circuit Court on 6 September 2009 for sole custody, giving a false address in Greenbelt, Maryland, for the whereabouts of the mother and children. On 15 October 2009, he filed with that court what purported to be an affidavit of service on the mother at another address in the US. On 21 January 2010, he applied for an order of default against the mother for failure to file a response to his application. On 4 February 2010, the American court replied that the order would not be issued because of defects in the pleading. A writ of summons seems then to have been issued, again in respect of the mother's failure to respond to the father's case. On 24 March 2010, the father filed an affidavit of service deposing to the service of documents that day on the mother at the Greenbelt address. His next application for an order of default against her was refused on 16 July 2010. Following the commencement of proceedings here, he filed yet another application for an order of default on 28 July 2010, this time coupled with a motion and affidavit for an emergency hearing which said that the mother had failed to return the children to the United States and had been arrested in London. It must have been as a result of his misleading instructions to the Hague Convention authorities about the state of play in the American courts that his English solicitor's affidavit in support of the originating summons here said, erroneously:

"I understand that the Plaintiff was liaising with the Bureau of Consular affairs to seek recognition of an American Court Order in Nigeria. When he found out that the children had been moved to London, he approached the Central Authority in England."

34. It is also to be noted that the father misled the authorities in the application form he completed in connection with the Hague Convention proceedings by giving a false impression of the circumstances in which the mother left Nigeria. He referred to two US Embassy visits to the mother's house in Lagos (with which I will deal a little later) and said,

"after that little pressure by the US embassy, she fleed Nigeria to London" [sic]

He also supplied misleading information in the form about contact, in relation to which he said,

"At first when she took them to Nigeria, she said she was going to do female circumcision, first of all my wife has given an impression that she want my daughters be circumcised, I refused, now I can't talk to my children" [sic].

35. There are other examples of misleading information provided by the father but I will not detail them. Although certainly not excusable and certainly not insignificant, they are not really surprising given that the judge found the father to be "a poor witness [who] at times appeared to give the first answer which came into his head".

36. Meanwhile, the father was active on other fronts as well as in the American courts. Applications for passports for the girls, made by the father relating to travel plans on 28 June 2009, came to light. The form contained the forged signature of the mother and a false statement that the father did not know the whereabouts of the mother and that the children resided with him.

37. The father alleged that the mother was having an affair with a man known as T. In September 2009, as the judge records, he "sent blackmail notes to members of the mother's family threatening to post naked photographs of the mother". The judge refers to this allegation of an affair with T emerging again in April 2010 and to another threat of blackmail in May 2010. 

38. In October 2009, representatives from the US Embassy came to visit the mother and children at the maternal grandparents' house where they have been living throughout their time in Nigeria. This seems to have been at the father's request. Part of his case right up to the final hearing was that although the mother's accommodation "may be very nice" (per paragraph 13 of the father's affidavit of 31 August 2010), the area is not and disease is rife. As Mr Hames put it on his behalf in his skeleton for the hearing before Judge Wallwork, "[the mother] uprooted them from a secure and stable environment and took them to a country where living standards are incomparably lower and the physical environment harsher".

39. The Embassy representatives provided two welfare reports (October 2009 and June 2010) which set out that they found the children well cared for, healthy and active, living in comfortable conditions in a well appointed home. The mother's unchallenged evidence was that the family property in Lagos has six bedrooms and four bathrooms and that the family also have a seaside home with seven en suite bedrooms, a number of reception rooms and a gym, amongst other facilities. The judge also found that "the father's allegations that the children have maintained that they have been cruelly treated by their grandmother are insufficiently made out and run counter to the descriptions by welfare services that the children present as happy and well behaved".

40. In November 2009, the father came to Nigeria again. He intercepted the mother and children en route to school, took the girls out of her car, and bundled them into a van which drove off. The judge says of this,

"[H]e did not appraise the mother of the children's whereabouts and he retained them for the period of one week. This caused their mother anxiety and led to the involvement of the police. The children were eventually returned to their mother on 30th November and she alleges they were suffering from scabies and generally in poor health."

41. On 25 November 2009, the father applied to the Nigerian court for custody of the children but not, it would seem, for any order that they be returned to the US.

42. On 7 December 2009, there was a meeting in Nigeria involving the parents, their legal representatives and members of their extended families about the marriage and the children. There is a minute of the meeting but there is not a consensus between the parties or their lawyers as to what transpired. The judge found that there was no concluded agreement arising from the meeting although he allowed for the possibility that the mother may have thought that she had secured the father's acquiescence in her and the children remaining in Nigeria. Following the meeting, on 10 December 2009, the parties jointly "signed a letter to say that they had agreed that the mother should have custody of the children and upon that basis the father sought to withdraw his application before the Nigerian court" (judgment paragraph 12 (viii)). The mother agreed to the "police involvement and investigation of the father in connection with the retention of the children by him" coming to an end (judgment paragraph 12 (ix)).

43. The father returned to the US at the end of December and did not visit Nigeria again thereafter although the children have continued to be in contact with him by telephone and he saw them in September 2010 during the time he was in London for the first instance hearing.

44. The mother had made serious allegations of domestic violence against the father which he denied. Considering this issue essentially in connection with Article 13(b), the judge determined that it was beyond the scope of his enquiry to investigate those allegations in depth. He said that the possibility of domestic violence could not be ruled out but he expressed a doubt that the mother would have been content for the father to have visiting contact at her home in Nigeria or (as had been agreed) to have stayed near the children in the US during any contact they had there with the father in future if she considered that there was a grave danger to either the children or herself. 

45. Mr Hames' submissions on behalf of the father to the trial judge as to the factors that indicated an exercise of discretion in favour of returning the children were succinctly distilled into paragraph 23 of his skeleton argument for that hearing, to part of which I have already referred but which I will now quote in full:

"This was a flagrant abduction by a Mother who has completely ignored the rights of the Father to be an involved parent. She uprooted them from a secure and stable environment and took them to a country where living standards are incomparably lower and the physical environment harsher. The children are still young enough to be able to adapt to a change back to USA, their home country. There are school places there. There is a way of life with which they are familiar."

46. Miss Guha relies, as she did in front of the trial judge, upon an extensive list of factors which she says point to the discretion being exercised in favour of the children not being summarily returned to the US. Amongst them is the fact that the children are happily settled and fully integrated into their family, schools and community in Nigeria after living there for 16 months. The officer from the US Embassy can be relied upon for two snapshots of the home situation in Nigeria. A CAFCASS officer here saw them at the end of August 2010. She found that they were aware of having a home in the US but that they had fairly patchy recollections of their life there and they seemed to find it hard to think about the possibility of returning there imminently. She considered that they seemed to regard Nigeria as being their home. Miss Guha asks us to work on the basis that that still remains the case, particularly given the fact that it is even longer now since they were in the US. There is no evidence to gainsay this assumption and it is, in my view, a reasonable one in the circumstances of this case. I think one has to bear in mind that mother and children have been held in this country in suspense. Whilst on one level, young children like these will no doubt simply have got on with whatever daily life brings, they must inevitably have picked up that their present arrangements are only temporary. In those circumstances, it is reasonable to suppose that they will have continued to consider home as Nigeria, particularly as they have presumably kept in touch with their family there and have also kept in touch with their Nigerian school by being sent homework rather than going to a new school here.  Miss Guha submits that if they were now to be returned to the US rather going home to Nigeria, it would involve an unjustifiable level of disruption and upheaval for them.

47. The other factors listed by Miss Guha include the following:

i) The mother did not conceal the whereabouts of the children from the father at any time and has promoted contact between father and children.

ii) The father did not seek the summary return of the children through the courts of Nigeria or the USA. Such attempts as he made to obtain the assistance of the courts either involved dishonesty (in the case of the US) or were withdrawn (in the case of Nigeria).

iii) The father has behaved in a variety of oppressive and abusive ways towards the mother and her anxiety about his possible conduct towards her would be heightened if she were to be forced to return to the US and deprived of the support of her family in Nigeria. She would feel she was returning to an insecure environment where she would be vulnerable to further harassment by the father. This in turn would be likely to impact adversely on her ability to care for the children.

iv) The Nigerian courts have been seised of this matter already in November 2009, albeit transiently, and are the proper forum for the determination of any dispute over the children.

48. Mr Hames sensibly does not try to submit that these features of the case are irrelevant but he nevertheless argues that the proper course is a return to the US, particularly as, in his submission, the American courts are the proper courts to determine welfare issues. The children remain aware of their home in the US. The American legal system would ensure that the mother had the opportunity to be heard, he says, and the mother could rely on the undertakings (in conventional form) given by the father to HHJ Wallwork to ensure that her return to the US was as untraumatic and orderly as possible.

49. For myself, I am persuaded that there are overwhelming reasons to decline to order summary return of these children to the US. This is very far from being a hot pursuit case and, although not irrelevant, Hague Convention policy considerations are not as prominent as they would otherwise be. The children do not view the US as their home, were settled in Nigeria in comfortable circumstances and with appropriate arrangements in place for their welfare before coming here on holiday last summer, and are likely to continue to see Nigeria as their home. They can easily return to resume the life they were living before they left that country. Both parents are very familiar with Nigeria. The father has relatives there, has visited several times whilst the mother and the children have been there, and even shipped a truck over from the US for his use whilst there. Both parents already have (or have had) lawyers in Nigeria. The Nigerian court has already been seised of the matter at the invitation of the father and it would, in my view, be a significantly more appropriate forum for any future litigation about the children than the American courts. I cannot ignore the immoderate and underhand activities of the father since spring 2009 and I accept that it would be much easier for the mother to cope with this sort of behaviour if it were to continue if she were to remain in Nigeria with the support of her family than if she were to return to the comparative isolation of the US. Her sense of security is bound to make a vital contribution to her ability to look after the children.

50. Accordingly, I would allow the appeal and substitute an order that the Plaintiff father's originating summons seeking the return of the children to the USA be dismissed. The parties' undertakings, given to HHJ Wallwork, will of course cease to have any effect. The practical result of this court's order will be that the mother can return with the children to Nigeria.     

Lord Justice Pitchford
51. I am grateful to Black LJ for her analysis of the facts and the law. I agree that the learned judge erred in law in his exercise of discretion. As the judge himself observed at paragraph 18 of his judgment, the mother "appeared to have a strong case on welfare grounds". In the light of this observation I cannot accept Mr Hames' invitation to accept that the judge had well in mind the guidance of the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55, particularly the observations of Baroness Hale at paragraph 48, when considering how his discretion should be exercised.  Had the judge accepted that the immediate welfare of the children was a matter for consideration in the exercise of discretion in a settlement case, it seems to me that their welfare would have formed a prominent part of his assessment. As my Lady has demonstrated welfare appears to have formed no part of the judge's assessment in the relevant part of his judgment.

52. We are invited by the parties, in these circumstances, to exercise the discretion for ourselves. There are two prevailing considerations in this "settlement" case: (1) the need to respect the policy and purpose of the Convention, and (2) the immediate needs and general welfare of the children. Settlement had put beyond the court the ability to fulfil the major objective of the Convention. There were also several features identified by the judge which tended to diminish the imperative for immediate return. There was no concealment; at all times the father knew where the children were; there had been regular contact between father and children and face to face negotiations between the parents; both parties were familiar with and natives of the children's place of residence; the father had, briefly, invoked the jurisdiction of the family court in Lagos. On the other hand, the father had abused the process of the Courts in the United States in an attempt to obtain orders by default against the mother; during a visit he had removed the children from the extended family home in Lagos and kept them without familial contact for a week. As to the immediate needs and welfare of the children I agree with my Lady that the evidence is all one way, as I consider the judge recognised in paragraph 18 of his judgment. It would not be appropriate to remove these young children from the environment with which they have become most familiar and in which they appeared to be thriving before their enforced stay in the United Kingdom. I agree with the order my Lady proposes.

Lord Justice Wilson:
53. I agree with both judgments.

54. The question whether "the child is now settled in its environment" within the meaning of Article 12 is required to be answered, and was I believe answered by the judge, by reference to the circumstances as they were at the date of issue of the Originating Summons: Re N (Minors) (Abduction) [1991] 1 FLR 413 at 417F, per Bracewell J. As at 22 July 2010, being the date of issue of the Originating Summons, the girls had been on holiday in England with the mother only for 17 days; and, in all the circumstances which Black LJ has explained, the judge was plainly correct to find that the girls were by then settled in Nigeria.

55. I am clear however that, in the exercise of the discretion to which the finding of settlement gives rise and which now falls to be conducted by this court, we cannot shut our eyes to the fact that, unfortunately, the children have had to remain in England with the mother for seven months. The girls cannot now be as much settled in Nigeria as they were in July 2010. Theoretically the defence would remain established even if now they were no longer settled there at all. At all events the father can argue that the disruption to the children's life in Nigeria would now be less severe than it would have been had the Family Division determined his application within six weeks in accordance with the target set by Article 11. But, for the reasons given by Black LJ at [46] above, it is a thin point; and the delay would make it more difficult for the girls to pick up, albeit perhaps even on only a temporary basis, the threads of their former life in the U.S.

56. Black LJ has identified several weighty factors which militate towards a determination of the welfare issues in Nigeria and thus of the girls' return there for that purpose. Chief among them in my view are the facts first that it is the original homeland of both parents, where most of their family members (including a teenage daughter of the father) still live; and second, in particular, that in November 2009 the father himself issued proceedings in Nigeria in relation to the girls, as a result of which lawyers were instructed on both sides and, with the parties and various other members of each of their families, they attended a substantial meeting with a view to consensual settlement. This optimum mechanism for family dispute resolution, with the facility for a fall-back into the courts of Nigeria, has been invoked already and readily can, and no doubt should, be invoked again.