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X-N (A Child) [2014] EWCA Civ 1775

Father’s appeal against a decision to permit the mother to take their daughter to China for a 4 week visit

The mother was of Chinese origin and the father originated from this jurisdiction.  Their daughter J is aged 4.

In October 2013, at a contested hearing, an order was made preventing either party from removing J from the jurisdiction without the permission of the other party or the court.  A transcript of that judgment was not obtained, so later courts considering the matter were not aware of what, if any, findings lay behind the order. The matter was then heard by Baker J for directions and a short final hearing thereafter.

The Court of Appeal noted the difficulties due to the parties being litigants in person, leading to the evidence presented to Baker J being incomplete. The trial bundle did not include earlier statements which had been filed and it was disputed as to whether evidence produced from the mother by a lawyer in China about possible safeguards was before Baker J, particularly as the documents were not referred to in the judgment.  At the final hearing (lasting about 2 hours) there was short oral evidence from the mother and no sworn evidence from the father.

Having regard to the guidance in Re R [2013] EWCA (Civ) 115, Baker J accepted the mother's evidence that she did not intend to abduct J to China and that she is settled in this jurisdiction.  He concluded that there was no reliable evidence of any risk of abduction.  Although the consequences would be very serious if there was a breach of the order, because the risk was negligible, he did not consider that the consequences were a significant factor in this case.  In order to give reassurance to the father, he would accept an undertaking from the mother to lodge her and J's passport with the Chinese lawyer for the duration of the visit and concluded it would be in J's best interests to visit China.

In considering the appeal, the court reiterated the guidance in Re R, which noted that clear reasons should be given when a judge proceeds without expert evidence as to safeguards in a non-Hague Convention country.  Further, when considering temporary removal to a non-Hague Convention country, consideration should be given to the:

1. magnitude of the risk of breach of the order if permission is given,
2. magnitude of the consequence of the breach if it occurs, and
3. level of security that might be achieved through available safeguards.

The father's case was that Baker J dealt with magnitude of risk, but did not adequately consider the second and third issues.  The father disputed that there was expert evidence before the court as to safeguards and no clear reasons were given for granting the application without expert evidence.  The father claimed to have cogent evidence to support his contention that there was a high risk of the mother retaining J in China and that Baker J did not fully grapple with this factual issue in the case.

The court was concerned about the way in which the final hearing unfolded, in that the father made allegations of a real risk of abduction but the oral evidence was limited to brief evidence from the mother and no sworn evidence from the father.  Further, previous statements filed were not included in the bundle before Baker J.  As a litigant in person, it was not unreasonable for the father to believe that previous documents filed would be before the court and that the court would be aware of the reasons for the court's determination of the issue in October 2013.

The court concluded that this situation was likely to have arisen due to both parties being litigants in person and the court was inadvertently led into a process that was not designed to get to grips with the factual disputes about the risks of abduction.

It was important for the decision to be based on a sound factual basis, taking account of all the evidence and for the father to feel that his case was fully heard.  The way in which the proceedings unfolded meant that there was no reliable fact-finding process addressing the father's allegations of threats of abduction.

The judge did not fully engage with the three issues set out in Re R, in that he used his conclusion about the mother's overall trustworthiness to diminish the consequences of a potential breach.  There was no analysis of what it would be mean for this child if J was retained in China.  Further, the issue of expert evidence was not fully addressed – whilst there may have been information from a Chinese lawyer before the court, there was no formal instruction of an expert in accordance with Part 25 of the FPR.  In any event, as the documents were not referred to by Baker J in his judgment, there was "more than a lurking concern" that the material was not before Baker J.

The hearing was unsatisfactory in terms of the application of the law and in engagement with the factual issues that would assist the court in determining where J's welfare interests lie.  As the guidance in Re R is to approach granting leave to non-Convention countries with caution, the appeal was allowed.  Rather than remitting the matter for rehearing, the whole process should be restarted by a fresh application if the mother wished to make one.  The order by Baker J was set aside and the previous order of October 2013 was to remain in force, namely that neither party should remove J from the jurisdiction without the permission of the other or leave of the court.

It was noted that had the parties had proper legal representation earlier in the proceedings, it may have obviated the need for long proceedings below or the necessity for an appeal.

Summary by Ariel Ricci, barrister, Coram Chambers.




Neutral Citation Number: [2014] EWCA Civ 1775

Royal Courts of Justice
London, WC2A 2LL

Tuesday, 25 November 2014

B E F O R E:


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1. LORD JUSTICE McFARLANE:  This is an appeal from a decision made by Baker J, on 13 June 2014, which determined an application made by the mother of a 4 year old child to take her daughter to China for a visit of some 28 or 30 days duration.  The judge agreed that that was in the child's interests and he made an order accordingly.  It is against that order that the father now seeks to appeal.  He comes to this court following grant of permission to appeal at an earlier stage.  I granted permission because of concerns raised in the father's grounds of appeal as to the judge's approach when set against the recent guidance given by this court in the case of Re R [2013] EWCA (Civ) 1115; a point to which I will return in due course. 

2. Before doing so it is necessary to say something of the background.  The mother is of Chinese origin; the father originates from this jurisdiction.  The couple met in 2004 and the mother, shortly after that, commenced her settled employment with a company in the area in which she lives, with whom she continues to be employed.  The child, a girl J, was born on 24 January 2010 and therefore she is now aged 4¾ years.  From time to time, during the period that the couple were together, they travelled either together or at least the mother travelled with J to China to see the maternal family.  Soon after the marriage in August 2010 the mother became a UK citizen and I think it is accepted, and certainly we have now seen some legal opinion to this effect, that upon obtaining UK citizenship the mother will have had to relinquish her Chinese citizenship and her Chinese passport.

3. The visits that J made to China during the happier times when the family were together were undertaken with the father's consent.  The parties separated in November 2012 and the mother subsequently entered into a new relationship with her current partner.  There have unfortunately been difficulties between the parents following the separation, both as to the ordinary arrangements for the time that J should spend with each of her parents (her primary home being with the mother), but also on the question of what, if any, foreign travel outside England and Wales J might have with her mother and, in particular, whether or not J could go to China for a holiday with the mother.

4. It is not necessary for me to chronicle precisely the applications and orders that have been made, but the most significant seems to be that of HHJ Marshall, made on 31 October 2013, following what the father tells us was a contested application concerning whether or not J should be removed from the jurisdiction by the mother.  The conclusion of that hearing was an order by HHJ Marshall preventing either party from removing J from the jurisdiction without the permission of the other party, or of the court.  Unfortunately both Baker J and this court are without the benefit of a transcript of HHJ Marshall's judgment on that occasion and we do not know what, if any, findings she made as to the factual basis upon which her order might be based.

5. Be that as it may, the mother, for understandable reasons, continued to prosecute an application for leave to take J out of the jurisdiction to go to China.  The question of whether that should be heard by HHJ Marshall, as the Designated Family Judge for Swindon, or at High Court level was determined and the upshot was that it was agreed that Baker J, as the Family Division Liaison Judge for the Western Circuit, should take the case.  He seemingly undertook a directions hearing on 16 May and set up a short final hearing for 13 June. 

6. We have been told by Mr Rex Howling QC, who acts today on behalf of the mother, that within the directions that were made on that occasion was one requiring the father to file all such evidence that he intended to rely upon by 9 June.  The paperwork available before Baker J has been a matter of some controversy before this court.  In order to make sense of the points that seem to me to be important in the appeal, it is necessary to descend to some detail.  First of all, the father did indeed file a statement, dated 9 June, which runs to some 18 pages.  We have now seen that document, but it is a document which the father tells us was drawn by his then representative (a McKenzie friend) and it ranges far and wide over matters of principle and argument about the merits of the case, and does not contain any detailed allegation that the father might wish to make to support his contention that there was a real risk in this case that if the mother had the facility of leaving the jurisdiction she might not, or would not, come back.  However, in the course of that statement the father on two occasions cross refers to material that had been filed on earlier occasions.  In paragraph 10 of his statement he draws attention to the fact, which is obvious, that China is not a signatory to the Hague Convention and he refers to:

"some evidence I have earlier presented into court that mother was planning to take [J] abroad in perhaps a surreptitious manner." 

Then at paragraph 28 he say this:

"There was a period (winter 2012/13) when I suspected a planned abduction   as per my written evidence provided in earlier hearings, after which all sorts of pejorative wordings were bandied about as I grappled with what if anything I could do to find legal safeguard  ..."

7. Unfortunately we do not have any earlier statements provided by the father, but more important it seems that Baker J did not have any of the earlier material upon which the father sought to rely.  We have seen today what purports to be an index of the bundle filed for the final hearing before Baker J.  The mother was the applicant; the index comes from her.  It is very short when one considers that this couple had been involved in litigation about J for a period of 1 or 2 years prior to that point.  It does not contain any of the earlier statements that they may have filed, and under the heading "Other Evidence" in section D it includes the following documents, namely two communications from a lawyer in China: one dated 30 May 2014 and the other dated 11 June 2014.  Those documents are significant because they represent material which the mother says she placed before Baker J.  They follow an earlier document, which it is accepted was before the judge, in which the same lawyer explained that the concept of a "mirror order" was not something that could be pursued under the civil law in China and therefore, as an option to safeguard J's safe return to this jurisdiction, it was not an option to be considered in this case. 

8. The two subsequent letters, to which I have referred, 30 May and 11 June, are dealing with the following two separate matters.  In the first one the firm of solicitors confirms that, if required to do so, they would be prepared to hold the passport of the mother and daughter during the period that they were in China.  The second letter deals with the mother's status as a visitor to China should she decide to overstay the duration of the short visitor visa which would allow her admittance to that country.  The letter explains that if the mother were to stay for more than 10 days after the conclusion of the period sanctioned by the visa, then she would be subject to a fine, which would continue for a period, and also she might be expelled from the country together with her daughter and prohibited from re entering for a period of 10 years.  The letter goes on to explain that overstaying in China would be regarded as an offence and that any person, including the father, could report the offence to a police officer in China to achieve enforcement of the mother's removal.

9. Those two documents have achieved some prominence in the hearing before this court today because, contrary to the mother's assertion, the father says he had simply never seen them before receiving them a day or two before this hearing.  The mother counters, through Mr Howling, that the documents plainly were disclosed, partly because they are referred to expressly in detailed settled "Written Submissions" prepared by the mother or by her McKenzie friend, both parties being litigants in person before Baker J and dated 12 June 2014, and also because they appear in the index which the mother claims was before Baker J.  She claims, although it has not been possible to produce a hard copy of it before this court, that she emailed a copy of the index at lunchtime on the day before the hearing to the father.

10. What is interesting about these two documents, as I will explain in a moment, is that neither of them is referred to at all by Baker J in his judgment.  The hearing, we are told, lasted for some two hours or so and the judge went on, after a pause for reflection, to deliver a short extemporare judgment.

11.  The judgment itself is likely to be available in transcription under [2014] EWFC 17, and I certainly do not intend to quote extensively from it.  Much of the early part of the judgment rehearses the factual background (both procedural and domestic) as it was before the judge, and rehearses the position of the two parties: the mother obviously seeking permission to go to China, the father being firmly against it.  The judge at paragraph 19 then describes the substance of the hearing.  He say this: 

"19. At this hearing today the mother's given evidence and I was able to ask questions and gauge her responses and form a view as to her reliability. The father also was able to ask her a few brief questions. The mother totally refuted the idea that she was involved in moving, channelling or laundering international funds. She insisted that she is a British citizen, settled here, plans to return and has no intention of abducting J. The father did not give evidence but he made a further oral statement, all of which I have taken into account." 

Again both parties confirm that this is, in broad terms, a description of what took place. 

12. The father claims to have with him his handwritten script, which he recalls he read out effectively word for word to the judge.  I do not think Mr Howling has seen that document, my Lords and I certainly have not, and we only have the father's assertion that within that lengthy oral statement he rehearsed his "story" (to use his phrase) going back to the beginning of the difficulties between this couple and including some, if not all, of the allegations that he seeks to make about what the mother has said and what she has done, from time to time, that leads him to believe that she does intend, if given permission, to keep J out of the country and to settle, if possible, in China.

13. In his judgment the judge goes on to rehearse, entirely correctly, the relevant case law and he quotes the key passages from Re R, to which I will refer in a moment.  Then he states his conclusions in the following terms:

"23. Having heard the mother give evidence in this case I entirely accept her evidence. I am entirely satisfied that she is telling me the truth when she says that she does not intend to abduct J, that she and J are British citizens and are going to live here. She is in a good job, has a new relationship with a British man who lives here. J is enrolled in primary school here.

24. Having heard her I am very confident that she is telling me the truth. There is in my judgment no reliable evidence of any risk of abduction in this case. Accordingly I consider the risk of any breach of the order to be negligible. I accept that were a breach to occur and were the mother to fail to return J to this country at the conclusion of the holiday, the consequences would be very serious. But as I think the risk of that happening is negligible it seems to me that the consequences of any breach are not a significant factor in this case.

25. The mother has a house here and if she were to fail to return J to this country steps could be taken against that property. In addition, the mother is willing to offer to lodge her passport with a Chinese lawyer who has named and identified and agreed to hold the passport and J's passport on arrival in China pending their return.

26. I do not consider that the level of risk requires any such safeguards but if it would provide reassurance to the father, as I think it may, I would accept an undertaking by the mother to lodge her passport and J's passport with the Chinese lawyer for the duration of the stay in that country. 

27. Looking at J's welfare as a whole, I consider it is unquestionably in her best interests to see her family, to travel to China this summer. It is important that she keeps in contact with her family and with her Chinese heritage, particularly as her grandfather is unfortunately not in good health. I am sure it would be an exciting trip for J and something that would greatly benefit her. There is, I find, no risk of harm befalling her as I am confident that she will be returned."

14. It is plain from what the judge says in paragraph 24 that he formed a very favourable view of the mother in terms of her trustworthiness, and similarly he rejected on the basis that there was "no reliable evidence" of any prospect of abduction in this case.  He therefore went on, in short terms, to grant the order. 

What is the appeal about?
15. The grounds of appeal, as I have indicated, which led me to grant permission to appeal, were based firmly upon this court's guidance in Re R.  It is therefore necessary to rehearse briefly the key passages in the judgment of the Court of Appeal in that case.  Although the judgment was given by Patten LJ, it was a judgment of the full court to which the other two members, including myself, agreed and it was based upon earlier case law.  The key passages are, first of all, dealing with the need for expert evidence in paragraph 23 of the judgment:

"...Although, in common with Black LJ in Re M, we do not say that no application of this category can proceed in the absence of expert evidence, we consider that there is a need in most cases for the effectiveness of any suggested safeguard to be established by competent and complete expert evidence which deals specifically and in detail with that issue. If in doubt the Court should err on the side of caution and refuse to make the order. If the judge decides to proceed in the absence of expert evidence, then very clear reasons are required to justify such a course.
25. As the quotation from Thorpe LJ's judgment in Re K (see paragraph 19 above) confirms, applications for temporary removal to a non Convention country will inevitably involve consideration of three related elements:

a) the magnitude of the risk of breach of the order if permission is given;

b) the magnitude of the consequence of breach if it occurs; and

c) the level of security that may be achieved by building in to the arrangements all of the available safeguards.

It is necessary for the judge considering such an application to ensure that all three elements are in focus at all times when making the ultimate welfare determination of whether or not to grant leave."

16. The argument put forward by the father is straightforward.  He submits that there were three factors the judge was required to have in mind at all times: (a) the magnitude of the risk of breach of the order; (b) the magnitude of the consequence of breach if it occurs; and (c) the level of security that might be achieved by building into the arrangements all of the available safeguards.  He submits that the judge dealt with the first of these in paragraph 24 by finding that there was really no risk of breach of the order, but that the judge failed to give any adequate consideration to the magnitude of the consequence of a breach if one did occur, and gave no consideration to any security that might be put in place.  The father therefore submits that the judge fell foul of his own self direction with regard to Re R.

17. Secondly, the father submits that there was no expert evidence put before the court in this case and again, based upon what this court said in Re R, the father makes two criticisms: first of all, that the judge did not explain why he was prepared to proceed to grant the mother leave, notwithstanding the absence of expert evidence, and secondly, on the facts of this particular case, the father draws attention to the fact that the judge does not actually refer to the "expert evidence" that the mother claims was before the court. 

18. Those were the reasons that led me to grant permission to appeal.  But, as the hearing today has developed, it is plain that the father claims to have evidence that he thinks is cogent to support his core contention, which is that it is simply not safe to let his daughter go abroad because of the mother's previous statements of intention and previous behaviour, which indicate to him at least that there is a high risk of abduction and a further point therefore on appeal.  It seems to me an important point of appeal for the father to submit that the judge simply did not grasp or grapple with that factual issue in the case, and that therefore his core conclusion, with regard to the mother's overall reliability in paragraph 24, is unsustainable.  I am going to deal with these submissions in short terms and, despite the very clear and helpful submission by Mr Howling in response to seek to dissuade me from the view that I have developed during the hearing, I am afraid that I consider that the father's points are well made in this case.

19. Going to the core submission: the fact finding, I am concerned that for some reason that it is just not possible to understand, given the paucity of information that we have, Baker J was led into conducting a hearing which, given the factual matters that the father relied upon, was one sided and which failed to engage with those very factual matters.  It is odd that the mother gave oral evidence, but that the father was only cross examining her with "a few brief questions".  It is odd that the father was not called to give sworn evidence himself, but was permitted to read out an oral statement and one which he tells us included his factual allegations about her previous behaviour that causes him concern about abduction.  Given that, it is in addition odd that there was no cross examination of the father on these key matters. 

20. This deficiency in the process, as I fear it was, was one that may stem from the directions hearing on 16 May where the father was required to file the evidence that he intended to rely upon and that led him to submitting the statement, to which I have made reference, which only obliquely cross refers to earlier evidence in the case.  As a litigant in person the father may have understood that the court would already have the previous statements, and there may be many in number, in which he set out his stall, as it were, and had given chapter and verse of the matters upon which he relies.  If that was his understanding it would not be an unreasonable one for him to have, but that material simply was not put before Baker J, it seems, from the index we have. 

21. Secondly, the father was entitled to conclude that the court would be aware of the reasons for HHJ Marshall's determination the previous October at the end of a contested hearing.  Again we do not know what that determination was based upon.  It may or may not have included findings of fact about the mother's reliability at that stage, but that material simply was not before Baker J. 

22. The fact that the hearing was imbalanced is to my eyes a surprise, given the experience of this particular trial judge, and, doing the best I can, I can only assume that the fact that both parties were litigants in person, assisted by McKenzie friends who may not have been skilled and aware of what was required, the court was inadvertently led into a process which simply was not designed to get to grips with the factual issues in the case.  That is important for a number of reasons.  Primarily because in the end the decision about J's welfare could only be made upon a sound factual basis.  The judge makes his decision because he formed the view that there was "no reliable evidence of any risk of abduction" and if at the end of the day that is the right conclusion, then obviously a court would look more favourably on letting the child go to China.  However, when the judge has not been exposed to the evidence that the father sought to rely upon, it is difficult to understand how the court could conclude that there was no reliable evidence. 

23. It is important also that the father feels that he has had his case heard by the court and determined, even if he loses.  At the moment he is before this court referring on a number of occasions, as he does, in his grounds of appeal to the evidence that he can bring before the court to show that the mother has threatened abduction on a number of occasions and he still makes that plea.  It is understandable in lay terms why he does so, because there simply has not been a process, at least before Baker J, which has engaged with the allegations he makes and has either found them proved or found them disproved in a reasoned and cogent analysis of that evidence.  So at its start and at its core I am afraid, for whatever reason, this hearing developed in a way which failed to do justice to the issues and allowed the judge to come to a conclusion about J's overall welfare which was not based upon a reliable fact finding process. 

24. I also agree that the other submissions that the father makes,  based, as they are, upon Re R, are established.  The judge does, to my eyes, fall into the trap of using his first conclusion under the three topics in Re R about the mother's overall trustworthiness to diminish his consideration of the consequences of the breach should they come to pass.  The judge notes that the consequences would be "very serious", but he does not list them.  He does not analyse just what would be involved for this child, who has only been to China for short periods of time in her young life, finding herself living full time there and estranged from contact with her father.  The judge also, having noted how serious they are, then immediately goes on to rule them out of his consideration because of his primary finding as to risk.

25. Thirdly, the approach to expert evidence is another matter of concern.  It is the case that the judge simply does not deal with the point made about expert evidence, as it is set out in Re R, and that, to my eyes, is a major deficit in his judgment.  However, when one drills down behind and looks at the point in the case there is a heightened level of concern because of the material, such as it was, that had come from the Chinese lawyer.  What is clear is that no "expert" was formally instructed in the proceedings in accordance with Family Procedure Rules Part 25.  What seems to have happened is that the mother (and indeed also the father) made informal contact with a lawyer or lawyers in China, and on the mother's part had achieved the brief communications, to which I have referred. 

26. The point made in the third communication from the Chinese lawyer, namely that the mother would not be able to stay beyond the expiry of her visa, and if she did the father would be able to contact the authorities, may well be important and may well be in the mother's favour, but it is simply not mentioned by the judge in his judgment.  I have more than a lurking concern that the father may be right that that material simply did not surface in the hearing before Baker J and the father, who seems straightforward in his presentation to us (just as the mother does, if I may say so) is entitled to be taken as reliable, at least at face value, when he says he simply had not seen that material before a day or two prior to today's hearing. 

27. A major part of Mr Howlings' submission in his supplemental skeleton argument, on behalf of the mother, was that the judge had this expert material, that it was reliable and that the judge was entitled to rely upon it.  I am afraid I do not share Mr Howlings' confidence on that point and it is another mystery in the case, but it is certainly another element of the unsatisfactory nature of these proceedings, as they came to be conducted, before Baker J. 

28. So for all those various reasons, I am entirely persuaded that the hearing (and this is not at all to criticise the judge, but it is perhaps a symptom now of a modern world where lay parties, dealing with these complicated and important international matters, come before a judge without proper preparation and without the proper legal focus) before Baker J, for whatever reason, was unsatisfactory both in terms of its application of the law, but also, more importantly, its ability to engage with the factual issues that would assist the court to determine where J's welfare interests lie. 

29. Given the importance of the issue, given the guidance given in Re R as to the default position in these non Hague removal cases, where the court should default to a position of caution before granting leave, I have no hesitation in holding that this appeal should be allowed for the reasons that I have given. 

30. The question then arises: what should happen?  It is possible to contemplate the case going back for a further hearing before Baker J.  Indeed I should have indicated that Mr Howling was critical of the father not bringing the case back before Baker J to invite him to give further reasons.  For my part I think that criticism is not well founded, given the fact that the father was acting in person.  But it seems to me that this whole process needs to be restarted by a fresh application if the mother wishes to make one.  It is entirely a matter for her should she wish to do so.  If she does she will have now had some guidance from this court as to how that should be approached, and the father too will have had guidance as to how he should approach the presentation of the factual evidence that he wishes to put before the court. 

31. I therefore conclude that the right outcome is for us simply to set aside the order made by Baker J with the result that the previous order, namely that of HHJ Marshall of 13 October, will remain in force and, for the avoidance of doubt, neither party is therefore permitted to remove J from the jurisdiction of England and Wales without the permission of the other party, or an order of the court.  That is my judgment. 

32. LORD JUSTICE McCOMBE:  I entirely agree.  For my part, firstly, it seems to me that the structure of this hearing was not such as to enable it to get off on a proper footing.  The case obviously had a degree of history, which unfortunately did not get presented before Baker J in a manner that would have been desirable.  The cross references to earlier evidence, to which my Lord has referred in his judgment, are one aspect of that.  

33. Secondly, I have had concern in relation to the second and third points arising out of the judgment in Re R, namely the magnitude and the consequences of breach and the level of security that might be achieved by arrangements to build up safeguards to protect against any breach or any consequences of breach, were, it seems to me, not adequately explored in the evidence by the parties, who were unassisted by professional legal representation. 

34. Thirdly, it seems to me that the material that emanated from the Chinese lawyers, helpful to the extent that it was, begged many questions and ones which were not capable of proper exploration before the learned judge in a manner that would have been desirable. 

35. It seem to me that this sadly is a symptom, as my Lord has said, of times where people do not have proper legal representation, as they richly deserve, in these complicated cases.  It is not the first time, I am sure, in the members of this court's experience where one feels greatly let down by the absence of proper legal representation, which might have obviated long proceedings below and possibly would have obviated the necessity for an appeal. 

36. For those reasons, and the reasons given by my Lord, I too would allow the appeal and make the order he proposes. 

37. LORD JUSTICE VOS:  I agree.  I too would allow the appeal.