IN THE HIGH COURT OF JUSTICECA 1136/91
FAMILY DIVISION
(IN CHAMBERS)
Royal Courts of Justice
Friday, l7th January 1992
Before:
MR. JUSTICE EWBANK
IN THE MATTER OF C. S. S. (A MINOR)
AND IN THE MATTER OF THE SUPREME COURT ACT 1981
AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
BETWEEN:
J.-J. S.
Plaintiff
and
K. S.-O.
Defendant
Transcribed by:
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MR. H. SETRIGHT (instructed by Messrs. Margaret Bennett) appeared
on behalf of the plaintiff.
MR. B. JUBB (instructed by Messrs. Moore & Blatch) appeared on
behalf of the Defendants.
JUDGMENT
(As Approved by the Judge)
MR. JUSTICE EWBANK: C.S. is 9 years old. In November of last year
she was living in France. On 24th November her mother brought her
to England without discussion with the father. The father then
applied under the Hague Convention for her return to France. The
mother concedes that the removal of the child from France was
wrongful under Article 3 of the Hague Convention and that in the
ordinary way this court would send the child back to France under
Article 12. But she says that Article 13 applies in this case and
that the court ought not to make an order, first of all, because
there is a grave risk that C.S.’s return will expose her to
physical or psychological harm and, secondly, because the child
objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of her views.
This case is unusual because C.S. has in fact had long standing
psychological difficulties. The father and the mother were married
in 1979. The father is French and is 46 years old. He is a
petroleum engineer working for Total and his job has taken him to
various parts of the world and the family have followed him. The
England neither the father nor the mother nor the child have lived
in England. In 1984 the family was in Paris; in 1985 in Norway;
in 1986 in Paris, and C.S. spent two months during that year at
school in Paris; in January 1987 they moved to Norway and they
remained in Norway until March 1991. C.S. went, first of all, to
a French school in Norway for a couple of months but she then
moved to a British school and from September of 1987 until they
left she was being educated at a British school.
Her psychological problems showed themselves at a fairly early
date. I have a report by Dr. Baudoin Chial who is a
neuro-psychological doctor in France. She saw C.S. in the Summer
of 1990, and this is what she says:
“The concern of the parents was that C.S. was
stuttering. One month before the appearance of the
first signs of stammering, at the age of two and a half
years, C.S. and her mother were separated for the first
time. C.S. stayed for two weeks with her paternal
grandmother, who only speaks French. Mrs. S.-O. was the
first to notice that C.S. repeated ‘mummy’ and ‘papa’
two or three times at the beginning of sentences. For
the first six months, repetitions or vocabulary (entire
words) were noticeable. When C.S. was three years old,
her mother noticed hesitations at the beginning of
syllables (palisyllaby).
“According to Mrs. S.-O., C.S. experienced her first
total word blockage (tonic stammering) at the age of
four and a half years. Shortly before that, her mother
had had to be admitted to hospital for two weeks. C.S.
was looked after by her paternal grandmother. This
first blockage was accompanied by a temper tantrum.
Since then, Mrs. S.-O. has noticed four other similar
blockages.
“Associated behaviour patterns:
“Her stammering is associated with tension in
decreasing order at the tongue, chest, lips, jaws, the
larynx and the body as a whole. When she stammers,
other behavioural features are noticeable: C.S. avoids
visual contact, has a fixed stare, blushes or goes
pale, and perspires. Among her ‘disengagement
techniques’, C.S. herself says: “I put my hands over my
face or my ears, I sit on the ground, I jump, move my
hands along my sides, think up movements … new things
every time”. During the assessment sessions sudden arm,
leg, and feet movements were evident, as well as slight
twitching of the nostrils. …..
“Conclusions and Recommendations:
“To this day C.S. manifests a severe clonic-tonic type
stammer for which neuro-psychological and speech
therapy rehabilitation techniques are clearly
essential. This rehabilitation must be carried out
straightaway because she has already formed a stock of
associated behaviour patterns (disengagement
techniques, avoidance techniques) which will only
increase and are just as damaging to communication
skills as the disruption to oral flow.
“It would be preferable for C.S. to speak only her
mother tongue and for French to be re-introduced only
when she has achieved some improvement to her oral flow
in English.”
The Norwegian school had had her since 1987. It was in May 1987
when C.S. was at the French school and stuttering badly that the
mother decided to act on the advice of the neurologist in Paris,
and the advice included learning to read and write in her stronger
mother tongue, English, and that bilingual children should learn
to read and write in one language at a time. The headmistress
said that C.S. gave them cause for concern half way through her
first term, the Autumn of 1987, because of her stutter. Then she
points out, as appears to be the fact, that it is curious to note
that when she went on holiday in August 1991 (although the
Norwegian school of course were not involved then) her severe
stuttering cleared up completely when she went to England.
C.S. was seen by a Dr. Hales, who is a consultant psychologist. He
first saw her in 1990. He refers to what he has described as her
specific learning difficulty or dyslexia but also to the fact that
she can become overloaded when required to remember sequencing and
content at the same time. He pointed out that it is important that
C.S. is not faced with any more language confusions than can be
avoided and he recommends that she is generally taught in only one
language and believes that in her case it should be English. He
saw her again a few weeks ago. I will come back to that shortly.
So the position was that C.S. was living in Norway up until March
1991, being educated at a British school but also speaking French
because her father is French, and she was unfortunately having
this stutter. In March 1991 the father was posted back to Paris.
He had a flat at 80 Palace des Vosges and also a house at
Maisons-Laffitte. They lived at the flat in Paris. In August
1991, as I mentioned in passing, she went on holiday to England.
The father did not come with her but the mother was there.
According to the mother, there was no stuttering. In September
1991 the stuttering started again when she came back to France.
The marriage had been difficult for some years and by the Autumn
of 1991 the mother and father were ready for a divorce. They went
to see lawyers and their lawyers prepared a separation agreement.
This is a deed which the mother entered into voluntarily with the
advice of her lawyers. It provides that the mother should live at
the flat in Paris with C.S. and the father should live at the
house that I mentioned, and that the father should have unimpeded
right of access. It also provided that the father would pay the
mother 9,000 francs per month for herself and the child. There is
no doubt, and it is conceded, that the habitual residence of all
the family at that time was in France. For some reason, which I am
not entirely clear about, because the agreement had been signed on
7th November, the father gave the mother only 6,000 francs instead
of the 9,000 francs. I do not believe that he was intending not to
honour the agreement but it was just the fact that the payment was
in the middle of the month, as I understand it. But it upset the
mother a great deal because she ran out of money later in the
month.
On the Friday 22nd November she says she had no money. The father
came around. There is no agreement about what actually happened on
that occasion but it is apparent that the mother told the father
that she had no money and that he certainly did not give her any
money on that occasion. The following day, in a turmoil about
money, the mother decided to sell her rings and she sold them for
about 250 [pounds]. This was all her jewelry, as I understand it.
It was a precipitive thing to do but she thought it was necessary.
When she woke up on Sunday morning, 24th November, she says she
felt depressed and decided she had to get out of France.
The reasons she gave me in evidence were these: first, she feared
violence from the father. That is an aspect of the case which was
not looked into at all. Secondly, she felt intimidated financially
because the father had not given her the full maintenance.
Thirdly, she had no friends in France. And then, I thought as an
afterthought, she said that then it was because C.S. was
stuttering. So, having got the money from selling the rings, she
took the bus to Le Havre and the ferry over to Southampton which
is where her family live. She came to England and still lives in
England with C.S.. She did not discuss the matter with the father.
It was a unilateral, wrongful, unlawful act, and unlawful by
French law.
The effect of moving on C.S., as far as her psychological problems
are concerned, has been beneficial. I have a report from a speech
therapist, Miss Chappel, who found a series of (inaudible)
features of dyslexia and some hesitations of speech. She has been
put in an English school. They say she has settled in very well.
She is happy and there is no trace of her stutter. What she needs,
says the English head teacher, is a period of stability. The
headmistress of the French school from which C.S. was removed said
in a report that she quickly became aware that C.S. had problems.
She was often absent due to illnesses or indispositions, outbursts
of tears, problems with digestion. She had difficulty adapting to
France and to the French language and these difficulties revealed
themselves in the form of speech difficulties and in writing
difficulties. She was also badly affected by the discord between
her parents. She adds, although I give no significance to this,
that she was very glad to learn that C.S. had left for England
with her mother and had become more settled there. She has no
doubt that so far as her schooling is concerned, everything will
be much better for her in her mother tongue.
With hindsight, I expect everybody realises that it was a mistake
to send C.S. to a French school in Paris. It would have been much
better if they had chosen to go to a school teaching English.
Dr. Hales has also seen her again. He feels that the present
position confirms the findings of the previous assessment. He also
says that C.S. is of a high intelligence and has a mental age of
12. She needs specialised support teaching with a stable and
structured school environment working in English to give her a
chance to make up some of the lost ground in her mainstream
educational experience.
I said the mother was precipitive in selling her rings. I say that
because the father in fact posted a cheque to her for the next
month’s maintenance on the Monday. The father did not know of the
mother’s disappearance until about the Wednesday. The mother came
to England at first light on Monday morning and one of the first
things she did was to go to solicitors and issue a divorce
petition against the father. She obtained some ex parte orders
relating to the child but they were all stayed pending the
application under the Hague Convention. The father issued his
originating summons under the Child Abduction and Custody Act 1985
on 20th December.
The first limb of the mother’s opposition is that there is a grave
risk that her return will expose the child to psychological harm,
and there is authority for saying that a risk of psychological
harm means more than an ordinary risk. I take it to mean there has
to be a grave risk of substantial psychological harm. The case I
am referring to is Re A [1988] 1 FLR 385.
The father says this is not a case where he is asking that C.S.
should come to him and go to a French school and resume the
unsatisfactory psychological situation she was in before. He is
suggesting, he says, that the mother should come back and this
time she should go to an English school. In any event, he says,
the purpose of the return is merely so that the proper court,
which is the French court, should be able to decide what is the
proper course. The French court will be able to decide whether she
should live in France with the mother or in England with the
mother, or whatever else may be appropriate.
There is a risk obviously of some psychological harm in moving
C.S. in the circumstances to France but I have to say, looking at
the picture generally, noting that the mother agreed that France
was to be the home on 7th November and that C.S. was to live with
her and made no objection to the French school and that C.S.’s
stutter and psychological problems were not the main reason why
she came to England, I am not persuaded that there is a grave risk
of substantial psychological harm to C.S. in asking her to go to
France while the French court decides what should happen.
The second limb of the mother’s case is that the child herself
objects to being returned and has attained an age and degree of
maturity at which it is appropriate to take account of her views.
The mother’s evidence is that C.S. was horrified at the
possibility of going back to France. Even talking about it
frightens her and she has threatened to run away, she said. There
was no independent evidence of C.S.’s views.
I was invited to see C.S. but on the whole that is usually an
inappropriate step for a judge to take, and I accordingly asked
the Duty Court Welfare Officer, Mrs. Varley, to see C.S.. She did
that and she had, I believe, a long interview with her. She told
me that it was an easy interview in the sense that C.S. had clear
views which she was able to express clearly. She said that C.S.
does not want to go back to France; she feels great in England.
She was miserable at the French school, like a fish out of water.
She said being forced to speak French made her stammer. She said
also that she feels under pressure from her father to do remedial
work. There was a suggestion from the mother’s side that a child
psychiatrist should be involved to look into this matter, but the
Court Welfare Officer said there was no indication at all that
C.S. was a disturbed child and I accordingly refused that
application. Mrs. Varley said that C.S. made a most impassioned
plea to be allowed to stay with her mother in England and, for her
part, she would give weight to her views. I mentioned that Dr.
Hales assessed her mental age as about 12.
Accordingly, I have to decide whether the age and maturity of C.S.
makes it appropriate that I should take account of her views. To
some extent, of course, I have to see what those views are and
what they entail. It seems to me that the view she has put
forward, looking at the whole circumstances of her life, is a
mature and rational view which seems to be based on genuine and
cogent reasons. I would go further and say I think it is probably
in her best interests. I am not entitled under the Hague
Convention to consider the best interests of the child in the
ordinary way, but in deciding whether the views are mature, if
they coincide with what seems to me to be the best interests of
the child, I am entitled to take that into account in assessing
her maturity. In my view the view she has formed is an intelligent
and sensible decision. Accordingly, I am in a position where I may
refuse to order the return on that ground. Since my own
preliminary assessment of the case is that, at any rate, at this
stage C.S. should remain in England with her mother, I refuse to
make the order under the Hague Convention.
MR. JUBB: My Lord, a number of matters, I think, will flow from
your Lordship’s judgment.
MR. JUSTICE EWBANK: Would you like me to adjourn for a short
time?
MR. JUBB: Yes, my Lord.
(The court adjourned for a short time)
MR. JUBB: So far as the proceedings in which your Lordship has
just given judgment are concerned, I would ask for a formal
dismissal of those proceedings and ask your Lordship not to make
any order as to costs save that there be Legal Aid taxation for
both parties’ costs.
MR. JUSTICE EWBANK: Yes.
MR. JUBB: I now, if I may, move to another matter. May I just
indicate that my learned friend appears on behalf of his client
but it should not, as I understand it, be taken that he is
submitting to the jurisdiction. I, on behalf of my client, have no
objection to his taking that stand at this stage. Of course it is
entirely a matter for your Lordship.
Those instructing me have now obtained a Legal Aid certificate to
enable me to apply to make C.S. a ward of court. I will be asking
your Lordship this afternoon to confirm a wardship and I will give
an undertaking that we will issue an originating summons forthwith
– it may not be possible to do it this afternoon but certainly by
the end of Monday – for the matter to be heard in the Principal
Registry. The reason that we ask your Lordship to confirm the
wardship is that it is felt by those instructing me and myself
that, bearing in mind the international flavour of this case and
bearing in mind also that the divorce proceedings have been stayed
and that the last order terminated on 8th January, it would be
preferable for this matter to be dealt with in London and in the
wardship jurisdiction.
MR. JUSTICE EWBANK: As opposed to France you mean?
MR. JUBB: No. As opposed to dealing with it under the Children
Act.
MR. JUSTICE EWBANK: Alternatively, the Paris court can deal
with it.
MR. JUBB: My Lord, there is always that but my submissions
that it is would be preferable —-
MR. JUSTICE EWBANK: Are there not proceedings already in
existence?
MR. JUBB: There have been proceedings in this country too in
Southampton.
MR. JUSTICE EWBANK: More recent ones.
MR. JUBB: Perhaps in a sense, but in fact, as I understand it,
there have been even more recent ones in this country since the
last order should have been made on the 8th. There was a hearing
but then plainly the matter was stayed and the court was unable to
take any further proceedings. My submission would be that
certainly so far as C.S. was concerned – and it may only be an
interim measure – in order to give effect to C.S.’s position,
bearing in mind that your Lordship has been the first judge to
deal with the matter as a substantive matter, it would be right
for this case to be a wardship in your Lordship’s court, because I
would be asking your Lordship to reserve it to yourself if
available.
My Lord, the orders that I would seek in the wardship would be
that the interim care and control of C.S. be committed to my
client who would therefore become the plaintiff; that the child
reside in South Dean Road at her mother’s present address; that
there be reasonable access and, further, that so far as the
previous proceedings are concerned, I would ask your Lordship to
direct that there be a transcript at public expense because
plainly if your Lordship was not available for any reason and
there was something that needed to be dealt with, then at least we
would know your Lordship’s views and findings and those could be
placed before the judge and, indeed, even if this matter
eventually might be heard in France, your Lordship’s views and
judgment might be of assistance to the French court as well; I
know not. But I would ask for a judgment at public expense. My
client is on Legal Aid with a nil contribution.
So far as reserving it, I have already mentioned that and would
ask your Lordship to reserve it to yourself. Those instructing me
will take out the first appointment in the usual way. It may be
that other proceedings are taken, I know not, but I ask that your
Lordship confirm the wardship merely in fact to give C.S. some
proceedings in this country which in fact control, if I may put it
that way, her situation and give some direction to it. Otherwise,
in my submission, there is really in effect a vacuum.
MR. JUSTICE EWBANK: There is nothing the Children Act which
affects this type of the case?
MR. JUBB: No, my Lord.
MR. JUSTICE EWBANK: Just carry on as you would have done under
general law?
MR. JUBB: Indeed, my Lord.
MR. JUSTICE EWBANK: Does a child have to have a guardian ad
litem?
MR. JUBB: My Lord, the child can have a guardian ad litem and
indeed the Official Solicitor could be invited to act.
MR. JUSTICE EWBANK: Only in public law cases you have to?
MR. JUBB: My Lord, under the Children Act the answer to that is
yes. Of course in those circumstances the guardian is a very
different form of guardian, if I may use that expression.
MR. JUSTICE EWBANK: The Official Solicitor continues as a
guardian in wardship in the same terms as he has been in the past?
MR. JUBB: My Lord, that is my understanding, yes. Indeed, I think
he anticipates that his role in wardship in the future will purely
be in the private field. He only retains his —-
MR. JUSTICE EWBANK: All the things we have been seeing relate to
public law, the Official Solicitor being able to give advice to
quardians ad litem.
MR. JUBB: Indeed, my Lord.
MR. JUSTICE EWBANK: They do not affect the private law?
MR. JUBB: As I understand it, not, my Lord. Those are my
submissions.
MR. JUSTICE EWBANK: Yes. Mr. Setright?
MR. SETRIGHT: My Lord, as my learned friend says, I am here
instructed by the central authority in the child abduction
proceedings which now end and, for reasons which are probably
amply clear to your Lordship, where there is a potential conflict
of jurisdictions, the father must consider his position so far as
proceedings in the English jurisdiction are concerned. Therefore I
do not in any sense stand in the way of what my learned friend
seeks to do but I invite your Lordship either to disregard my
presence in your Lordship’s court —-
MR. JUSTICE EWBANK: I think the father will be pleased if you
speak for him, will he not?
MR. SETRIGHT: I think he will but I hope your Lordship will
accept that when I address your Lordship I do so without
committing him to this jurisdiction and without taking part
MR. JUSTICE EWBANK: Have you any alternative if the child is
in England?
MR. SETRIGHT: That is a matter that he must consider, my Lord.
MR. JUSTICE EWBANK: There is nothing to consider really. If the
child is in England, the English court is bound to have
jurisdiction, just as if the child is in France the French court
is bound to have jurisdiction.
MR. SETRIGHT: Your Lordship’s pronouncement carries weight with
me.
MR. JUSTICE EWBANK: Good.
MR. SETRIGHT: But, my Lord, I am bound by my instructions and my
appearing before your Lordship —-
MR. JUSTICE EWBANK: He is battering his head against a brick wall
if he thinks that the English court somehow could be circumvented
on a jurisdiction point; a child who is British by nationality and
who is in England.
MR. SETRIGHT: My Lord, it may be that in due course and in fairly
short course that is the view that he takes. Of course he must
decide whether he should seek to canvass some aspects of your
Lordship’s judgment just given with the Court of Appeal.
MR. JUSTICE EWBANK: Of course. That is understood.
MR. SETRIGHT: That is a decision which he would hope to reach
very shortly.
MR. JUSTICE EWBANK: Yes.
MR. SETRIGHT: After that his decision so far as submitting to the
English jurisdiction is concerned may become a much clearer one
but for the moment it is not made and he has not submitted to it.
But, that having been said, there are no submissions at all that I
wish to make. By the same token I neither do nor say anything
which stands in the way of the solution to the immediate
difficulty which my learned friend has suggested.
MR. JUSTICE EWBANK: What about access?
MR. SETRIGHT: My learned friend has suggested reasonable
access.
MR. JUSTICE EWBANK: He has contact through this wardship now.
MR. SETRIGHT: That is an interesting point, my Lord, and an
arguable one.
MR. JUSTICE EWBANK: It is not worth arguing about.
MR. SETRIGHT: One day no doubt it will be, but not today. Your
Lordship can make Children Act orders in my suggestion (and I am
now simply assisting your Lordship, I hope) as well as making the
orders that could formally be made, so the nomenclature perhaps
does not matter but your Lordship is likely to know better than do
I.
MR. JUSTICE EWBANK: Does he want anything more clear than
reasonable access?
MR. SETRIGHT: No, my Lord.
MR. JUSTICE EWBANK: When did he last see C.S.?
MR. SETRIGHT: My Lord, the last formal access period was after
the 23rd December.
MR. JUSTICE EWBANK: Does he want to see her before he goes back
to France?
MR. SETRIGHT: No, my Lord. He has to go back directly. He of
course saw C.S. briefly outside court yesterday. If the father
submits to the jurisdiction in due course, then no doubt there
will have to be further consideration of this matter in wardship,
unless matters can be agreed.
MR. JUSTICE EWBANK: I was very sorry that they were not agreed. I
have no idea what the agreement was.
MR. SETRIGHT: Indeed, my Lord.
MR. JUSTICE EWBANK: It is probably best I do not know.
MR. SETRIGHT: It might be, my Lord. I have helped your Lordship
to a very limited degree.
MR. JUSTICE EWBANK: Yes. Very well. What about service of the
originating summons in the wardship?
MR. SETRIGHT: My Lord, that must be a matter for my learned
friend, I think, for the moment.
MR. JUBB: Would your Lordship give me leave to serve the
originating summons outside the jurisdiction?
MR. JUSTICE EWBANK: Yes.
MR. JUBB: By post at Maisons-Laffitte?
MR. JUSTICE EWBANK: Is that all right, so far as he is
concerned? Does he want someone to come to the house and hand it
to him or is he happy to have it done by post?
MR. SETRIGHT: Service by post, my Lord.
MR. JUSTICE EWBANK: Yes. Leave to serve out of the jurisdiction
by post to Maisons-Laffitte. Wardship, undertaking to file the
originating summons by 4.00 p.m. on Monday. Leave to serve out of
the jurisdiction by post at that address. Interim care and
control to the mother. The child not to removed from England
without an order of the court. Reasonable access to the father.
Reasonable access to the father – is that envisaged that it should
be in France?
MR. JUBB: My Lord, initially in England.
MR. JUSTICE EWBANK: There is no reason in the long term why it
should not be in France?
MR. JUBB: No. I quite agree, my Lord. I would hope that certainly
by the first appointment we would know what the position is going
to be vis-a-vis whether my learned friend is going to be appealing
or whether in fact he will be submitting to the jurisdiction. But
certainly in principle may I say now that the mother has no
objection to access taking place outside England.
MR. JUSTICE EWBANK: Reasonable access in principle, no objection
in principle to access outside?
MR. JUBB: No, my Lord.
MR. JUSTICE EWBANK: That of course depends upon getting the
mirror order, I expect.
MR. JUBB: Yes, my Lord. The only thing is that, as I am sure your
Lordship well remembers from times when wardships were rather more
common, there was usually an undertaking given by parties that the
child would be returned to the jurisdiction when called upon to do
so. The difficulty is that the father is not in a position to
give that undertaking.
MR. SETRIGHT: My Lord, it is likely realistically that before any
access overseas takes place, the father will have made his
decision on any appeal and the matter can be dealt with.
MR. JUSTICE EWBANK: Yes. I would envisage a mirror order if you
get to that stage. Anything else?
MR. JUBB: Will your Lordship reserve it to yourself?
MR. JUSTICE EWBANK: Yes.
MR. JUBB: I am most grateful. Also the transcript.
MR. JUSTICE EWBANK: Yes, I think so. Transcript at public
expense.
MR. JUBB: I am most grateful. Finally I would not ask for an
order for costs save for Legal Aid taxation in relation to the
wardship.
MR. JUSTICE EWBANK: Yes.
MR. JUBB: My Lord, I am most grateful.
\__________________ END OF FAMILY COURT DECISION_________________/
____________________START OF APPEAL COURT DECISION______________
/ \
Constitution:
Lord Justice Glidewell
Lord Justice Balcombe
Mr. Justice Boreham
S v S [1993] 1 FCR 12 (CA 7 Jul 92)
Re S. (A Minor)
JUDGMENT
11 Jul 1992
Lord Justice Balcombe.
This appeal, from an Order of Ewbank, J. made on 17 January 1992
whereby he dismissed an application under the Hague Convention on
the Civil Aspects of International Child Abduction for the return
to France of a 9-year old girl, raises once again a question under
Article 13 of that Convention. The judgment that follows is that
of the court and we repeat the direction given during the course
of the hearing that nothing should be published which may identify
the child concerned.
The child, C.S., was born on 9 August 1982. Her mother is
English, aged 48; her father is french aged 46. The father is a
petroleum engineer whose work takes him to many parts of the
world. The parents met in Indonesia, where the mother was working
as a secretary with the United Nations. They married in England
in 1979. When the mother became pregnant with C.S., their only
child, they were living in Borneo. The mother came back to
England for her confinement, and spent a few months in England
after C.S.’s birth, but then returned with C.S. to the father in
Borneo. In September 1984 the family moved to Paris, France; in
September 1985 the family moved to Harstad, Norway. In November
1986 the family moved back to Paris and C.S. spent two months in a
French school; in February 1987 C.S. attended a French school; in
February 1987 they moved to Stavanger, Norway. From February to
June 1987 C.S. attended a French school in Norway; from September
1987 until they left Norway in March 1991 C.S. attended the
Stavanger British School. In March 1991 the family returned to
Paris as their home where they lived in a flat in the Place des
Vosges; there is also a house at Maisons-Laffitte, just outside
Paris. Apart from he short time after her birth, and for
occasional holidays since, C.S. has never lived in England.
Unfortunately C.S. has long-standing psychological problems.
These have manifested themselves in speech difficulties —
stammering and stuttering — and it was as a result of the advice
of a French speech-therapist that C.S. should be educated in her
stronger mother tongue (English) that C.S. was moved to the
British School in Stavanger. This advice has been confirmed by
the reports of the psychologists, both French and English, which
were put in evidence by the mother. These reports shows that C.S.
has a high IQ and the mental age of a child of 12; she also
suffers from dyslexia, although the problem is not acute.
On the family’s return to Paris in March 1991 C.S. was sent to the
local school near the flat in the Place des Vosges, and she
attended that school until the mother brought her to England on 24
November 1991. A letter from the headmistress of that school,
addressed to whom it may concern, was also in evidence, from which
it is clear that C.S.’s speech and other problems were very
apparent to the headmistress, and that C.S. was also affected by
the dissensions between her parents. The marriage had been in
difficulty for some years and by the autumn of 1991 the parents
were ready for a divorce. On the advice of their lawyers they
entered into a voluntary deed of separation, which provided that
the mother should live in the Paris flat with C.S., while the
father should live in the house at Masons-Laffittes, with an
unimpeded right of access to C.S.. The deed made provision for
the financial maintenance by the father of the mother and C.S..
The deed was signed on 7 November 1991 and in accordance with its
provisions the father moved out of the Paris flat on Saturday 9
November 1991. On the same day he gave the mother a cheque for
6,000 French Francs, maintaining that a third of the moth had
already elapsed. Whether or not this was correct, the fact is
that the mother had run out of money by 22 November. The father
refused to give her more, the mother sold her rings for about 250
pounds, and she then decided to leave France with C.S.. This she
did on Sunday 24 November, and she came to England, to the
Southampton area where her family lives, to a house forming part
of the estate of her deceased mother and which belongs
beneficially to her sister and herself. She immediately put C.S.
into the local junior school, and that position has continued up
to the present time.
On 20 December 1991 the father made an application for the return
of C.S. under the Child Abduction and Custody Act 1985, by which
the provisions of the Hague Convention are incorporated into our
domestic law, and it was that application which came before
Ewbank, J. on 15 January 1992 and which resulted in the order from
which the father now appeals. Before the judge it was common
ground, as it was before us, that the mother’s removal of C.S. was
wrongful under Article 3 of the Hague Convention, and that prima
facie the Court was bound to order the immediate return of C.S. to
France under Article 12. The issues before the judge were whether
he had a discretion not to order C.S.’s immediate return under
Article 13, and, if so, whether he should exercise the discretion
in favour of allowing her to stay here. The two grounds under
Article 13 upon which the mother relied were:
(i) under paragraph (b), that there was a grave risk that C.S.’s
return would expose her to psychological harm. The judge rejected
this ground and, although it was raised again by the mother in her
respondent’s notice on the appeal, as well as an alternative
ground under paragraph (b) that C.S.’s return would place her in
an intolerable situation, these grounds were expressly abandoned
before us by the mother’s counsel, Mr. Alla Levy, Q.C.
Accordingly we do not consider them further.
(ii) That C.S. objected to being returned and had attained an age
and degree of maturity at which it was appropriate to take account
of her views. This was the ground upon which the judge relied in
refusing to order C.S.’s return to France.
The mother’s affidavit was largely devoted to C.S.’s psychological
problems and her learning and language difficulties but it
included the following passages:
“On many occasions C.S. has indicated to me that she
does not wish to return to France . . . C.S. has
expressed extremely strong feelings about returning to
France, and she has an age and degree of maturity where
it would be appropriate to take account of her views.”
There as no independent evidence of C.S.’s views, but the judge
was invited to see C.S.. He took the view that it would not be
appropriate for him to do this, but he asked the duty Court
Welfare Office, Mrs. Varley, to do so. Mrs. Varley had a long
interview with C.S. and gave her report orally in evidence to the
Court. In view of the importance of this report we set out below
the relevant passages form the transcript of Mrs. Varley’s
evidence:
“I saw C.S., my Lord, in my office on her own and I
would say as a preamble that she is a very fluent and
sophisticated conversationalist. It was very easy to
interview this child, so much so that she would see the
drift of my question and pre-empt them with an answer.
I would sum up what she said to me in her own words.
She said would I tell the judge really, really strongly
that she does not want to go back to France. She does
not want to go back to France because she feels great
in England, was how she put it.
Q. [Mr. Justice Ewbank] She feels great in England?
A. Yes. She had obviously had a miserable experience
going to school in France, from her own account. She
said she felt awkward and like a fish out of water at a
French school. She tried to illustrate that by saying
that ‘Two won’t go into seven’. That was her way of
illustrating that, that she felt so out of place. She
said that being forced to speak in French, she thought,
brought on her stammer which made her feel bad. She
illustrated on how going from France to a holiday in
England her stammer had almost miraculously gone at the
airport, and she sees that as a sign of how much
happier she feels speaking English. She felt under
pressure, she said, from her father while she lived in
France, to I suppose, do some sort of remedial work to
catch up in the French school system and so that was a
sad experience for her too. She made a very, very
emotional plea that she feels more at ease i England
and she feels it is more natural for her to speak
English and to be be English . . . . .
Q. Did you have any feeling that the view she was
expressing, an impassioned plea put into her mouth by
her mother or was she expressing her own views?
A. I certainly did not think they were rehearsed, my
Lord. She was able to separate, when I led her that
way, the feelings of a parent and as a child. She
could appreciate that children are influenced by their
parents’ views, but she seemed to feel quite strongly
that she was not.
Q. Did you think that she was mature enough for her
feelings to be taken into account by this Court?
A. Well, she is certainly intellectually mature enough
to know what the situation is that she is in.
Emotionally she is still a child of that age. She is
still emotionally very fragile.
Q. But would you give weight to her views?
A. Yes, I would. I think she feels very strongly a
dread of going back to France and she feels more
comfortable in England.”
In the light of the arguments that were presented to us by Miss
Patricia Scotland, Q.C. on behalf of the father, it will be
convenient to record that the mother, in her evidence, accepted
that it would be appropriate for C.S. to spend prolonged periods
of staying access with the father in France, and also to set out
certain passages from the father’s oral evidence:
Q. (In chief) You have heard the oral report of the
Court Welfare Officer this morning, have you not?
A. (No audible reply).
Q. Is there anything that you want to say about that,
having heard it?
A. No. I am happy to know anyway that C.S. is happy
to be in England, this is for sure — is happy to be at
an English school rather than a French school. If she
is doing well, I am happy for her.
Q. But is it still you wish —-
MR. JUSTICE EWBANK: I do not quite follow what you
mean by that. ‘If she is doing well, I am happy for
her’. You do not mean you are happy for her to stay
here?
A. No. Because I still think that a father/daughter
relationship is more important than feeling better at
school. . . .
Q. (Mr. Setright) You have already dealt with
accommodation. What education would be available to
C.S.? Where would she go to school?
A. The French school was chosen because it was
conveniently 100 meters from the flat. It was where
out daughter had been a couple of months before, four
years ago.
Q. The same school that she had been in some years
before?
A. That is right. But if she prefers to go to British
school, if it is that important, we can always try to
find a solution, Paris is a big town and there are
possibilities for C.S. to go to a fully or partly
English-speaking school.
Q. Have you done any research into that?
A. I have contacted a British school but it is not
conveniently located fro the flat in Paris of the house
in Maisons-Laffitte.
Q. About how far away is it?
A. I have made some investigation and they would be
ready to accept our daughter provided they have
interview with the parents before.
Q. How far away from the Place des Voges is that?
A. I would say it is a good hour and a half’s travel
one way.
Q. But there are some other English schools which you
have not investigated?
A. In Maisons-Laffitte there are schools where there
is possibility to follow English even at a small age.
There is an Anglican church. There is Brownies. There
is quite a small active British community.
Q. So far as C.S.’s future is concerned, what language
or languages had you and your wife felt that she should
speak?
A. It is important that she has both British and
French, so it is important that she keeps both
languages.
Q. Despite the stuttering difficulty, does she speak
French?
A. Yes . . . .
Q. In your view, and of course it is only your view,
knowing C.S. and knowing your wife and knowing the
living circumstances in France, do you think it would
be very distressing and difficult for C.S. to come back
to France now?
A. I would have said no but I was probably somewhat
shaken by the lady’s report this morning.
Q. If she came back, is there anything you think you
could do to reassure her?
A. My daughter?
Q. Yes.
A. For sure I will tell her that she can count on me,
that I love her. If she wants to do something, if she
wants to live in Place des Vosges she can live in Place
des Vosges. If she wants to life in Maisons-Laffitte,
she can live in Maison-Laffitte. I mean, this is the
only daughter we have. We live for our children and I
do not want to do something which can hurt her and. . ”
Subsequently the father gave evidence which seems to indicate that
he had not previously appreciated that C.S.’s problems were
attributable to her having to speak French and attend a French
school. However, when the direct question was put to him, he
answered in the following passage:
Q. But you being a concerned father, as you have made
plain to this Court, so fare as C.S. being at a French
school in Paris is concerned, you have seen the report
from that school.
A. True
Q. In that report it shows or indicates that C.S. was
not very happy?
A. I am ready to try to find a better school. What I
would say, I think big city centres are not the proper
place to raise children.”
We were also told that, in his final submissions to Ewbank, J.,
Mr. Setright offered the following undertakings on behalf of the
father, if C.S. were returned to France:
1) The father would allow the mother to remain in the
flat in the Place des Vosges separate and apart from
him and to have care and control of C.S..
2) C.S. would go to an English-speaking school.
3) The financial arrangements in the deed of
separation would continue.
The reasons for the judge’s decision are contained in the
following passage from his judgment. After recording the effect
of Mrs. Varley’s evidence, and mentioning Dr Hales’ assessment of
C.S.’s mental age as being about 12, he said:
“Accordingly, I have to decide whether the age and
maturity of C.S. makes it appropriate that I should
take account of her views. To some extent, of course,
I have to see what those views are and what they
entail. It seems to me that the view she has put
forward, looking at the whole circumstances of her
life, is a mature and rational view which seems to be
based on genuine and cogent reasons. I would go
further and say that I think it is probably in her best
interests. I am not entitled under the Hague
Convention to consider the best interests of the child
in the ordinary way, but in deciding whether the views
are mature, if they coincide with what seems to me to
be the best intrests of the child, I am entitled to
take them into account in assessing her maturity. In
my view the view she has formed is an intelligent and
sensible decision. Accordingly, I am in a position
where I may refuse to order the return on that ground.
Since my own preliminary assessment of the case is
that, at any rate, at this stage C.S. should remain in
England with her mother, I refuse to make the order
under the Hague Convention.”
The arguments which were addressed to us fell under three distinct
heads, although they were not so conveniently separated in the
submissions of counsel:
1) The construction of Article 13 so fare as it relates to the
child’s objection to being returned. For convenience, future
references in this judgment to Article 13 are to be taken as
referring only that part of the Article unless the context
otherwise requires.
2) The establishment of the facts necessary to “open the door”
under Article 13.
3) The factors relevant to the exercise of the discretion under
Article 13 once the door is opened.
Before we turn to consider these arguments it will be convenient
to set out the relevant provisions of Article 13 as set out in
Schedule 1 to the Child Abduction and Custody act 1985:
“Article 13
Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person, institution or other body
which opposes its return establishes that–
(a) the person, institution or other body having the
care of the person of the child was not actually
exercising the custody rights at the time of removal or
retention, or had consented to or subsequently
acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation.
The judicial or administrative authority may also
refuse to order the return of the child if it finds
that the child objects to being returned and has
attained an age and degree of maturity at which it is
appropriate to take account of its views. . . . .”
1. The construction of Article 13
a. It will be seen that the part of Article 13 which relates
to the child’s objections to being returned is completely separate
from paragraph (b), and we can see no reason to interpret this
part of the Article, as we were invited to do by Miss Scotland, as
importing a requirement to establish a grave risk that the return
of the child would expose her to psychological harm, or otherwise
place her in an intolerable situation. Further, there is no
warrant for importing such a gloss on the words of Article 13 as
did Bracewell, Jr. in Re R. (A Minor: Abduction) [1992] 1 F.L.R.
105, at p. 107:
“The wording of the article is so phrased that I am
satisfied that before the court can consider exercising
discretion, there must be more than a mere preference
expressed by the child. The word ‘objects’ imports a
strength of reeling which goes fare beyond the usual
ascertainment of the wishes of the child in a custody
dispute.”
Unfortunately Bracewell, J., was not referred to in the earlier
decision of Sir Stephen Brown, P. in Re Moncrief (Minors) on 25
June 1990 (unreported) in which he rightly considered this part of
Article 13 by reference to its literal words and without giving
them any such additional gloss as did Bracewell, Jr. in Re R.
b) As was also made clear by the President in Re Moncrief
(supra), the return to which the child objects is that which would
otherwise be ordered under Article 12, viz. an immediate return to
the country from which it was wrongfully removed, so that the
courts of that country may resolve the merits of any dispute as to
where and with whom it should live; see in particular Article 19.
There is nothing in the provisions of Article 13 to make it
appropriate to consider whether the child objects to returning in
any circumstances. Thus, to take the circumstances of the present
case, it may be that C.S. would not object to returning to France
for staying access with her father if it were established that her
home and schooling are in England, but that would not be the
return which would be ordered under Article 12.
2. The establishment of the facts necessary to “open the door”
under Article 13.
a) The questions whether
(i) a child objects to being returned; and
(ii) has atained an age and degree of maturity at which
it is appropraite to take account of its views;
are questions of fact which are peculiarly within the province of
the trial judge. Miss Scotland submitted that the child’s views
should not be sought, either by the court welfare officer or the
judge, until the evidence of the parents has been completed. We
know of no justification for this submission. She also asked us
to lay down guidelines for the procedure to be adopted in
ascertaining the child’s views and degree of maturity. We do not
think it is desirable that we should do so. These cases under the
Hague Convention come before the very experienced judges of the
Family Division, and they can be relied on, in those cases where
it may be necessary to ascertain these facts, to devise an
appropriate procedure, always bearing in mind that the Convention
is primarily designed to secure a speedy return of the child to
the country from which it had been abducted.
b) It will usually be necessary for the judge to find out
why the child objects to being returned. If they only reason is
because it wants to remain with the abducting parent, who is also
asserting the he or she is unwilling to return, then this will be
a highly relevant factor when the judge comes to consider the
exercise of discretion.
c) Article 13 does not seek to lay down any age below which
a child is to be considered as not having attained sufficient
maturity for its views to be taken into account. Nor should we.
In this connection it is material to note that Article 12 of the
U.N. Convention on the Rights of the Child (which has been
ratified by both France and the United Kingdom and had come into
force in both countries before Ewbank, J’s judgment in the present
case) provides as follows:
“Article 13
1. States Parties shall assure to the child who is
capable of forming his or her own views the right to
express those views freely in all matters affecting the
child, the views of the child being given due weight in
accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be
provide the opportunity to be heard in any judicial and
administrative proceedings affecting the child, either
directly, or through a representative or an appropriate
body, in a manner consistent with the procedural rules
of national law.”
d) In our judgment no criticism can be made of the decision
of Ewbank, J. to ascertain C.S.’s views, nor of the procedure
which he adopted for that purpose. There was evidence which
entitled him to find that C.S. objected to being returned to
France and that she had attained an age and degree of maturity at
which it was appropraite to take account of her views. Those are
findings with which this court should not interfere.
3. The exercise of the discretion under Article 13.
a) The scheme of the Hague Convention is that in normal
circumstances it is considered to be in the best interests of
children generally that they should be promptly returned to the
country whence they have been wrongfully removed, and that it is
only in exceptional cases that the court should have a discretion
to refuse to order an immediate return. That discretion must be
exercised in the context of the approach of the Convention – see
In re A (Abduction: Custody Rights) [1992] 2 W.L.R. 536 per Lord
Donaldson of Lymington, M.R. at p. 550.
b) Thus if the court should come to the conclusion that the
child’s views have been influenced by some other person, e.g. the
abducting parent, or that the objection to return is because of a
wish to remain with the abducting parent, then it is probable that
little or no weight will be given to those views. Any other
approach would be to drive a coach and horses through the primary
scheme of the Hague Convention. Thus in the case of Layfield in
the Family Court of Australia on 6 December 1991, Bell, J. ordered
and eleven-year old girl to be returned to the United Kingdom
because he found that, although she was of an age and degree of
maturity for her wishes to be taken into account, he believed that
those wishes were not to remain in Australia per se, but to remain
with her mother who wrongfully removed the girl from the United
Kingdom to Australia. On the other hand, where the court finds
that the child or children have valid reasons for their objections
to being returned, then it may refuse to order the return. This
in Re Moncrief (supra) the court refused to order the return of
three children aged 11, 9 and 8 to America. In the course of his
judgment the President said:
“I am, however, concerned for the children. I find
that they do object to being returned and that each of
them has attained an age and a degree of maturity at
which it is appropraite to take account of their views.
I feel that I must take account of their views. Their
views are not however determinative of the position and
I have to consider how far they should affect me.
I feel that I should give effect to their objection in
this case in the light of the fact that they give valid
reasons, in my judgment, for objecting to going back to
America into the care of their father, because of his
former conduct. I consider that he has materially
admitted this. I do not therefore propose to order
their return. That is the sole extent of the order
that I make. I do not determine custody rights or
access rights or any other rights as between the
parties. But in the light of the children’s objections
to being returned, I decline to order the return under
the terms of the Convention and the provisions of the
Child Abduction and Custody Act 1985.”
A similar result was reached in the Canadian case of Wilson v
Challis where on 19 March 1992 His Honour Judge Foran sitting in
the Ontario Court (Provincial Division) East Region and following
the decision in Re Moncreif (supra) refused to order the return of
an eleven-year old boy to his father in England for what appeared
to be good and valid reasons.
c) In the present case C.S. objected strongly to being
returned to France. Her reasons, as given to Mrs. Varley, had
substance and were not merely a desire to remain in England with
her mother. This court cannot interfere with the judge’s exercise
of his discretion unless he took into account some irrelevant
fact, left out of account some relevant factor, or was plainly
wrong — see G. v G. [1985] 1 W.L.R. 647. It could not seriously
be suggested that Ewbank, J. took into account any irrelevant
factor. However, he did not, in the course of his judgment,
mention the father’s undertaking that, if C.S. were returned to
France she would attend an English-speaking school. Since this
undertaking has been offered by Mr. Setright on behalf of the
faterh in the course of his final submissions to the judge, it is
impossible that the judge was unaware of it. It might have been
preferable if he had made reference to it in his judgment, but we
are quite unable to say that he failed to take it into account.
The judge may well have found it surprising that the father was
unaware of C.S.’s distress at attending a French school until he
heard Mrs. Varley’s evidence, and he may have considered the
father’s proposals to send C.S. to an English-speaking school in
paris somewhat imprecise and by no means fully considered. In
these circumstances we are quite unable to say that his decision
to return C.S. to France, even having regard to the father’s
undertakings, was plainly wrong.
Nothing which we have said in this judgment should detract from
the view, which has been frequently expressed and which we repeat,
that it is only in exceptional cases under the Hague Convention
that the court should refuse to order the immediate return of a
child who has been wrongfully removed. This is an exceptional
case and accordingly we dismiss this appeal.