Family Law Newsletter #4409.03.21
Issue #44 of Spire Barristers' Family Law Newsletter: edited by Connie Purdy and Taz Irshad; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
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Guidance / Updates
Re G (Abduction: Consent/Discretion) EWCA Civ 139
- In the Court of Appeal (Civil Division): Lord Justice Peter Jackson, Lord Justice Baker & Lord Justice Nugee.
- An appeal against a return order made under the 1980 Hague Convention on the Civil Aspects of International Child Abduction
This appeal concerned two children (I, aged 6, and P, aged 3). Following proceedings brought by their father (“F”), in November 2020, the court ordered that the children should be summarily returned to Romania, where F lived. The effect of the order was that their mother (“M”), who lived in England, would return with the children to await the outcome of proceedings in the Romanian court.
Although the Judge found that F had consented to M bringing the children to England in February 2020, he nevertheless exercised his discretion to make a return order. M appealed primarily from that exercise of discretion. F challenged the Judge’s conclusion on the issue of consent.
The parents and children were Romanian citizens. The parents married in 2013 and I was born in 2014. In 2015, the family relocated to England for five months but returned to Romania. In 2017, P was born there and in March 2018 the family again moved to England, where M worked as a nurse. In October 2018, F returned to Romania alone and M and the children remained in England for the next year, with F visiting from time to time. In February 2019, M visited Romania and the parents agreed to divorce.
On 14 March 2019, M and F entered into a notarised agreement by which she was permitted to trave out of Romania with the children, without F, for a period of three years. Before a divorce could be granted, there needed to be a social welfare assessment. During the same, the parents explained that the children would live with M in England. They then discovered that if they wanted to have a formal record of their proposal that the children would live abroad, they would have to have a court divorce. To avoid this, the parents entered into a notarised agreement that parental authority would be exercised by both parents and that, after the divorce, the children would continue to live with M in England.
The parents agreed and the Judge so found that, as at September 2019, the children were habitually resident in England where they had lived for the previous 18 months.
Between September 2019 and February 2020, the children were in Romania apart from a brief visit to England at Christmas. On 18 September 2019, M brought the children there and on 4 October 2019, she left them in the care of F. It was common ground that the parents had decided that they might reconcile and M’s account, which the Judge accepted, was that this amounted to a trial of F caring for the children. The Judge found that, thereafter, the parents agreed that it would be better overall for the children to return to live with M in England in late January/early February2020.
M travelled to Romania on 5 February 2020 and met with F. During that meeting, M told him that she had formed another relationship which upset him. However, F gave M the travel documents and the children’s birth certificates. M and the children left the following day and returned to England. Unbeknownst to M, after her meeting with F, he visited a notary and executed a document revoking his March 2019 agreement to her travelling with the children. The border authority registered the document after M and the children had departed. The document recorded that F bound himself to bring it to M’s attention, being aware that the revocation was only effective from the moment of its communication to her. His account was that he showed M the document when they first met on 5 February. The Judge found that whilst M was in Romania, F neither gave her the revocation document nor informed her of its existence, and he accepted that she had only learned about it five days after she returned to England.
M issued proceedings in Romania in March 2020 seeking an order that she did not require F’s permission for the children to travel. She had since made further applications and the proceedings were ongoing, with an awareness of this appeal.
In July 2017, F’s proceedings were issued in England, seeking the children’s summary return. M defended on the basis that the children were not habitually resident in Romania on 6 February 2020 so their removal was not wrongful, that F had consented to the removal, and that the older child objected to return. Following a Cafcass report, the latter point was scarcely pursued and the Judge rightly rejected it.
The Judge found, applying the decision in Re P (A Child) (Abduction: Acquiescence)  EWCA 971, that the removal of the children had been a prima facie wrongful removal in breach of F’s rights of custody. The agreement at the time of the divorce had been superseded by the children’s return to Romania and it was therefore for M to prove that F had subsequently consented to the move in order to avoid an automatic return order.
The Judge established that F consented to M returning to England with the children. Having found that to be the case, the Judge had a discretion as to whether to make a summary return order. He directed himself with reference to Re M (Children)  UKHL 55 and concluded that the children were to be returned to Romania.
M sought permission to appeal on 3 grounds, namely, that the Judge was wrong:
A. In his assessment of habitual residence;
B. In relation to the removal having been wrongful; and
C. In his exercise of discretion.
Moylan LJ stayed the return order and granted permission to appeal on two grounds:
1. There is no real prospect of the Court of Appeal revisiting the established jurisprudence in respect of Ground B. It is well-established in this jurisdiction that the issue of consent is addressed under article 13(a) and not under article 3 and this case does not provide any justification for that position being reviewed.
2. Although Ground A would appear to have less substance than Ground C, I give permission in respect of both Grounds.
F issued a Respondent’s notice seeking to uphold the Judge’s decision on the additional basis that the Judge was wrong to find that he had consented to the removal and had thereby wrongly invested himself with a discretion.
Lord Justice Peter Jackson at  concluded that the Judge did not err in his assessment of habitual residence. His task was to determine the degree of the children’s integration in their Romanian social and family environment, pursuant to the principle in Re M (Children) (Habitual Residence: 1980 Child Abduction Convention)  4 WLR 137. Therefore, his conclusion that they were habitually resident in Romania was one that was clearly open to the Judge. That ground of appeal was rejected.
At  the law on consent for removal was summarised:
1. The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?
2. The presence or absence of consent must be viewed in the context of the common sense realities of family life and family breakdown, and not in the context of the law of contract. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.
3. Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms.
4. A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.
5. Consent must be real in the sense that it relates to removal in circumstances that are broadly within the contemplation of both parties.
6. Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.
7. Consent must be given before removal and, to be valid, such consent must still be operative at the time of removal.
8. Consent can be withdrawn at any time before the removal.
9. The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent.
At  the Court upheld the Judge’s findings that F did consent because even if F had decided to withdraw his consent, it was necessary for M to be made aware of that before the children departed.
The court, at , concluded that the establishment of the consent was not a bar to an order for summary return. Lord Justice Peter Jackson stated:
41. To sum up, the exercise of discretion under the Convention was acutely case-specific within a framework of policy and welfare considerations. In reaching a decision, the court will consider the weight to be attached to all relevant factors, including: the desirability of a swift restorative return of abducted children; the benefits of decisions about the children being made in their home country; comity between member states; deterrence of abduction generally; the reasons why the court has a discretion in the individual case; and considerations relating to the child’s welfare.
42. In a consent case, the better view is that the weight to be given to policy considerations of counteracting wrongful removal and deterring abduction may be relatively slight, while the weight attached to home-based decision-making and comity will depend critically on the facts of the case and the view that the court takes of the effect of a summary return on the child’s welfare.
The Judge referred to Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children As Parties To Appeal)  EWCA Civ 26 and stated that such made clear, in a case focused upon a child’s objections, that ‘Hague Convention considerations are also a vital consideration at the discretionary stage.’ That sentence was, however, extracted from Black LJ’s discussion across 17 paragraphs of the many factors relevant to the exercise of the discretion in that case. Ultimately, Convention policy was a factor that was given no specific weight and a return order was refused.
The Judge further directed himself that:
- “Unlike a case where a defence is made out on the basis of a child’s objections, or because of a grave risk of harm, there are not in this case pressing welfare concerns which would tend to override Convention considerations.”
- “Ultimately, I am satisfied that Romania is the jurisdiction in which the welfare issues in relation to these children should be determined, and there are no compelling welfare reasons why the girls should not be present in that country whilst those decisions are being taken.”
The Court of Appeal considered that it was clear that the Judge had approached the balancing exercise in this case by attaching significant weight to what he described as Convention considerations favouring return to the extent that he looked to see whether there were pressing or compelling welfare reasons that might override them. That was an error of approach.
At , Lord Justice Peter Jackson reached the conclusion that the Court of Appeal was bound to intervene in this case for the following reasons:
1. The Judge approached the balancing exercise incorrectly.
2. He then gave significant, indeed predominant, weight to policy considerations without explaining why he was doing so. He noted that M had been entitled to remove the children but he did not take into account that there was in consequence no reason for restorative or deterrent action. As to comity and home-based decision-making, he gave no weight to the fact that England is at least as much their “home country” as Romania. Nor did the Judge explain why it would be beneficial for the children to be in Romania while the Romanian court made its decisions. Moreover, as the leading proposal for the children’s future was for them to live with their primary carer in England, it might have been thought that there was some advantage in the assessment being made while the children were here.
3. In contrast, the Judge gave no identifiable weight to the reason for his being invested with a discretion, namely that F had agreed to the removal, nor to the inherent unfairness of his then succeeding in summoning M and the children back.
4. The only other positive reason for a return order was that the children could have contact with F in the interim, but that had to be balanced against the other consequences of summary return and the fact that it had been F’s original decision to live in another country to the children. The Judge also accepted F’s offer of protective measures at face value, even though his evidence had been fundamentally untruthful and he had already show himself to have taken legal measures behind M’s back.
5. The welfare analysis did not address the negative impact of a summary return at all. The children appeared to be settled and the fact that they had been backwards and forwards in the past was not a reason why that should continue. The Judge noted that M would return and could apply to relocate, but attached no weight to the limbo in which the children would meanwhile be living, or to their important relationship with their maternal grandmother, or to the disruption caused to their M, or to the prospect of the children being sent to Romania only to return to England if M was given permission to relocate, or to I’s wishes.
The Court of Appeal concluded at  that this was a case ‘where child-centred welfare considerations greatly outweigh policy considerations.’ The removal of the children was wrongful in name only, the children’s situation gave rise to no obvious concerns, and there was no advantage (and considerable disadvantage) in them being moved from where F had agreed they should be in order for a decision to be taken about their future.
The appeal was allowed and the order for return was set aside.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/139.html
Re R (Children: Control of Court Documents)  EWCA Civ 162
- In the Court of Appeal (Civil Division): Lady Justice King, Lord Justice Peter Jackson & Lady Justice Elisabeth Laing
- An appeal concerning the power of the Family Court to control the distribution of its judgments and of other documents filed for the purpose of the proceedings.
This appeal arose from an order made following a fact-finding hearing in care proceedings whereby it was directed that the Appellant, R, should not be provided with a physical copy of the judgment or the written submissions made by the parties, but instead a summary of the court’s findings and a redacted version of the judgment, from which explicit sexual references had been removed.
R was the adult brother of two sisters who were subject of the care proceedings, in which he became an intervener. The Judge found that R was a ‘predatory paedophile’ who had raped one of his sisters. By that time, R was serving a sentence of 21 years, after pleading guilty to the oral rape of his own three-year-old daughter, and to taking and sharing photographs of the assault, and to other child pornography offences.
The written evidence covered some 3000 pages. Restrictions were agreed whereby R was not allowed to retain the papers in prison. Instead, R’s lawyers showed him the documents during legal visits. Following oral evidence in March and April 2020, the parties filed written submissions running to 160 pages. In June 2020, the Judge handed down his 91-page fact-finding judgment and R was discharged as an intervener.
R made a request for a copy of the closing submissions prepared on his behalf to be released to him so that he could fully understood what was said on his behalf. In addition, he requested a copy of the judgment. It was submitted on his behalf that the documents could be redacted prior to being sent to R to remove the names of the children that that he had a locked cabinet in his cell where he would keep the documents.
The Judge concluded that:
- “348. Firstly, I am not minded to allow a copy of the closing submissions to be physically retained by R. They contain sensitive details about the sexual abuse allegations. Redaction would be no protection for the children given R would be able to identify the children concerned.
- Secondly, this judgment has unfortunately had to go into careful detail about the sexual abuse allegations and a large amount of the paedophilic messages that R engaged in. He is a convicted paedophile. I am not prepared to allow for this sensitive material about these children to be provided to him to keep in his cell. I also take judicial notice of the fact that sensitive documents relating to the sexual abuse of children is highly prized amongst serving prisoners convicted of the sexual abuse of children. I will not countenance the potential for this material… to be abused in this way.
- It is important that R be made aware of this judgment and my findings. Upon handing down judgment today, I have also made provision for a video-link session to take place today with his intermediary. That will enable his legal team to convey the content of the judgment to him with appropriate support.”
Despite the Judge’s indication, R asked to be given physical copies of the unredacted judgment and of the written closing submissions filed on his behalf and on behalf of the other parties. The Judge gave an extempore ruling, which included the following passages:
- “18. The fact-finding judgment that I provided in these proceedings contains graphic, detailed accounts of sexual abuse, as well as detailed sexualised correspondence between R and others. The content is beyond doubt obscene and perverted. There is, as a result, a considerable level of sensitivity to be attached to this information for a number of reasons. In any care proceedings, there is obviously a legitimate public interest in protecting the children, including from the details of what has occurred with them becoming widely known or shared. Of course, in this case [the children] have a right to privacy arising from their Article 8 rights; and I am satisfied that their Article 3 rights may also be engaged if the contents of the full fact finding judgment were to be released and to be shared for sexual gratification. I consider that that would amount to degrading treatment.
- [These] are highly vulnerable children. There is a risk pertaining to them, in my judgment, that if their experiences and vulnerability, as identified, were to become widely known, in particular to paedophiles or to people with an unhealthy interest in children, that could potentially place [them] at risk of being targeted or exploited in the future.”
The Judge relied on the court’s general case management powers under Family Procedure Rules, and in particular rules 4.1 and 12.12. As the documents were on the court file, he retained case management jurisdiction in relation to them. The documents had been placed on the court file, and so he retained case management jurisdiction in relation to them. That power did not fall away because R’s role in the case was ending.
The Judge directed himself as to the guidance in Re B, namely, that it is an exceptional course to restrict a litigant’s access to documents and that such a case should require the most anxious, rigorous and vigilant scrutiny.
The Judge was satisfied that in balancing the competing rights of the children, he was satisfied that the balance was properly struck by not allowing R to retain a full copy of the judgment in his prison cell. The Judge directed that a summary of his findings should be prepared and that R should be provided with a redacted and anonymised version of that summary, setting out only those findings that he had made against him.
R appealed on 2 grounds:
1) The court was wrong in holding that it had the power or jurisdiction to prohibit the disclosure of the full fact-finding judgment and/or the written submissions of each party to R and/or to prohibit his solicitors from disclosing a copy of the full judgment and/or submissions to him.
2) In the event it is held that the court does have the power to make the orders, the decisions were wrong in that; –
a. The Judge gave too much weight to the perceived risks of unlawful dissemination of the material by R in circumstances where there was scant evidence that R had disseminated or attempted to disseminate highly sensitive and/or sexually explicit material which is in his possession (in custody) from the criminal proceedings, and
b. The Judge gave too little weight to R’s right and/or future need to have access to the material to inform any further judicial or quasi-judicial process concerning him, whether in family proceedings or relating to his status as a serving prisoner.
Permission was granted to appeal on the second limb only on the basis that it offered the Court of Appeal an opportunity to consider the Family Court’s powers to control the distribution of sensitive material and the principles on which such powers should be exercised.
At  Lord Justice Peter Jackson considered the case within its wider context and concluded that there was no doubt that a court hearing family proceedings had the power to control the use to which documents filed for the purpose of the proceedings were put and that the power extended to the withholding of documents from parties where that was necessary. The court had always been, and remained, under a duty to ensure a fair trial and to protect the rights of those who might be affected by the disclosure of information.
When faced with an application to withhold documents or information, the court was required to uphold the rights protected by Articles 6 and 8, and possibly Article 3. In family proceedings, the right to respect for private life will almost inevitably be engaged, but the transmission or preservation of private information in documents was a necessary part of any system of justice. There would however be rare cases where the possession of documents may amount to more than an interference with privacy. In this case, the Judge considered that the use of descriptions of the children’s abuse for the sexual gratification of the abuser and others would amount to subjecting them to degrading treatment within the meaning of Article 3.
The Court of Appeal referred to Rules 29.12 to 29.14 of the Family Procedure Rules. The default position was that parties may obtain physical copies of documents filed or lodged in family proceedings, and that they must be served with a copy of a judgment or an order, but in each case this is subject to the court’s directions.
The power to limit access to documents before and during a hearing can only be used where it is strictly necessary, with the court being rigorous in its examination of the feared harm and careful to counterbalance any resulting disadvantages to ensure a fair trial: Re B (Disclosure to Other Parties)  2 FLR 1017.
In the present case, the restrictions imposed during and after the trial were not aimed at withholding information but at controlling the physical possession of documents from an individual, though not from his lawyers. The agreed restriction on possession of documents during the trial did not prejudice the effective representation of R’s case and likewise the withholding of documents after the proceedings represented a markedly lesser degree of interference with his rights than arose in Re B and in X and Y (Children)  EWHC 451 (Fam), where a father was discharged from care proceedings altogether.
At  Lord Justice Peter Jackson stated that the Judge ‘conducted a conspicuously careful balancing exercise and his conclusion was not only beyond criticism but, in my view, sound.’ The material available that had been and would be available to R amply satisfied his entitlement to a reasoned decision and any further material which was being withheld in pursuance of a legitimate aim. R had everything he needed to understand the Judge’s decision. He should not be allowed to prolong his abuse of these children by being given possession of graphic descriptions of what he had done to them, and he was not to be trusted not to pass the material on to others like him.
Lord Justice Peter Jackson made the following points before dismissing the appeal:
- The circumstances of the case are extreme. Issues of that kind are only likely to arise in the gravest cases. The fact that serious consideration is being given to the protection of rights under Article 3 may be an indicator that one is in that territory.
- I would dispose of the argument that a party ‘owns’ documents filed on his behalf so that he cannot be deprived of them. The document is nothing without the information it contains, and the information falls under the control of the court. In any case, a client does not own a written submission prepared by his counsel, using professional judgment within the scope of the client’s instructions, any more than he owns counsel’s oral submissions to the court.
- It had been argued that the court’s power to control possession of documents ends with the conclusion of the proceedings. I have expressed the view that the court’s powers do not find their origin in the Rules. But even if it were otherwise, one does not have to look far to see powers that clearly outlast the proceedings: for example rule 12.75 and PD12G, which concern the communication of information to permitted persons for specified purposes, or indeed rules 29.12 and 13 themselves, where a direction for non-service of documents will plainly be of continuing effect after the proceedings have ended.
- The Law Society gives guidance to solicitors about the ownership of documents (Practice Note 19 January 2019: Who Owns the File?). However, whatever the document, the solicitor’s duty to the court will override any duty to the client and an order that a document is not to be disclosed or given to any client will bind the solicitor as agent for the client and relieve the solicitor of any professional duty that would otherwise exist.
- Now that R has instructed his solicitor to give him a copy of the trial bundle, we should in my view extend the Judge’s order to include all documents filed within the proceedings, resolving the position in which his solicitors find themselves. That course was not opposed by any of the parties if the appeal itself were to fail.
Full judgment available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/162.html