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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Applicant parent v Birth Mother and Others [2020] JCA 141A (08 July 2020) URL: http://www.bailii.org/je/cases/UR/2020/2020_141A.html Cite as: [2020] JCA 141A |
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Before : |
James McNeill QC., President, Sir Michael Birt and Helen Mountfield Q.C. |
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Between |
Applicant parent |
Appellant |
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And |
(1) The Birth Mother (2) Grandfather (3) Grandmother (4) GG (acting by her children's guardian Sue Clarke) (5) HH (acting by his children's guardian Eleanor Green) |
Respondents |
Advocate C. Hall for the Appellant.
Advocate C. G. Hillier for the First Respondent
Advocate R. S.Tremoceiro for the Second and
Third Respondents
Advocate E. L. Wakeling for the Fourth Respondent
Advocate B. J. Corbett for the Fifth Respondent
judgment (in private)
the President:
1. This is the Judgment of the Court to which all members have contributed. It concerns an appeal in respect of proceedings seeking the summary return of a child to the jurisdiction of Canada, pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the "Convention"), as given domestic effect in Jersey by the Child Abduction and Custody (Jersey) Law 2005 (the "Law"). The Appellant had contended that the child ("GG"), the Fourth Respondent, had been removed wrongfully from Canada, her country of habitual residence, by the First Respondent on or around 8 May 2016 in contravention of the Appellant's rights of custody. She submitted that, under Convention principles, GG should be returned to Canada, whose courts should determine the relevant substantive questions concerning GG's future upbringing. The Royal Court (Sir William Bailhache, Commissioner, with Jurats Ronge and Austin-Vautier) refused the application at the conclusion of a contested final hearing that took place on 13 to 17 January 2020. The finalised judgment is dated 26 February 2020.
2. The Royal Court found that GG had been habitually resident in Canada at the time of her removal and that the removal and continued retention was in contravention of the Appellant's rights under Article 3 of the Convention; and these conclusions have not been appealed by any of the Respondents.
3. The Royal Court refused to order that GG should return to Canada for two reasons. It found that GG was settled in her new environment pursuant to the second paragraph of Article 12 of the Convention. It also found that a return of GG to Canada would expose her to a grave risk of psychological harm pursuant to Article 13(b) of the Convention. It is against these parts of the decision and judgment that the Appellant appeals.
4. Article 3 of the Law provides that those parts of the Convention set out in Schedule 1 of the Law shall have the force of law in the Island; that is, those provisions of the Convention are directly incorporated into the law of Jersey by statute.
5. The scheduled provisions of the Convention ought to be interpreted in accordance with the objects and purpose of the Convention and the relevant body of international law as a whole, including, where material, the United Nations Convention on the Rights of the Child ("UNCRC"). The United Kingdom Supreme Court has held that while the UNCRC is not part of domestic law in England and Wales, it is relevant as an aid to interpretation of other articles of other treaties which have been incorporated into domestic law, if there is a relevant subject matter link: per Lord Wilson in DA & DS v Secretary of State for Work & Pensions [2019] UKSC 21 at 67-87. UNCRC was extended to Jersey on 29 April 2014 and accordingly, we consider the same principle ought to apply in Jersey law.
6. The Convention is a treaty to which almost all countries in the world, including the United Kingdom and Canada, are signatories. Its preamble states that "firmly convinced that the interests of children are of paramount importance in matters relating to their custody, desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access" signatories have resolved to conclude the Convention.
7. This preamble matters because, in accordance with the principles of the Vienna Convention, a treaty is to be read in accordance with its objects and purpose. The preamble emphasises the 'paramount' importance of the interest of children in matters relating to their own custody, and emphasises that the purpose of 'prompt return' to the state of habitual residence is 'to protect children from the harmful effects of their wrongful removal or retention'. Securing protection for rights of access is a secondary consideration.
8. This reading of the purpose of the Convention accords with Article 3 UNCRC which provides that in "all actions concerning children... the best interests of the child shall be a primary consideration."
9. For present purposes, the relevant Articles in Schedule 1 of the Law are the following:
10. We take the following background from the judgment below, restricting the narration to matters relevant to the issues before us and to a necessary understanding of the background.
11. The Appellant and the First Respondent began living together in or about April 2009 and were married in 2012. They decided to have a family through an assisted reproduction programme, with the First Respondent being the birth mother. The Appellant was present both at the time of conception and at the birth. The child GG was born in September 2014 in Canada, where the Appellant and First Respondent had lived throughout their relationship. The Appellant and First Respondent remain married, although divorce proceedings are in process.
12. In April 2015 the Appellant and First Respondent had moved to Nanaimo, Vancouver Island, British Columbia, shortly after which their relationship began to founder; and by the end of July 2015 they had separated. The First Respondent, with GG, went to live with her parents, the Second and Third Respondents, at their home in Victoria, Vancouver Island. The Appellant went to stay with her parents. On 17 August 2015, the Appellant, ex parte, obtained an order from the Provincial Court of British Columbia prohibiting the removal of GG from Vancouver Island without the written consent of the Appellant or further order of the Court. That order remains in place.
13. On 21 August 2015 the Appellant obtained further orders ex parte from the Provincial Court, including an order that she have contact with GG and that the First Respondent was prohibited from applying for a passport for GG. On 27 August 2015, on the application of the First Respondent, all of the orders made on 21 August 2015, except that prohibiting the application for a passport, were set aside by consent.
14. Following the separation of the Appellant and the First Respondent, the First Respondent commenced a relationship with D, with whom she had been in a relationship some years earlier when both were living in the Middle East.
15. As at July 2015, while D was working and living in Qatar, he stayed with the First Respondent for approximately a month, and for a further period in September 2015.
16. As a result of this new relationship, the First Respondent became pregnant with the Fifth Respondent ("HH") who was born in April 2016. The First Respondent and D became engaged to marry in September 2015; but cannot do so until the divorce of the Appellant and the First Respondent has taken place.
17. In September 2015 the Appellant commenced divorce proceedings in the Supreme Court of British Columbia and a number of orders were made for the Appellant to have visits with GG. As from March 2016, supervised contact sessions were for two hours in the morning and two hours in the afternoon on each Saturday.
18. A trial of issues concerning parenthood, guardianship and parenting was scheduled for October 2016. In the meantime, in January 2016, a consent order was made by the Supreme Court that the travel documents for the First Respondent and GG would be held at the office of the First Respondent's lawyer, not to be released without the written consent of the Appellant or order of the Court. An exception was made in respect of the United Kingdom passport of the First Respondent, which she was permitted to retain for the express purpose of renewing it after which it was to be returned to the lawyer's office.
19. In April 2016 the Supreme Court made orders increasing the contact sessions between GG and the Appellant, to include weekly Skype visits on Mondays and Fridays, extended Saturday visits, visits on alternate Sundays and, from 2 July, weekly overnight Saturday stays.
20. Notwithstanding the various orders, the First Respondent D, GG and HH left Canada on 8 May 2016. GG was then about 19 months old and HH was a few weeks old. After a short time in England they moved to Spain where, in August that year, they were joined by the Third and Fourth Respondent's. Since that time, all of the Respondents have lived in the same household and a further child of the relationship between the First Respondent and D was born in June 2020.
21. Sometime in about early 2019 the Respondents moved to France and, on 2 July 2019 they travelled in a four-metre long inflatable dinghy from the coast of France to St. Catherine's Bay, Jersey. As a result of the nature of that arrival, the First, Second and Third Respondents were arrested and subsequently charged with child neglect and immigration offences.
22. The First Respondent was detained in custody, as were the Second and Third Respondents, but the latter were released on bail shortly thereafter having pleaded guilty to aiding and abetting the child neglect and immigration offences charged against the First Respondent. The First Respondent was released after about one month. The children were taken into foster care, where they remained until 29 July 2019, when an application for a care order was dismissed, and they were returned to the care of the Second and Third Respondents and, shortly thereafter, the First Respondent. On 16 December 2019 the First Respondent was convicted of child neglect and the Second and Third Respondents convicted for aiding and assisting in that offence and suspended sentences of imprisonment were imposed. Each appealed against conviction and the convictions were quashed on 19 June 2020.
23. A Representation for the Appellant was presented on 29 July 2019. Service was accepted on behalf of the First Respondent and the Second and Third Respondents were immediately joined to the proceedings.
24. On 6 August 2019 the Court ordered that a guardian and lawyer for GG should be appointed and, having been alerted to possible differences between the parties as to Canadian law, it ordered that each should have the ability to instruct Canadian lawyers so that evidence might be made available at the hearing of the application. Having regard to a potential Article 13(b) defence, the Court ordered a joint instruction to a psychologist. HH was joined as a Respondent and a guardian appointed. An application on behalf of D to intervene in the proceedings was refused. By reason of these various complexities, the application and its issues were not heard until January 2020. Since Convention applications in this jurisdiction are infrequent, we make some observations on case management, which may be of assistance in any future Convention case in Jersey, at paragraphs 136-144 below.
25. Having found that GG was habitually resident in Canada in May 2016 (paragraphs 80 and 81) and that the removal had been wrongful under Article 3 of the Convention (paragraphs 82 to 92) the Royal Court proceeded to consider whether GG was settled in her new environment for the purpose of Article 12 of the Convention. The possibility of the use of this exception to an otherwise mandatory order for the child to be returned had been raised by the Respondents. The proceedings had been commenced long after the expiry of the period of one year from the date of the wrongful removal but, even so, Article 12 requires the return of the child unless it is demonstrated that the child is now settled in its new environment; the onus of showing this clearly being upon the party praying in aid the provision.
26. Having considered certain authorities from England showing that the concept of settlement embraces physical, emotional and psychological elements and that the term 'new environment' encompasses place, home, school, people, friends, activities and opportunities but not, in itself, the relationship with the defendant parent, the Royal Court considered that the different elements would be likely to carry different weight according to the facts of the case under consideration (paragraph 97).
27. The Court then stated:
28. It will be seen, therefore, in part by reference to the itinerant childhood of the First Respondent, that the Royal Court found that the new environment in which GG found herself was an environment beyond the purely geographical: it was life, albeit itinerant, with her mother and grandparents and half sibling. It was into an environment of that nature that GG had become settled since leaving Canada. Having regard to the concept of geography the Royal Court found that GG had settled in Jersey and had been settled in Spain, at all events during the last eighteen months or so of her time there. From this it is also clear that the Royal Court considered the issue of settlement and new environment as at the time of the hearing, there having been no contention from any party in the hearing before that court that a different point in time should be used.
29. Having made these findings the Royal Court turned to address the question as to whether in the whole circumstances it should exercise its discretion and order that GG return to Canada. For the various reasons set out (at paragraphs 105 to 121) the Royal Court determined not to order the return of GG. In reaching that conclusion the Royal Court relied upon the strength and depth of GG's settlement in Jersey, the likelihood that she would remain in Jersey for a material amount of time, her relationship with her half sibling, the opportunity of contact with the Appellant and the potential for loss of contact with D, her de facto father figure, who would not have full immigration rights into Canada.
30. Separately, the Royal Court considered the potential application of Article 13(b) of the Convention, namely that the Royal Court would not be bound to order the return if the Respondents established that there was a grave risk that the return would expose GG to physical or psychological harm or otherwise place her in an intolerable situation.
31. The Royal Court observed (at paragraph 123) that the possibility that the First Respondent would be arrested if she returned to Canada was not one which it would have taken into account if the Article 12 exception had not been made out. The Court reached the view, however, that psychological damage, perhaps of a lasting nature, would be caused to GG if separated from her birth mother when returned to Canada. As the Court indicated (at paragraph 128), this relationship was the most important one in GG's life and had already been ruptured by detention of the First Respondent in Jersey for a month following arrest. The probability of arrest in Canada was high and the Royal Court considered it unlikely that the prosecuting authorities would drop the abduction charges because of existing media coverage and setting a dangerous precedent.
32. For the Appellant, Advocate Hall submitted that the Royal Court was wrong to treat the relevant date as being the date of the hearing. It had long been established in England, and consistently followed there, that the date for the assessment is the date of the commencement of proceedings not the date of the hearing. Proceedings were commenced on 19 July 2019. At that date, GG had not been in this jurisdiction for two weeks, she was in foster care, and thus there was no question of her being in any way settled in Jersey at that time. Even if the Royal Court's interpretation of "new environment" as encompassing a nomadic existence was permissible, such a concept could not encompass living with foster carers and visiting her birth mother in prison.
33. Further, whilst correctly identifying that the concept of settlement involves physical, emotional and psychological elements, Advocate Hall submitted that the Royal Court had not engaged properly with the English authorities showing that where the abducting parent and child had been concealing themselves, it would be very difficult to demonstrate that the child had become settled in its new environment. Reference was made to Cannon v Cannon [2004] EWCA Civ 1330 and AH v CD [2018] EWHC 1643 (Fam). Not only was concealment highly objectionable, it would itself be likely to bring emotional or psychological disturbance and preclude the degree of stability and security in the new environment which provided settlement.
34. The finding that GG was expected to have a nomadic existence was flawed. GG had been habitually resident in Canada and it could not be contended that her abduction was part and parcel of any pre-existing transience and impermanence. The declaration by the First Respondent that she wished to see her children brought up within a British educational system did not explain the years of secret residence in Spain or the move to Jersey.
35. Nor was the Royal Court well-founded in relying on settlement in Spain. As far as the Convention was concerned, the same arguments as to concealment and subterfuge applied and the very fact of GG being moved on from Spain showed that she was never settled there at all. It was wrong to rely on settlement in Spain for present purposes and, had GG in fact been settled in Spain that displayed a sharp contrast with the situation for GG in Jersey.
36. In any event, the Royal Court had not properly considered the formalities in relation to settlement in Jersey as part of the 'settlement' issue. The First Respondent, her parents and the children might well be entitled, physically, to be in Jersey but there are restrictions on their ability to buy or rent property and on their ability to work in Jersey. D is not a British citizen and, as such, has no more right to live and work in Jersey than he does in Canada. In contrast, the First Respondent and the children are Canadian citizens and the First Respondent's parents lived in Canada and owned a home there prior to the abduction.
37. As to discretion under Article 12 of the Convention, the Royal Court had been wrong to refuse to exercise its discretion and order a return. There was insufficient, if any, explanation in the judgment of the Royal Court of the balancing exercise as regards Convention policy, the circumstances of the case, and wider considerations of child welfare.
38. There was little or no analysis as to why Jersey - a country with which the First Respondent, GG and the wider family have no connection - was a better forum than Canada for the resolution of the parental dispute.
39. As regards GG's relationship with D, it was by no means a fair assumption that he had the best interests of GG in mind. In any event, in prioritising GG's relationship with her non-biological father figure over and above that with the Appellant, the Royal Court had discriminated against GG's equally important relationship with the Appellant.
40. As to the application of Article 13(b) by the Royal Court, the proper approach was to take the allegations at their highest and, if that satisfied Article 13(b), consider available protective measures. Reference was made to in Re E [2011] UKSC 27. It was submitted that the Royal Court may have improperly placed the burden of proof on the Appellant.
41. The Royal Court had been wrong to take into account pre-May 2016 concerns raised by the First Respondent as to the Appellant's ability to undertake parenting: there had been no prior allegations of domestic abuse or mental health conditions in respect of the Appellant. The Royal Court had failed to take into account that the Canadian courts had already made interim orders for regular overnight staying contact and had been confident in the Appellant's parenting capacity.
42. Further, for the Royal Court to use as one of the foundations for its decision the high probability of the First Respondent being arrested in Canada, the likelihood that a Canadian criminal court would not grant bail and the psychological damage to GG of separation from the First Respondent, was to use an irrelevant consideration. The Royal Court had specifically concluded that the possibility of arrest could not be used as an argument to support an Article 13(b) exception. It could not be re-used in this oblique way. Separately, it had failed to reflect the gravity of the potential damage caused to GG already by the First Respondent's actions in abducting and concealing GG in the first place. In any event, the reasoning of the Royal Court as to how the Canadian prosecuting authorities might or might not act was pure conjecture and an impermissible consideration. Indeed, argued Advocate Hall, the assumption that the actions of the Canadian system would cause grave harm to GG or expose her to an intolerable situation failed properly to pay heed to the principle of comity and respect for the courts of a foreign state.
43. It was also argued that there was no reason presented as to why the First Respondent could not make a temporary return to Canada with her mother, HH and D. It was only in respect of the First Respondent that there was a warrant for arrest and there was no analysis at all in the judgment as to why temporary placement with a grandparent and D would leave GG at any risk of harm.
44. Counsel for the Appellant then turned to other features in respect of which it appeared that the Royal Court had considered their materiality to the Article 13(b) issue.
45. Criticism of the use of media to locate the First Respondent and GG was not relevant.
46. The contention that GG would suffer lasting psychological damage from a separation from D had not been made out. It had not been proven on a balance of probabilities that D would not be able to travel to Canada or find employment or that this would cause a grave risk of harm to GG Nor was it appropriate to find that harm would be caused to GG by separation from someone, like him, who had played an active hand in the abduction and wrongful retention of GG. It was discriminatory to have prioritised the need for GG to have a geographically close relationship with D over and above the need for an equivalent relationship between GG and the Appellant.
47. Separately, the preliminary view, expressed in paragraph 119, of the possible relevance of ECHR arguments relating to HH and D were of no relevance in proceedings which concerned GG Even if such Article 8 rights were engaged, which was not conceded, such rights could not be prioritised over those of the Appellant and GG.
48. Turning to the potential protective measures set out at paragraphs 124 to 127 of the judgment, the protective measures offered by the Appellant included not only standard undertakings but some which went beyond that. The Royal Court had entered into no real discussion or analysis as to what measures there could be and how they might ameliorate the perceived situation. The fact that the Appellant's undertakings were "not capable of being policed by this Court" is a factor which would apply in every Convention case; and there was no evidence to suggest that the Appellant would not comply with the undertaking. In particular, the Appellant had offered to undertake not to support or to pursue any prosecution against the First Respondent and had offered to make an application to the Canadian court for an order ensuring that the custody of GG is vested in the First Respondent until further order of the court. Furthermore, amelioration would be provided by GG being accompanied to Canada by one or both of her birth mother, grandparents and/or D, none of whom are at any risk of arrest.
49. Expressing matters at a higher level, Advocate Hall suggested that it would appear that the Royal Court had engaged inappropriately with the wider welfare issues in the case in contravention of its role under the Convention. It was irrelevant to take into consideration with whom and in which jurisdiction the parties would live permanently, the long term importance of certain individuals to GG's life, what orders might or might not be made in Canada, and whether or not the First Respondent was capable of promoting contact between GG and the Appellant.
50. It was not for the present proceedings to resolve such issues. There would need to be proceedings in Canada; and it was likely that those would involve GG, HH, the First Respondent and D. Indeed, it was submitted that the criticism of GG's guardian, at paragraph 19 of the Judgment, as to her not wishing to answer welfare questions was indicative of the Royal Court having misunderstood the role. The Royal Court had suggested that, unlike CAFCASS guardians in the United Kingdom (that is the Children and Family Court Advisory and Support Service), guardians in Convention cases in Jersey should not take any different approach than that taken by guardians in public law children applications. Whether in England or in Jersey, the role of the court in a Convention application was a summary one so that, absent the abducting parent proving that an exception applied, the court should return the child to the country of its previous habitual residence for the courts of that jurisdiction to conduct a welfare enquiry. The idea that a guardian in Convention proceedings should adopt the same investigatory role as in public law children proceedings ran directly contrary to the securing of a swift summary return.
51. Jointly on behalf of the First Respondent and on behalf of the Second and Third Respondents respectively, Advocates Hillier and Tremoceiro supported the decision and judgment of the Royal Court.
52. At the outset they reminded us of the especial limitations on the ambit of an appellate court in reviewing the decision of the court of first instance in Convention cases. Not only was there a general principle that the more difficult the decision that has to be made, the more finely balanced the conclusion and the more difficult to persuade an appellate court to overturn the first instance decision, but the Convention exceptions afforded a manifestly important discretion to the court of first instance. Where oral evidence had been heard it might even be that permission to appeal from a decision would be refused: see Re M (Abduction: Leave to Appeal) [1999] 2 FLR 550, CA. In Convention cases there would be a range of authorities from different jurisdictions and the Jersey courts should have regard to authorities from other jurisdictions, wherever situated.
53. Here, the Royal Court had heard a substantial amount of evidence and had heard direct evidence from the principal parties. The conclusions reached by the Royal Court were open to it on the evidence and are ones with which this Court should be slow to interfere. In particular, whilst the Court should have regard to the concealment in evaluating whether or not the child was settled, the overall question was whether the child was indeed settled on the basis of all available evidence. There was no requirement for the child to be habitually resident in the current jurisdiction, nor any requirement for settlement to be related to a particular location. There had to be equal regard to emotional, psychological and physical elements of the new environment. The whole set of decisions in Cannon v Cannon showed that, notwithstanding the parent and child having been concealed, the possibility of deportation, and the child suffering emotional disturbance, there could be settlement in the new environment. The principal issue was the consideration of the interests of the child. As had been observed in Re D (A Child) (Abduction: Custody Rights) [2007] 1 FLR 961, there could well be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention.
54. Turning to the Article 12 issue, and the approach of the Royal Court to 'settlement', it was emphasised that GG had been away from Canada for four of her six years. In the whole circumstances, the Royal Court had been well-founded in finding that GG had become settled. In particular, that she had become settled in Spain, with her whole family, and because, as a unit, they had moved to France.
55. At no stage in the proceedings below had it been contended that the point at which settlement should be determined was the date of raising proceedings as opposed to the date of hearing or judgment.
56. The Royal Court had a firm evidential basis on which to reach the conclusion that, in the case of GG, the way of life of the family was relevant and to give particular weight to the psychological and emotional environment; a view supported by other evidence. There was a conclusive finding that, had the First Respondent and GG been tracked down to Spain while the family was living there, there would have been a conclusion that GG was settled in Spain, at all events during the last eighteen months or so of her time there. In any event, no party had suggested to the Royal Court that the date of assessment should be other than the time of the hearing.
57. Looking at the particular grounds of appeal, it was pointed out that the proposition that the relevant date for deciding settlement was other than the date of the hearing or judgment had not been put to the Royal Court. The Appellant's own case in the court below had proceeded on the basis that the decision as to settlement fell to be determined as at the date of the hearing. Reference was made to the skeleton argument, closing submissions and, in particular, closing submissions in relation to the Article 12 response.
58. There was no precedent in Jersey as to the date at which settlement should be established, nor was there a consensus internationally. Reference was made to certain decisions from the Family Court and Full Family Court in Australia where the point of determination had been identified as including the time of the decision of the court of first instance: Director-General, Department of Community Services v N and C [1998] ICAD HC/E/AU 291 and State Authority v Castillo [2015] FAMCA 792.
59. Whilst the Royal Court had not been referred to any authorities on the point, its approach cannot be identified as having been wrong having regard to (a) the length of time since GG had left Canada, (b) the child having no existing memory of or connection with Canada and (c) the settlement and habitual residence in Spain.
60. As to settlement at the date of application, not only did the Royal Court have a firm evidential basis on which to reach the conclusion that, in the case of GG, the way of life of the family was relevant, but it had been supported by the psychologist. The court was entitled to have regard to the child's age and developmental stage, through which it could identify settlement in Spain as a demonstration that GG had settled into a new environment.
61. In particular, it should be noted that in Cannon v Cannon, when the matter had been remitted for rehearing, it had been accepted that there had been settlement, notwithstanding concealment. The judgment showed that the Royal Court had had in mind the Appellant's contentions regarding concealment: see paragraphs 62, 116, 109 and 101.
62. As regards evidence in relation to the emotional and psychological elements of settlement, the Appellant was seeking a retrial by this court. In any event, Dr. Datta was carrying out the proper exercise, in applying the concept of settlement to the child in question. On its face, the judgment found settlement despite the concealment and despite the impact on GG of being denied a relationship with the Appellant.
63. On nomadic existence, the findings of the Royal Court were supported by the evidence of Dr. Datta.
64. As to settlement in Spain, there could be no dispute: there had been a period of three years spent in the family unit in Spain which brought an added element of geographical consistency. This, therefore, was the habitual environment into which the aim of the Convention sought to return the child in question.
65. In respect of issues as to restrictions on settlement, the regulatory restrictions in Canada were greater than those in Jersey.
66. Turning to discretion, it was submitted for the Respondents that, if this court was satisfied that the child was now settled, the residual discretion to return the child to Canada had no foundation.
67. It could not be argued that the Royal Court had exercised its discretion wrongly. A move to Canada would necessarily be disruptive and the offer by the First Respondent of contact had not only been made but had been taken up by the Appellant. The Royal Court had fully understood the importance of the relationship between the Appellant and GG to GG's welfare.
68. As regards Article 13(b), it was emphasised that much evidence had been heard by the Royal Court on all relevant aspects including the parties' plans for GG, her attachments within the wider family and settlement in Jersey and the likely impact of her moving to Canada. Dr. Datta together with each lay witness had been cross examined at length on the range of possible outcomes if a return was directed and in respect of the impact on GG. This evidence displayed a significant impact, with considerable emotional distress both on GG and on the First Respondent.
69. As to the risk of arrest and detention in Canada, this was a question of fact, to be determined by the Royal Court; and the Appellant had accepted that extradition proceedings were hanging in the balance. The Royal Court had taken into account all of the evidence before it in determining that the probability of arrest in Canada was high and was entitled to reach each of its determinations on this matter.
70. Separately, in the present case, the Royal Court had a sound basis in evidence that the combination of the likelihood of the First Respondent being placed in custody, adverse publicity, financial hardship and separation mandated against the return of GG to Canada. The evidence showed that GG viewed D as her father and the loss of contact with him would have an undoubted impact.
71. Whether or not the Article 12 exception was made out, the Royal Court was entitled to look at the child's current circumstances, at the date of the hearing, in assessing whether a move to Canada would be damaging. Overall, the Court should have regard to the very real and serious effects of GG being separated from the First Respondent and her immediate family. The focus should be on the effect on the child in question.
72. As to protective measures, there had been changes of stance on the part of the Appellant which emphasised that this was not a simple area.
73. For GG's Guardian, Advocate Wakeling indicated that the guardian was neutral on the issues being addressed in the appeal. However, she submitted that, having regard to the rarity of such cases in Jersey and the procedural concerns which had been aired, it would be of assistance if this court would consider offering guidance for future occasions.
74. For HH's guardian, the submissions of Advocate Corbett generally echoed those for the First, Second and Third Respondents. In addition she sought to emphasise that, by 19 July, GG had been in Jersey for some 17 days and it was perfectly possible for her to have become settled in Jersey by that date. Although still in foster care, GG was seeing her birth-mother grandparents; and the legal mechanism of the Emergency Protection Order should not be seen as preventing the fact of settlement emerging.
75. Further, as regards the role of guardian in proceedings such as these, that role changed as soon as the Article 13(b) defence was raised because that defence went straight to the welfare of the child.
76. On substantive issues, we deal first with the second paragraph of Article 12 of the Convention and the concept of settlement.
77. At the outset, we have reached the conclusion, without much difficulty, that the Royal Court was in error in taking as the date of assessment the date of the hearing. Advocate Hall, for the Appellant, freely conceded that this point had been overlooked below. However, although all parties and the Royal Court had proceeded upon the assumption that the date of the hearing was the appropriate date, this is a matter of law and we must take cognisance of it. Whilst the argument for the Respondents before us was straightforward in that the word "now" in the phrase "unless it is demonstrated that the child is now settled in its new environment" ought to be read as at the time of the hearing both as a matter of standard English usage and by contrast to the use of "the commencement of the proceedings" in the first paragraph of the Article, we cannot agree.
78. In neither of the Australian cases put before us by the Respondents, was the issue thoroughly debated. In Director-General, Department of Community Services v M and C [1998] ICAD HC/E/AU 291 at paragraph 91 the Full Court of the Family Court of Australia had held:
79. However, those statements were not made in the context of a dispute between the parties as to the relevant date of appraisal being at only one of those points or potentially at either; rather, the statements were made in rejecting an argument that the Australian Regulations should be construed as importing into the concept of settlement not only the past and present situation but also, a longer term into the future; the argument being that, because of uncertain immigration status, it would not be possible to find that the children were settled in Australia: see paragraphs 88-90. In the opinion of the Full Court, that did not represent the law so far as the Australian Regulations were concerned. Those Regulations had to be applied and nowhere in the Regulations were the words 'long term' to be found, nor was there any warrant for importing them: see paragraph 91. Regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 provided, among other matters:
80. It will be seen that, whilst slightly differently worded, the phrase "is settled in" is only marginally distinguishable from the phrase "is now settled in" in the second paragraph of Article 12.
81. The other Australian case put before us, State Authority v Castillo [2015] FAMCA 792, was a decision of the Family Court of Australia. It is not immediately clear from the judgment of Bennett J. whether there was an issue between parties as to the point of assessment. However, having referred to the passage in M and C, above, her Honour stated this (paragraph 179):
82. In our judgment the fact that a trial subsists until a decision is delivered does not, in itself, offer any assistance in the proper interpretation of legislation which is at the heart of a dispute between the parties engaged in that trial. If, on a proper interpretation of legislation, it is clear that there is a point at which a matter must be assessed, it is the task of the court to make that assessment.
83. Article 12, in the second paragraph, does indeed use the word "now" and it is open to argument, as the Respondents have done, that a contrast may fall to be drawn with the use of the words "the commencement of the proceedings" in the first paragraph. However we see great force in the views expressed in the English cases that the proper interpretation of the word "now" is as a reference to the date of commencement of proceedings rather than the date of the hearing as, otherwise, any delay in the hearing might prejudice the outcome. This was first expressed in Re N (Minors) (Abduction) [1991] 1 FLR 413, 417 by Bracewell J. Most recently it was affirmed by Williams J. in AH v CD [2018] EWHC 1643 (Fam). As reiterated there, the date for assessment is the date of the commencement of proceedings in order to prevent settlement being achieved by delay in the court process. The decision of Bracewell J. has also been approved more generally: see Cannon v Cannon [2004] EWCA Civ 1330 at paragraph 22. In proceedings which are intended to be summary and merely to identify whether there is an exception to the general rule that a child should be returned to the jurisdiction of habitual residence, it will be unusual for there to be a material distinction between the date of commencement of proceedings and the date of the decisive hearing.
84. However, as regards the second paragraph of Article 12, the point is this. The paragraph proceeds upon the assumption that the jurisdiction of habitual residence will be best placed to understand the needs of the child. Settlement must be considered from the perspective of the child and the use of the concept of habitual residence imports more than a small degree of settlement. The use of the jurisdiction of habitual residence must be presumed to be of advantage, overall, for the child; and it would seem to be wrong for that advantage to be lost simply because of the length of time that, for special reasons, had been required to elapse between commencement of proceedings and the hearing.
85. The fundamental issue is as to the proper ambit or characterisation of the "new environment" into which a child may have become settled. With respect to the Royal Court, we cannot agree that, for the purposes of the second paragraph, a new environment can exist without consideration of a geographical element. At paragraphs 98 to 100, set out above, the Royal Court concluded, not only as a matter of fact would GG be expected to have to settle into the new geographical environments, but also that in practice the "new environment" for GG was familial and that, if it was possible to find that the settlement exception arose in respect of Spain, it would be entirely artificial to find that the exception no longer arose because of the moves to France and Jersey: see, especially, paragraph 100.
86. We note that all of the judicial pronouncements put before us from England and Wales in respect of the constituent elements of settlement, include physical elements which cannot be divorced from geography and place. It has been said that the term "new environment" encompasses place, home, school, people, friends, activities and opportunities but not, in itself, the relationship with the defendant parent: see Re N (Minors) (Abduction) at 417H-418B (Bracewell J.) and Re C (Child Abduction: Settlement) [2006] 2 FLR 797 at paragraph 46 (Sir Mark Potter P.). The emphasis on the need for a physical as well as an emotional settlement can also be seen in Cannon v Cannon at paragraphs 22 to 25 (Thorpe L.J.). On the other hand, the views expressed by the Royal Court in respect of the familial environment looked only at the emotional and psychological element and not the physical and geographical. As it seems to us, the provisions of the Convention appreciate that the habitual residence of a child might change from State to State. Article 3(a) identifies breach by reference to the law of the State "in which the child was habitually resident immediately before the removal or retention". This emphasises the distinctions to be drawn between habitual residence, ordinary residence and domicile. As was made clear in the speech of Lord Slynn of Hadley in Nessa v Chief Education Officer [1999] 1 WLR 1937, with direct reference to the judgment of Butler-Sloss L.J. in In Re F (A Minor) (Child Abduction) [1992] 1 FLR 548, 555, "habitual residence" was a question of fact to be decided on the date upon which the determination had to be made. There was no requisite fixed period and the required period might be longer where there were doubts but shorter, even a month, where there were durable ties with the country of residence or intended residence: at pp. 1942-1943. Thus, a new habitual residence may be acquired almost immediately.
87. But, for the purposes of Article 12, the important connection with the State in question at the time of abduction is not affected by subsequent events: it remains a fact to be determined, namely, the state of habitual residence immediately before the removal or retention (irrespective of where the removal or retention took place). In consequence, it does not matter whether GG became habitually resident or, more properly, settled in Spain as that, in itself, does not alter the issue to be tried as to the place of habitual residence immediately before the abduction.
88. Nor, in our judgment, would it be artificial to suggest that an exception which might have arisen during the period in Spain is no longer available. Not only does the Article 3 State not lose its position through some breaking of a chain: the State of presumed importance through proven habitual residence may only lose that status in the event of there being another State where such a degree of physical and psychological attachment has emerged that it may be preferable for that second State to be the place where decisions on the child's welfare should be taken.
89. That said, we do not disagree with the Royal Court that the Convention will have to be able to deal with persons whose lifestyle might be described as itinerant, nomadic or travelling. It is conceivable that a true nomad might move between States as the seasons progress or in looking for fresh pasture. A member of the travelling communities may well move through a number of States over a period of months or years. And the family of an itinerant worker in the oil industry might well find themselves spending two years in Scotland, two years in Australia, two years in South America and two years in the Middle East. But for each, there will be a degree of physical and geographical settlement for the individual period; and perhaps also a habitual residence which might be important for liability to taxation or access to benefits.
90. In this jurisdiction, where the development of law is often assisted by consideration of the jurisdictions within the United Kingdom, but not at the expense of its own customs and special interests, we see no local reason not to apply the views expressed in the English cases to which we have referred and in which reference will be found to similar approaches being taken in the courts in Scotland.
91. Applying these considerations to the facts here, as at the date of commencement of the proceedings, there can be no doubt that GG could not be said to have been settled in Jersey on 19 July 2019 when the Appellant's Representation was issued. GG was in foster care until 29 July 2019 when reinstated into the care of the birth mother grandparents. As at 19 July GG had spent some sixteen or seventeen days in Jersey, wholly the subject of an emergency protection order; and with her mother detained in custody because of charges of child neglect and of immigration offences and because of notice from Canada that an extradition request was contemplated. None of the ordinary concomitants of settlement, either physical or emotional, were present.
92. Nor, for the reasons which we have given, does anything turn upon the 3 years in Spain. That is not the place where GG was on 19 July and the fact that GG might have become settled in Spain for a period is not the question to be asked under the second paragraph of Article 12. To the contrary of the views expressed by the Royal Court, in our judgment it would be entirely artificial in the context of this child to find, for the purposes of the second paragraph of Article 12, that a jurisdiction with which the child has no connection would take precedence over a jurisdiction with which she had connection simply by reason of an intervening settlement in a jurisdiction which has no claim to offer systems for assessing the child's welfare.
93. Given the views which we have expressed, there is no need for us to consider the issue of discretion under Article 12: such a discretion only arises when settlement in the new environment has been demonstrated. That such a discretion exists even where settlement has been found is made clear in In re M (Abduction: Rights of Custody) [2008] 1AC 1288 at paragraph 31 (Baroness Hale of Richmond).
94. Similarly, there is no need for us to discuss issues relating to concealment and whether settlement in the new environment can properly be shown even although the parent was a fugitive from justice and the child in some way being concealed. Consideration of this would only have been necessary if the period of residence in Spain had been relevant. However, had it been necessary to consider these issues, we would have followed the general approach in Cannon v Cannon at paragraphs [52] to [57] to the effect that it will be very difficult, in most cases, for a parent who has hidden away a child to demonstrate that the child has become settled in its new environment.
95. We see much force in the consideration, because a fugitive from justice is always on the outlook for a sign that the other parent is approaching and, equally, with a continuing mindset to be ready to move, that there will be a lack of sufficient emotional stability to allow the child to feel settled. Similarly, the nature of the concealment, whether in a cottage in a remote location or kept in a room in a city flat, will militate against the wider social settlement discussed in the authorities to which we have referred. That said, circumstances such as the present, upon which we express no view, might be of the nature to permit psychological and emotional settlement (a) through there being a wider family in immediate existence rather than a single parent and (b) through that unit and its support allowing a less furtive presence in the community. That said, it might have been a matter of intricate balance to evaluate the wider social impact on a child who was allowed some social integration but where the evidence was that the family took some care not to call attention on themselves. How such circumstances fall to be appraised will be a matter of fact and degree in every case, and we are conscious that proceedings such as these are summary in nature in the majority of cases.
96. For all these reasons we do not find that the exception of settlement in a new environment arose.
97. This finding is open to us as the Royal Court asked itself the wrong question as to the date of appraisal and, in considering settlement in the new environment, failed to take in the geographical factor required.
98. In the light of our decision in relation to settlement, we must go on to consider the second ground for the Royal Court's decision not to return GG to Canada, namely that, in accordance with Article 13(b) of the Convention, there is a grave risk that GG's return would expose her to physical or psychological harm or otherwise place her in an intolerable situation.
99. The Royal Court made it clear at paragraph 60 of its judgment that none of the allegations by the First Respondent in respect of the Appellant's parenting of GG whilst in Canada were relevant for the purposes of this case. It follows that this is not a case where the court is concerned - as it often is - with the risk of physical harm to a child upon her return; the relevant parts of Article 13(b) are therefore the risk of exposure to psychological harm and the placing of GG in an intolerable situation by reason of returning her to Canada for the determination of disputed proceedings concerning her upbringing.
100. The leading case on Article 13(b) is that of the United Kingdom Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. Drawing on the helpful summaries of the judgment of Baroness Hale of Richmond in that case to be found in the judgments of MacDonald J in H v K [2017] EWHC 1141 (Fam) at [42] and Judge Turner QC in RA v RQ [2016] EWHC 3554 (Fam) at [81], we would summarise the applicable principles as follows:-
(i) There is no need for Article 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Article 13 are plain and need no further elaboration or gloss.
(ii) The burden lies on the person (or institution or other person) opposing return. The standard of proof is the ordinary balance of probabilities, but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.
(iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is a link between the two. Thus, a relatively low risk of death or really serious injury might properly be described as 'grave' while a higher level of risk might be required for other less serious forms of harm.
(iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. 'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'.
(v) Article 13(b) looks to the future; the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.
(vi) Where the defence under Article 13(b) is said to be based on the anxieties of a respondent mother about a return of the child which are not based upon objective risk to her or the child, but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable, the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled by protective measures. However, in principle, such anxieties can found the defence under Article 13(b).
101. It is also of note that the Supreme Court held that the Convention had been devised with the best interests of children generally, and of the individual children involved in such proceedings, as the primary considerations. It followed that, if a court faithfully applied the provisions of the Convention, it was most unlikely that there would be a breach either of Article 3 UNCRC or of Article 8 of the European Convention on Human Rights: (see [18] and [26] of Lady Hale's judgment).
102. As stated above, the Royal Court's decision was based upon the risk of psychological harm to GG as a result of being separated from the First Respondent in the event of the First Respondent being arrested and detained in prison upon her return to Canada. Advocate Hall submitted that the Royal Court erred in placing any weight on this aspect. She contended that it was well-established in England and Wales that the risk of the abducting parent being arrested and charged with a criminal offence was something which ought not to be taken into account when considering the defence under Article 13(b).
103. She said that this approach was conveniently summarised in the judgment of MacDonald J in Uhd v McKay [2019] EWHC 1239 (Fam), [2019] 2 FLR 1159 in the following terms:-
104. We fully endorse the sentiments expressed in the above quotation, particularly at [56] in the extract from H v K. However, we do not think that this principle is quite as unqualified as Advocate Hall submits. Thus, the opening words of paragraph 88 of Uhd refer to the risk of arrest and prosecution not being sufficient 'by itself' to satisfy Article 13(b); paragraph 89 refers to the circumstances described in that paragraph making it 'less likely' that the risk of imprisonment will represent a grave risk of exposure to harm, the inference therefore being that in some circumstances such risk may represent a grave risk of exposure to harm; and paragraph 55 of the judgment in H v K refers to the fact that the risk of arrest and prosecution will 'generally' not be sufficient to satisfy Article 13(b).
105. It follows in our judgment that, while the courts in Jersey will strive not to give any encouragement to an abducting parent and will look very sceptically at reliance upon any risk of arrest or imprisonment, they must nevertheless ultimately consider the question posed by Article 13(b), namely whether there is a grave risk that a return would expose the child to harm or otherwise place the child in an intolerable situation. In some circumstances, the consequences of imprisonment will play a part in answering that question. As Lady Hale said in Re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288 at [54]:-
106. The approach of an appellate court to findings of fact by a first instance court is well established. It is often expressed in terms of an appellate court not interfering unless satisfied that the first instance court was 'plainly wrong' - see for example Reg's Skips Limited v Yates [2008] JLR 191, per Jones JA at paragraphs 99 - 100, and Durant International Corporation v Federal Republic of Brazil, [2013] (1) JLR 273 per McNeill JA at paragraphs 19 - 23. That is, however, an expression which is capable of being misunderstood and the position was clarified in the decision of the UK Supreme Court in Foxworth Investments Limited v Henderson [2014] UKSC 41. Lord Reed JSC, in a judgment agreed by the other members of the court, considered the topic of when an appellate court may interfere with a finding of fact by a first instance court. We would quote two paragraphs from his judgment as follows:-
107. Where the finding of fact is based upon inference, an appellate court may be more inclined to interfere if it is in as good a position as the first instance court to draw the inference, but it will still allow a margin of appreciation to the court below, which will have heard all the evidence and have a feel for the case overall which can rarely be replicated in an appellate court.
108. Where questions of discretion or evaluation arise, the approach of an appellate court is similarly limited. As Beloff JA said in Jaiswal v Jaiswal [2007] JLR 305 at 330 - 331:-
109. In the present case, it seems to us that, having seen and heard the oral evidence, particularly that of Dr Datta, the Royal Court's finding as to whether GG was at risk of suffering psychological harm in the event of being separated from her birth mother was a finding of fact; its decision as to the risk of imprisonment could be said to be a matter of inference (as there was little or no direct evidence on the point); and the question of whether the suggested protective measures would be sufficient to allow for GG to be ordered to return to Canada was a matter of evaluation.
110. It follows that, in relation to the defence under Article 13(b), it is not open to this Court simply to substitute its own opinion for that of the Royal Court. In order to succeed, the Appellant must show that the Royal Court's decision fell outside the margin of appreciation accorded to a first instance court in matters of fact and evaluation.
111. The Royal Court's decision in respect of the Article 13(b) defence was based on two grounds; first, the psychological damage which would be caused to GG if she were to be separated from the First Respondent because the latter was imprisoned upon her return (paragraphs 128 - 130 and 138); and second the harm to GG and HH (as well as to the First Respondent and the (then) unborn second child of the First Respondent and D) which would be caused by their reduced contact with Mr M following return (paragraphs 119 and 138). The result of the latter would make the return of GG to Canada disproportionate for its effect on the Article 8 rights not only of GG but also of the First Respondent, HH, and the unborn child.
112. In relation to the second ground, we accept Advocate Hall's submission that it does not of itself give rise to a grave risk of harm or breach the Article 8 rights of any of those considered by the Royal Court and that very little weight can be attached to it. That is for the following reasons:-
(i) The result of GG's return being ordered is not to determine that she should remain in Canada in the long-term; it would mean simply that she would have to remain in Canada pending the determination by the Canadian courts of her future. Whether she remained in Canada thereafter would depend upon the decision of the Canadian courts. The assessment of harm must therefore be made by reference to the period necessary for the Canadian courts to determine K's future, not the long-term.
(ii) D has not been living with GG and HH. He has merely visited them in Spain, France and Jersey as often as his work in the Netherlands permits.
(iii) There was no evidence before the Royal Court that he would not be able to continue to visit the family in Canada during the period necessary for the Canadian courts to determine GG's future. There is no suggestion that he is at risk of arrest or prosecution.
(iv) The most that could be said is that his visits may be somewhat less frequent than at present because of the increased time and expense necessary to travel to Canada. But we do not see that this reduction in frequency could give rise to a grave risk of harm as required by Article 13(b).
(v) To the extent that the Royal Court placed reliance on the Article 8 rights of GG, HH, the newly born child and the First Respondent, we do not think that this is consistent with the observations of the Supreme Court in Re E, where it was held that, assuming the faithful application of the Convention, it was unlikely that the Article 8 rights of the child or the parents would be infringed. In relation to siblings, the Supreme Court held at paragraph [50] that the Article 8 rights of a sibling could be engaged but that any interference with the rights of such sibling could readily be justified in the interests of the rights of others, and in particular those of the child who was the subject of the application under the Convention. The primary focus had to be on the position of that child.
113. We turn therefore to consider the main ground of the Royal Court's decision, namely the risk of psychological harm to GG in the event of separation from the First Respondent following the latter's imprisonment.
114. Advocate Hall submitted that the judgment of the Royal Court was internally inconsistent. At paragraph 123 of its judgment the Court said:-
Yet, submitted Advocate Hall, the Royal Court went on to do just what it had said it would not do in the above paragraph. It had relied on the possibility of arrest and imprisonment as the basis of its finding that the Article 13(b) defence was made out.
115. On close analysis, we do not think that the judgment contains the internal inconsistency to which Advocate Hall refers. In the first place, in the opening sentence of paragraph 124, the Royal Court immediately qualified the above emphasised passage in paragraph 123 by saying:-
116. Secondly, the observation of the Royal Court at paragraph 123 has to be read in the context of the applicable principles which we have described above. The possibility of arrest/imprisonment should not, of itself, lead to a finding of a grave risk of harm. But the Royal Court did not proceed on that basis. It went on to consider the expert psychological evidence of Dr Datta and other matters which led it to conclude that, in this particular case, there was a grave risk of psychological harm in the event of separation from the mother as a result of her imprisonment.
117. Even if it were to be said that there was an internal inconsistency, the real issue is whether the Royal Court asked itself the right question pursuant to Article 13(b) and, if so, whether it reached a conclusion which was open to it on the evidence.
118. Next, Advocate Hall submitted that, as established in Re E, the burden was on the First Respondent to prove on the balance of probabilities that she would be imprisoned/not be granted bail and this she had failed to do. There was no evidence before the Royal Court on this aspect and the Royal Court was therefore wrong to find that the First Respondent had discharged the burden upon her.
119. In our judgment, this submission misstates the issue to be determined under Article 13(b). The Article does not require the Court to find that, if returned, a child will on the balance of probabilities be exposed to psychological harm/placed in an intolerable situation; the test is whether there is a grave risk that either of these eventualities will occur. The Court must therefore be satisfied on the balance of probabilities that such grave risk exists, but not that the child will be exposed to psychological harm or placed in an intolerable situation.
120. The Royal Court found (at paragraph 128) that psychological damage would be caused to GG if she were separated from her birth mother when returned to Canada. The first issue which the Royal Court therefore had to consider was whether there was a grave risk that such separation would occur i.e. there was a grave risk of the First Respondent being imprisoned.
121. On this aspect, the judgment also records at paragraph 56 that the Royal Court was informed that, although extradition proceedings were not being continued in Jersey (because there is no mirror offence), should the First Respondent go to live in England extradition proceedings would be commenced in England in order that the First Respondent be sent back to Canada to face trial on charges of abduction. The offence of abduction carries a maximum sentence in Canada of 10 years or 2 years if tried summarily.
122. The Royal Court's conclusion on the issue of the risk of imprisonment is to be found in paragraphs 128 and 129, the relevant parts of which are as follows:-
123. It is not surprising that there was no direct evidence from the Canadian prosecuting authorities as to the likelihood of charges, bail or a sentence of imprisonment (in the event of conviction). As MacDonald J said at paragraph [55] in H v K (set out within the quotation at paragraph 103 above), it is understandable that prosecuting authorities are reticent about disclosing details of what may occur. In many, if not most cases, it will not be possible to obtain direct evidence on such matters, but it is open to a requested court to draw appropriate inferences as to whether there is a grave risk of arrest, charges or imprisonment.
124. Although the Royal Court appears to have asked itself whether, on the balance of probabilities the First Respondent would be imprisoned rather than the lesser question of whether there was a grave risk of imprisonment, the reasons which it gives are, in our judgment, perfectly adequate to lead to an inference that there was indeed a grave risk of such imprisonment (and consequent separation from GG).
125. Nor do we think that, as Advocate Hall submits, in deciding that the assumed actions of the Canadian system (in arresting and imprisoning the First Respondent) would cause GG grave harm, the Royal Court failed properly to pay heed to the principle of comity and respect for the courts of a foreign state. The decision as to whether to prosecute an abducting parent for abduction rests with the prosecuting authorities for criminal prosecutions. This will invariably not be the court responsible for determining welfare issues relating to the child. As MacDonald J said at paragraph 56 of the judgment in H v K (included within the quotation at paragraph 103 above), an abducting parent must expect to be the subject of arrest and prosecution. There can be no possible criticism of the Canadian authorities for the fact that they sought extradition of the First Respondent in this case and may prosecute her if she returns to Canada; and we do not read the judgment of the Royal Court as containing any such criticism. It is simply that the fact that there is a grave risk of such prosecution and that the resulting separation from the child will cause psychological harm is something which the requested court can properly take into account when deciding whether or not the Article 13(b) defence is made out.
126. We turn, therefore to the second issue for the Royal Court, namely whether, as the Royal Court found (at paragraph 128), psychological damage would be caused to GG if she were separated from her birth mother when returned to Canada. On this, we remind ourselves that our task is restricted to considering, in accordance with Foxworth, whether the finding is one that no reasonable court could have made (or is a finding that cannot reasonably be explained or justified, to use Lord Reed's alternative formulation, although he clearly intended these to be two different ways of saying the same thing).
127. At paragraph 128 of the judgment, the finding of the Jurats was:
128. Whilst, at this point in the judgment, the basis in evidence for the finding in fact is not set out, we were taken to the medical evidence before the Royal Court, that of Dr Datta. In our judgment, there was evidence upon which the Royal Court could reasonably find, as it did, that separation from the First Respondent as a result of her imprisonment would cause GG potentially long-term psychological damage. The evidence of Dr Datta both in his report and in his oral evidence during the course of which he was cross-examined is significant and unwavering. At 3.6 of his report he said that separation from the First Respondent ".....would place [GG] at risk of immediate, ongoing and long-term psychological harm". He remained of this view in his oral evidence and explained how, given the background, the relationship with the First Respondent was absolutely central for GG from a psychological point of view and should be preserved above all else. Separation would be a major disruption to her internal psychological world and her sense of safety and security. It was put to him that, assuming the First Respondent left Jersey in say three years' time and was then arrested and extradited, separation would occur at that time in any event. Would it not therefore be better to get the matter over and done with at this stage? However, Dr Datta expressed the view that GG and HH would be better able to cope at that stage as they would be older and have a better understanding. He accepted that, if GG was placed with the birth mother's parents during any period of the First Respondent's incarceration, this would be the best option but could not substitute for the relationship with the First Respondent. He further stated that the fact that there had been a separation in Jersey when the First Respondent was remanded in custody would be likely to increase the damage from any subsequent separation on a return to Canada. Finally, he expressed the opinion that even a comparatively short separation would be damaging.
129. The following factors, relied on elsewhere in the judgment, would doubtless have been in the minds of the Jurats at this stage of their assessment:-
(i) the fact that GG was placed in foster care on her arrival in Jersey, which would have been a deeply unsettling experience;
(ii) the fact that over 3 years have passed since GG has lived in Canada and that she was under 2 at the time of her removal. As Baroness Hale said in Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 All ER 783 at [53] "a delay of this magnitude [over three years in that case] in securing the return of the child must be one of the factors in deciding whether his summary return, without any investigation of the facts, will place him in a situation which he should not be expected to have to tolerate";
(iii) the fact that GG is now well-settled in Jersey. Thus paragraph 99 of the Royal Court judgment records that GG and HH have been enrolled in school since September and that GG is at or near the top of her class. GG attends Sunday school at a local church and has attended birthday parties of classmates and made friends. The Royal Court found from the evidence before it that GG feels she belongs at home and at school in Jersey and is doing well;
(iv) it follows that, if her return were to be ordered and her birth mother were to be imprisoned, GG would at one and the same time lose the security of friends, school and general environment in Jersey, and lose, for the period of incarceration, the most important relationship in her life, namely that with the First Respondent. She would in effect be hit by two very significant losses at the same time.
130. This is perfectly adequate for the Royal Court to find that separation of GG from her birth mother as a result of the latter being imprisoned would be likely to cause GG psychological harm (even if she lived with the birth mother's parents or mother alone during the period of imprisonment). As we have upheld the finding of the Royal Court that there is a grave risk that the First Respondent would be imprisoned on a return to Canada, it follows that it is not open to us to interfere with the finding of the Royal Court that there is a grave risk that ordering GG's return would expose her to psychological harm, so that the defence under Article 13(b) was made out.
131. As can be seen, both the Royal Court and this Court have taken into account matters which have arisen after the date of the application under the Convention on 19th July 2019. We raised this matter during the course of the hearing and all parties accepted that determination of whether the requirements of Article 13(b) are met must be assessed by reference to the date of the hearing before the requested court. In our judgment, that is clearly correct. Whilst Article 13(a) relates to matters prior to the wrongful removal, the matters under 13(b) and the question of whether, as the subsequent part of Article 13 provides, the child objects to being returned can only properly be assessed as at the date of the hearing before the court. Moreover, Article 13(b) contains the general long-stop provision which enables the requested court to refuse the return to the Article 3 state (which would otherwise be assumed to be in a child's best interests) if it considers that all the evidence shows that such return would itself cause the child 'grave harm'. Necessarily, to give effect the child's best interests, the requested court must, in considering whether the general policy of the Convention should be overridden, be able to consider all the facts available to it as at the date when it considers this question.
132. Advocate Hall's final point relates to protective measures. She explained that, towards the end of the hearing before the Royal Court, she handed up a draft order which contained certain undertakings which the Appellant would be willing, in principle, to give to the Court. These included that the custody order dated 10th July 2019 should be withdrawn; that she would inform the Canadian police and the Canadian central authority that she would not pursue or support any criminal proceedings against the First Respondent; and that GG would, following any return, live with the First Respondent and/or the First Respondent's parents until further order of the Canadian court. Advocate Hall submitted that the Royal Court had not followed the process laid down in Re E of considering specifically whether any protective measures (such as undertakings) could ameliorate the position sufficiently to allow for GG's return.
133. We agree that the judgment of the Royal Court does not contain a specific passage explaining why the protective measures offered would not ameliorate the position, but it is clear that it considered the matter and concluded that they would not (paragraph 138). Thus the Court set out at paragraph 124 a number of undertakings which it felt the Appellant could provide to the Royal Court and went on to say at paragraph 127 that it would consider the Article 13(b) defence on the basis of the undertakings being given. The only material difference between the undertakings set out in paragraph 124 and those referred to above by Advocate Hall relates to the acceptance in the latter, on behalf of the Appellant, that GG should reside with the First Respondent and/or the First Respondent's parents pending any decision of the Canadian court. However, it is clear not only from the draft order but also from the Appellant's skeleton argument before the Royal Court that the Royal Court was informed that the Appellant envisaged GG remaining in the care of the First Respondent's parents and/or D in Canada in the event of the First Respondent being arrested.
134. We are satisfied that the Royal Court did consider whether the protective measures would sufficiently ameliorate the grave risk of exposure to psychological harm but concluded that they would not. In our judgment, this was a conclusion which was reasonably open to the Royal Court on the evidence, given its findings as to the likelihood of criminal proceedings, the resulting separation from the First Respondent and the consequent psychological damage which would be suffered by GG.
135. In summary, we dismiss the appeal against the Royal Court's decision that the Article 13(b) defence was made out and that GG should not be returned to Canada.
136. During the course of the hearing, Advocate Hall on behalf of the Appellant made the point that the purpose of the Hague Convention is to ensure that the best interests of the child are served by ensuring that disputes concerning their upbringing - custody, contact and welfare - are resolved as early as possible. In general, this means determining the question of jurisdiction as quickly as possible, without lengthy interlocutory jurisdictional hearings. Accordingly, there is a presumption that the child will be returned to the State of their habitual residence at the point when they were removed from it, and subsequent issues will be determined by that State. Delay in deciding such questions could create disruption for a child and applicant for return, whichever way the jurisdiction question is ultimately resolved. Accordingly, she said, it was important that the court considering an application for return under the Convention should bear in mind the limited nature of the issues which it was considering; and avoid unnecessary interlocutory steps, which could have the effect of delaying an application. She also said that the Royal Court should have been cognisant of the limited role of a guardian; the questions before it were not the substantive ones as to what were in GG's long-term best interests, but only the narrow question of whether, if Article 13(b) was in play, there was a grave risk that GG's return while the family law proceedings in Canada were underway would expose her to physical or psychological harm or otherwise place her in an intolerable situation. GG's welfare thereafter was a matter for the Canadian courts, which would treat this as a primary consideration.
137. The Royal Court heard the application before it in January 2020, some six months after it was lodged, on 19 July 2019. In the meantime, a number of interlocutory steps and case management decisions had been made including: joining the First Respondent's parents as parties; joining GG herself as a party through a guardian (even though she was only five years old); joining HH as a party (even though he was only three years old); considering an application by the First Respondent's partner and HH's father, D to be joined as a party; requiring the parties to instruct independent experts on rights of custody; refusing the Canadian Central Authority's offer to provide an expert legal opinion; and holding what was said to be an inordinately long hearing of oral evidence, in a hearing lasting five days in total.
138. We should emphasise that we make no criticism of the Royal Court's case management in this exceptionally complex case.
139. We also think it was right for the Royal Court to have appointed a guardian to represent GG's best interests before the court. However, since Hague Convention cases are infrequent in this jurisdiction, we consider it may be of assistance to offer some guidance on case management and the role of the guardian in any future Convention application in Jersey.
140. First, while expeditious case management is always important (justice delayed often being justice denied), in Convention applications it is especially important - as the language of Article 11 of the Convention requires judicial authorities to act 'expeditiously' in the return of children. This is unsurprising, giving the background of the UNCRC and the need to keep the best interests of children in mind as a primary consideration. The Convention application is itself an interlocutory step - to determine the appropriate jurisdiction for resolution of substantive issues - and delay in determining that question can in itself create disruption and so have an adverse effect on the interests of the child. It is by providing a mechanism whereby international contested proceedings concerning the upbringing of a child can be determined as quickly as possible, without getting bogged down in jurisdictional disputes, that the Convention, faithfully applied, can protect the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration, as required by Article 3 UNCRC and Article 8 of the European Convention on Human Rights (see [18] and [26] of Lady Hale's judgment in Re E (supra)).
141. Secondly, therefore, case management applications and decisions should be made with the need for expedition in mind, and where there is a choice between two approaches, that which is more likely to incline to speed should be preferred. For example, it might, in retrospect, have been preferable to have accepted the offer of the Canadian Central Authority's expert legal opinion on rights of custody in Canada; and unnecessary applications for joinder should be discouraged as conducive to delay in determining applications as to forum, which is itself contrary to the policy of the Convention.
142. Thirdly, the issues in a Convention case are relatively constrained. The court is not concerned with deciding the long-term best interests of a child, and therefore during the course of the hearing should bear in mind that, so far as contested evidence is brought as to the best interests of the child who is the subject of the application, the court is only concerned with evidence to the extent that it is material to the exercise of the court's discretion under Article 12 or 13(b) of the Convention, namely, whether the presumption should be upheld that the child should be returned to his or her State of habitual residence immediately before removal (Article 3). As we have explained earlier in our judgment (at paragraph 100), in the light of the decision in Re E, that is a limited exercise. The discretionary issue under Article 12 is whether, notwithstanding the child is settled in their new environment, the general discretion to return the child should be exercised. The issue under Article 13 is whether, notwithstanding what would otherwise be an obligation to order return, there is a 'grave risk' of harm being caused to the child in question. The best interests of other family members (as, in this case, D, or GG's half-brother HH) are not relevant to this exercise, save to the extent that they have an effect on the impact of return upon the child who is the subject of the application. Thus, in this case, while we think it was right that GG should be separately represented, we also think it was right that the Royal Court rejected applications on behalf of D to be joined; and for our own part, we would also have rejected the applications for GG's grandparents and HH to be joined as a separate parties. Neither the grandparents nor HH had a separate legal interest in these proceedings as parties rather than witnesses (albeit that the grandparents' evidence as to whether they might provide care for GG on a short-term basis if she were returned to Canada was relevant to the application). Multiple applications for joinder are all capable of adding to delay and causing needless expense, as did the making and consideration of applications for them to be joined in this case. This is a point which practitioners considering the making of such applications in any future Convention cases should bear in mind.
143. Finally, while it is right for a guardian to be appointed to represent the child who is the subject of a Convention application, we would exhort guardians to bear in mind the limited scope of evidence concerning a child's best interests in such proceedings. In Convention cases, the evidence sought and submissions made by a guardian on a child's behalf should go only to the issue of extent of settlement for Article 12, to the potential impact of return on the child's interests were the court otherwise minded to order return of the child even where settled, and to the potential impact of return on the child's interests for Article 13(b); and a court should entertain evidence and submissions only on those questions. On a Convention application to determine jurisdiction and the issue of return of a child, the Royal Court is not concerned with wider or longer-term best interests considerations, but only with deciding the question of which court should consider those issues. These are matters which are to be determined by whichever court ultimately has jurisdiction.
144. So, in the present case, we consider that Dr Datta's evidence went rather wider than was required. The only issues before the Royal Court were whether, at the relevant date, GG was 'settled' in Jersey, if so whether to order return and whether returning GG to Canada for the purpose of proceedings to determine her longer-term future would lead to a 'grave risk' of causing her harm. Were it decided that GG should be returned to Canada, it would only have been for the purpose of the Canadian courts determining issues concerning residence, contact and custody. In those circumstances, whether or not GG should remain in Canada thereafter, and the bearing of her best interests on that question, would be for the decision of the Canadian courts.
145. On an application before the Royal Court to decide the jurisdictional question under the Convention, any assessment of harm for the purposes of Article 13 must therefore be made by reference to the period necessary for the Canadian courts to determine GG's future, not the longer-term.
146. We therefore refuse the appeal.
