Court of Appeal orders rehearing in dispute between Maltese parents

Cohabitation|May 2nd 2014

The Court of Appeal has ordered a rehearing in a child custody dispute between Maltese parents.

An interview with the couple’s 13 year-old daughter conducted by Mrs Justice Parker had not correctly followed legal guidelines, the court declared.

In Re KP (A Child), the parents had lived together between 1999 and April 2013 and the girl, called ‘K’ in case reports, was born and raised there. After the parents separated, K’s mother took her to England, without her father’s knowledge or permission. They set up home in London, living with K’s maternal grandfather.

The father launched proceedings for the return of his daughter under the Hague Convention on the Civil Aspects of International Child Abduction. This provides a legal instrument for the return of children taken without permission by a parent from one participating country into another.

The case came before Mrs Justice Parker in September last year.

At the Court of Appeal, Lord Justice Moore-Bick explained:

“By that stage the mother accepted that the father had rights of custody within the terms of the Hague Convention and that her removal of K to England in June 2013 amounted to a “wrongful removal”, thereby triggering a requirement for the court summarily to order K’s return to Malta unless one or more of the exceptions within the Convention was established.

The mother relied upon two such exceptions, firstly the child’s objections and secondly Article 13(b) [of the Hague Convention]. The relevant terms of Article 13 of the Convention are as follows:

“Child objections

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

Article 13(b)

… the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that … there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

In support of her case, the mother made criticisms of the father and his behaviour, sought to characterise him as angry, moody and aggressive, but fell short of complaining of actual physical violence. There is a dispute between the parents as to what part the father played in K’s upbringing before the separation.”

During the course of the initial hearing, Mrs Justice Parker interviewed K for “over an hour”, in order to discuss her views of the family’s situation. This meeting followed an earlier interview with a Cafcass officer. During the latter, K had:

“…described Malta in negative terms, particularly highlighting that it was a small island, where everybody knew each other’s business, where she had experienced poverty and that, although the weather and the scenery were nice, the language and the people were “horrible”. She also spoke in negative terms about her father.”

However, Mrs Justice Parker concluded that K’s objections were not as absolute as they appeared, and that she was in fact simply confused and had no rational or thought-through reasons for not wanting to return to Malta.

She concluded:

“In this case it is in K’s interests to return. Quite apart from the underlying purpose of the Convention, it is in her interests to return to her home, her environment, her school, and to a place where she may be able to restore her relationship with her father.”

K’s mother appealed the ruling. Her legal term argued that the judge had been wrong to meet and rely on her discussion with K in coming to her judgement. In doing so, she had contravened the official Guidelines for Judges Meeting Children who are Subject to Family Proceedings.

The Court of Appeal agreed, saying:

“Despite having great respect for this judge, who is highly experienced in the conduct of proceedings where the voice of the child needs to be heard, our conclusion is that on this occasion the conduct of the judicial interview did indeed fall on the wrong side of the line.”

During the meeting with K, said the Lord Justice, the judge’s role should have been “largely that of a passive recipient of whatever communication the young person wishes to transmit.”

In addition, the purpose of such meetings is “not to obtain evidence and the judge should not, therefore, probe or seek to test whatever it is that the child wishes to say. The meeting is primarily for the benefit of the child, rather than for the benefit of the forensic process by providing additional evidence to the judge.”

On a similar note, “the judge was in error in regarding the meeting as being an opportunity for K to make representations or submissions to the judge. The purpose of any judicial meeting is not for the young person to argue their case; it is simply, but importantly, to provide an opportunity for the young person to state whatever it is that they wish to state directly to the judge who is going to decide an important issue in their lives.”

Lord Justice Moore-Bick concluded:

“In a case that has already been unduly delayed at every stage, the prospect of a re-hearing before a different judge is not one that will be welcomed by anyone. That said, we are afraid that, regrettable though it is, a re-hearing is the only possible outcome.”

Author: Stowe Family Law

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