De L & H
| Jurisdiction | England & Wales |
| Judgment Date | 03 December 2009 |
| Neutral Citation | [2009] EWHC 3074 (Fam) |
| Date | 03 December 2009 |
| Court | Family Division |
| Docket Number | Case No: FD09P01381 |
[2009] EWHC 3074 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: The President Of The Family Division
Case No: FD09P01381
David Williams (instructed by International Family Law Group) for the Applicant
Charles Hale (instructed by Freemans Solicitors) for the Respondent
Kay Halkyard (instructed by Osmond Gaunt-Rose) for The Child
Hearing dates: 7th, 8th October, 12th November and 26 th November
SIR MARK POTTER, THE PRESIDENT OF THE FAMILY DIVISION
Sir Mark Potter P:
The male child the subject of these proceedings is R who was born on 27 February 1996 and is now aged 13 and a half. The plaintiff is his mother, a Portuguese national living in Portugal, who brings a Hague Convention application pursuant to the Child Abduction and Custody Act 1985 and Council Regulation (EC) No 2201/2003 (B2R) against the defendant, R's father, who is a British National living in England. The mother alleges that the father has wrongfully retained R in England since 4 September 2008 when he failed to return to the mother's care from his long summer holiday with the father, as arranged between the parties. It is not in dispute that, at that time, the mother enjoyed custody of R under orders of a Portuguese Court. By way of defence, the father denies Wrongful Retention and raises defences of Acquiescence and Child's Objections pursuant to Article 13(a) of the Convention. A defence asserting great risk of an Intolerable Situation if R were returned to Portugal has also been raised.
Regrettably, this is the third occasion on which there have been Hague Convention proceedings between the parties. They met in Portugal in November 1993 and married on 17 December 1994, R being born on 27 February 1996. When he was four months old the parties moved to England in May 1996 so that the father could start up a business here.
The marriage was already in difficulties. According to the father the mother had a volatile temperament. According to the mother she suffered domestic violence at his hands. Six months after R's birth, the mother left the matrimonial home in December 1996.
The mother subsequently obtained leave from the English Court to remove R (then 18 months old) temporarily to Portugal for five weeks. Following such removal on 1 September 1997, she failed to return him and began custody proceedings in Portugal, being awarded provisional guardianship and care of R on 30 October 1997, with rights of contact for the father in Portugal. The English Court (the Slough County Court) ordered the return of the child to England and the father brought Hague Convention proceedings in the Portuguese Court. The proceedings were protracted and, in October 1998 the Portuguese Court declined to order R's return, holding that the mother had made out a defence under Article 13 (b) of the Convention. The Portuguese Court declined to make an order for contact between R and the father other than in Portugal and, in the face of maternal opposition, the father had little or no contact with R for two years until September 1999, when he was granted permission by the Portuguese Court for staying contact with R for a 5 day period in Lisbon.
In the face of the mother's non-co-operation and difficulties raised by her in implementing such contact in Portugal, the father removed R to England without the permission of the Portuguese Court in September 1999. The mother immediately pursued Hague Convention proceedings and, within three weeks, on 11 October 1999, this Court ordered the father to return R forthwith to Portugal. It is important to note that the report of the social worker, Dawn McNally, who reported on R's situation to the Court, stated that R appeared content, well cared for and positively attached to his father, but she expressed concern at “emotional abuse inherent in a situation where both parents go to the lengths of abducting a child”.
The mother continued to oppose contact between R and the father. Between 1999 and 2004 it is apparent that there were a series of reports and Court proceedings in Portugal, recited in a translated Court report (case number 1231-A/97) of the Third Court of the Family and Minors Court of Lisbon dated 5 January 2004. This records the opposition of the mother to contact with the father and various evasive and delaying steps apparently taken by her despite the fact that social reports recommended, and judicial decisions provided for, renewed contact between R and his father in England. The position was reached whereby the Portuguese social services and the Department of Justice, supported by the guardian in the Portuguese proceedings, were recommending transfer of temporary custody to the father, with similar contact and visiting arrangements afforded to the mother as had previously been provided for in favour of the father. In the Lisbon Court's decision of 5 January 2004, the position of the guardian of minors was summarised as follows:
“[The guardian], basing herself on the high interests of the minor, now seven years old, alleges that the mother uses and treats the child like a possession of hers, disrespecting and offending his feelings, generating anguish that divides him, and that the father has objective and subjective conditions to have the child, proposing the granting of custody of the child to the father.”
The Court, nonetheless, regarded the Portuguese social services report, upon which the opinion of the guardian was based as lacking factual rigour and being based on evidence which had not been made clear to the Court. Accordingly, and bearing in mind the limited contact which the father had previously had, the Court confirmed that custody and care should remain with the mother; however, it made generous provision for contact between the father and R in Portugal and provided that such arrangement should not prejudice its later alteration “should adequate conditions be proven for the minor to live with the respondent father in English territory.”
The Department of Justice and the father appealed that decision and in November 2004 the Appeal Court in Lisbon, while affirming the grant of custody of R to the mother, provided for regular holiday contact with the father in England. Between November 2004 and summer 2007 R thereafter had regular holiday contact with the father. He would spend the summer holidays with the father, with alternating Christmas and Easter holidays and it is not in dispute that such contact worked well.
The father and R both state that in 2007 R asked if he could try living with the father for a while. The father told R it was not a matter for him as it had been decided by the courts and he should discuss it with his mother. R did so and the mother was very upset at that suggestion so that her relationship with R, already difficult, began to deteriorate. The mother does not dispute this but states her belief that the father had begun to manipulate the son against her and that, following an accident to the mother's back while swimming, she believed the father tried to convince R she would not be able to care for him properly as a result.
In or about March 2008, at R's request, the father made an application (the form and terms of which are not before me) to the Faro Court to vary the custody arrangements. [The hearing date was subsequently set for 28 October 2008 – see further below].
It was agreed between the mother and father that R would stay with the father between 24 June and 4 September 2008 under the agreed arrangements and a return flight was booked for those dates. As usual, R travelled unaccompanied, but with assisted travel, to England where he was met by his father and the airline staff who handed to the father R's Portuguese travel document, namely his “billet de identificacion” (BI).
The contact went well over the summer, the father and R sharing an interest in car maintenance, cycling and off-road racing as well as small projects of furniture design. Telephone contact with the mother was sporadic. Until certain conversations at the end of August and the beginning of September concerning R's return, to which I will shortly turn, the father says that the mother telephoned only three times. The mother says that R's mobile telephone was often not working and that she believed the father told R not to telephone. Both the father and R deny this. What is clear is that R was not returned to the mother's care in Portugal on 4 September 2008 as agreed. There has been dispute over the reasons and circumstances surrounding R's non-return, which go to the question of both wrongful retention by the father as at 4 September as alleged by the mother (which the father denies) and the father's plea of subsequent acquiescence by the mother, based on her conduct and attitude at the time, which she denies. I have heard extensive oral evidence from the parties on these two issues.
It is the father's case that, in the last week of August 2008, he found that R's Portuguese BI and the British passport in respect of R which the father held were missing. R, who by then had told both his mother and father of his wish to stay with the father in England, informed the father that he had found and burned both documents so that he could not return to Portugal as previously arranged.
Having heard evidence upon the topic from both the mother and the father, I accept the father's evidence, as to the position at 4 September 2008, supported as it is by the terms of an e-mail exchange between the parties on 28/29 August and the statements of R to his guardian ad litem and the CAFCASS social worker who has reported on R's wishes and feelings. The position may best be summarised by quoting an e-mail sent by the father on 28 August, which I am satified was at the time both truthful...
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