A v T
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BAKER |
| Judgment Date | 09 December 2011 |
| Neutral Citation | [2011] EWHC 3882 (Fam) |
| Docket Number | Case No. FD11P02388 |
| Court | Family Division |
| Date | 09 December 2011 |
[2011] EWHC 3882 (Fam)
IN THE HIGH COURT OF JUSTICE.
(FAMILY DIVISION)
Royal Courts of Justice,
Strand,
London WC2A 2LL.
Mr Justice Baker
Case No. FD11P02388
MISS JACQUELINE RENTON (instructed by Hartnell Chanot & Partners, Oriel House, Southernhay Gardens, Exeter EX1 1NP) appeared on behalf of the Applicant Father.
MR JEREMY ROSENBLATT (instructed by solicitors) appeared on behalf of the Respondent Mother.
In these proceedings, brought under the Hague Convention on civil aspects of international child abduction as implemented by the Child Abduction Custody Act 1985 and complemented by the Council's Regulation EC No 2 to 01 2003 concerning the jurisdiction and recognition of enforcement judgments in matrimonial matters and the matters of parental responsibility (commonly known as Brussels II Revised), a father EA represented by Miss Jacqueline Renton seeks the return to Sweden of two children, J born 21st April 2007 so therefore now aged four and a half, and E, a girl, born 2nd December 2009 and therefore now just two, following their retention in this country by their mother CT, who is represented by Mr Jeremy Rosenblatt. It is not disputed that the children were indeed retained in this country by the mother on 26th July or that at that stage they were habitually resident in Sweden. The mother's Defence to the claim brought by the father is that he consented to or acquiesced in the children's removal or retention.
Background summary.
The mother is 39 years old, having been born on 5th January 1972. The father is 35, having been born in Sweden on 1st May 1976. The mother is English; the father is Swedish. They met in the summer of 2002 and shortly thereafter commenced a relationship and the father moved to England for a period of several months. In 2004 the parties moved to Sweden after becoming engaged and married on 30th July 2005. The mother started suffering from depression and had worsening bouts of depression together with anxiety attacks. She became unhappy living in Sweden. In autumn 2006 she became pregnant. On 2nd December 2006 the parties executed an agreement which forms the basis of the case before me and the terms of which are set out substantially as follows:
'Agreement dated 2nd December 2006 between CT and EA. Recitals. CT and EA are English and Swedish respectively, married and currently living in Sweden. CT does not anticipate living in Sweden on a permanent basis. They intend to have children together and have agreed to set out the terms of the living arrangements of any children that they have together in the event that CT decides to leave Sweden while any of those children are under the age of 18. This agreement is intended to set out those terms and to clarify that EA will give all permissions which may be necessary or required to enable CT to leave Sweden with their children whether it be on a permanent or temporary basis.'
There is then a Definitions and Interpretation section which includes inter alia the following provisions:
'In this agreement … "event" means a decision by CT to leave Sweden at any time whether permanently or temporarily for any reason whatsoever … "permissions" means all or any consents, approvals or other permissions whatsoever required under Swedish or English law by the Swedish or English authorities whether orally or in writing to enable CT to leave Sweden at any time whether permanently or temporarily with the offspring and without restriction whatsoever.'
Further on in the agreement EA's obligations are summarised as follows:
'In consideration of the sum of £1 paid by CT to EA and of the obligations set out in Clause 3 below EA hereby (a) gives all permissions necessary to enable CT and the offspring to leave Sweden whether temporarily or permanently at any time and for any reason whatsoever, and (b) agrees that he will give all or any further permissions which may be necessary to enable CT and the offspring to leave Sweden or remain out of Sweden whether temporarily or permanently at any time and for any reason whatsoever, and (c) agrees that when asked will orally or in writing he will give all permissions promptly in whichever form they may be required orally or in writing and will use his best endeavours to give those permissions, and (d) agrees that he will provide promptly whatever finance necessary to enable CT and the offspring to leave Sweden and will continue to support CT and the offspring financially so as to enable them to live in the same manner to which they have been accustomed in Sweden after they have left Sweden.'
By Clause 3 of the agreement CT's obligations are set out as follows:
'CT agrees that should an event occur she will grant EA reasonable access to the offspring in whichever country they choose to live. For the avoidance of doubt, CT will not be obliged to bring or send the offspring to Sweden or to provide any financial assistance to EA in order to provide that reasonable access.'
I ought to add that under the Definitions section 'offspring' is defined as meaning 'any child or children under the age of 18 having (a) CT as its or their biological or adoptive mother, and (b) EA as its or their biological or adoptive father.'
Clause 6 to the agreement headed 'Good faith' reads as follows:
'CT and EA have each read and understood the terms of this agreement and consider the terms of it reasonable. They each recognise the moral obligations intended by this agreement and agree that they will cooperate in good faith with each other for the purpose of enabling each to fulfil his or her obligations under this agreement.'
The mother described the circumstances in which she sought and obtained this agreement from the father in her oral evidence. She said that her understanding was that the father had thereby given all permission that she would need at any time whenever she wanted to leave Sweden permanently with the children. She said that the father had always known that she was not happy living in Sweden. She said that when she became pregnant she became particularly concerned at the prospect of being trapped. She was very unhappy in Sweden and she would never have had children if she had thought there was a chance that she would be trapped there. It is the mother's case that in many conversations subsequently the father reiterated his assurance and agreement that he would allow the mother and children to leave Sweden to go to England whenever she wanted to do so.
On 13th April 2007 the mother gave birth to the parties' first child J. On 2nd December 2009 she gave birth to their second child E. The mother continued to be unhappy living in Sweden and there were many conversations between the parties about the prospect of moving to the United Kingdom. At the end of 2010 the parties agreed that they would move to this country at the end of 2012. The father agreed that he would relocate his work to this country. By the end of 2010 the mother's depression had worsened and the relationship between the parties had started to break down. They underwent a course of marital counselling in Sweden. In early February 2011 the mother drew up a document to be signed by the father in these terms:
'To whom it may concern, I EA am the lawful custodial father of J [at this point the date of birth and certain further details of J are set out] and E [again at this point further the date of birth and further details of E are set out]. J and E have my consent to travel with their lawful custodial mother CT [date of birth, place of birth and other details set out] to anywhere in the world indefinitely without limitation either in place or time whatsoever.'
No signed version of this document has been produced to the court but the mother's case is that the father did indeed sign it and that it was witnessed by a neighbour MM. The father's evidence was that he could not remember signing the document. Having heard the parties' evidence I accept the mother's account and I find that the father did indeed sign it.
On 12th February the mother and the children came to England for three weeks. Whilst here, the mother contacted the father by email to arrange the signing of a further document which was in due course signed by the father on 4th March. On this document there is no dispute that it was signed and indeed a signed copy has been produced to the court. The terms of the March document are in some respects similar to those of the February document but there are some significant differences. The relevant parts of the document read as follows:
'To whom it may concern, I EA am the lawful custodial father of J … and E … J and E have my consent to travel with their lawful custodial mother CT … to anywhere in the world whether on a temporary or permanent basis without limitation either in place or time whatsoever. The contents of this letter including but not limited to the consents given in it are intended to be perpetual and be of unlimited duration.'
At the time the father signed the March document the mother and children were still in England visiting her family. An exchange of emails took place between the parties prior to the execution of that document. On 3rd March the mother emailed the father asking him to print off the attached document, sign it in front of a witness, who she said could not be a relative, scan it and send it back to her, making sure that it was signed in blue ink. She added 'I need to have this back from you if I am going to travel on Saturday.' Later that evening she emailed him again 'You had better get that letter signed and back to me...
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...(Bodey J). Other decisions of note are C v H (Abduction: Consent) [2009] EWHC 2660 (Fam); [2010] 1 FLR 225 (Munby J); and A v T [2011] EWHC 3882 (Fam); [2012] 2 FLR 1333 (Baker 25 The position can be summarised in this way: (1) The removing parent must prove consent to the civil standard......