AO v ZP
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Baker |
| Judgment Date | 11 September 2015 |
| Neutral Citation | [2015] EWHC 3345 (Fam) |
| Court | Family Division |
| Date | 11 September 2015 |
| Docket Number | No. FD15P00275 |
[2015] EWHC 3345 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Baker (In Private)
No. FD15P00275
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF IO (A CHILD)
APPERANCES
Mr. Alistair. Perkins (instructed by Crosse & Crosse Solicitors LLP) appeared on behalf of the Applicant.
Miss Magdalen Case (instructed by Farleys Solicitors LLP) appeared on behalf of the Respondent.
This is an application by father under the Hague Child Abduction Convention 1980 for the return to Ukraine of a little boy, I, born 12 th August 2010. The father's case is that I was brought wrongfully to this country by his mother in breach of the father's rights of custody and in consequence this court should order his summary return.
The mother accepts that she brought I to this country without the father's consent and therefore wrongfully but she opposes an Order for the summary return to Ukraine on two grounds. First, that the father has acquiesced in his remaining in this country and, secondly, the defence under Article 13(b) of the Hague Convention, namely that there would be a grave risk that an order for his return would expose I to physical or psychological harm or otherwise place him in an intolerable situation.
Background
The father is 32 and the mother is 26. The relationship began in Ukraine in 2006. The mother's evidence is that the father has had problems with alcohol and drugs and was, on occasions, aggressive and abusive towards her. She asserts that these problems continued after I was born in 2010. She further asserts that the father did not show any real interest in his son at that stage. In autumn of 2011 they separated and the mother took I to live with his grandparents but the parties reconciled again shortly after.
The mother says that the father was subsequently convicted of a drink drive offence and after that their relationship became unbearable. She then realised she could not remain with him any longer and in May 2013 left and went to live with her parents in Belarus. Significantly, she left I in the father's care at that stage. Her explanation for this is that I's paternal grandparents, whom she asserts to be strong, dominant characters within the family, would not allow her to take I with her.
She and the father reached an agreement and thereafter I's care was effectively shared. He spent periods at home in the care of his father in Ukraine and some other periods in Belarus with the mother. His registered place of permanent residence was the father's accommodation in Ukraine and he also attended a nursery school there.
In 2014 the mother started a relationship with another man called A and together they decided to come to live in England. In November 2014 the mother took I to Belarus with the father's consent for a period of some 12 weeks. On 28 th January of this year she brought I to England. She acknowledges that she did not tell the father in advance that she was planning to do so, and only told him what she had done a few days later.
She, A and I subsequently moved addresses on a number of occasions. It is the mother's case, although not accepted by the father, that she kept him informed of their whereabouts throughout. In May she gave birth to her second child, another boy, of whom A is the father. Thereafter the mother has suffered from significant postnatal depression.
The father's case is that he tried to reach a compromise with the mother concerning what would happen to I. When the mother refused to agree to return I to Ukraine under any circumstances he decided to start these proceedings via the central authorities. The application was issued in this court under the Hague Convention on 19 th June of this year. A location Order was made on the same date.
Thereafter the matter came back to court on four occasions for directions. The mother delayed in filing her response partly because of delays in obtaining public funding. Directions were given by MacDonald J on 28 th July which recorded the defences on which the mother seeks to rely (acquiescence and Article 13(b)) and also records that if the court were to order I's return to Ukraine she would not accompany him because she was suffering from postnatal depression. Further directions were given leading to a hearing before me today, 11 th September. The court directed that both parties should attend the hearing, the mother in this country and the father from Ukraine given that the defence of acquiescence had been raised. It was further directed that the father should attend to give oral evidence subject to the judge's determination. Public funding was eventually extended to cover the mother's representation at this hearing a week ago. Miss Magdalen Case had been instructed to represent her which she has done with conspicuous ability for which the court is very grateful.
The mother attended a conference with counsel earlier this week but in the event did not attend court today notwithstanding the direction. Her explanation given through counsel after her lawyers had contacted her at 10:15 to enquire about her whereabouts was that she was unwell and could not therefore make the journey from her home in Lancashire. Miss Case thereafter applied to adjourn the hearing today. I refused that application. A medical report confirming the mother is suffering postnatal depression was produced yesterday which, whilst identifying that she had indeed suffered from that illness, did not suggest that her ill-health was at a level which would preclude her attending court. Furthermore, the mother failed to notify her lawyers or the court that she would not be attending until contacted by her lawyers themselves at about 10:15 this morning. Given the urgency with which child abduction proceedings must be concluded and the delays which had already occurred since the proceedings were issued some 12 weeks ago, and the limited scope of a hearing under the Convention and the 1985 Act, and the fact that no further hearing could be arranged before November, I refused to adjourn the hearing but suggested that efforts be made to enable the mother to participate in the hearing via telephone. In the event she declined to take part either giving evidence or listening on the grounds that she was not well enough to do so. In those circumstances Miss Case did not pursue her previous application for oral evidence to be adduced on the issue of acquiescence.
The law
The twin objectives of the Hague Child Abduction Convention are set out in Article 1:
"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."
In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 Baroness Hale of Richmond observed at para.48:
"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."
Article 12 of the Convention provides:
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the...
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