AT v SS
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Macdonald,Mr Justice Macdonald |
| Judgment Date | 29 September 2015 |
| Neutral Citation | [2015] EWHC 2703 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD15P00102 |
| Date | 29 September 2015 |
[2015] EWHC 2703 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
He Honourable Mr Justice Macdonald
Case No: FD15P00102
Ms Mehvish Chaudhry (instructed by Brethertons) for the Applicant
Ms Jaqueline Renton (instructed by Duncan Lewis) for the Respondent
Hearing dates: 11 September 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
In this case I am concerned with a little boy called S. S is now aged 5 years old. This is an application by S's father, AT for the summary return of S to Holland pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter 'the Convention') and the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereafter BIIa).
The mother of S is SS. She currently resides in this country with her husband, MM, together with MM's child from a previous relationship. The mother is currently heavily pregnant by MM. S attends school in England and is making progress. The mother opposes the return of S to the Netherlands and submits that she has a defence to the same under Art 13(b) of the Convention. She has indicated that, in any event, she will not accompany her 5 year old son to Holland were this court to decide to order his return.
The parties have managed to agree a number of key issues in this case. Namely, it is agreed that the mother removed S from Holland at a time when S was habitually resident in that country and that the mother's removal of S was in breach of the father's rights of custody in respect of him. At the time the mother removed S from Holland there was also a family supervision order in force in respect of S. Accordingly, it is agreed that the mother's removal of S from Holland was wrongful for the purposes of Art 3 of the Convention.
Within this context, both Ms Chaudhry, who appears on behalf of the father, and Ms Renton, who appears on behalf of the mother, have been astute to concentrate on the single issue that remains in contention, namely whether the mother has established that to order the summary return of S to Holland would expose S to a grave risk of physical or psychological harm or would otherwise place him in an intolerable situation for the purposes of Art 13(b) of the Convention. If I conclude that it would, Ms Chaudhry invites me to exercise the discretion that thereby arises in favour of returning S to Holland. Ms Renton invites me to exercise my discretion to refuse such a return. Whilst the dispute in this matter has crystallised into a single issue, in the particular circumstances of this case it is an issue of some complexity.
BACKGROUND
The father was born in Afghanistan and is 42 years old. He has three children from a previous relationship, all living in Pakistan. The mother was born in Kabul. She is 26 years of age. Both parties share dual Afghani and Dutch nationality. The parties met when the mother was 17 years old and the father was 33 years of age. They were married in October 2007. S was born in 2010 and lived with the mother and the father until their separation. The date of the parents' separation is a matter of disagreement but appears to have occurred at a point between November 2011 and October 2012.
From 2011 there was extensive involvement by Dutch children's services and the Dutch courts in S's life. During the course of this involvement there has been a succession of what we would recognise as public law orders. S spent a period of time in foster care between June 2013 and October 2013, the Dutch court having granted authorisation for a custodial placement for S following a deterioration in the mother's mental health. The driving force behind the continuation of this State intervention in S's life has been a protracted dispute between the parents within which the father has been seeking, with only limited success, consistent contact between himself and S. During the course of that dispute a series of orders were made providing for contact between the father and S supervised by the Youth Care Agency. It is accepted by both parties that the last contact the father had with S was on 19 February 2014.
Turning to examine this history in a little more detail, the proceedings in Holland appear, from papers provided to this court by the Dutch authorities, to have had their genesis in concerns expressed in early 2011 regarding the mother's ability to parent S and to co-operate with professionals. Within this context, the Child Care and Protection Board (CCPB) launched a child protection inquiry in February 2011. In March 2011 the CCPB concluded that the parents had a limited network, that both had to contend with psychological problems and that both had financial difficulties. It was recorded that the parents did not trust the support services provided by the State.
The CCPB also recorded that S had been witness to domestic violence. Within this context the father conceded that he could get very angry but asserted his anger was directed towards inanimate objects. In her statement in these proceedings the mother alleges that the father has in the past raped her. Whilst the father was arrested following that allegation the mother later withdrew the complaint. The mother also alleges in her statement that the father would get drunk and angry and verbally abuse her and that he was a controlling individual. She alleges that on one occasion he dragged her out of the house by her hair and, on another occasion, threatened to attack her with a hammer. The mother further alleges the father has issues with both drugs and alcohol and associates with dangerous people. In addition, she alleges that the father has been physically violent to S by grabbing him from her arms.
The father denies the allegation of rape and each of the other allegations of verbal and physical violence levelled by the mother. The father contends that she raised none of these allegations in the proceedings concerning S in Holland. It is conceded by the mother that there have been no incidents of verbal or physical violence since the mother separated from the father in, she says, October 2011. Whilst at one point in her statement the mother alleges that there was an incident in 2014 when the father intimidated and scared her, she confirms that she has not spoken to the father directly since 2011.
Having concluded its child protection investigation, the CCPB made an application for a provisional family supervision order on 30 March 2011. On 5 April 2011 the Dutch court placed S under a temporary family supervision order for 3 months. At the hearing on 5 April 2011 the father objected to the temporary family supervision order, contending that the mother was a very capable parent. It would appear that a request for authorisation for a custodial placement for S made by the Youth Care Agency at this time was denied.
On 27 June 2011 the temporary family supervision order was extended. It would appear that at this time the father was assisting the mother with the care and upbringing of S, although by November 2011 the mother contends that the parents had separated. An appeal by the mother against the family supervision order heard in November 2011 was dismissed. In January 2012 the father telephoned the Police and Youth Care crisis hotline alleging that the mother wished to go abroad with S. No signs of an intended departure by the mother were detected.
On 26 March 2012 the temporary family supervision order was further extended. The papers record that the mother was stable and could provide for S's basic needs at this time. There was a recommendation that the mother "process her experiences of the past in the long term". The father was himself undergoing psychological treatment for issues arising out of what are described as "his traumatic war years in Afghanistan". Within these proceedings the father contends that he was never a participant in the war in Afghanistan but instead suffered from post traumatic symptoms by reason of a car accident.
On 30 May 2012 the Dutch court heard the father's application for the court to determine the division of care with respect to S. The record of that hearing relates that the parents had joint parental authority in respect of S and that the parents were making cross-allegations against each other regarding their respective parenting of S and the safety of S in each other's care. With respect to the father, the Office for Youth Care is recorded as stating that "there are worries about the contact between the father and his son" those worries being that the father had insufficient "pedagogic skills". The Office of Youth Care however commended the father for recognising this, and for being open to receiving assistance. Within this context, the Dutch court considered that the father should have supervised contact with S in a 'Contact House' that could develop his parenting skills and assist the parents in communicating and making arrangements in respect of S. The court however noted that only the father was willing to co-operate with this proposal, the mother refusing to do so and refusing to speak with the father despite the urging of the court and notwithstanding her stated intention not to stand in the way of contact between the father and S. In the circumstances, the Dutch court (holding that contact between S and the father was in the interests of S but considering that...
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