At v Ss (No 2)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice MacDonald,Mr Justice MacDonald |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] EWHC 3328 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD15P00102 |
| Date | 18 November 2015 |
[2015] EWHC 3328 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice MacDonald
Case No: FD15P00102
Ms Mehvish Chaudry (instructed by Brethertons) for the Applicant
Mr Main-Thompson (instructed by Duncan Lewis) for the Respondent
Hearing dates: 13 November 2015
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.
This judgment was delivered in private. The Judge has given permission for this annonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the current addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.
INTRODUCTION
On 29 September 2015 I made a return order pursuant to Art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter 'the Convention') in respect of a child, S. S is now aged 5 years old. My reasons for making the order are set out in my judgment of that date, the neutral citation for which is [2015] EWHC 2703 (Fam). This judgment should be read with my previous judgment.
Within my judgment of 29 September I recorded the stated intention of S's mother, SS, articulated during the final hearing of this matter on 11 September 2015, not to return with S to Holland in the event I made a return order. That remained the position of the mother as at the date of my first judgment.
By reason of the fact that the return of S to Holland was to take place without his being accompanied by his primary carer, I permitted what I described in my first judgment as "a short delay" in the implementation of the return order whilst the necessary arrangements are made for the return of S to, and the reception of S in Holland.
The arrangements to which I made reference included the need to notify the Dutch authorities of the decision of this court, the need for an interim foster care or kinship placement to be identified and the need for arrangements to be made for transporting S to the Netherlands in the event that the mother persisted in her stated intention not to accompany her child to that jurisdiction. Within this context, I ultimately approved a consent order which provides for the return of S to Holland no later than 13 November 2015.
At the beginning of last week I was informed by a letter from the solicitors acting on behalf of the mother that she had now decided that she did wish to return to Holland with S. The mother now applies to vary the return order I made on 29 September 2015 to allow for a further two month delay in the return of S to allow the mother to accompany him to Holland.
BACKGROUND
As noted in my first judgment, the mother was, as at the hearing on 11 September, heavily pregnant. Within this context, the mother appears to have notified her own solicitors of her change of heart regarding return to Holland with S on 5 October 2015. On 6 October 2015 the mother's solicitors wrote to the father's solicitors informing them that the mother would wish to travel with S to Holland in the week commencing on 12 October, before the birth of her expected child.
However, the mother asserts that on 7 October, and in response to her enquiring whether it was safe to fly prior to her giving birth, she was advised by her general practitioner that not all airlines would allow her to travel heavily pregnant and that she should she wait until after the birth to fly to Holland.
It is important to note that the recollection of the mother's GP appears to be somewhat at odds with the mother's account in several respects. In a letter dated 12 November the GP relates that the mother stated on 7 October that she was planning to fly to the Netherlands on 13 November. This is contrary to what the solicitors for the father had been told regarding an intended return in the week commencing 12 October. Further, the GP makes clear that she advised the mother against this course of action because her estimated delivery date was 4 November and, accordingly, that she should await the outcome of the birth before deciding whether to fly on 13 November 2015. It is clear that the advice of the GP was predicated on the mother giving an intended date of travel that post dated her estimated date of delivery. At no point does the GP state that she informed the mother on 7 October that she should not travel to Holland ahead of her estimated date of delivery, either because of restrictions put in place by some airlines or because it was unsafe for her and her unborn child to travel per se.
Further, even if the mother's contention regarding the advice she received from her GP is accurate, there is no evidence of the mother checking with airlines on 7 October whether they would permit her to travel. In addition, air travel is not the only means of reaching Holland from the United Kingdom. There is no evidence that the mother looked at alternative forms of travel, although the mother now states that she did not think about the option of travelling to Holland by ferry.
The mother also asserts that, some days subsequent to the appointment with her GP, her midwife told her that she should not travel until after the birth. There is no evidence before the court to corroborate that assertion.
Nearly a month after the mother indicated that she would be prepared to travel to Holland with S, on 3 November 2015 the mother's general practitioner provided a letter which confirmed that the mother " is not able to travel soon because she is 39 weeks pregnant". The letter further stated that the midwife had advised against travelling for at least three weeks after the delivery "assuming that she has a smooth trouble free birth process".
On 7 November the mother gave birth to her new child. That birth, I am told, was not "smooth and trouble free" and had to be achieved by way of a caesarean section. The mother was discharged from hospital on 9 November 2015.
The mother's application to vary the terms of the return order first came before me on 9 November 2015. At that hearing the mother contended through counsel that, by reason of the circumstances of the birth of S's sibling and notwithstanding her change of heart with respect to accompanying S on his return to Holland, she would not be in a position to do so until at least 28 November 2015.
I pause to note that, beyond the letter from her GP dated 3 November 2015, mother adduced no medical evidence at the hearing on 9 November to substantiate that assertion, either by way of her primary medical records or by way of a report from the medical staff responsible for her health and the health of the new born baby. In addition to the absence of medical evidence to underpin the mother's submission that she and her newborn child would not be fit to travel with S until the end of the November, the mother also raised an issue concerning the passport that will be required for the mother's newborn child to travel to Holland. As related in my first judgment, the mother shares joint Dutch and Afghani nationality. The father of her new child is English. Within this context, both the nationality of the new child and the mechanism and timescales for obtaining a passport for that child remained to be confirmed as at the hearing on 9 November. Finally, it was only on the morning of 9 November...
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