C (Children) (Abduction: Article 13 (b))
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice David Richards,Lord Justice Moylan |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2834 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/2435 |
| Date | 20 December 2018 |
[2018] EWCA Civ 2834
Lord Justice Lewison
Lord Justice David Richards
and
Lord Justice Moylan
Case No: B4/2018/2435
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
HIS HONOUR JUDGE CLIFFORD BELLAMY
Sitting as a Deputy High Court Judge
FD18PO0534
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr M Jarman (instructed by Brethertons LLP Solicitors) for the Appellant
Ms S Cooper (instructed by Access Law LLP Solicitors) for the Respondent
Hearing date: Tuesday 11th December 2018
Approved Judgment
Introduction
The father appeals from the dismissal of his application under the Hague Child Abduction Convention 1980 (“the 1980 Convention”) for the return of two children aged 6 and 4 to South Africa. The application was determined by His Honour Judge Bellamy on 21 st September 2018. He decided that the mother “had established her Article 13(b) defence”.
It was accepted by the mother that the children had been wrongfully retained in England. In response to the father's application she initially relied on the elder child's objections to returning to South Africa and on Article 13(b). At the hearing she did not pursue the former.
The father contends, in summary, (i) that the evidence did not support the judge's conclusions, on which he based his determination that Article 13(b) was established; and (ii) that the judge failed adequately to analyse the circumstances for the children following a return to South Africa having regard, in particular, to the specific protective measures proposed by the father.
At the conclusion of the hearing, the parties were informed that the appeal would be allowed and the father's application remitted for an urgent rehearing. These are my reasons for that decision.
Background
It is only necessary to set out a very brief summary of the background.
The mother was born in England but moved to live in South Africa when she was aged 9. The father was born in South Africa. The parties met and married there in 2011. They have two children who have always lived with the parents at the family home in South Africa. Both parents worked for the same company.
On 4 th May 2018 the family travelled to England. There was an issue between the parties as to the purposes of the trip. The father said that it was for the purposes of a holiday. The mother said that it was to consider whether they could move to live here permanently. She also said that, from her perspective, “the move to England would have been a last opportunity for us to try and save our marriage”. On 7 th May the parents had an argument. The police were called. The father left and returned to South Africa alone.
Proceedings
On 6 th August 2018 the father commenced proceedings seeking the summary return of the children to South Africa pursuant to the 1980 Convention. He offered a number of undertakings including to vacate the family home. He also proposed that he would lodge the undertakings with the court in South Africa.
As referred to above, the mother initially relied on the elder child's alleged objections to returning to South Africa and on Article 13(b). She filed one substantive statement.
The mother stated that she had been the victim of significant domestic violence and abuse, beginning in 2012. She relied on a number of specific incidents which she said had taken place between then and May 2018. She also alleged that it was “not uncommon” for the father to drink excessively and that, “quite often, he was extremely drunk”. The mother explained that she was particularly vulnerable. She did not believe that the father “would be able to control himself” and she would be “at further risk of physical or sexual assault should I return to South Africa”. She also said that, in respect of her mental health, a return “would have a very detrimental effect on me”. She also believed that the children had been affected by what they had witnessed in South Africa and were afraid to return there.
In respect of the father's proposed undertakings, the mother questioned their efficacy in particular on the basis that the father would either “disregard” them or be unable to “deliver” them. She referred to her concerns about the father's drinking and “the risk that he would not comply with any assurances or court orders” whether made here or in South Africa. In the event that a return was ordered, she sought additional measures including that all the undertakings “be supported by a South African order before our return rather than after”.
In his second statement, the father disputed the mother's allegations. He adduced evidence from his employer to address, in particular, the mother's allegation about his drinking. He also adduced evidence as to his earnings in support of his offer to pay child and spousal maintenance. He additionally offered a non-molestation undertaking.
The mother relied on a report from her GP in England dated 23 rd August 2018. She had first seen the GP on 12 th June 2018 and had seen him a further five times up to 23 rd August. The judge quoted from the report at length and it was clearly a significant factor in his decision. I, therefore, repeat most of the quotation.
“[The mother] has been suffering with profoundly low mood and significant anxiety in relation to her current circumstances that she has found herself in with her husband.
[The mother] alleges that her husband has issues with alcohol. She goes on to accuse him of being physically violent to her on numerous occasions.
[Reference is then made to the mother's experiences in the past.]
As a direct response to the extreme stress she is now suffering with, she has developed Telogen Effluvium, a well-recognised illness that occurs after a major stress to the body, something more commonly seen after major surgery or pregnancy.
She has been started on Fluoxetine to improve her mood and this was increased to 40mg once a day. Unfortunately it doesn't seem to have helped her much, probably because her mood is likely situational.
She has been referred on to IAPT which is a psychological counselling service that provides low intensity cognitive behavioural therapy. I have referred her children to our health visitor service … to assess the risk to the children due to the very concerning allegations above.
I have significant concerns about [the mother] being returned to South Africa, given the accusations of physical and sexual abuse. She tells me that her husband has access to her house, as well as to firearms and she feels her life would be directly under threat should she return. She also worries the policing and legal system would not protect her.
I have no concerns that [the mother's] mental state is unstable and her presentation is one of a woman struggling with enormously challenging circumstances in the best way she possibly can. There is no evidence to suggest psychosis or personality disorder from the 3 consultations we have had. I have absolutely no concerns from my interaction with [the mother] and her children that she has any impairment whatsoever in her ability to look after them and be a good mother.”
Pursuant to the court's direction a Cafcass Officer saw the elder child and filed a written report dated 14 th September 2018. It is a detailed report which included that the child missed her father a lot and also missed her paternal grandparents and her dog. The child gave a description of the parents sharing family responsibilities. She also said that she wanted to remain in England.
The Cafcass Officer also made some observations about the mother's allegations. It was noted that, if the allegations about domestic violence and alcohol misuse were true, they would “represent a potential risk to the children were they to be returned to such an environment”. This was because it “is emotionally harmful for children to witness violence and abuse in the home”. It was also observed that if the mother's “mental health is poor, this is likely to have an impact on the quality of care she can provide” the children.
After making the above observations, the Cafcass Officer said that, from seeing the elder child, it appeared that she “had been protected from whatever difficulties there may have been in the parent's relationship. Despite the abuse reported by (the mother) (the child) has only positive things to say about her father, she is not fearful of him and she is missing him”.
It was, rightly, accepted by the mother, in the light of the report, that the elder child did not object to returning to South Africa.
The hearing took place before HHJ Bellamy on 20 th September 2018. He did not hear oral evidence. Both parties were represented by counsel.
The two strands to the mother's case under Article 13(b) appear to have been the risk of domestic violence and the risk that she would suffer psychologically if she had to return to South Africa. It was her case that these risks, separately and collectively, gave rise to a grave risk that the children would be exposed to physical or psychological harm or would otherwise be placed in an intolerable situation.
The judge summarised the evidence from the parties and the Cafcass Officer. In the course of this he set out an extract from a written record made by the police in England in May 2018.
“[The mother] was very distressed whilst talking about [an incident] in South Africa and she was both physically shaking and emotionally very distressed in making this report.”
The judge then commented that this “description mirrors the mother's presentation in court throughout this hearing.”
The judge next set out the parties' respective submissions. The mother's case was summarised as follows:
“33. For the mother, Mr Jubb submits that there is clear evidence that...
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