C v S (Child Abduction: Hague Convention: Article 13)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Pauffley |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] EWHC 3799 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD14P000925 |
| Date | 07 November 2014 |
[2014] EWHC 3799 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Pauffley
Case No: FD14P000925
Richard Jones for the Applicant, father
Christopher Miller for the Respondent, mother
Hearing date: 4 November 2014
Introduction
This is an application by a father for the summary return to Australia of his son, L, who was born 14 years ago, in 2000.
On the basis of the papers, it had seemed as though the mother's opposition would have had a very broad base – a possible argument about parental responsibility and the implications of the father not holding it here; an assertion that the father consented to the removal; a claim that by the time the mother decided to retain the child here he was no longer habitually resident in Australia; a contention that a return would place the child in an intolerable situation and there would be an associated grave risk of psychological harm; and finally, a child's objections' 'defence' based upon the content of L's interview with Bob McGavin of the Cafcass High Court team as well as L's letter written to me after interview.
The mother's case was modified at the outset of the hearing so that the only two issues pursued on her behalf were Article 13B 'intolerability / grave risk of psychological harm' and 'child's objections.'
I am indebted to Counsel, on both sides, for the economical, erudite and considered way in which they have presented their respective cases. Though I was provided with bundles of authorities which extended to many hundreds of pages, it was unnecessary to go further than those extracts related within the Skeleton arguments. The law in this area, although constantly developing, does benefit from a number of well-established principles.
Essential background
The background may be shortly summarised. The father was born in the UK but is now habitually resident in Australia. The mother is a UK national.
The parents began their relationship in 1997 and separated in 2003. They did not marry. After the separation, L lived with his mother in England and had regular contact with his father.
In about 2007, the father moved to live in Australia having met the person who was to become his future wife on a trip there in 2005. The father and his wife have two daughters of their marriage.
Meanwhile, the mother became involved with and subsequently married H. Together they have two children, a boy who is nine and a girl almost four. In late 2008, the mother, L, her husband H and their first born child moved to Australia. H had secured employment there.
L started school locally. He had staying contact with his father as well his new family every third weekend.
In the early summer of 2011, the mother, her husband and the children came to England so that he could fulfil a work assignment. According to the father, the expectation was that they would return within 3 months. They did not go back to Australia until the spring of 2012. The mother claims there was "no talk of (the trip) being for a limited time such as three months." Her husband had "announced that he would like to return to Australia." She did not want to go but her husband "was very forceful and (she) really had no choice but to accompany him back to Australia."
Unbeknown to the father, the mother and her husband separated in December 2013. She remained, together with the children in the former matrimonial home, a rented property.
Since her departure from Australia in early June 2014, there have been divorce proceedings between the mother and H in the courts there. Although there had been some indication that H might apply "for a recovery order" in relation to his children, I was told he has accepted that they will live in England, he will agree to the equivalent of a Child Arrangements Order in favour of the mother and there will be no application for their summary return.
Circumstances of departure from Australia
Tracking back a little in time, in May 2014, the maternal grandmother who lives in England visited the mother in Australia. According to the mother, at the end of her visit, the maternal grandmother asked if the mother would like to take a holiday in England "to have a break." The mother accepted the offer. Tickets were purchased on 22 May. They travelled here with the children on 2 June.
The mother asserts she "did have a conversation via telephone and email with the (father) and explained to him that because of the situation with (her) husband and the break up of (their) marriage, (she) made the decision to travel to the UK." It might be said that the email correspondence between the parents from 4 – 29 June, usefully analysed on page 3 of Mr Jones' Skeleton, suggests otherwise.
On 25 June, the father wrote that he and his wife were "still devastated and shocked that (the mother) left Australia … without even a phone call." On 29 June, in an email, he said "you should still have consulted with me as (L's) parent before leaving the country as I would not have given you my permission …"
The Hague Convention – the framework
Pursuant to Article 3 of the Convention on the Civil Aspects of International Child Abduction, " (t)he removal or the retention of a child is to be considered wrongful where – a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."
Article 12 provides that " (w)here a child has been wrongfully removed or retained in terms of Article 3 and …. a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."
Article 13 describes exceptions to the mandatory return provision created by Article 12. As relevant here, "… the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that – b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."
Article 13B principles
As was made clear by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011]UKSC 27 there is no requirement to narrowly construe Article 13B. " By its very terms, it is of restricted application. The words …are quite plain and need no further elaboration or 'gloss.'" A number of principles may be drawn from the judgment –
• The standard of proof is the ordinary balance of probabilities. The burden of proof rests upon the person opposing the child's return. It is for that person to produce evidence to substantiate the defence raised.
• 'Grave' qualifies the 'risk' of harm rather than the 'harm' itself but there is a link between the two concepts. The risk to the child must have reached a such level of seriousness as to be characterised as 'grave.' A relatively low risk of death or serious injury might properly be qualified as 'grave' whereas a higher level of risk might be required for other less serious forms of harm.
• The situation faced by the child on return depends crucially upon the protective measures which could be implemented so as to avoid the risk that the child will be harmed or otherwise face an intolerable situation.
• Inherent in the Convention is the assumption that the best interests of children as a primary consideration are met by a return to the country of their habitual residence following a wrongful removal. That assumption is capable of being rebutted only in circumstances where an exception is made out.
In relation to 'intolerability' Lady Hale in Re D (Abduction: Rights of Custody) [2007] 1FLR 961 said, " Intolerable is a strong word but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'."
Also relevant to the facts of this case is the principle articulated in C v C (Minor) (Abduction: Rights of Custody) [1989] 1 WLR 654 namely that an abducting parent is not entitled to rely upon harm to the child arising out of her refusal to return with the child, as permitting her so to do would " drive a coach and four through the Convention. In such a situation any risk of harm to the child arises not from the order for return but from the refusal of the abductor to accompany him."
It is also right to observe that it has been held that if an order for return was demonstrated to result in children being left homeless and destitute without recourse to state benefits, a court would be likely to find that Article 13B had been established: see Re M (Abduction: Undertakings) [1995] 1FLR 1021.
The mother's case in relation to a return
The mother's Defence, particularly as it relates to Article 13B, is founded upon an envisaged separation between herself and L if a return order were to be made. Neither she nor his siblings would be going back to Australia.
In her statement of 8 October, the mother refers to the circumstances between herself and her husband, H. She states that unbeknown to her, he had surrendered...
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