A (A Child) (Hague Abduction; Art 13(b): Protective Measures)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 14 February 2019 |
| Neutral Citation | [2019] EWHC 649 (Fam) |
| Date | 14 February 2019 |
| Docket Number | Case No: FD18P00788 |
| Court | Family Division |
[2019] EWHC 649 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Williams
Case No: FD18P00788
Mr M Turnell (instructed by Lyons Davidson) appeared on behalf of the Applicant Father
The Respondent Mother appeared in person
(As Approved)
I am dealing with an application made by the father under the 1980 Hague Child Abduction Convention for the return of his daughter, A, who was born on 27 December 2014, so who is now therefore 4 years and 2 months of age. The father is represented by solicitors and counsel. He has the benefit of non-means, non-merits legal aid in accordance with the obligations we have undertaken in relation to the 1980 Hague Convention.
The respondent is the mother of A. She is not represented in court and is being assisted by an interpreter organised by the court service.
The application is for the summary return of A to Latvia. The mother, the father and A are all of Latvian origin and the application arises out of the fact that A was brought to the United Kingdom in the summer/early autumn of 2018 without the agreement of the father. The mother has been living here ever since with her mother.
A was habitually resident in Latvia prior to the summer of 2018, and because, according to the documentation from the Latvian Ministry of Justice, parental responsibility for A was shared between the mother and father, the removal of A from Latvia by her mother was wrongful within the meaning of the 1980 Hague Convention as being in breach of the father's rights of custody. And because A was habitually resident in Latvia immediately prior to her removal, that means the provisions of the 1980 Hague Convention are engaged.
The obligation on this court pursuant to Article 12 of the 1980 Hague Convention is to order the return of A forthwith to Latvia, unless the mother establishes that an exception applies. In this case, the mother has put before the court evidence which raises a potential defence under Article 13(b) of the Convention.
The proceedings commenced on 22 November last year which followed from a request made by the Latvian Ministry of Justice, the central authority for Latvia, to the English central authority, which was dated 15 November 2018. Proceedings first came before this court on 26 November when Newton J made an order which provided for the tipstaff to locate A's whereabouts and listed a hearing on 14 December.
On 14 December, Cohen J made an order. On that occasion, the father was represented by Mr Turnell, who appears again today, and the mother appeared in person. On that occasion, the mother accepted that she had removed A from the jurisdiction of Latvia without the father's consent, but I think it was indicated on that day that not only did she oppose the application, but she alleged she had been subjected to domestic abuse in Latvia. She was provided with some information about possible lawyers who might help her but, given that she is here alone today, that obviously did not lead anywhere. The order also urged the parties to use the Reunite mediation scheme. I have not heard anything further about what happened in that regard, but given we are here today, that also made no progress.
Cohen J made provision for the mother to file her answer and witness statements by 15 January. He provided that the father should respond. At paragraph 10, he said that each party's statement must include any details of any protective measures sought or offered in the event of a return. Somewhat unusually, he provided that the father might attend today's hearing via video-link. Mr Turnell explained that the court was unclear on 14 December of precisely the nature of the mother's defence, so provision was made for the father to be available to give evidence if I decided that was necessary at the final hearing. The final hearing was listed by Cohen J to take place on 14 February with a time estimate of one day.
The mother complied with the order to provide a statement. I have seen her statement written in English and exhibiting certain I think texts or Instagram or other exchanges with the father. The general nature of the account in that statement is an account of domestic abuse amounting to or including physical violence, threats and controlling behaviour.
She has also today produced further evidence to me which includes statements from I think her mother, an answer to the father's statement, a statement from an aunt, a statement from a work colleague of the mother's grandmother, further exchanges on social media, a translation of a medical report, a couple of reference letters from the mother's employers, one of which says she has been employed since 24 July 2018 as a member of the housekeeping team, and another which says she has been employed since 12 October on the housekeeping team. As an aside, that refers to her as a hardworking, trustworthy and reliable employee.
Also within the documents is a tenancy agreement in the mother's name which commenced on 28 September 2018 for a period of six months. I have also been provided by the mother with some documents which show that A has been registered with a doctor, and there are a series of photographs of the child I am concerned with, A, who looks like a very engaging and smiley child and who is most unfortunate to be at the centre of an argument between her parents.
The father has filed his evidence in response to the mother's. In general terms, he denies the allegations of domestic abuse and he has offered a series of protective measures which he says could be put in place and which would ensure that A was protected from any risk of harm were she and her mother to return to Latvia. Mr Turnell on the father's behalf filed a position statement setting out the father's stall. That asserted that the mother's allegations did not in any event meet the Article 13(b) threshold. This was primarily on the basis that the mother had not intended to flee Latvia by reason of the alleged domestic violence – Mr Turnell relying on the closing words of the mothers statement saying ‘I want to stay in with my child in the UK [sic] because my family resides here. Also, it is very important to note that I think my child would be much better off living, growing up and studying in this country’. More significantly, perhaps, it was submitted that even if the allegations did meet this threshold, the protective measures which the father proposed would reduce any risk of harm to A to such an extent that the court could not possibly say that there would be a grave risk of harm to A if she were to return to Latvia.
The protective measures which the father offered initially were:
a. A promise to this court that he would not instigate or support any civil or criminal proceedings against the mother arising from the wrongful removal of A from Latvia.
b. He undertook to pay for A's airfare for her to return to Latvia, and he has added that he will pay for the mother's airfare, assuming that she would return with A.
c. He offered not to attend at the airport upon their return, he undertook not to remove A from the mother's care pending a hearing in the Latvian courts.
He has in addition today offered an undertaking that he will initiate proceedings in the Latvian courts so that if A and the mother return, there will be a hearing before a judge who will be able to discern what the arrangements should be for A, and he has in addition undertaken to register any order this court makes insofar as it is necessary and covers protective measures with the courts in Latvia, the effect of which would be to give the mother equivalent protection in Latvia to that which she would get in England.
d. He has offered in terms of ensuring the mother and A are protected from domestic abuse that he — I think there must be a typing error in the undertaking because it does not include an undertaking not to assault her — I am assuming it should read the standard form of undertaking that he will not assault the mother, harass, threaten, interfere or molest the mother, whether by himself or any third party. As is usually the case in relation to such undertakings, he makes that promise without accepting that he has ever behaved that way in the past.
e. He also undertakes to vacate the property where he and the mother and A at the time lived, and he says he will vacate it and allow the mother and A to reside there until there is a hearing in the Latvian courts, and he says he will not go back to that address save for the purpose of any contact which he and mother agree in relation to A. He has clarified that he will pay the rent on that property so the mother and A will have a secure home available to them until such time as the Latvian...
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