A (Children) (Abduction: Article 13(b))

Hearing date: 31 st March 2021

Approved Judgment

The mother appeals from the order made on 5 February 2021 by Judd J (“the Judge”) on the father's application under the 1980 Hague Child Abduction Convention (“the 1980 Convention”). The Judge decided that the mother had not established either of the grounds relied on by her in opposition to the application, acquiescence and Article 13(b), and ordered that the parties' children, A (aged 4) and B (aged nearly 3), be returned to the United States of America.

The factual background is more complicated than in many cases under the 1980 Convention. One of the main features is that the mother has made clear that she will not return to the USA with the children for a number of reasons including that she considers she needs to stay in England to care for her elder child by a previous relationship, who is aged 14. This child, C, is, of course, not subject to the father's application but she has always been part of this family and moved to the USA with the mother and her younger siblings in November 2019 and returned with them as set out below.

The mother relies on three Grounds of Appeal. First, that the Judge was wrong in the approach she took when determining whether Article 13(b) was established and in respect of her conclusion that it was not. Secondly, that the Judge was wrong in the approach she took to the issue of acquiescence and in her determination that the father had not acquiesced. Thirdly, that C's voice was inadequately reflected in the proceedings. Only the first two were substantively addressed during the hearing and, in my view, Ground 3 adds nothing of substance to this appeal.

The mother is represented by Mr Harrison QC (who did not appear below) and Ms Chokowry. The father is represented by Mr Hames QC (who did not appear below) and Mr Hepher.

Background

The mother was born in and, until she moved to the USA in November 2019, had always lived in England. She is a doctor. Her relationship with C's father broke down in 2010 (when C was 4) and they moved to live with her parents. C has contact with her father, including staying contact.

The father was born in the USA. He lived there until he relocated to England in 2014 to work in his employer's European office.

The mother and the father met in England in 2015. They began a relationship and married in December 2015. They bought a home together and lived there with C as a family. A was born in 2017.

During the course of 2017, the father's employer asked him to return to the USA as there was no longer a role for him in England. Ultimately, he and the mother decided that they would all move to live in the USA. The mother and the children (C and A) visited the USA in October 2017 to look at accommodation and schools (for C) and, the mother said, decided both where they would live and where C would go to school.

C's father did not agree to C relocating with them, so the mother made an application in 2018 for permission. It is clear, as set out in the father's statement in support of the relocation application, that “leaving (C) behind in the UK is not an option”. They would either all move as a family or they would stay in England. Those proceedings were resolved in May 2019 with C's father ultimately agreeing to her relocation. Following this, it was not until October 2019 that the family received the required visas permitting them to move to live in the USA. The mother and the children finally travelled to the USA in November 2019.

In the meantime, in January 2018 the father had returned to live and work in the USA. This meant that between then and November 2019, he and the mother and the children were living apart. The father visited England every few months for short periods and spent 10 weeks here following the birth of B in 2018. The mother and the children also visited the father for a week in October 2018. As a result, the mother was the primary, and largely the sole, carer of the children during the period between January 2018 and November 2019 which included B's birth.

I deal below with the parties' accounts of events in the USA.

The mother and the children returned to England on 4 May 2020. This was a clandestine removal; the mother gave the father no prior indication that she was planning to leave the USA and misled him as to what she was doing on the day that they left.

Proceedings

The father made an application under the 1980 Convention in September 2020. In response, the mother contended that the children were not habitually resident in the USA at the date of their removal; that the father had acquiesced in their remaining in England (Article 13(a)); and that there was a grave risk that the children's return would expose them to physical or psychological harm or otherwise place them in an intolerable situation (Article 13(b)).

Lengthy statements were filed by both the mother and the father, with a substantial statement from C as well. The mother said that she would not return to the USA with the children for reasons set out in her statement. A direction was made that a Cafcass officer should provide a report on C's wishes and feelings. This was subsequently discharged at the request of Cafcass on the basis that C was not “a subject child”. C then filed a statement prepared by a solicitor instructed by her. Although this issue was not explored during the hearing and, of course, Cafcass has not been involved in this appeal, I can see that there might well be advantages if the wishes and feelings, or the views, of a child who is not within the scope of the application were provided through a Cafcass officer. If the court considers their views are relevant, and a court may well do so, this is a way of obtaining those views without involving them more directly in the proceedings.

In summary, the mother's case in respect of habitual residence was, as set out in the judgment at [27], that the children had not achieved “the requisite degree of integration into a social and family life in the US for a number of reasons”. The father contended that the children had become sufficiently integrated in the USA to be habitually resident there by 4 May 2020.

In respect of acquiescence, the mother contended that the father had agreed to the children remaining in England and that he would move to live here. The father's case was that he had not acquiesced in the children remaining in England but had hoped that he and the mother would be able to reconcile. He said that communications between him and the mother after her removal of the children had to be seen in that context, as did his coming to England at the end of June 2020. This was to see if the marriage could be saved and also so that he could see the children.

The Judge summarised the mother's case under Article 13(b), at [56], as follows:

“The mother's case with respect to Article 13(b) is that the father was guilty not only of serious domestic violence to her, but also of a highly abusive sustained course of conduct towards C. Additionally, she states that the father was abusive to A by smacking her, squeezing her ribs, and threatening her with a belt. The circumstances in which they had been living in the US are characterized by Ms Chokowry as intolerable.”

As was made clear in the mother's written submissions for the hearing below, and as referred to in the judgment, at [57], her case in support of there being a grave risk within Article 13(b) was based on three elements: the father's allegedly abusive behaviour towards her, C and A in the USA; the separation of the children from their primary carer; and the separation of the children from C.

Whilst not directly responding to some of the mother's allegations, the father made clear that he strongly disputed her case. He accepted that there had been difficulties in his relationship with C but not of the nature or to the extent alleged by the mother and C. He also contended that the mother would return with the children to the USA and that her stated position was tactical and designed to put pressure on the court.

The application was determined by the Judge on 4 February 2021. She heard oral evidence from the parties on the issue of acquiescence. She found that the children were habitually resident in the USA on 4 May 2020; that the father had not acquiesced; and that the mother had not established the grave risk required by Article 13(b).

The Evidence

As referred to above, the father, the mother and C all provided written statements.

The mother relied on a number of matters in support of her case that “conditions” in the USA were “intolerable” and that the “circumstances were such as to prevent A and B from achieving the requisite stability in their lives so as to acquire the requisite degree of integration”. These included that the father had rented a property in a “completely different” area to that “originally planned”. In her statement, the mother said that the “move was a difficult one from the outset; (the father) seemed to hold a grudge against (C) and would frequently berate her over insignificant issues. He felt that, as he was now the sole breadwinner, he had full control of all our activities”. The mother relied on messages with friends in England “which show just how unhappy and unsettled I was and the...