Dt (Plaintiff) v Lbt
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 2010 |
| Neutral Citation | [2010] EWHC 3177 (Fam) |
| Date | 07 December 2010 |
| Court | Family Division |
| Docket Number | Case No: FD 10P001083 |
[2010] EWHC 3177 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before : THE HONOURABLE MR JUSTICE PETER JACKSON
Case No: FD 10P001083
Mr Philip Cayford QC and Miss Clare Renton (instructed by Hornby and Levy) for the Plaintiff
Mr James Turner QC and Miss Geraldine More O'Ferrall (instructed by Jones Myers LLP) for the Defendant
Hearing dates: 29 November – 2 December 2010
Peter Jackson J:
Introduction
This child abduction case raises questions about the requirement that the adoption of a habitual residence should be voluntary, and about the effect of the recent decision of the Grand Chamber of the European Court of Human Rights (ECHR) in Neulinger & Shuruk v. Switzerland (Application no. 41615/07) handed down on 6 July 2010, BAILII: [2010] ECHR 1053,.
I append three documents to this judgment:
(1) A chronology (2) A list of authorities (3) Observations on Neulinger
The proceedings concern three young children:
D, a boy aged 7 1/2 with autistic spectrum disorder
G, a girl aged four
L, a boy aged two
Their father is an Italian national, aged 39, and their mother a British national aged 38. He is a naval officer, currently under suspension; she is a teacher who is not currently working. They met in Italy and in November 2002 married in England, where the children, who are British citizens, were born in 2003, 2006 and 2008. In July 2009 the mother and children moved to join the father in Rome in disputed circumstances.
By his summons under the Hague Convention, issued on 18 May 2010, the father seeks the summary return of the children to Italy, from where the mother abducted them on 4 April 2010. The children have had no contact with the father since 23 March, the date on which the mother and children entered a domestic violence refuge in Rome before travelling to England.
The mother resists the father's summons on three grounds.
(1) Habitual residence: She says that the children were not habitually resident in Italy on the date that she brought them to England even though they had been physically present there since 15 July 2009. She alleges that her presence in Italy with the children was not voluntary but was as a result of improper pressure by the father. She also contends that the children had not integrated in Italy in the sense necessary for habitual residence.
(2) Child's objections: She says that D objects to return and has reached an age and degree of maturity at which it is appropriate to take account of his views.
(3) Grave risk of harm: She claims that a return of the children to Italy would expose the children to a grave risk of psychological harm or otherwise place them in an intolerable situation. The mother states that, due to her own experiences, if the court ordered the return of children, she would not be able to accompany them.
If the mother makes out her first contention, the father's summons must fail. If she makes out either of the other contentions, she argues that the court should not order the children's return to Italy.
The father contests each of the issues, while accepting that the children should not be separated.
Unusually, because of the irreconcilable gulf between the parents' written accounts in relation to the first and third issues, the court has heard evidence from them, a course acknowledged as necessary by both.
Summary of decision
On 2 December 2010, at the end of four-day hearing, I dismissed the mother's first two grounds of defence and upheld the third. I informed the parties of my decision in the following terms, and reserved fuller reasons:
(1) On the uncontested evidence, this was a highly unconventional marriage. Between 2002 and July 2009 the mother, and the children as they were born, lived in England, while the father lived in Italy. Over those years the mother and children visited Italy eight times for a total of about seven months, while the father visited England over twenty times for a total of about twenty months. During the course of the parents' ten year relationship they were together for no more than half the time at best.
(2) The reason for this state of affairs is to be found in the mother's evidence. I accept her account that she has been subjected by the father to sustained emotional, physical and sexual abuse stretching back to the early days of their relationship and continuing until its conclusion. The degree of separation was a result of her remaining in England because she felt safer and more supported here.
(3) The emotional abuse consisted of the father intimidating the mother by means of frequent and unpredictable outbursts of temper and shouting whenever he was displeased with her, accompanied by close control of her movements and actions when they were together. The father also frequently threatened violence against the mother if she did not fall in with his wishes. For example, when the mother started court proceedings in England in 2007, the father told her that if she went to a court hearing in September 2007 he would kill her.
(4) Examples of the wider course of physical abuse are: throwing the mother, who was three months pregnant and unwilling to have intercourse, on to a bed and jumping on top of her while covering her nose and mouth with his hands so that she felt as if he was trying to suffocate her (June 2002); hitting the mother in the stomach when she was 16 weeks pregnant with D (November 2002); pushing her into a bedroom cupboard when she asked him to change a nappy (January 2004); placing his hand over her face so that she again felt as if she was suffocating, resulting in her vomiting on the floor (May 2004); assaulting her so that she had bruising on her arms and body (August 2009); pushing her into a corner and beating her around the head so that she urinated in her pants (August 2009).
(5) Examples of the wider course of sexual abuse are: forcing the mother to have sexual intercourse within days of a miscarriage (June 2002); committing oral rape on the mother by pushing her on to the floor and forcing his penis into her mouth until he ejaculated, hurting her mouth and causing injury to her neck and back (October 2007); multiple occasions of oral, vaginal and anal rape during the course of the relationship, the last being on 22 February 2010 when he woke her at 5 a.m., pulled her out of bed by her hair and repeatedly forced her to have intercourse with him.
(6) The father's violence towards the mother was from time to time witnessed by the children and D has spoken of it to the CAFCASS Officer.
(7) The mother's account of events is persuasively corroborated by contemporaneous complaints about the father's behaviour made down the years to third parties such as the police, her doctor and to some friends and colleagues. It is also corroborated by their observations of her unhappiness and on occasion her injuries. However, her disclosures at the time did not give the full picture as she was understandably unable to speak of some of her more distressing experiences.
(8) The mother's account is further supported by my assessment of her evidence. I find her to be a truthful and generally accurate witness, possessed of a normal degree of resilience, but currently very emotionally vulnerable and stressed.
(9) In contrast, I find that the father was a generally accurate witness in all matters except those concerning his behaviour towards the mother. Where that was concerned, I found him to the unconvincing and untruthful. There was nothing in his evidence that caused me to doubt the truth of the mother's allegations.
(10) I reject the suggestion that the mother has exaggerated or invented incidents or that the father was acting in self-defence on occasions when she was injured. I do not accept his suggestion that she reported her experiences to others as a means of gaining an advantage over him, nor the argument that the behaviour described by the mother can be explained as a culturally different but acceptable form of conduct.
(11) Over the years the father's behaviour has had a profound emotional effect upon the mother. By badgering, intimidation, violence and playing on her affections and desire for a normal family life, he exerted sufficient emotional pressure on the mother to prevent her from separating from him until earlier this year. The pattern found in this case is typical of what is colloquially known as "battered wives syndrome".
(12) The mother has always been the primary carer for the children, who have never been separated from her. The eldest, D, has special qualities which place heavy demands on carers and teachers. His autistic spectrum disorder and attention hyperactivity deficit disorder require highly specialised help and he is badly affected by unpredictability and change.
(13) The mother's abduction of the children from Italy was an escape, carried out in a way that was designed to prevent the father from stopping it happening. He has been greatly distressed by the lengthy interruption of his relationship with his children.
(14) Turning to the issues for decision, I have concluded that the children were habitually resident in Italy between 15 July 2009 and 4 April 2010. I accept the mother's evidence that she was bullied into agreeing to move with the children to live with the father in Rome, and that she was profoundly unhappy for most of the time that she was there. However, I do not find that, surveying the period as a whole, her will was so overborne that the children's presence did not amount to habitual residence. I find that it was yet another in a series of bad decisions made by the mother arising from her relationship with the father. The period of time, the degree of integration of the children into normal Italian life, and the nature of the mother's participation in that process...
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