F v M & N (Abduction: Acquiescence: Settlement)
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE BLACK,Mrs Justice Black |
| Judgment Date | 02 July 2008 |
| Neutral Citation | [2008] EWHC 1525 (Fam) |
| Docket Number | Case No: FD08P00552 |
| Court | Family Division |
| Date | 02 July 2008 |
[2008] EWHC 1525 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Black
Case No: FD08P00552
Mr Richard Harrison (instructed by Messrs Lyons Davidson) for the Plaintiff
Miss Joanna Hall (instructed by Messrs Kewley Radley) for the 1 st Defendant
Mr Edward Devereux (instructed by Messrs Reynolds Porter Chamberlain LLP) for the 2 nd Defendant
Hearing dates: 5 th– 6 th June 2008 and 2 nd July 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 2 nd July 2008. It consists of 24 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
N is 6 1/2 years old, having been born on 4 October 200She is the daughter of F and M who are married. Both parents and N are Polish nationals. I am dealing with F's application under the Hague Convention and under the inherent jurisdiction of the High Court for an order requiring the return of N to Poland.
Until 27 May 2006, N had always lived in Poland. On that day, M left Poland with N by bus to come to England where they have been living since. F had no knowledge of the plan to remove N and was not in agreement with it. M concedes that the removal was wrongful.
M opposes F's application on two bases. She argues that F has acquiesced in the removal (Article 13(a)) and/or that more than one year had elapsed by the time F began his Hague proceedings and N is now settled in her new environment (Article 12).
The history: Poland
The detail of the history in Poland is often very unclear from the documentation which is at times contradictory. I have set it out as best I can below. Oral evidence might have resolved quite a few of the uncertainties but one must be mindful of the summary nature of Hague proceedings in which live witnesses are by no means a regular feature. No direction as to oral evidence had been sought in advance of the hearing in front of me. At the hearing, neither parent invited me to hear oral evidence but I was invited by the guardian to do so. This invitation related principally to the evidence that the guardian could give on the issue of N's settlement in England, including particularly her observations of contact which had been attempted unsuccessfully at her offices between N and F on the morning of the first day of the hearing. I already had a helpful report from the guardian about N's present living circumstances and I requested that the guardian should also put her account of the contact in writing which she did. Neither party disputed what she said about it. As to N's current circumstances, M's evidence is in line with that of the guardian and F has no material on which to dispute their accounts. The argument in regard to settlement thus relates not to what the factual situation is but to whether that factual situation amounts to settlement for the purposes of the Hague Convention or not. In the circumstances, I did not consider that it was necessary for the guardian to give evidence in connection with the settlement issue. Mr Devereux for the guardian indicated that the guardian was neutral as to whether there should be oral evidence on the question of acquiescence. I decided that the limited oral evidence that could be heard in the 2 days allocated for the case would be unlikely to shed sufficient light to justify taking that course. I have been conscious, as one must always be in a Hague case, of the need to make a decision without undue delay, albeit that the speed of determination may perhaps be tempered to a degree in settlement cases given that the major objective of the Convention – to secure the swift return of children who have been wrongfully removed from or retained away from their country of habitual residence – can no longer be achieved. As it was, reading and legal argument took up the full 2 days of the hearing, without time even for this judgment to be prepared and delivered. Finding time for oral evidence to be heard would have meant the postponement of my determination which, in my view, would not have served N's interests in that the improvement in understanding that it might have produced would have been insufficient to justify the delay inevitably involved.
M and F were married on 19 May 2001 when M was already pregnant with N. Their marriage was not entirely without incident and they appear to have separated at least once before their final separation but become reconciled.
On 5 December 2005, M came to England on her own to work, leaving N with F. M says that this was to earn money to furnish the flat which they had recently purchased with assistance from the paternal grandmother.
F thought that whilst M was away their communications lacked warmth and wondered if she had met someone else. She returned towards the end of January 2006. He says that almost immediately she arrived, she said she did not love him and threw her wedding ring on the floor. His case is that after 3 days she moved out and went to live in her brother's flat, taking N too.
M's case is that F had been having an affair before she left and continued to do so whilst she was away. Accordingly, upon her return, she told F she was not prepared to put up with this and that she intended to leave with N and move to England. She agrees that she moved with N to live with her brother but says that this followed F changing the locks so she could not get into the flat.
M's case is that F brought her belongings and N's to her and said he wanted nothing more to do with N and did not ask to see her until March 2006. This assertion that F was washing his hands of N does not sit easily with the letter F wrote on 1 February 2006 to the Director of Citizenship Matters and Migration Department seeking to ensure that N was not removed from Poland by recording that he held N's passport and did not consent to another one being issued to her or to her being added to M's passport. F's later actions did not suggest disinterest in N either, for example agreeing to share her care with M and pursuing what we might call interim residence through the Polish courts. Nor is M's assertion consistent with the picture of F's relationship with N which was painted by the head of N's nursery school in the report prepared in March 2006 to which I refer again later. Accordingly, I do not accept M's evidence in relation to F's attitude about N during this initial period.
F's case is that after the separation, M was obstructive about contact. It is agreed that F saw N in mid February 2006. F says that N was supposed to stay with him for a week from 18 February 2006 but M removed her from nursery in the middle of that week and for 10 days, he did not know where she was staying. M says F had N for a Saturday night and returned her to him on Sunday.
It is common ground that at the beginning of March 2006 N went to stay with F for a period. The parents do not agree entirely as to the circumstances.
F says that he had a conversation with M who told him that she wanted to take N to England. He said he would not consent. She then said she would go to court and obtain permission. He said he would comply with any court order but would not give her N's passport otherwise. At some point (he does not give a clear indication of when), M told him he could look after N.
M's case is that F contacted her to ask her to remove the address of their flat from her identity card but said nothing at that time about contact with N. The amendment of the identity card would apparently have had the effect of giving F sole ownership of the property. She says that he said that if she did this, he would give her N's passport which she wanted so that she could take N to England but they fell out over the sequence in which the removal of the address from the identity card and the handing over of the passport would take place. She says that a couple of days later, he telephoned and said he wanted to see N. In her first affidavit, she says that he came over to her brother's flat where she was living and they agreed that he would share N's care whilst she, M, was looking for a job and accommodation that were more suitable. The impression given in the affidavit is that the new job/accommodation would be in Poland rather than in England but I do not think that this is actually what M was after at the time. It seems clear from the periods of time she spent in England from Christmas 2005 onwards, her wish to obtain permission from F or the court for a move to England, her wish to obtain N's passport, and ultimately her illicit removal of N to England in May 2006, that throughout the first half of 2006 she was intent upon taking up residence and employment in this country on a long term basis as quickly as she could.
It appears to be common ground that a 2 week period during which F would care for N was envisaged by both parents. According to M, the agreement was that each parent would have N for 2 weeks at a time, with F having her for the first 2 weeks. Although other documentation gives the impression that F viewed the arrangement as N coming to live with him, his affidavit for these proceedings says that when...
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