A Father v A Mother
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 30 March 2022 |
| Neutral Citation | [2022] EWHC 739 (Fam) |
| Docket Number | Case No: FD21P00823 |
| Court | Family Division |
[2022] EWHC 739 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Poole
Case No: FD21P00823
Re V and W (Hague Return Order, Lithuania)
Simon Miller (instructed by A L Law) for the Applicant
Ruth Cabeza (instructed by Dawson Cornwell Solicitors) for the First Respondent
Maria Stanley (instructed by Cafcass Legal) for the Second and Third Respondents
Hearing dates: 21 and 22 March 2022
APPROVED JUDGMENT
The Applicant is the father, and the First Respondent the mother of two boys, V, aged 8 years 8 months, and W aged 7 years 6 months. The family is Lithuanian, both children having been born and brought up there until the mother moved with them to England in December 2020 where, except for a short visit back to Lithuania in January 2021, they have remained. The father applies for a return order under the 1980 Hague Convention. The mother accepts that she wrongfully removed the children from Lithuania where they were habitually resident. She does not argue that the father consented to the removal or has acquiesced in the children's retention, nor could she given that she left without informing the father or the Lithuanian courts which were dealing with family proceedings at the time, and she kept the whereabouts of herself and the children hidden for several months. The mother does contend that the court is not bound to order the return of the children because of the grave risk of harm and children's objections exceptions under Article 13 of the convention and that the court ought not to order their return.
A distinctive feature of this case is that there have been many applications, hearings and decisions involving the Lithuanian courts and authorities in the last two years, including on 25 May 2021, a decision of the District Court that the children, who had been living with the mother, should be removed from her care and residence transferred to the father. That decision is under appeal with judgment expected on 7 April 2022. Given that the hearing before me was conducted on 21 and 22 March 2022 I considered whether to proceed, and whether to give judgment, prior to the appeal judgment. The parties did not request an adjournment, nor did they ask me to await the appeal decision before giving judgment. For reasons that will be evident from what follows, I have decided to proceed and to give my judgment prior to the appeal decision.
Within the judgment of the District Court in May 2021 there are findings that the mother was causing the children to be hostile to the father and that she was obstructing their contact with the father. In fact the mother had absconded with the children during the course of the proceedings, abducting them to England, and she had not revealed her whereabouts to the Court. One issue for me to determine is the extent to which I am bound by findings made in the Lithuanian courts.
On 1 March 2022 the Regional Court, which is hearing the appeal in question, suspended the residence order of the District Court pending the outcome of the appeal.
The father has had no contact with the children, other than by sending them cards and letters, since August 2020. His application herein was made on 25 October 2021. The children's whereabouts was only discovered after a Location Order was made by the High Court on 26 October 2021. The mother and children's address is still not to be disclosed to the father. Judd J and then Newton J made directions giving permission for expert evidence from Dr Campbell, Consultant Clinical Psychologist, for translations of documents from the Lithuanian proceedings, for contact by way of letters and cards only, and for the appointment of a children's guardian who is Ms Magson.
The mother has been clear that she would return to Lithuania with the children if their return were ordered. The father has offered protective measures to apply if a return order were made but he has not agreed not to enforce any order that the children should live with him nor to apply for a stay of any such order. Hence, upon a return now to Lithuania, in the absence of any contrary agreement by the parents, subject to the Lithuanian court orders, the children would remain with the mother until the appeal decision on 7 April 2022, and thereafter would either remain living with her if the appeal were successful or would be transferred to live with the father if the appeal were dismissed. In either event it is very likely that the Lithuanian courts would order contact with the other parent.
In these Hague Convention proceedings the mother has made a number of very serious allegations of sexual and physical abuse by the father against her when they were together and has alleged coercive and controlling behaviour by the father. Her allegations include sexual assault, rape, and strangulation. None of these allegations were made in the Lithuanian proceedings and they have not been considered by the courts in that jurisdiction.
The main issues for me to determine are:
i) In my evaluation of the evidence, am I bound by the findings made by the Lithuanian courts?
ii) In my evaluation of the evidence what is the correct approach to the mother's allegations of serious sexual and physical abuse, and coercive and controlling behaviour by the father, given that those were not raised in the Lithuanian proceedings?
iii) Is there a grave risk that return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation?
iv) Do the children, or either of them, object to return and have they attained an age and degree of maturity at which it is appropriate to take account of their views?
v) If (iii) and/or (iv) are made out should the court nevertheless order the return of the children to Lithuania?
The burden lies on the mother to establish the grave risk of harm exception under Art. 13b. The standard of proof is the civil standard on the balance of probabilities.
I have received three bundles of documentary evidence running to a total of over 900 pages. On behalf of the mother, Ms Cabeza suggested that I hear oral evidence from the Guardian and, on the question of protective measures, from the father. I gave the father time to clarify his instructions in relation to protective measures and he produced a further short position statement to which I shall return. In the light of his clarification and the fact that the mother's challenge to the Guardian concerns the correct legal approach to the Lithuanian court findings, which could be dealt with by submissions, I decided that I did not need to take the exceptional course of hearing oral evidence. The documentary evidence includes expert reports from Dr Campbell, Consultant Clinical Psychologist, from the Guardian, Ms Magson, and voluminous documentary evidence from the courts and authorities in Lithuania including brief psychological assessments of the children and “Children's Rights” reports on each of them.
The Legal Framework
The Convention
Article 1 of the Hague Convention states that its objects are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States.
Baroness Hale, in Re D (A Child: Abduction Rights and Custody) [2006] UKHL 51, at para.48, said:
“The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their ‘home’, but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.”
Article 3 of the Convention defines when the removal or retention of a child is considered to be wrongful – in the present case it is accepted that the children's removal was wrongful.
Article 12 of the Hague Convention provides that:
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, 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.
There is no dispute that that this application has been brought in this jurisdiction, where the children are, within one year from the date of wrongful removal. The mother accepts that the children were habitually resident in Lithuania when she wrongfully removed them. The mother does not allege that the father has consented to or acquiesced in the removal or retention of the children. The mother does raise Article 13 defences to a return order that would otherwise be mandatory, namely the Article 13b defence of grave risk of harm, and the children's objections.
Article 13 provides so far as is relevant to the present case that:
“13. Notwithstanding the provisions of the preceding Article, 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...
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