H, R and E (Children)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Keehan |
| Judgment Date | 02 September 2013 |
| Neutral Citation | [2013] EWHC 3857 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD13P00998 |
| Date | 02 September 2013 |
[2013] EWHC 3857 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Royal Courts of Justice
Strand
London
WC2A 2LL
Mr Justice Keehan
Case No: FD13P00998
Ms G More O'Ferrall (instructed by Hopkin Murray Beskine) appeared on behalf of the Claimant
Mr A Perkins (instructed by Maya Solicitors) appeared on behalf of the Defendant
This is an application under the Hague Convention for the summary return of three children from this country to the Netherlands. The three children with whom I am concerned are H, who was born on 17 March 2005 and is therefore eight years of age; R, who was born on 14 December 2007 and is therefore five years of age; and E, who was born on 7 October 2010 and is therefore two years of age.
The applicant in this matter is the father of all three children, S, who is 36 years of age. The respondent to the application and the mother of all three children is R, who is 29 years of age.
Application
The father, as I say, seeks the summary return under the Hague Convention to the Netherlands of all three children. That application was dated 24 May of this year. The mother opposes the application for a return and bases her opposition on three defences: firstly, that the father consented to the removal of the children from the Netherlands pursuant to article 13a of the Convention; secondly, that subsequent to the removal the father acquiesced in their living in this jurisdiction pursuant to article 13a; and thirdly that the children would be at a grave risk of harm and/or would be placed in an intolerable position if the court were to order their return to the Netherlands pursuant to article 13b of the Convention.
The Law
In relation to considering consent and/or acquiescence, I take account of the decision of the House of Lords in the case of H v H (Abduction: Acquiescence) [1997] 1 FLR 872, I take account of the principles identified by the House of Lords in that case. Firstly,
"i) Acquiescence was a subjective state of mind. In English law acquiescence was normally viewed objectively but under the Hague Convention it must have the same meaning and effect under the laws of all Contracting States. Art 13 looked to the subjective state of mind of the wronged parent.
ii) Acquiescence was a pure question of fact. The court could infer the actual subjective intention from the outward and visible acts of the wronged parent.
iii) Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child.
iv) The burden of proving that the wronged parent had acquiesced was on the abducting parent.
v) The only exception to this general principle under Art 13 of the Convention was where the words or actions of the wronged parent clearly and unequivocally showed and led the other parent to believe that he was not asserting or going to assert his right to summary return of the children and were inconsistent with such a return."
I also take into account the decision in D v S (Abduction: Acquiescence) [2008] 2 FLR 293, that:
"The Hague Convention cases on consent required a true and unequivocal consent …"
I accept as was submitted by Mr Perkins on behalf of the mother that consent and indeed acquiescence can be inferred from the circumstances of the case. In the case of K (Abduction: Consent) [1997] 2 FLR 212 Hale J. as she then was, said at 217–218:
"It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct."
And in the case of P-J (Abduction Habitual Residence: Consent) [2009], 2 FLR 1051 Ward LJ identified a number of principles which could be deduced from the authorities. Those relevant to this application are as follows:
"(1) Consent to the removal of the child must be clear and unequivocal.
(7) The burden of proving the consent rests on him or her who asserts it.
(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.
(9) The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?"
I accept and take account of the decision of TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, in which it was observed that in relation to evaluating whether there was a grave risk of harm, regard should be had as to the protective measures which could be put in place to ameliorate or alleviate such risks.
I also have regard to the provisions of Article 11(4) of the Brussels II revised regulation, which requires:
"A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."
I further take account of a decision in A v A (Child Abduction) [1993] 2 FLR 225, where it was said that where an objection by a child to a return arises from a desire to remain with an abducting parent "little or no weight would be given to the views that the child so expressed."
Finally in relation to a finding by the court that one or other party has lied during the course of this hearing, I remind myself of the judgment of Ryder LJ in the case of Re M [2013] EWCA Civ 388, where he gave guidance as to the approach that should be taken when applying a modified "Lucas" direction in civil proceedings.
The Background
The full history of this matter is set out in a very helpful chronology filed by Mr Perkins on behalf of the mother. For the purposes of this judgment, I refer only to the salient features of the background. On 20 October 2003 the mother and father married in a civil ceremony. On 17 March 2005 H was born. Shortly thereafter on 5 May 2006 the mother and father went through an Islamic marriage ceremony. In February 2007 R was born. And on 15 May 2007 the family moved to their long-term address in Amsterdam. On 7 October 2010 E was born.
The mother was born in the Netherlands, the father moved to live there before the parties' marriage. There were plainly difficulties in the relationship between the mother and the father, which the father identified as having occurred after the parties returned from a visit to Pakistan, either in late 2010 or early 2011. The father told me in evidence that the mother had changed and become different after she returned from that holiday.
In October 2011 there was an argument between the parents. The mother asserts that the father pronounced the talaq. She alleges the father cut both his wrists in front of her and the youngest two children and that he made threats to kill her, the children and then himself. And she asserts that the two youngest children were hysterical and that after that incident the father vacated the former matrimonial home and the mother asserts that the relationship ceased. She says that the father did not see the children until February 2012. The father does not accept that account and he asserts that he did leave the matrimonial home after an incident but only for about 10 or 15 days and he finally left the home after an event in February 2012.
The parties are agreed that after this episode, whatever occurred, they both went to see the Imam with members of the maternal and paternal family accompanying them. Having heard from both parties the Imam decided that a talaq had not been pronounced by the father. The father did not accept the mother's contention that the Imam then gave advice to both of them about how to proceed if they wished in due course to divorce.
On 25 October 2011, there was a letter in the bundle received by the mother from the Amsterdam Department of Work and Income, which notified her that because she no longer had a partner her benefits would change. That, of course, was a letter generated by an application made by the mother and the father asserts that he had no knowledge of that application being made.
In November 2011 the mother says that she started to receive telephone calls from the father and members of his family requesting her to consider reconciling with the father. She was also contacted by a mutual family friend, Mr Shafiq, who was acting as an intermediary on behalf of the father.
On 1 December 2011 the father signed what is termed in the Netherlands, "a bed and table separation agreement", he asserts that that was because he had certain debts and he and the mother agreed that if it was thought that they were separated it would safeguard and secure the position of the mother and the children. The mother does not accept that and says that document was signed because it reflected the then reality of the family.
On 29 December 2011 the father registered a change of address with the Municipality of Amsterdam indicating that he had vacated the former matrimonial home to move to another address. The father contends that that was again in agreement to avoid the mother and the children being...
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