H v K (First Respondent) B and M (by their Children's Guardian) (Second and Third Respondents)

JurisdictionEngland & Wales
JudgeMr Justice MacDonald
Judgment Date11 May 2017
Neutral Citation[2017] EWHC 1141 (Fam)
Docket NumberCase No: FD16P00689
CourtFamily Division
Date11 May 2017

[2017] EWHC 1141 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice MacDonald

Case No: FD16P00689

Between:
H
Applicant
and
K
First Respondent

and

B and M (By their Children's Guardian)
Second and Third Respondents

Miss Jacqueline Renton (instructed by Bindmans LLP) for the Applicant

Mr Edward Devereux QC (instructed by Access Law) for the First Respondent

Ms Shabana Jaffar (of CAFCASS Legal) for the Second and Third Respondents

Hearing dates: 10 and 11 May 2017

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with. Failure to do so will be a contempt of court.

Mr Justice MacDonald

INTRODUCTION

1

This is an application pursuant to the Child Abduction and Custody Act 1985 and the 1980 Hague Convention for an order for the summary return of two children to the jurisdiction of the United States of America. The children who are the subject of the application are B, born in 2006, and now aged 10 years old and M, born in 2008, and now aged 9 years old. The children are separately represented in these proceedings.

2

The Applicant father is H (hereafter 'the father'). The father is 70 years of age and is a US citizen. He is a retired District Attorney. The father is represented by Miss Jacqueline Renton. The Respondent mother is K (hereafter 'the mother') and is 54 years of age. The mother currently cares for the children at a property in England. She is represented by Mr Edward Devereux, Queen's Counsel. Ms Shabana Jaffar appears on behalf of the children. Each of the advocates in this case is to be much commended for the considered and concise manner in which they have made their respective submissions to the court, which approach is consistent with the summary nature of this final hearing.

3

The father seeks an order for the summary return of the children to the United States and, specifically, to the jurisdiction of Hawaii. He alleges that the mother wrongfully retained the children outside the jurisdiction of the United States from 18 July 2017. Within this context, the mother accepts the following matters:

i) At the time the mother retained B and M outside the jurisdiction of the United States they were each habitually resident in that jurisdiction for the purposes of Art 3 of the Convention;

ii) Both B and M were below the age of 16 at the time the mother retained them outside the jurisdiction of the United States and remain so;

iii) The father did not consent to the retention of B and M outside the jurisdiction of the United States;

iv) The retention of B and M outside the jurisdiction of the United States was wrongful for the purposes of Arts 3 and 12 of the 1980 Hague Convention;

v) At the date the father commenced proceedings both B and M had been in the jurisdiction of England and Wales for less than 12 months;

vi) The courts in the United States are seised of proceedings concerning the welfare of B and M, which proceedings were ongoing at the time of their retention and remain ongoing.

4

Within the context of the foregoing concessions, the mother now resists the return of the children on two grounds under the 1980 Convention. First, pursuant to Art 13(b) of the Convention, that the summary return of the children to the jurisdiction of their habitual residence would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation. It was clear from the submissions of Mr Devereux that the mother relies primarily on the contention that the return of the children to the jurisdiction of the United States would place them in an intolerable situation. Second, pursuant to Art 13 of the Convention, that the children object to their return to the jurisdiction of their habitual residence and have each attained an age and degree of maturity at which it is appropriate for the court to take account of their views.

5

In determining this matter, I have had the benefit of two bundles of documentary evidence, including a bundle containing the documents from the proceedings which are ongoing in Hawaii. In particular, I have had the benefit of reading four statements from the father (the first statement being one prepared on his behalf), two statements from the mother, a report and an addendum report from the Children's Guardian and a report and an addendum report from a jointly instructed expert in the law as it pertains in the State of Hawaii. Each advocate has lodged with the court a Skeleton Argument.

6

Each advocate also lodged with the court a separate Skeleton Argument dealing with the issue of international judicial liaison, in response to a request by the mother that the court do engage in such liaison. In the event, the mother has, very sensibly, not pressed that request at this final hearing and accordingly I say no more about that issue.

BACKGROUND AND EVIDENCE

7

The background can be shortly stated. The parties met in 2004, commenced co-habitation in 2005 and married in May 2006 in New York State, living initially in Colorado. As I have already observed, B was born in October 2006 and M in 2008.

8

In November 2008, a property was purchased by the father in Hawaii and the family moved there in 2009. They remained in Hawaii until October 2012. In October 2013, the mother and the children returned to Hawaii, the father says without his consent. The father thereafter went to Hawaii. Following a further period the parties' marriage disintegrated and the mother filed for divorce on 15 October 2014.

9

On 12 April 2015, the father alleged that the mother hit B with a spoon, causing bruising. On 12 May 2015, the mother filed a petition with the court in Hawaii for a restraining order against the father alleging domestic abuse. That petition was dismissed for insufficient evidence on 28 May 2015.

10

During the course of that hearing on 28 May 2015, the court in Hawaii determined that the father was the more credible witness. The transcript of the judgement from that hearing, which is before this court, indicates that the court formulated the issue before it as one of whether there was sufficient evidence to establish that domestic abuse (defined as actual or threatened physical harm, bodily injury or assault) had occurred in respect of two alleged incidents on 8 April 2015 and 15 April 2015. In evaluating the parties' testimony, the court found as follows (the respondent being the father and the petitioner the mother):

"The court finds that the respondent in this particular case to be a more credible witness than the petitioner. The court found, finds that the petitioner in response to the questions in cross-examination were ( sic) evasive, non-responsive in her answers and at times disingenuous, especially in putting down her divorce attorney's name as her attorney in the petition for order for protection. The court notes she was decidedly interested in getting her point across and either would nor answer questions directly or candidly."

And later:

"The Court is also concerned about the petitioner's credibility in one other area, and that is her, the petition for an order for protection that she filed at page three of four she asked that ' The respondent may need supervised visitation with the children because the children are afraid of him, runs around in underwear, kisses my daughter on lips and caught him with a child porn website 2013'. The court finds a very serious allegation regard the child pornography website in 2013, and yet no evidence was presented by the petitioner regarding this very serious allegation. The only evidence that was presented was by the respondent in vehemently denying any such visitation in 2013. I think the evidence suggests that the petitioner either exaggerates or perhaps inserts unsubstantiated matters into her petition. It appears to this court that based on the credibility of the petitioner through her testimony and actions following the two incidences that there was no threat of imminent physical harm, bodily injury or assault. The court finds insufficient evidence and will dissolve and vacate the temporary restraining order."

11

On 10 May 2015, B informed her mother that on two occasions the parties' next-door neighbour had touched her inappropriately. B repeated that allegation to a paediatrician on 11 May 2015. B also restated the allegations to a psychologist on 21 May 2015. On 19 June 2015, the mother filed a petition ex parte against the next-door neighbour and a temporary restraining order was granted.

12

Proceedings between the parents in Hawaii continued. On 9 October 2015, the court approved a Custody Evaluator. The court ordered that the parents have joint legal and physical custody of the children, with physical custody alternating on a weekly basis with arrangements made for contact. A mutual non-removal order was made, prohibiting the removal of the children from the county of Hawaii without the consent of the other parent or the permission of the court. Various other provisions were made in respect of the maintenance of the children.

13

On 6 November 2015, the mother applied for a further restraining order against the father and an order was granted ex parte. That order was discharged by agreement on 16...

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