IB v MM
| Jurisdiction | England & Wales |
| Judge | HHJ Jakens |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWHC 1502 (Fam) |
| Date | 22 April 2015 |
| Court | Family Division |
| Docket Number | Case No: FD15P00023 |
2015 EWHC 1502 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ROYAL COURTS OF JUSTICE
Strand, London, WC2A 2LL
Her Honour Judge Jakens SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: FD15P00023
Jacqueline Renton (instructed by Hodge Jones & Allen) for the Applicant
Kate Chokowry (instructed by Dawson Cornwell) for the Respondent
Introduction
This is an application pursuant to the Hague Convention on the Civil Aspects of Child Abduction 1980 brought by Ibrahim IB, the father of AM, a girl born in Germany on 25 th December 2005. She is 9 years old. Her mother is MM. AM has a half-brother, DA, born on 16 th February 2004. His father is Mr MB who may live in Hamburg. I am told that Mr IB and Mr MB are acquainted. Both DA and AM are cared for by the mother and are currently in the UK with her and her new husband. The Mother married Mr LR, a Nigerian national, on 25 th April 2015 in the UK.
The parents are represented by Miss Jacqueline Renton and Miss Chokowry respectively.
The father is Guinean and but lives with his girlfriend in Hamburg, Germany, The mother is a German national, as are the children. The father asserts that the Mother has wrongfully retained AM in England and Wales, and seeks her summary return to Germany. The mother opposes this from all angles. In the alternative the father seeks an order for contact should his application fail.
Legal framework
The parents were not married, but on 12 th Janaury 2006 entered into a custody agreement in relation to AM pursuant to S 1626(a) of the German Civil Code and by virtue of that agreement they share joint custody. AM was habitually resident in Germany prior to her removal and subsequent retention in the UK in July 2014. Her place of habitual residence is Germany.
Article 12 of the Convention provides the framework for summary return, and I am fully alive to the fundamental policy considerations at large in this case.
Article 13 of the Hague Convention 1980 applies in this case.
Article 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 –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
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 finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.
The mother has raised all the defences available to her pursuant to Article 13 (a) and (b): consent; acquiescence; the child's objections and harm. She invites me to exercise my discretion to refuse the father's application and to allow AM to remain in the UK.
The burden is upon the mother to establish the defences to the requisite standard of proof, the balance of probabilities.
Article 11 of Brussels II Revised is also applicable. Pursuant to Article 11 (4) a court "cannot refuse to return a child on the basis of Article 13(b) of the convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return".
This is very much a case of two wholly competing versions of events and the credibility of the parties and also the reliability of the views of the CAFCASS reporter Mrs Odze are fundamental to any finding.
Neither parent in my judgment has been entirely honest, and I have therefore directed myself in the light of the case of R v Lucas (1981) 1 QB 720 at 724, 73 Cr App R 159 at 1 to contextualize any dishonesty in assessing evidence. My approach should be to ask myself if the lie was deliberate and related to a material issue, whether there was any innocent motive for the lie, and that I must remember that people sometimes lie, for example, to bolster up a just cause, or out of shame, or a wish to conceal disgraceful behaviour.
I have been referred to numerous authorities:
As regards consent pursuant to Article 13 (a) the test is provided by Re P-J (Abduction: Habitual Residence: Consent) [2009] EWCA Civ 588, 2 FLR 1051 at para. 48:
i) Consent must be clear and unequivocal,
ii) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event
iii) Such advance consent must, however, still be operative and in force at the time of the actual removal.
iv) The happening of the future event must be reasonably capable of ascertainment—the Condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfilment of the condition must not depend on the subjective determination of one party, for example "Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child" the event must be objectively verifiable.
v) Consent or the lack of it must be viewed in the context of the realities of the disintegration the family life. It is not to be viewed in the contact of nor governed by the law of contract.
vi) Consequently consent can be withdrawn at any time before the actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.
vii) The burden of proving consent rests on he who seeks to assert it.
viii) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case
ix) 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 agreed to the removal?
I have also considered in this respect the case of Re C (Abduction: Consent) [1996] 1 FLR 414 and in particular the observation of Holman J that "if it is clear, viewing the parent's words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Article 13. It is not necessary that there is an express statement that "I consent". In my judgment it is possible in an appropriate case to infer consent from conduct.
As regards acquiescence I have been referred to Re H (Abduction: Acquiescence) [1997] 1 FLR 872.
As regards harm/intolerability, I have been referred to the case of Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 for the test in relation to assessing the defence at paras 31 – 25. The risk of harm must be "grave". At paragraph 34 the article is clarified as follows "…the words physical or psychological harm are not qualified. However, they do gain colour from the alternative 'or otherwise' placed in an intolerable situation wich this particular chid in these particular circumstances should not be expected to tolerate". Those words can be applied to physical or psychological harm as to any other situation…" there are some things which a child should not be expected to tolerate.
I have also been referred to In the matter of Re S (A Child) [2012] UKSC 10 specifically in relation to the subjective anxieties of a respondent about the return of a child to the state of habitual residence.
Given that the issue of a split of siblings who are close has been central to this case, I have had regard to the cases of WF v FJ, BF, and RF [2011] 1 FLR 1153; Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 and I have also considered the case of Re LC (International Abduction: Child's objections) [2014] 1 FLR 1458,
As regards my discretion I am referred to the case of Re M (Abduction: Zimbabwe) [2007] UKHL 55, and C v H (Abduction: Consent) 920090 EWHC 660
Relevant background
The Applicant is a Guinean national and has resided in Germany for the last 15 years. His registered address for the purpose of his immigration status is in Stade, but in fact he lives in Hamburg. His immigration status means that there are travel restriction placed upon him and currently he is not able to travel outside Germany. If he did so he would be unable to return there. The Respondent is a German national. They were never married. They began their relationship in 2005.
Prior to her relationship with the father, on 1 st February 2005, the mother was subjected to an horrific attack, amounting to attempted homicide, by her partner, Mr MB, when she was stabbed by him nine times, in DA's presence. He was sentenced to 4 1/2 years in prison. This was without doubt an uniquely traumatic event for the mother and has clearly greatly impacted upon both her and DA, who was a very young infant at the time. His young life in Germany appears to have been overshadowed by the fear generated by the ensuing threat to the safety of himself the mother from the presence of Mr MB and his influence. The mother asserts that she was obliged to move due to the fear engendered by Mr MB's continued presence in her vicinity after he was released from...
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