JK (Mother) v LM (Father)
| Jurisdiction | England & Wales |
| Judge | Nigel Poole |
| Judgment Date | 17 June 2020 |
| Neutral Citation | [2020] EWHC 1566 (Fam) |
| Docket Number | Case No: FD19P00712 |
| Court | Family Division |
| Date | 17 June 2020 |
[2020] EWHC 1566 (Fam)
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF THE COUNCIL REGULATION EC NUMBER 2201/2003 (BRUSSELS IIR)
IN THE MATTER OF THE SENIOR COURTS ACT 1981
IN THE MATTER OF G (a girl), F (a boy) & E (a boy)
Royal Courts of Justice
Strand, London, WC2A 2LL
Nigel Poole QC, Sitting as a Deputy High Court Judge
Case No: FD19P00712
Mr Paul Hepher (instructed by Williscroft & Co.) for the Applicant
Mr Michael Gration (instructed by Waldrons Solicitors) for the Respondent
Hearing date: 27 May 2020
Approved Judgment
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Nigel Poole QC:
Introduction
The court is concerned with three of the parties' children, E, a boy aged 9, F, a boy aged 12, and G, a girl aged 14. The mother issued an application on 17 December 2019 for the summary return of the three children from Wales, where they live with the Respondent father, to the Republic of Ireland. The father opposes the application. The parties have a fourth child, H, a boy aged 6, who lives with the mother in Ireland.
In early November 2018 the mother and four children found themselves homeless, living in a bus in County X, Ireland. The mother asked the father to take over the care of the children on a temporary basis until she found accommodation. The father brought all four children to his home in Wales. The mother's application states that “ on 19th December 2018 the mother travelled to England to collect the children but the father refused to return them to her care.” That is disputed. On 3 January 2019 the mother wrote an email to the father seeking his agreement to return the children. He did not do so. In March 2019 the mother turned up at the school attended by the youngest three children, put H in her car, and returned with him to Ireland. There is then no evidence of communication between the mother and father from 3 January 2019 until the mother made her application over 11 months later. H remains in Ireland with the mother. The three children who are the subject of this application remain in Wales with the father.
I have been provided with a bundle of documents including with three witness statements from the mother and one from her solicitor, Lucy Cohen. The father has made two statements. Ms Toni Jolly, Family Court Adviser from Cafcass, has provided a report following discussions with the three children at court on 30 January 2020. She gave oral evidence about that report and about further discussions she had with the children on 26 May, the day before the hearing. She also provided me with an email that G asked I should see, dated 26 May 2020 and headed, “Things I wanted to say”. I have been provided with records of social services' involvement with the family. Other than the email of 3 January 2019, the bundle contains no written communications between the parties. Page references in this judgment refer to the section and page number within the bundle. There are inconsistencies and gaps in the evidence about the children's whereabouts and circumstances in early 2018. However, these are summary proceedings, there was no submission that I should hear oral evidence from the parties, and I must make determinations on the evidence available. I am very grateful to Counsel, Mr Hepher and Mr Gration, for their helpful submissions.
The Issues
The issues to determine are:
a) What agreement did the parents of the children reach in early November 2018 pursuant to which the children came under the care of the father in Wales?
b) Whether the respondent father wrongfully retained the children in the UK on 19 December 2018 or on any later date?
c) Were the children habitually resident in the Republic of Ireland or the United Kingdom at the time of their allegedly wrongful retention in the UK?
d) Whether an article 13 exception has been established? In particular,
i) Did the mother consent to or acquiesce in the retention of the children in the UK?
ii) Would there be a grave risk that return to Ireland would expose the children to physical or psychological harm or otherwise place them in an intolerable situation?
iii) Do the children, or any of them, object to returning to Ireland and have they attained the age and degree of maturity at which it is appropriate to take account of their views?
If there has been wrongful retention and one of the exceptions above is established,
e) Whether I should exercise my discretion not to order return of the children or any of them.
Background and History of Events
I am grateful to both Counsel for each providing a chronology in their skeleton arguments. Some of the evidence as to the history of events is inconsistent or absent, but there are no significant differences between Counsels' chronologies.
Both parties were born in England. They formed a relationship some years ago but never married. G and F were born in Wales. E was born in Hereford but his parents were living in Wales at the time of his birth. The three children were still living in Wales when their parents' relationship broke down in 2013 when the applicant mother was pregnant with their fourth child, H.
The parties then lived nearby each other sharing care of the children until on a date around 4 September 2014, the mother moved with the children to Ireland “to stay with a friend” [C30, para. 3]. She did not tell the father she was leaving with the children. Subsequently, he visited the children and mother in Ireland on two occasions. There is a dispute about exactly what occurred on the second occasion, which I do not need to resolve for the purposes of this application, but there was clearly considerable animosity between the parents.
The mother and children stayed in Ireland for about two months until in November 2014 they travelled to Scotland where they lived in a static caravan until February 2016. The mother accepts that the children did not attend school during this period.
In February 2016 the mother and children returned to Wales, living first in Anglesey, where the children were enrolled in school, then in 2017 in South Wales, where they were not, and then in Holyhead, where the children were again enrolled in a school. The father was not kept informed of the whereabouts of the children and in August 2017 he hired a private investigator to find them. Thereafter there appears to have been some contact between the children and the father.
In January 2018, the mother moved the children away from Holyhead. They lived in a campervan, arriving in the Republic of Ireland probably in or about March 2018. I do not know where they were in the early months of 2018 but probably in Scotland for at least part of that time. The Social Services records reveal at [E70] that when the children were reported missing, vehicle registration number checks led the police to conclude on 16 May 2018 that the mother's campervan was in Scotland. The mother contends that she arrived in Ireland in January 2018 but on the face of her application, and in Ms Cohen's statement, the date given is May 2018. Mr Gration accepts that the mother and children arrived in the Republic of Ireland in March 2018 and I am prepared to proceed on that basis.
During the first few months in Ireland in 2018 the mother and children travelled around in a campervan. The vehicle did not have a toilet but the mother says she bought a camping toilet to use. They lived on beaches and sometimes on campsites. The children were not in school. G reported to Ms Jolly in January 2020, that,
“ they then moved to Ireland where they lived in a bus for a month, with 2 dogs, 3 cats and no running water or cleaning facilities. E said they had to “hold on” if they needed toilet. G remembers them hanging around on the beaches, knocking on doors to ask for water, and sometimes having to go to toilet behind bushes. She and F said a couple of times they stayed on a camping site if there was money.” [D9, para.29]
The father was informed of their whereabouts and visited the mother and children in Ireland in the early summer. The mother states that by July 2018 she had secured a temporary home, a cottage, from a man called Mick. It is not clear exactly when she and children began to occupy that cottage but the father visited it in August 2018, so they were clearly in occupation by then. At some point the water supply to the cottage dried up. G told Ms Jolly on 30 January 2020, that they had “ stayed in the summer house of a friend. There was no bathroom lock and he was “creepy”. G said they were “ kicked out when their mum fell out with her friend for not looking after the house properly.”
G, F and E did attend school in Ireland for a short period. At [E7] there is a record of a communication from Mr N, Principal of Q School in County X, to Powys Social Services, in which he states that G attended the school from 10 September to 25 October 2018. The school bought G's uniform and books for her, and on occasion fed her because she arrived at school hungry. On one afternoon Mr N had to take G home because she was not picked up by her mother. G said to Ms Jolly that it was lovely being in the school. F told her that he had been in school and it had been “amazing”. E told Ms Jolly...
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