Jpc v Slw
| Jurisdiction | England & Wales |
| Judge | SIR MARK POTTER,THE PRESIDENT OF THE FAMILY DIVISION,Sir Mark Potter |
| Judgment Date | 08 June 2007 |
| Neutral Citation | [2007] EWHC 1349 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD07P00100 |
| Date | 08 June 2007 |
[2007] EWHC 1349 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter
The President of the Family Division
Case No: FD07P00100
Mrs Indira Ramsahoye (instructed by Brethertons LLP) for the Plaintiff
The First Defendant acting in person
Mrs Debbie Taylor (instructed by Reynolds Porter Chamberlain LLP) for the 2nd Defendant
Hearing date: 25 April 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 8 June 2007. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
Sir Mark Potter, P :
Introduction:
This is an application by the Plaintiff mother for the return of her daughter S (now aged 14 years and 3 months) to the jurisdiction of the Republic of Ireland pursuant to the Child Abduction and Custody Act 1995 and Council Regulation EC No 2201/2003 (“Brussels II Revised”). The Plaintiff is an Irish citizen and resident in Ireland. She is represented by Miss Ramsahoye. The First Defendant is the natural father of S and is presently resident here. There are two other children of the family. M, (the younger brother of S) is aged twelve, and R, (her younger sister) is aged 10. Both reside with the Plaintiff in Ireland. S was joined as Second Defendant to these proceedings by Sumner J on 22 January 2007. She is bright and intelligent (indeed she is educationally gifted or near-gifted) and well able to instruct a solicitor herself. She is represented before me by Mrs Taylor of counsel. The father appears in person. He does not dispute that he wrongfully removed S from Ireland, but asserts that the mother consented and/ or acquiesced in that removal, later changing her mind. He relies upon S's objections to returning to Ireland into her mother's care and asserts that she would be at grave risk of physical or psychological harm if she were ordered to be returned. (See Article 13 of the Hague Convention).
There is a long history of proceedings between the parties which is somewhat complicated and has been characterised by a degree of evasion and prevarication on behalf of the father, leading to a number of adjournments. I do not propose to rehearse the earlier history at this stage, save to say that the father is in breach of his obligations under various Irish Court orders to pay maintenance to the mother.
These proceedings for the return of S were instituted by the mother as long ago as January this year. Their disposal has been unfortunately delayed by reason of the necessity for a number of orders for directions, as well as an adjournment in the course of the original hearing date on 22 February 2006 for the purpose of mediation between the parties when it appeared that an agreed solution might thereby be achieved. Upon such arrangements proving unproductive, there were difficulties in fixing a hearing date because of the international commitments of the father's job and the imminence of his partner's giving birth to a child in America. Eventually a date was fixed for a hearing before me on 25 April 2006. At the outset of that hearing, the father applied before me for a yet further adjournment on the grounds that he wished to further his so far unsuccessful application for Legal Aid. In the light of the history, the unlikelihood of the father obtaining Legal Aid in view of his employment position, and the fact that his position in the proceedings essentially involves identifying himself with the case of S, who objects to her return, I refused his application. Upon completion of the hearing before me, I was obliged to reserve my judgment, the grounds of which hereafter appear.
Background
The father is aged almost 42 and the mother is aged 44. The parties met in 1986 and married on 30 May 1992. S was born on 1 March 1993, N on 19 January 1995, and R on 17 September 1996. The father had fairly senior corporate positions in the field of finance in Germany and Tokyo, where the family moved during the course of the marriage but, in 1998, the parties separated, the mother returning to live in Ireland with the children who there went to local schools. Upon termination of his employment in Japan with a substantial golden handshake, the father went to live in London. After a while the father failed to pay regular maintenance and as a result the mother endured an unsettled period in relation to her accommodation and the children's schooling. The father came over to Ireland for regular contact.
In 2001 the mother fell ill with depression, and was diagnosed as suffering from bi-polar disorder. Later that year, she was admitted to hospital during an acute phase. By agreement the children went to live with the father in England where he looked after them for several years affording generous contact to the mother.
Eventually the mother's condition improved, and, in the light of her improved condition and difficulties which had developed over contact with the children, she brought custody proceedings in respect of them which were the subject of a judgment by Mr Justice McKechnie in Dublin on 2 April 2004. A transcript of that judgment is before me. I do not need to refer to it at length. It helpfully summarises the nature of the mother's disorder, namely one that is amenable to treatment and control by medication, as was the case by the time it came before the judge, but it cannot be cured and she remains and will remain vulnerable to further episodes or relapses, the risk as to which it is not easy to quantify.
By the time of those proceedings, the mother was in a good job with a leading bank in Ireland and had obtained outline planning permission for a house in which she proposed to live with the children.
For reasons made clear in a long and careful judgment, Mr Justice Mckechnie made an order for joint custody of the children, the primary custody in the terms of the school year to be with the mother, but with generous access provisions in favour of the father. At page 28 of his judgment the judge observed that the children were, intelligent, capable and related well to both the mother and the father. The Children were then at school in England. S was at a High School in Surrey. However, Mr Justice McKechnie had no fears that if they went to live with the mother they would not adapt to their new circumstances and surroundings. He equally had no fears that their intelligence, brightness and learning capability could be furthered by education in either jurisdiction.
Following that order, the father failed to return the children to the care of the mother, who issued proceedings here for its recognition, registration and enforcement.
On 5 August 2005, Mr Justice Singer made an order for the return of the children to Ireland into the mother's care. A transcript of Singer J's judgment is also before me. By that time, the mother was still holding down her responsible job and taking steps to construct the house in Drogheda for which she had obtained planning permission. Her house was said to be nearing completion.
The judgment of Singer J made clear that, at that time, the children were vigorously objecting to an order for their return to Ireland and it appeared that S, and perhaps also M, would fiercely resist. The judge had been very concerned at the situation, and with the consent of the parents, enlisted the intervention of Dr Hamish Cameron in mediatory efforts to help the parents come to terms with each other. Unfortunately those efforts proved unsuccessful. After a degree of judicial agonising and a broad evaluation of the evidence, the judge came to the conclusion that although the children's opposition to the moves and changes contemplated by the Irish order would be real and significant, if the order were implemented then they would accommodate to the changes. In those circumstances, he held that it was appropriate to order a return of the children to the mother.
I pause, in parenthesis, to note that the judgment of Singer J is principally devoted to arguments raised by counsel of a technical nature relating to the applicable enforcement procedure and in particular whether the Hague Convention governed the situation and, if not, whether the Brussels II Regulation or Brussels II Revised applied. The conclusion of the judge was that the Convention did apply and that the Irish orders should be recognised, registered and enforced at the earliest practicable opportunity. He stated that he would have reached the same conclusion if either Brussels II or Brussels II Revised applied. He added, however, that, if none of those regimes had been applicable, he would not have ordered peremptory return of the children in exercise of the court's inherent jurisdiction as he did not feel satisfied that an order for them to move to Ireland made without investigation of the merits would be in their overall welfare interests.
On 4 October 2005 the Court of Appeal dismissed the father's appeal against the order of Singer J.
Following the return of the children to Ireland, on 5 October 2006, upon an application by the mother for various heads of relief, including an application for sole custody...
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