Lcg v Rl

JurisdictionEngland & Wales
JudgeThe Hon. Mr. Justice Cobb
Judgment Date23 May 2013
Neutral Citation[2013] EWHC 1383 (Fam)
Docket NumberCase No: FD13P00122
CourtFamily Division
Date23 May 2013

[2013] EWHC 1383 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Hon. Mr. Justice Cobb

Case No: FD13P00122

Between:
Lcg
Applicant
and
Rl
Respondent

Henry Setright QC & Michael Gration (instructed by Dawson Cornwell) for the Applicant (mother)

Christopher Hames (instructed by Goodman Ray) for the Respondent (Father)

Hearing dates: 13, 14, 15 and 23 May 2013

The Hon. Mr. Justice Cobb

This judgment is being handed down in private on 23 rd May 2013 It consists of 31 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.

Mr Justice Cobb:

Introduction

1

By application brought under the Child Abduction and Custody Act 1985 (incorporating the Convention on the Civil Aspects of International Child Abduction 1980 ("The Hague Convention")), and under Article 11 of Council Regulation (EC) 2201/2003, LCG (hereafter "the mother", or "M")) seeks the return of her four children to the Kingdom of Spain. This application is opposed by RL ("the father" or "F").

2

The children concerned are T, a girl born on [a date in] 2000 (12 years 8 months old), L a boy born [a date in] 2002 (10 years 5 months old), A, a boy born [a date in] 2004 (8 years 5 months old), and N, a boy born [a date in] 2008 (4 years 4 months old).

3

For the purposes of determining this application, I have read the statements filed by and on behalf of the parties, a number of contemporaneous documents generated at key times in the relevant history, and reports dated 28 th February 2013 and 7 th May 2013 from Sarah Vivian of the CAFCASS High Court team. I have heard brief evidence from the parties on limited issues, and from Ms Vivian.

4

This case has a range of complexities, both factual and legal. The hearing occupied three days of court time. I had to reserve judgment overnight following submissions. As will become apparent (see discussion of children's objections below) the relationship between the mother and T has become strained in recent weeks. Therefore, by agreement between the parties, I reserved judgment for an extended period of four days so that the mother could have contact with T and her brothers here in England before either party (or the children) knew the outcome of the hearing.

Background

5

The mother is 45 years old, and a Spanish National; she was brought up living in Madrid. She is tri-lingual in Spanish, English and French. The father is 46; he is a British national, though spent a considerable part of his childhood in Spain and is, I understand, bi-lingual in English and Spanish.

6

The parties met when the mother came to live in England in the mid-1990s to study English and to work; the father was in the music business, as a professional musician. They lived throughout their relationship in the O area, most recently in B.

7

The parties never married. As is apparent from §2 above, their four children were born over the next eight years.

8

It appears that the family lived reasonably frugally; on the father's account they were at times " completely broke", the father not earning greatly from his music, and the mother working only periodically, doing some translating and teaching; the couple received benefits and credits (see below re: e-mails), and (according to the mother) relied to some extent on borrowings. It was nonetheless the family routine, certainly from 2002, for the mother to take the children to Spain for holidays during each summer, to see her family, often — indeed, as I understand it, invariably — without the father.

9

The children (as will be apparent through my later discussion of the 'objections' of the older three) are bright, engaging and amiable. T and N are inter-changeably bi-lingual in Spanish and English; L and A less so (for A English is probably his marginally stronger suit). In July 2012, L and A were attending the junior school local to the family home; T had also attended the same school but in the academic year beginning in September 2011, she had moved to P senior school where she had obtained a scholarship. A was said to be top of his class at school in the year to July 2012.

10

It is relevant to the background history to note that (on the parents' collective account) T's first academic year at P school (2011/2012) was affected by the fact that she was occasionally bullied. This reached its peak in April 2012 when T joined a week long residential school trip; this trip was, from her point of view, an unhappy experience, and on her return she was miserable. The father told me that she cried the whole journey home from O (from where the father had collected her at the end of the trip) to the family home at B.

11

The parental relationship appears to have been a turbulent one almost from the early days of T's life (2000), and on both parties' accounts deteriorated significantly after the birth of L (2002/3). The father described home life as " unbearable" for much of the children's childhoods, with endless " hostilities" and " aggression". The relationship became, he said, " destructive". The father refers to the fact that the parents occupied separate bedrooms for most of the last 10 years of their relationship, the mother sharing a room with the three younger children; difficulties with communication are said to have endured throughout the relationship.

12

Relations appear to have become particularly difficult in 2011 when the father broke his wrist; this took its toll on him physically (given his professional occupation as a musician) and emotionally; he described how this had " almost destroyed" him. This caused or exacerbated depression for the father (as he recorded in his statement and acknowledged in his e-mail to the mother).

13

The relationship finally disintegrated in early 2012. The father described it in this way when giving oral evidence: " [M] and I were in such a bad situation" (evidence in chief); " we had broken up; tensions were very high; we were constantly arguing…" … " it had been hell for years" (cross-examination). I accept those accounts. The children were inevitably exposed to the discord, and, on the father's case, T aligned herself with her mother against him. The father's case, which I accept, is that " the children were becoming increasingly disturbed by the home situation"; the mother agreed, contending that " the children were starting to suffer psychologically".

14

Over the weeks of early 2012, the parties reviewed and, in my judgment, regularly discussed their options. The father proposed that the couple should separate (see the e-mails of 16 September, 18 & 20 December confirming this below). The father says that he suggested that he move out of the home leaving the mother there; the mother indicated that the father had told her to leave the house and obtain council accommodation, though he disputed this. The mother's evidence was that she had proposed that she should return to Spain with the children.

15

The father acknowledged that the mother had in their many arguments " threatened" to leave B, and return permanently to Spain, though recognised that in 2012 these ' threats' were qualitatively different. He told me that he accepted " that the situation felt different to previous years because our relationship had essentially ended". I must decide whether these were merely 'threats', or whether these were statements of clear intent, as the mother contends. I must further evaluate the father's response to them; the mother contends that the father agreed to the relocation. I deal with this below.

16

Overall, I am satisfied on the evidence I have heard and read that there were a number of discussions — often fragmented and bad-tempered I expect — between the parties over the early months of 2012 about their longer-term futures. During this period, the father describes himself as " not really thinking clearly", and " depressed". In my assessment, that is probably right.

17

On 6 June, the mother purchased one-way tickets to Spain for herself and the children.

18

The mother maintains (though there is no written confirmation of this) that she told the headmistress of the junior school that the boys would be leaving the school, and on the last day of term took in the school uniform for re-sale; as she was friends with the headmistress, she was released from any need to give formal notification. Somewhat to the surprise (and discernible irritation) of P School, the mother gave them written notice of T leaving only on the last day of their summer term.

19

The mother cancelled L's cornet lessons, and his participation in cubs. Notably, the mother's written notice to the cubs supervisor ('K') was communicated via the father, by e-mail, on 17 July 2012, in these terms:

" We have decided for personal reasons to move to Spain, we will be missing the UK very much but I think that is what is best for the family right now. L will not be joining you and the cubs for next term."

This is a significant e-mail, first because it is explicit about the long-term plan, and secondly because the father received it and read it before forwarding it on to 'K'. The father's case about this now is inherently contradictory; while on the one hand he " just thought [M] had done this to wind me up", he nonetheless said that having read it he researched details about the Hague Convention on the internet (having previously spoken with a family member), plainly interested in the legal implications of the...

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4 cases
  • LC (Children)
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 15 August 2013
    ...later, however, F was not the only protagonist in the appeal proceedings. 5 Cobb J's judgment is available on bailii.org.uk, reported as LCG v RL [2013] EWHC 1383 (Fam). It is not therefore necessary for me to repeat all the factual details in this judgment. I will confine myself to that wh......
  • LC (Children)
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    • Supreme Court
    • 15 January 2014
    ...an officer in the High Court team of the Children and Family Court Advisory and Support Service ("Cafcass"). By a reserved judgment, [2013] EWHC 1383 (Fam), Cobb J explained his reasons for then ordering that all four children be forthwith returned to 6 Four issues were raised for Cobb J's ......
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    • Court of Appeal (Civil Division)
    • 1 May 2014
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    • 16 May 2014
    ...5 As will appear below in more detail, this case has previously been before Mr. Justice Cobb in May 2013. His judgment is reported at 2013 EWHC 1383 (Fam). It has been before the Court of Appeal in August of last year. The reference for that judgment is 2013 EWCA Civ. 1058. Finally, the Uni......

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