M v G
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis,Mrs Justice Theis DBE |
| Judgment Date | 15 May 2020 |
| Neutral Citation | [2020] EWHC 1450 (Fam) |
| Docket Number | Case No: FD20P00086 |
| Date | 15 May 2020 |
| Court | Family Division |
[2020] EWHC 1450 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis
Case No: FD20P00086
Ms Katy Chokowry (instructed by London Family Solicitor) for the Applicant
Ms Jacqueline Renton (instructed by Access Law LLP Solicitors) for the Respondent
Hearing dates: 14 th and 15 th May 2020
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.
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.
Introduction
These proceedings concern X, now age 4 1/2 years. He is currently here with mother, G, having travelled here with her from their home in Australia for a three-month trip to visit the maternal family, with the father's consent. They were due to return on 4 November 2019. When they did not X's father, M, made an application under the Hague Convention of the Civil Aspects of International Child Abduction (hereafter ‘the Convention’) for an order seeking X's return to Australia. That application is opposed by the mother, who relies on the defence under Article 13 (b) of the Convention.
This hearing has been heard remotely, via Skype for Business, due to the current Covid-19 health crisis. Both parents have been able to attend, together with their solicitors and counsel. No evidence has been called and the case has been dealt on consideration of the papers and submissions. There is an extensive electronic bundle, which includes all the relevant material.
The parties have been able to agree a number of key issues in the case. It is agreed that the mother retained X here at a time when he was habitually resident in Australia and the mother's retention was in breach of the father's rights of custody in respect of him. It is therefore agreed that the mother's retention of X here was wrongful for the purposes of Article 3 of the Convention.
The focus of this hearing has been on the Article 13 (b) defence, whether the mother has established that to order the summary return of X to Australia would expose him to a grave risk of physical or psychological harm or would otherwise place him in an intolerable situation. If I do, Ms Renton, on behalf of the mother submits the protection measures are not sufficient to mitigate that risk and I should exercise the court's discretion to refuse a return. Ms Chokowry, on behalf of the father, submits the Article 13 (b) test is not met, if it does get over the threshold the protection measure proposed mitigate that risk and the court should exercise its discretion to order a return.
Before turning to the detail, I recognise for each of these parents this decision is important for them. For the father who has not seen his son for over 8 months and for the mother who has become settled here and wishes to remain. They should both know that this decision is being made on a summary basis, in accordance with the principles set out in the Convention. The outcome in these proceedings will not determine the future arrangements for X's care, they are focussed on whether, in accordance with the terms of the Convention, X should be returned to Australia or not.
There was an issue raised at the start of this hearing as to whether the mother would accompany X, if this court ordered his return to Australia. I was able to give Ms Renton, the mother's counsel, and her solicitor an opportunity to discuss that with the mother. Following those discussions Ms Renton confirmed to the court that her instructions were that in the event the court ordered X's return, his mother would accompany him. That had been her position in her detailed statement and in her discussions with Dr Farhy, the jointly instructed expert. The court recognises and acknowledges that that is not what she wants but as Ms Renton said yesterday the mother recognises that would meet X's best interests in the event of a return order being made.
Relevant background
The mother was born in the United Kingdom. The detail is not necessary to recite here but it is clear she had an extremely difficult background. She spent a period of time in the care of the local authority and was the subject of serious child protection issues in her own childhood, as described in detail in the reports before the court. She left home at an early age and had to fend for herself, with limited support.
She went to Australia in 2010 with a group of friends and met the father in 2014. They started living together in April 2015 and married in August 2015. X was born soon afterwards, in December 2015. The mother was able to secure permanent residency in June 2017.
The father is an Australian national and has always lived in the area the parties lived in. His mother lived nearby.
The parents and X came to visit the United Kingdom in December 2016 for 3 weeks.
In February 2017 X was enrolled with a creche and remained there until August 2019. The letter from them in March 2020 confirms the level of the father's involvement, describing him as an ‘very active father in regards drop off and pick up. He was consistent and caring. It was noted at pickups George was a particularly loving father who would often come earlier than expected and would sit and interact with X as he played’.
Although there had been difficulties in their relationship, including allegations by the mother of arguments and domestic abuse, there was an incident in April 2017 that resulted in the police being called. The mother alleged the father kicked her and punched her face. The father denies that. The parties separated, and X remained living with his mother.
An ADVO order was made for a period of a year, which prevented the father from returning to the home and provided protection for the mother. There was a criminal prosecution and the father was acquitted in November 2017, the mother says that was due to pressure from the father and/or his legal team for her not to give evidence. That is denied by the father and his solicitor who represented him at the time. It is noted that the mother repeated at the time of the alleged assault what she alleged had been the father's violent behaviour towards her to her doctor and therapist, who she was seeing at the time.
There are emails in the papers in July 2017 and January 2018 where the mother was seeking to engage in mediation with the father to improve their relationship, for the benefit of X. The father was having some contact during this period, and in June 2018 he cared for X for 3 weeks so the mother could attend a wedding here.
By October 2018 the father was seeing X regularly and by April 2019 the parents had agreed a parenting plan, with an alternate week 5:2 arrangement, with X spending Monday and Tuesday with one parent, then Tuesday to Sunday with the other, and then alternating the following week.
In March 2019 the mother asked the father to agree to her taking X to the United Kingdom for 3 months so she could visit and stay with family here. The father refused but by 12 August 2019 he had agreed, the parties signed a document confirming that this was a time limited visit in the presence of a notary and the mother and X flew here on the same day. The agreement said they would return on 4 November.
The mother and X initially stayed with family and then from October 2019 to the area where the mother grew up.
In the communications prior to early November there was no suggestion the mother would not be returning X to Australia. Whilst some of her messages set out how settled she felt here and wished to stay longer it didn't go further than that. The father began to be concerned about whether they would return and contacted a friend of the mother's, who lives in Australia. The messages in the papers make it clear she felt awkward finding herself in the middle. When requested the mother failed to confirm the arrangements for her return and on 9 November suggested the parties agreed to mediation.
The father made his application to the central authority on 28 November, which resulted in these proceedings commencing on 14 February 2020.
As a result of directions made on 17 February, 18 March and 6 and 7 April 2020 the father has filed three statements and the mother one. In addition the mother has filed two additional statements, one relating to her general position and the other relaying details of what the mother had described were sexually inappropriate comments made by X on two occasions in September 2019 that implicated the father in some form of sexual touching. These were referred to a child protection agency, who X did not repeat the matters to and there is no evidence of any other occasions when X has said such things. The agency took no further action. The father denies any inappropriate sexual behaviour.
Although there was a direction made on 17 February 2020 for a wishes and feelings report regarding X to be prepared by Cafcass, that direction was discharged on 7 April 2020 when it was agreed that was not required due to X's young age.
On 7 April 2020 Judd J permitted the mother's application for an expert, Dr Farhy (Consultant Counselling and Psychotherapeutic Psychologist), to be instructed to assess the mother's mental health, the likely impact on her of a return to Australia and what therapy was recommended.
During her time in Australia the mother was referred by her doctor...
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Re M (A Child) (1980 Hague Convention: Abduction: Article 13(b): Mental Health)
...Grave Risk) [2003] EWCA Civ 355, [2003] 2 FLR 141 Re C (Children) (Abduction: Article 13(b)) [2018] EWCA Civ 2834, [2019] 1 M v G [2020] EWHC 1450 (Fam), [2020] 2 FLR 1295 Re K & S [2023] EWHC 1883 5 The parents were born and raised in the UK and now hold dual British and Australian nati......