M v M (J) (Children) (Child Abduction)
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE SUMNER,The Hon. Mr Justice Sumner |
| Judgment Date | 14 June 2007 |
| Neutral Citation | [2007] EWHC 1404 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD07P00730 |
| Date | 14 June 2007 |
[2007] EWHC 1404 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr Justice Sumner
Case No: FD07P00730
Mr Teertha Gupta for the Applicant
Ms Judith Murray for the Respondent
Hearing dates: 21 May 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.
This judgment is being handed down in private on 14 June 2007. It consists of 9 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.
Introduction
This is an application under the Hague Convention by the Plaintive father, Dr N M. It was issued on 3 April 2007. He seeks the immediate return of his two sons to Greece. They are 10 year-old Lykourgos, born 11 November 1996, and 6 year-old Alexander Cross, born 19 September 2000. They were brought to England on the 31 January 2007 by their mother, Mrs J M.
The father is a 43-year-old medical physicist. He has Greek and British nationality. The mother is a 40-year-old air hostess and a British national. They married in the UK in July 1992. They lived in London and Norfolk, where they have retained houses and furniture. They moved to Greece in 2002.
It is accepted that the mother's return to London with the children was with the father's consent. The issue is the extent of that consent. In particular it focuses on whether the father was or was not to join them later.
It is common ground that the mother was unhappy in Greece. She attributes this to the failure of her relationship with the father with the added strain of living next door to his parents and brother. Lykourgos was at a private British school in Athens at a cost of £5000 a year. Alexandros started at a Greek school in September 2006. He was not doing well and was unhappy. There were problems over meeting similar school fees for him.
In December 2006 the mother looked for English schools for the children whilst staying with her parents in the UK. The father was in agreement. She found St Peter's Main School, Chiswick, West London. It only had a place for one child. She returned to Greece with the two boys. Later in January two places became available. She resolved with the father's consent to place them in the school quickly and to leave Greece at the end of January.
This she did. The father visited on 17 February after telephone conversations between them. He only remained for one night. He subsequently started the present proceedings.
The Hague Convention
The Convention governs the removal of children unlawfully by a parent from Convention country A to Convention country B. It arises where the other parent in country A has rights of custody and the children were habitually resident in country A before they left. That parent may then bring proceedings in country B to obtain an order for the immediate return of the children to country A.
There are limited discretionary reasons which, if proved, do not compel the courts in country B to order the children's prompt return. One of these is that the parent in country A consented to the children going to country B.
The issue
On this application it is accepted that the father had rights of custody and that the children were habitually resident in Greece when they left in January 2007. It is also agreed that he consented to the children leaving.
It is the father's case that it was always intended that he should join the mother and two children in England. The mother was in breach of that agreement or understanding by issuing divorce proceedings the day after she arrived. He only became aware of that when, on 5 February and by mistake, her claim for ancillary relief was sent to him in Athens.
It is the mother's case that the father never intended to leave Greece. She had been saying for some time that they should divorce. However it was only shortly before she left that the father agreed to a divorce. There was no agreement or understanding that he would come later to England. The case turns on whether the father agreed to a divorce and the mother returning alone to England before she left.
There is a common ground between the parties on the following points. If the father's account is correct, there was no consent by him to the children leaving Greece within the terms of the Hague Convention. If the mother's account is correct, then he consented in Convention terms to the children leaving. The father argues however that, if the court holds he did consent, it was ineffective because he later rescinded it. The mother has to prove that there was consent. If she does, the court has a discretion whether to order their immediate return or not.
The hearing
It was appreciated that, if the court was to resolve this issue without there being anything in writing to support either contention, it would be necessary for both parents to give evidence. Accordingly on 21 May 2007 I heard evidence, firstly from the mother and then from the father. Following submissions from Mr Gupta on behalf of the father and Miss Murray on behalf of the mother, I reserved judgment.
My decision
Having reread much of the papers and considered the evidence of the parents, I have, after careful thought, come to a clear conclusion. It is that for the purposes of the Convention the mother has proved that the father consented to her bringing the children to England in January and remaining here on her own. There was no effective rescission. I have accepted her account where it differs from that of the father. In the light of that consent, and on the facts of this case, I do not consider that it would be right to exercise my discretion to order the return of the children. I turn to the evidence and my reasons.
The mother's evidence
She considered the marriage was unhappy when they were in Norfolk. She only went to Greece because the father had said that she could come back with the children at any time. Whilst there, she had said for at least 12 months that the marriage was not good and that they should divorce with her returning to the UK alone with the children. The father did not comment. The father says it was only in December 2006 and he agreed to the return if it would make her happier.
The father was very unhappy in his job in Greece. He said that being a medical physicist was not good. He wanted to stay in Greece to pursue his investments. He never wanted to go to England. He had not applied for jobs here. It was never discussed.
By the end, it was clear that the marriage had broken down. She considered him unreliable and irresponsible over childcare and complained about school fees but bought an expensive car.
“We had not had a sexual relationship for about 9 months. Our only communication was tense and brief. The tension was intolerable.”
When he was with her family at Christmas 2006 he had never mentioned returning. He had told her uncle and family members that he was doing business on the Greek islands. It was to do with a tourist operation. He had also talked about buying medical equipment and setting up with a friend their own radiotherapy business. He wanted to pursue this.
She had applied for schools in Chiswick in December 2006. They had both signed application forms for St Peter Main School on 22 December 2006 as the forms show. She returned to Greece after Christmas because at that time there was only one place available for the children at the school. A further place became available in January.
About five days before they left, the father came to her room and said that he consented to her going to London alone. They could not live in the two countries. “Out of sight, out of mind, and I want a divorce.” She was shocked. It was the first time he had confronted the situation. She agreed. He said it in rather a legal way. She thought he had consulted solicitors in Greece.
She immediately telephoned a Greek lawyer, Mr Tateos. He has written to confirm their conversation.
“I am writing this letter to confirm that Mrs J M telephoned me at the very end of January 2007. Mrs M informed me that her husband has asked for a divorce, and that she also wished to divorce. Therefore she asked me about the procedures of a Greek divorce and the duration involved. She also told me of her returning to England with the children. She said he had consented to her returning to the UK with the children.”
She only mentioned the separation to one friend in Greece. She had not mentioned it to Mrs Tessa Deriziotis, the wife of the father's best friend. She did not tell Lykourgos' private school at the beginning of January that the father would follow her and the children to England at a later date.
She had rung solicitors in England on 19 January. They sent their terms of business. She visited them on the day after her arrival. She instructed them to issue a petition for divorce, which was then sent away to be translated. She also issued a claim for ancillary relief. She gave instructions that this was not to be served on the father until after she had spoken to him. By mistake it was sent to him and he received it on 5 February.
She had been saving money for the children and had some £23,000 in an account. It was not a secret...
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