NT v LT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 16 July 2020 |
| Neutral Citation | [2020] EWHC 1903 (Fam) |
| Date | 16 July 2020 |
| Docket Number | Case No: FD20P00173 |
| Court | Family Division |
[2020] EWHC 1903 (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 SENIOR COURTS ACT 1981
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: FD20P00173
Richard Harrison QC and George Gordon (instructed by Goodman Ray) for NT, the Applicant (mother)
James Turner QC (instructed by Charles Russell Speechlys LLP) for LT, the Respondent (father)
Hearing dates: 10 and 11 June 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.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment 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.
The applications before the court for determination are:
i) an application brought under the Child Abduction and Custody Act 1985 (incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980) (the ‘ 1980 Hague Convention’) dated 25 March 2020;
and in the alternative,
ii) an application brought under the inherent jurisdiction.
These applications, brought by the children's mother (“the mother”) pursue the same objective, namely the return of her son, K, currently aged 8, to the Federation of Russia. K has an older sister (L) who is just 16 years old, and is not the subject of these applications. The mother contends that the children's father (“the father”) wrongfully removed K from Russia on 4 July 2019, or in the alternative has wrongfully retained K away from Russia in either late-August, September, or October 2019. Her primary case is that the 1980 Hague Convention provides appropriate jurisdiction to achieve K's summary return. She resorts to arguments based on the inherent jurisdiction in the event that I conclude that the 1980 Hague Convention is not engaged.
The father opposes these applications and seeks their dismissal. He has made his own applications before the English court (in fact they are first in time, issued on 20 February 2020), for various private law orders (principally prohibited steps orders) under the Children Act 1989; his applications have, for the time being, been stayed pending determination of the mother's applications.
The father raises widespread challenge to the mother's claims. The essential questions for my determination are:
i) Whether K was habitually resident in Russia at the time of the relevant removal or retention;
ii) If K had been habitually resident in Russia immediately before his removal or retention from that country, whether the mother had rights of custody in respect of K at the relevant time, in the sense of the father requiring her consent (or permission from the courts in Russia) for the relevant removal or retention;
iii) If the 1980 Hague Convention is thus engaged,
a) whether there is a grave risk that the return of K to Russia would expose him to physical or psychological harm or otherwise place him in an intolerable situation;
b) whether K objects to being returned to Russia and has attained an age and degree of maturity at which it is appropriate to take account of his views;
iv) If the ‘grave risk’ and/or ‘child objections’ gateways are passed, whether the court should exercise its discretion in favour of, or against, making a return order.
For the purposes of determining these applications, I have read a large volume of documentary material, in two separate bundles, in total running to some 700 or so pages. I have received characteristically able, and forceful, submissions from leading counsel for the parties. This was a case in which many key substantive and procedural issues were disputed.
I conducted a Pre-Trial Review (‘PTR’) some weeks ago (22 May 2020), at which I gave directions for the final collation of the evidence. Two important further case management issues arose on the first day of this two-day final hearing which required my immediate adjudication. I gave my decisions on these issues, ex tempore, indicating that I would set out my reasons for my decisions in this judgment. As these were discrete points, I consider it more convenient to attach my judgment on these case management issues as an appendix to this substantive judgment.
Background history
The case has a lengthy and complex history which it is necessary to recount in a little detail.
The father is 50 years old; the mother is 45. They are both Russian citizens, and also have St Kitts & Nevis Citizenship through the Citizenship Investment Scheme. They married in 2004. The father owns businesses and properties in Russia, including a flat in St Petersburg and a dacha outside of St Petersburg. Their only children together are K and L; the father has an older child or children, and a younger child or children, by different partners. For most of their married life they lived in St Petersburg, in a property now owned by the mother; the extended families on both sides live in St Petersburg. During the marriage, the parties also owned a property in London, now transferred to the mother. K's first language is Russian, although he is fluent in English. K was born in London.
In 2014, the mother and children relocated to London. The father, although travelling extensively for business at that time, joined them in London for periods of time. During this period, the mother asserts that she and the children frequently travelled to Russia, in part to see the paternal and maternal extended family. In 2017, the parties entered into a nuptial agreement in Russia which provided for the transfer of the property in London and a property in Russia to the mother. Divorce proceedings followed; the father issued proceedings in Russia and the mother in England. The jurisdictional conflict was effectively resolved when the Russian court pronounced the decree on 23 October 2017 which was made final in February 2018.
In 2017, both parties issued applications under the Children Act 1989 in the Central Family Court in respect of child arrangements for the children. The mother sought orders which would have secured the children living with her in London; the father wished the children to live with him in Russia.
In April 2018, shortly before the final hearing of the Children Act 1989 applications, the mother travelled to Russia leaving the children in England in the care of the maternal grandmother and a nanny. On her arrival in Russia, she was arrested and subsequently charged with an offence of bribery of an official “on a large scale”; specifically it was alleged that she had attempted to suborn a police officer (with US$10,000) to bring a criminal case against the father. She was remanded in custody in a pre-trial detention centre. The father, who had been in Russia at the time, travelled to London to care for the children, and rented a flat in Hampstead for the following three months. At that time, he was reliant on a tourist visa, and otherwise dependent on the status of the mother who had the greater security of a Tier 1 investor visa.
In June 2018, the Children Act 1989 proceedings were listed before District Judge (DJ) Gibson for final hearing; the mother was still in custody in Russia and not able to attend in person. She applied (through solicitors, instructing Mr Harrison QC) for an adjournment. This was in fact the second such application. The application failed, and the mother's lawyers withdrew. The case proceeded. DJ Gibson heard evidence from the father, from an independent social worker, Ms Cathy King, and an immigration expert. Ms King provided significant evidence to the court; she had prepared three reports, having met with the children and parents in England and in Russia. She raised a number of serious concerns about the wellbeing of the children. I have read those detailed reports: for present purposes, it is sufficient to record (as Ms Demery, Family Court Adviser in these proceedings, says in her report to this court) that Ms King was “critical of both parents. Both children appeared to have been drawn into the parental conflict following their parents' separation. [K] did not speak with much affection about either parent”. Ms King had also made clear in her report that the father intended to return to Russia (the “father cannot reside in this country because of work commitments in Russia”); she reflected in the first of her three reports (which had been filed before the mother's arrest) that it was the mother's intention to return to Russia herself if the father was successful in his application before the English Court.
DJ Gibson ruled on the cross-applications. She found that the children were thriving in the recent care of the father, and her order, dated 17 July 2018, provided for the children to live with him. He was granted permission to remove the children permanently to live in the Russian Federation with effect from 28 July 2018. The judge gave a fully reasoned and detailed judgment; it is material to highlight three of the judge's findings:
“There is a strong argument that as the children are Russian, their ethnic and cultural needs are best met in Russia…”;
“The father has in the past indicated that he can work remotely but in reality, the extended family and his business interests are all in Russia.”
“These are Russian...
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