PG v RT
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 10 May 2021 |
| Neutral Citation | [2021] EWHC 1213 (Fam) |
| Date | 10 May 2021 |
| Docket Number | Case No: FD20P00689 |
| Court | Family Division |
[2021] EWHC 1213 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Hayden
Case No: FD20P00689
Ms Charlotte Baker (instructed by Ellis Jones Solicitors) for the Applicant
Mr Patrick Paisley (instructed by Royds Withy King) for the Respondent
Hearing dates: 4 th May 2021
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 Hayden VICE PRESIDENT OF THE COURT OF PROTECTION
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.
I am concerned here with 1980 Hague Convention proceedings in respect of a child J, aged 1year 7months. J has a sibling, T, born 12 th March 2021, who is habitually resident in England and Wales and not the subject of an application. The matter comes before the Court today, for a final hearing pursuant to the father's application, dated 28 th October 2020, for J's summary return to Australia. It is opposed by the mother (M), who relies on an Article 13(b) defence.
It is convenient to set out Article 13(b) of the 1980 Hague Convention here. It provides as follows:
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that — […] there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
M, I have been told, is a dual British-Australian National. She lived in Australia for just over 2 years before she left in September 2020 with J. At the time she was pregnant with the parties' second son T. She told the father (F), via text message, on 24 th September 2020 that she had returned to England.
The first case management hearing took place before Poole J on 9 th December 2020, directions were made and disclosure requests of the police force and children's services in Australia. There was a further hearing before HHJ Harrison QC, sitting as a Deputy judge of the Division on 15 th January 2021, and a hearing before Lieven J, on 21 st January 2021. At the latter hearing, Lieven J declined an application, made on behalf of M, for a psychological assessment of her. The case was listed for hearing today.
M opposes return of J to Australia, arguing, pursuant to Article 13(b) of the 1980 Hague Convention, that there is a “grave risk that a return would expose J to physical or psychological harm or otherwise place him in an intolerable situation.” Mr Paisley, who acts on M's behalf submits that no “safe haven return package” or “soft landing arrangements” could “alleviate” the situation. Mr Paisley further submitted that M's “profile is one of a socially vulnerable, relatively new mother, with two young children, who has only spent two years of her life residing in Australia”. In the course of his oral submissions Mr Paisley emphasised that M is deaf, has a cochlear implant which is due for replacement later this month. The combination of these factors, it is contended, renders this mother particularly vulnerable. I should record that M participated in this hearing with the assistance of signers, working in alternating 15-minute slots. It was obvious to me that both signers, who were highly professional, had risen to the challenges presented by remote hearings and become accomplished in adapting their skills to the video conferencing medium.
In the course of exchanges, Mr Paisley refocused the thrust of his submissions to the “intolerability” of J's situation, were he to be returned to Australia. Key to the risk to J are F's criminal convictions and intent to expose a person believed to be under 13 years to indecent matter (2014). For the first set of offences F received a 2-year custodial sentence, which was the subject of an unsuccessful appeal against conviction. The judgment in the appeal records that the complainant suffered from cerebral palsy and had been treated throughout her life for difficulties in verbal communication, described as “severe to profound”. A neurologist reported that the complainant was unable to close her mouth, resulting in “leakage and dribbling of saliva with very limited movement of the tongue lips of palate”. It must have been a challenge for this young woman to give evidence. The evidence revealed that there was a record of a very early complaint and one which was made consistently to more than one person.
For the second set of offences, committed only a few years later, F received a custodial term of 8 months and was placed on the sex offenders register for 8 years. The preponderant evidence establishes that F does not accept his guilt for the aggravated indecent assault and seeks to minimise the second set of offences. In this he is supported by his family. To some degree, this minimisation is reflected in the evidence that he has filed in this case.
It is an established precept of child safeguarding that where an offender fails to acknowledge guilt and/or seeks to minimise his behaviour, such actions are to be generally regarded as indicative of continuing risk. Ms Baker, on behalf of F, drew to my attention a number of text message sent by M to F, in June 2020. These were submitted in evidence in order to seek to establish that far from being “intolerable”, a return to Australia was seemingly very much in M's contemplation. There are references to “trying for a second baby” and what Ms Baker describes as a “sentimental” post to F on Facebook, on Valentine's Day, in which M describes herself as “one lucky girl”.
At about this time F was said to be experiencing difficulties at work. This was thought to have come about because M's sister, who lives in Australia, had told F's work colleagues about his convictions. M's response to this, as Ms Baker highlights, is sympathetic. She advised F to go on “stress leave”. She also sent the following message which requires, in my view, to be highlighted: “they are bullying you because of family personal reasons and your criminal records!! It's absolutely BS.” Whilst all this might appear to support Ms Baker's argument on behalf of her client, it also reveals a more troubling concern. It indicates that M too is trivialising the nature and extent of F's convictions and their obvious relevance to the safety of her children.
Throughout the following months M continued to send supportive and loving messages to F geared to re forging their relationship, albeit in the United Kingdom. In particular, M raised the possibility of marriage, on 31 st August 2020: “Looks like we might need to get married in UK ;)”. It is also clear from these messages that M had researched the criteria necessary to apply for a visa or extended permission to stay in the UK. It is important to record that F was not enthusiastic about the move. In a further attempt to encourage him M asserted: “UK is not as strict here with criminal records”. Once again, this last remark signals that M appears to have a very poor grasp of the risk that F must be perceived as presenting to her children.
Notwithstanding the above, M has made allegations of coercive and controlling behaviour against F. These are set out, at some length, in her statement of 22 nd December 2020. M alleges persistent and forceful sexual advances, which she initially rebuffed. Mr...
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