RA v RQ
| Jurisdiction | England & Wales |
| Judge | Judge Turner |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] EWHC 3554 (Fam) |
| Court | Family Division |
| Docket Number | Case No. FD16P00542 |
| Date | 16 December 2016 |
[2016] EWHC 3554 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
His Honour Judge Turner QC
(In Private)
Case No. FD16P00542
Ms. J. Renton (instructed by Hanne & Co.) appeared on behalf of the Applicant.
Miss M. Chaudhry (instructed by Dawson Cornwell) appeared on behalf of the Respondent.
Ms. S Jaffar (Solicitor, CAFCASS Legal) appeared on behalf of the Guardian.
JUDGMENT (As approved by the Judge)
These are Hague Convention proceedings issued on 4 th October 2016 concerning a boy called T. T was born in 2010 and he is now aged six years and seven months. He was joined to the proceedings by order of Her Honour Judge Finnerty of 18 th October 2016. Ms. Jacqueline Roddy of CAFCASS High Court Team is his children's Guardian.
The father seeks his summary return to El Salvador from which the family comes. His mother opposes that course.
T has resided with his mother and her new family in London since 30 th July 2015, a period of now some sixteen months. He had been removed from El Salvador by his mother to Miami in the United States with his father's agreement on 24 th July 2015 for the purpose only of a holiday until 4 th August 2015. In circumstances I shall shortly explain that was overtaken by his mother's decision to come to the United Kingdom, something she had for some time aspired to do and for which she appeared to have acquired appropriate visas several months before the actual departure.
The father was understandably very upset and had not agreed to T's removal to the United Kingdom permanently or otherwise. The mother notified him by telephone in what he says were distressingly blunt terms on 4 th August 2015 that she did not propose to return and he would not see the child again. She agrees there was indeed a difficult conversation in which she claimed to have said she had had no option in the circumstances but to flee El Salvador. I shall return shortly to the background to that suggestion.
Since removal and until today the father had had no direct contact whatever with his son and had had contact by Skype only since a court order of 18 th October 2016 made in these proceedings. He saw T this morning and I have been told it was an emotional and fond reunion. Skype has not been without its difficulties and has felt for the father, understandably, a very poor substitute for the easy and affectionate relationship he previously had with his son. He has come to the United Kingdom for the hearing of this case and it is to be hoped in the next day or two further face to face contact may be arranged.
This has been the final hearing of his Convention application. For this hearing, all parties have had the benefit of representation by experienced counsel to whom I am grateful.
Let me say at once that, for reasons I shall endeavour to explain I fear at some length, I do not intend to order T's summary return. I say that in order not to prolong agony for the parents and with a very real sense of sympathy for T's father who I know will be bitterly disappointed at the decision. I have not found this decision easy or comfortable. As the father himself said to Ms. Roddy, the court is confronted with a very real and humanly painful dilemma.
I have for the purpose of this hearing and with the agreement of all parties: (1) read the hearing bundle containing the detailed statements of the parties; (2) considered a number of supporting documents including information about the state of society in El Salvador; (3) read the CAFCASS report of Ms. Roddy and heard her oral evidence; (4) considered helpful skeleton arguments from all counsel; and (5) heard the detailed submissions of all counsel and been referred to a selection of relevant authorities, many of them very familiar to me.
This is of necessity, in part, an extempore judgment. My hope is that no deficit of analysis or infelicity of expression will serve to cloud the conclusions I have reached.
The following facts and legal framework are not in issue in this case:
(1) T was habitually resident in El Salvador at the point at which his mother removed him in July 2015.
(2) At the material time his father was enjoying significant contact, the precise quantum being in dispute, and thus had rights of custody in respect of T.
(3) T was unlawfully removed and retained.
(4) The core ingredients of Art.3 of the Hague Convention are established.
(5) The father did not commence these proceedings until 3 rd or 4 th October 2016 though there had been earlier communication, as I shall indicate, with the Public Ministry and Public Prosecutor's office in El Salvador seeking to secure the child's return.
It had, on paper at least, looked as if the mother intended to seek to defend these proceedings on the following bases:
(a) An Art.12 settlement defence.
(b) An Art.13(a) acquiescence defence.
(c) An Art.13(b) objections defence.
(d) An Art.13(b) harm/intolerability defence.
(e) An Art.20 human rights defence.
In the event, and perhaps realistically, the mother's counsel sought to develop only (a) and (d) above in argument wisely deciding not, in the circumstances, to pursue acquiescence or the child's objections.
The father's counsel submitted that, when properly analysed, none of the defences relied on could or should be established.
The Background
Both parties are El Salvadorian nationals. The child is also an El Salvadorian national whose passport expired on 16 th June 2016.
The father is thirty-two, an agricultural consultant and part time church leader. The mother is also thirty-two and a wife and mother. In 2001 the parties commenced a relationship as teenagers when at school. They married in 2006 and T was born in 2010. He is their only child together.
In June 2011, the parties separated; each has since remarried. The father initially lived some thirty minutes by car from the mother. There is a dispute about the frequency of contact in the post-separation period. It is the father's case that post-separation and until an order was made in the El Salvadorian Court in respect of his contact with the child in 2012, that he had little or no contact with the child as a result of the mother deliberately preventing such contact. He says, indeed, that at one point, one hundred and forty-two days passed without contact. Once the court order came into force, his case is that he would see T every week and had a loving relationship with the child. He says the child enjoyed activities, church, contact with the paternal grandparents and with friends. The mother's case, by contrast, is that the child's contact was somewhat irregular; the father not taking up all the contact available.
On 7 th March 2013, the parties entered into a divorce agreement. On 20 th January 2014, they were divorced. The court order on that date provided for the father to spend time with the child every Monday and Thursday from 5pm to 8pm plus fortnightly from Friday 5pm to Saturday at 7pm. Significantly, the order also provided that, if the mother was to leave the country, she was to leave the child with the father and, upon her return to the country, he (the father) was to return the child to her care. He was ordered to pay maintenance, which the mother alleges he failed regularly to do. Arrears accrued. The father agrees that he has not in fact paid maintenance since July 2015 though he claims to have been setting aside sums of money and now has a fund of the sterling equivalent of £2,856.
In August 2014, the mother was the victim of a very serious crime at her home in San Salvador (the capital). There was an armed robbery at her home documented in some detail in a police report in the papers. Five or six men entered the family home in what was said to be a premeditated and well organised attack. The mother, the maternal grandmother and the housemaid were at home at the time. T was not present, being on contact with his father at the time.
The assailants held a gun to the mother's head, she was seriously assaulted and then apparently tied up with the housemaid and maternal grandmother whilst the men proceeded to ransack and loot the house. There were repeated serious threats to harm the victims over the course of about an hour. The housemaid was said to have been orally raped in the mother's presence. The mother was then taken into a separate room by two of the men who undressed her and touched her intimately. The mother says that she feared she too would be raped and even murdered. However, the men were apparently disturbed and abruptly left the property. It was the police assessment that the home had been watched by the attackers.
It is the mother's case that, unfortunately, the El Salvadorian authorities failed to take steps, or effective steps, thereafter to ensure security of the family. She believed that she may have been targeted because her cousin was a high ranking official in the army.
Following the incident, the mother's cousin received threats from possible perpetrators and, on 27 th August 2014, the mother reported the matter to an agency called the Inter-American Court of Human Rights seeking implementation of protective orders and their enforcement to include protective orders for T.
On 8 th September 2014, that agency found that the crimes described amounted to serious and urgent concern. It reflected a risk to life and personal wellbeing of the people involved. The events were found to be extremely serious and to meet the requirements of urgency and necessity in order to...
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AH v CD
...(Zimbabwe) [2008] 1 FLR 251. A recent example of the application of the principles is Re T (A Child — Hague Convention proceedings) [2016] EWHC 3554 (Fam). The principles which can be derived from those cases are these: (i) The proceedings must be commenced within one year of the abductio......