Re C(B) (Child Abduction: Risk of Harm)

This is an appeal with the leave of Thorpe LJ from the decision of Hogg J made on 19 January 1999 when she refused to return the child to Cyprus under a Hague Convention application made by the father on the basis that Article 13(b) had been satisfied.

The child C., known as B., was born on 10 November 1992 and he is now 61/2. The mother is English and the father is Greek Cypriot. They are both British nationals. They met and married in England. The mother had a child by an earlier relationship, A., born in October 1884, who is now 141/2. They lived first in England and then moved to Cyprus. The marriage was not successful. The father did not tell his parents for some years that they were married and appears to have been ashamed that the mother had a child by an earlier relationship. Whatever may have been his conduct towards A. as a stepfather, it seems clear that there was not a successful stepfather/stepdaughter relationship. The mother has made numerous criticisms of the father: heavy gambling; lack of money, even for necessities; aggression; unkind behaviour towards A. Although not accepting all these allegations, the father has agreed that the marriage has been difficult.

The father made an application on 22 November 1997 in the Larnica District Court for an injunction restraining the mother from removing B. from Cyprus without his consent. An order was made ex parte on 2 December 1987 granting that relief. The father applied for the custody of B. but did not proceed with the application. That application was dismissed and the injunction removed on 21 May 1998.

The mother brought both children to England on 9 June 1998 without the knowledge or the consent of the father. She has lived with them in Nottingham and both children have been at school there. There has been no direct contact with the father since the removal by the mother. For reasons beyond the control of the father the Convention proceedings were not begun in England until October 1998. The mother filed a statement of defence under Article 13(b). On 2 November Bennett J gave directions for the hearing to commence on 15 January 1999.

At the hearing Hogg J found that all the conditions of the Convention were met; that B. was habitually resident in Cyprus before his removal and that that removal was unlawful and in breach of the father's rights of custody. The only issue which remained was whether the requirements of Article 13(b) were made out and whether, if they were, the child should or should not be returned to Cyprus.

B. is 6 ¹/₂. He was born and has been brought up in Cyprus where his paternal family, his father and his grandparents live. Other members of the paternal family live in England. He is, I assume, bilingual. There is no real criticism of his relationship with his father before he was removed from Cyprus. It is, however, a fact that, although the father was in and out of work, the primary care of B. has always been by the mother and he has not been cared for by the father or the paternal grandparents in the absence of his mother. For nearly a year he has been solely cared for by his mother and has not seen his father. He and his half sister are said to be very close, although there is an eight year gap in age. The mother's relies upon Article 13(b), which reads as follows:

"Notwithstanding the provisions of the preceding Article, the judicial … authority of the requested State is not bound to order the return of the child if the person … [who] opposes its return establishes that—

(a) …

(b) 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."

The mother's reliance is based upon grave risk that B.'s return would expose him either to psychological harm or otherwise place him in an intolerable situation. Both those situations are based upon the result of her flight from Cyprus to England. A. is at the centre of the problem and of the mother's defence, although, in any event, the mother does not want to live in or go back to Cyprus. A. was at a non-fee paying state school in Larnica. We were told by Mr Turner on behalf of the mother that state education in Cyprus ceases for pupils and at 14 to 15, although a child may go on to further secondary education with a view to entering university or technical college for tertiary education. There was before us a dispute whether the post-14 education is free or requires payment. We have now seen handed in today correspondence that makes it clear that state education up to leaving school and beyond is free. There is no suggestion that the father or the grandparents would pay A.'s fee-paying education. A. has now disclosed details of how she was treated by the father with great unkindness and discriminated against in comparison with B. who was given preferential treatment. That, of course, is the account given by A. According to the mother, A. has blossomed since her return to England. She is now in the third term of a two year GCSE course in Nottingham and is happy and well settled there. She has expressed a strong objection to returning to Cyprus. It is not clear whether she has had explained to her clearly that a return to Cyprus would not in this case be a return to the father's house —I suspect probably not. There is no family with whom she could stay in Nottingham. Her natural father takes no interest in her. Her maternal grandparents are 59 and 62 and live in Reading. There is some suggestion, uncorroborated, that her relationship with her grandparents is not at present a good one. In any event to live with them would require a change of schooling in the middle of the GCSE course.

The mother is therefore torn between the two children. If she returns with B. there are major problems about what to do with A., who says she will not go back to Cyprus. If she stays with A., B. who has never lived away from her would be forced to go to his father who has not so far pursued a claim for his custody and in respect of whom there is no evidence about his present arrangements and how he would look after his son.

The mother's case is therefore that A. will not go back and should not be expected again to disrupt her schooling and her life in order to return to Cyprus. The mother is in an impossible position and cannot leave her behind. But if she did leave her behind and go with B. to Cyprus she would be consumed with guilt; the children would be separated and either way B. would be placed in a situation which comes within Article 13(b).

The judge said as follows (and I will read certain extracts from the judge's judgment) —first, at page 7, line 16 to 18:

"[The mother] says that there is a grave risk that the return of C. would expose him to psychological harm or otherwise place him in an intolerable position."

She then sets out the points which I have summarised. Those passages are to be found at the bottom of page 7 through to the top of page 8. The judge said also at page 15, line 3:

"Therefore the mother says that if C. has to return to Cyprus he will be placed in an intolerable situation. Which child should she remain with? She says she could not leave A. and A. will not go to Cyprus. She could not leave A. in circumstances which were not suitable for her accommodation and education. If she left the child in Nottingham A. would be left there without proper arrangements for her care and without anyone to look after her. The child is only 14 and the grandparents have not volunteered to take the child."

Then the judge points out that C. would be separated from his sister.

"It is irrelevant to him that she is only his half-sister. He has always looked on her, has always been brought up with her and regards her as his sister. He sees her and loves her as his sister and the question of being a half-sister has not entered his mind, although he may know that they have different fathers. To him she is his sister. So if she were left behind in this country he would lose that sister. The mother says that would inevitable cause him enormous distress. She says psychological harm. Moreover if the mother chose to go to Cyprus with her son she would endeavour to look after him well, but no doubt she would be guilt ridden and extraordinarily anxious about the well-being of her daughter left behind in circumstances which may not be suitable or appropriate. The impact on her son of that guilt and anxiety must be something which I have to consider.

Alternatively, if C. were ordered to be returned to Cyprus the mother may decide, because of A.'s difficult circumstances in this country, that she, the mother, could not return to Cyprus with her son. That is a distinct possibility bearing in mind the position that A. has adopted. That would mean that C. would be doubly deprived, deprived of his sister and also deprived of the comfort, love and nurturing of his prime carer with no prospect of regular or frequent direct contact between the mother and himself and the sister and himself.

The onus, I recognise, is very much on the mother to...