Re G (Abduction: Withdrawal of Proceedings, Acquiescence, Habitual Residence)
| Jurisdiction | England & Wales |
| Judge | SIR MARK POTTER,THE PRESIDENT OF THE FAMILY DIVISION,Sir Mark Potter |
| Judgment Date | 30 November 2007 |
| Neutral Citation | [2007] EWHC 2807 (Fam) |
| Court | Family Division |
| Date | 30 November 2007 |
| Docket Number | Case No: FD0701762 |
[2007] EWHC 2807 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Mark Potter
The President of the Family Division
Case No: FD0701762
Mr Timothy Scott QC and Ms Clare Renton (instructed by International Family Law Group) for the Applicant
Mr Marcus Scott-Manderson QC (instructed by Dawson Cornwell Solicitors) for the Respondent
Hearing date: 23 October 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.
SIR MARK POTTER THE PRESIDENT OF THE FAMILY DIVISION
This judgment is being handed down in private on 30 November 2007. It consists of 29 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.
Sir Mark Potter, P:
These proceedings between the plaintiff father and defendant mother concern their two young children: X born in Canada on 2 July 2005 (now aged two years and 4 months) and Y born in England as recently as 24 May 2007 (now aged 6 months). They are brought by the father pursuant to the Child Abduction and Custody Act 1985 and the inherent jurisdiction of the court. There are also before me subsidiary proceedings under the Children Act 1989 dependent upon the outcome of the father's application for a summary order for the return of the children to Canada.
It is a most unusual case, stated by leading counsel to be unique in their experience, in that the father's application involves what is essentially the revival of earlier Convention proceedings brought by him in January 2005 on the basis of an alleged wrongful retention of X in England by the mother, who was then pregnant with Y, which were withdrawn by consent without adjudication. Following Y's birth in England in May 2007, the father now brings a second application alleging wrongful retention of both children. Issues arise as to the habitual residence of the children and, in the case of X, consent and acquiescence under Article 13(a) of the Convention. It is also said for the mother, who is in a depressed state, that there is a grave risk that an order for return would expose the children to an intolerable situation because the mental health of the mother as their primary carer would deteriorate so that she would be unable properly to care for them.
The background is as follows. The father was born in Canada where his family live and he was brought up. The mother was born in Zambia. However, at the age of eight she moved to England where her extended family live and where she was brought up. The parties met in Canada and married in Calgary on 13 September 1999, subsequently undergoing a religious ceremony of marriage in England in 2001. They lived principally in Canada where X was born in July 2005, but the mother spent much of her time over in England with her own family.
When the parties married in civil proceedings in Canada in September 1999, they did not tell either the maternal or paternal family, nor did they co-habit as man and wife until the marriage had been consummated by a religious ceremony in 2001 in the United Kingdom. Thereafter they still did not co-habit, the father returning to Canada where he was employed as a lawyer and the mother remaining living in England with her parents and working in employment here as an IT Consultant. However, in December 2002 the mother joined the father in Canada. They lived in the home of the father's mother until March 2004. This placed a considerable strain on their marital relationship and the parties moved to their own flat in Canada on the mother's insistence. The position improved for a time, but the mother felt undermined by the father's family and sorely missed the absence of the support system provided by her own family in England. After X's birth in July 2005, for which the maternal grandmother came out to Canada for 3 months, the mother returned to England in September 2005 with the maternal grandmother to recover from a difficult birth. She remained there till February 2006.
By then the marriage was in trouble and it is the mother's case that on returning to Canada on February 2006, the parties agreed to live separately but that the father subsequently refused to move out of the flat as agreed. Instead they moved to a house with a garden and the father was persuaded to attend marriage guidance sessions, but he missed a number and failed to follow the programme set by the counsellor. By then there was a considerable degree of hostility between the two extended families and the divided loyalties of the parties aggravated the position between them.
In October 2006, the father agreed to the mother taking a three week holiday in England from 13 October to 5 November 2006. The maternal grandmother was unwell at the time and, after discussion with the father, the mother extended her holiday to 3 December 2006.
On 20 November 2006 the father informed the mother that he was taking leave from his job in Canada from 19 December 2006 to 5 January 2007 in expectation that the parties would travel to Winnipeg for Christmas with his wider family and thereafter to a family wedding in Los Angeles. However, in December 2006 the mother, by now 3 months pregnant with Y, was experiencing complications with her pregnancy and was in a fragile state. She informed the father that she was ill and seeking medical attention in England. A report dated 19 December 2006 from her Consultant Obstetrician shows that the pregnancy itself was by then progressing satisfactorily but that because of the mother's 'severe distress' and concern that her unhappiness was affecting her child and unborn child, she was referred to a consultant psychiatrist who, on 28 December 2006 recommended that she remain in the United Kingdom with her family during the vulnerable period of her pregnancy and should continue to receive the support of her family for her complete recovery.
On 28 December 2006 the father e-mailed the mother to say that he was coming to England on 9 January 2007 to collect the mother and X and take them back to Canada.
The First Convention Proceedings
On 5 January 2007 the mother, wishing to remain in England and fearing removal of X by the father, obtained ex-parte from His Honour Judge Ryland (sitting as a judge of the Family Division) an interim residence order in respect of X and a prohibited steps order preventing the father from removing her from the care and control of the mother. The order was served on the father on 8 January 2007, the return date being 12 January 2007.
In her sworn statement of 5 January 2007 in support of her application, the wife set out the unhappy history of the marriage from her point of view, the complications she was experiencing with her pregnancy, and her current state of health supported by medical reports. She stated that she had reached the conclusion that the father and she did not have a future together as a married couple. She referred to the support she received from her family in England which was lacking in Canada she stated: 'I have had difficulties with this pregnancy and consider that it is in the best interests of the unborn baby and X that I am able to remain in England for the remainder of my pregnancy and a short period after the birth of the unborn baby.' She also stated that she had reached the conclusion that she wished to seek the father's agreement or, in its absence, permission from the Canadian Court 'to live with X and our unborn baby long-term' in England. She stated that in spite of the significant periods of time she had spent with X in England since her birth she recognised that X's home was in Canada and that it was appropriate for her to apply to the Canadian Court for permission to remove X in order to live in England. She also stated that before Christmas 2006 she had instructed her Canadian lawyer to apply for permission for her to remove X temporarily while she remained in this country but that her Canadian lawyer had been unable to make the application before the courts in Calgary closed on 21 December 2006. Her lawyer intended to make an application as soon as practicable after the courts re-opened on 8 January 2007, but she made her present application because of her fear that the father might attempt to remove X before her Canadian application had been heard.
In the event, on 8 January 2007 the mother's Canadian lawyer filed a statement of claim for divorce. At paragraph 10 it stated 'The parties are resident in Alberta'. On 11 January prior to service, the lawyer informed the father by letter that she had instructions from the mother to apply for an Order allowing X to reside in the interim with the mother in London. However, (for reasons which have not been made clear) an application in Alberta for permission to remove X was not filed at that time.
Upon 12 January 2007 the father, who had so far remained in Canada despite his earlier e-mail of 28 December 2006, issued an originating summons under the Hague Convention seeking the summary return of X to the jurisdiction of Canada and on the same day directions were given which inter alia stayed the mother's Children Act proceedings pending the outcome of the father's Convention application.
Because of what next follows, the Originating Summons was...
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