Re GP (wrongful removal)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 20 June 2017 |
| Neutral Citation | [2017] EWHC 1480 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD17P00037 |
| Date | 20 June 2017 |
[2017] EWHC 1480 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: FD17P00037
Mehvish Chaudhry (instructed by Dawson Cornwell Solicitors) for the Applicant
Paul Hepher (instructed by Terry Jones Solicitors) for the Respondent
Hearing dates: 26 th May 2017
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.
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.
This is an application pursuant to the Child Abduction and Custody Act 1985 seeking the return of GP who, it is agreed, was wrongfully removed from Italy on the 10 th February 2016 by her mother (M). GP is 11 years old and presently lives with her mother alternating between Shrewsbury during the week and Derby at the weekends. F lives in San Benedetto Del Tronto, Italy.
The Applicant father (F) was born in Italy, the Mother in Latvia. The couple married in Italy in May 2001. They were primarily based in San Benedetto Del Tronto but travelled periodically to Latvia. GP was born in Latvia in December 2005. The parties returned to Italy on a permanent basis in September 2010. GP started nursery.
It is plain that the marriage was in difficulty by November 2010 and early in 2011 Divorce proceedings commenced. Following the parties separation M removed GP from the family home to Sommacampagna, Northern Italy, 450 Km away. F reported this unlawful removal to the police and Court proceedings were commenced. In November 2014 M was sentenced to 1 year in prison for the removal of the child, by the 'Court of Ascoli Piceno, Criminal Division'. An appeal against that decision was rejected by the Court of Appeal in Ancona on the 12 th January 2017. It is important to record a number of paragraphs from the judgment of that Court:
"On 17 January 2017 the Court of Appeal of Ancona delivered judgment (Justice Giuliana Basillia, Justice Marina Tommolini, Justice Cecelia Laura Cristina Bellucci) in relation to the Mother's appeal of the one-year sentence for removing the child to Northern Italy. The Court is referred to decision in relation to the Mother's appeal and the findings made in relation to the Mother's conduct within that judgment. In particular, the Court found as follows:
The Mother had acted in a pre-meditated manner, and unilaterally so as to separate the Father from his daughter, in order to pursue a romantic relationship.
The Mother's reports to the police were lacking in detail, generic, and contrived to lend support to her decision to unilaterally remove the child from her family home.
The Court dismissed the Mother's claims, finding that the child had a strong bond with her Father and wider family.
The Court further, found that the Mother removed the child for a protracted period of time and: "created a situation whereby she could keep the child under her exclusive control with the purpose of excluding Mr P from any decision and contact, and that she ceased that conduct only when forced to do so by the judicial orders."
The Court of Appeal also took a very dim view of the Mother's conduct, playing by her own rules in order to satisfy her own wishes).
The impact of this custodial sentence has been the focus of submissions, during the course of this hearing and I will return to it below. It is also necessary to record that on the 24 th July 2014 the Court of Ascoli Piceno granted joint custody of GP to M and F. That Order, which has been filed in these proceedings, provided that GP shall live each year in the care of M from 11 th September until 9 th June and in the care of F from 10 th June to 10 th September. In addition, there was provision for alternate weekend contact and midweekly contact, F was ordered to pay child support of 300 Euros per/month. I note that the maintenance order was also subject of an appeal, dismissed by the Court of Appeal in Ancona on the 11 th August 2015.
It is M's own case that she complied with the contact and care arrangements. GP's school report for this period reveals her to be making good progress in the classroom, an intuitive learner and able to 'gather, analyse and re-use information'. She is described as 'well integrated into the classroom'.
There has been no dispute that at the time of her removal GP was habitually resident in Italy. M's defence is set out within her statement of defence. She relies upon Article 13 of the 1980 Hague Convention, namely that:
i) There is a grave risk that GP's return would expose her to physical or psychological harm or otherwise place her in an intolerable situation; and/or
ii) GP objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views.
M accepts that in removing GP to the UK she acted in breach of the Father's rights of custody.
Proceedings in this jurisdiction were instituted on the 25 th January 2017 when Parker J issued a Location Order. On the 26 th January the Tipstaff Order was executed on the maternal uncle who disclosed that M was living in Shrewsbury with a man called Steve. The uncle asserted that he did not know M's address in Shrewsbury, confirmed that GP was attending school but was unable to give the name of it. On the 30 th January the case was restored before Moor J who made orders intended to facilitate locating the child. Those orders were unproductive.
In pursuance of the whereabouts of M, Peter Jackson J made further orders on the 28 th February, including an order compelling the attendance of the maternal uncle 'to give evidence before a Judge and to answer questions on oath concerning what he knows about the whereabouts of the said child, where they are and where they might be found'. On the 28 th February, F's solicitors made contact with the maternal uncle who asserted that M was living with him. Accordingly, repeated attempts were made by the Tipstaff to serve M at the uncle's address. It is not necessary for me to set out those efforts, I merely observe that M was eventually served on the 1 st March 2017. Whilst M denies any knowledge of the proceedings until early March, I find that wholly unconvincing. It is inconsistent with her case that she spends every weekend with her brother. This was a determined and cynical evasion of service.
Article 13(b) – grave risk of harm
19. The court is not obliged to order the return of the child if ' the person, institution or 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'.
20. The Supreme Court clarified the principles to be applied in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27:
"[31] ……. there is no need for the article to be narrowly construed. By its very terms, it is of restricted application. The words of article 13 are quite plain and need no further elaboration or gloss."
[33] Firstly, it is clear that the burden of proof lies with the person institution or other body which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will, of course, be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination.
The following passage also requires to be set out and, in my view, emphasised:
[33] Second, the risk to the child must be grave. It is not enough as it is in other contexts such as asylum, that the risk be real it must have reached such a level of seriousness has to be characterized as grave. Although grave characterizes the risk rather than the harm there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as grave while a higher level of risk might be required for other less serious forms of harm.
[34] …the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in In re D [2007] 1 AC 619, para 52, "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the...
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