Re 'H' CHILDREN
| Jurisdiction | England & Wales |
| Judge | The President,Lord Justice Mummery,Lord Justice May |
| Judgment Date | 20 March 2003 |
| Neutral Citation | [2003] EWCA Civ 355 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B1/2003/0292 |
| Date | 20 March 2003 |
[2003] EWCA Civ 355
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
(Mr Justice Singer)
Royal Courts of Justice
Strand, London, WC2A 2LL
The President
Lord Justice Mummery and
Lord Justice May
Case No: B1/2003/0292
FD 02P01499
Mr M. Horowitz QC and Mr N. Carden (instructed by White and Sherwin) for the Applicants
Mr H. Setright QC and Mr M Scott-Manderson (instructed by Reynolds Porter Chamberlain) for the Respondents
This is an unusual and worrying case which arises in the context of an application under the Child Abduction and Custody Act 1985 for breach of the Hague Convention. The applicant father, who is Belgian, seeks the return of his three children to Belgium. The mother removed them, together with her eldest son by a previous marriage, from Walcourt in Belgium to England on the 31 st March 2002. The father made an application for their return to the Belgian Central Authority on the 18 th July 2002 and the request to the United Kingdom Central Authority was received on the 12 th September. The first order in the High Court Family Division was made by Munby J on the 25 th September. A CAFCASS officer reported on the position of the children on the 5 h December and the application was heard by Singer J on the 30 th January. At the hearing it was not in dispute that the children were habitually resident in Belgium and that the father had rights of custody. The mother accepted that the removal by her was unlawful but raised two defences under article 13 (b). The judge was satisfied that the article 13(b) threshold of grave risk to the children if they returned was reached on the unusual facts of this case and refused to return the children to Belgium. He was not satisfied that M, the eldest child of the parents, had a sufficient degree of maturity for his objections to be taken separately into account.
The Facts
There is a long and complicated history to this family and it is difficult to give an adequate flavour of the family problems within a short compass. All members of the family are Belgian nationals, French speaking with little or no English and have no connection with the United Kingdom other than the children's presence here through the actions of their mother. The father is 47 and the mother is 41. Her eldest son, J, is 17. The three children of the parents are: M born on the 3 rd November 1992, now 10; T, born on the 4 th May 1995, now 7 and V, born on the 27 th May 1996. The parents married in Belgium on the 1 st December 1995. There is conflicting evidence on many issues raised by the parents in a large number of supporting statements, which the judge was right, in my judgment, not to try to resolve by oral evidence. These are intended to be summary proceedings.
The mother's case
The mother had an unhappy childhood. She married her first husband in 1984 and they parted before J was born. She began to live with the father in 1989. She alleged a pattern of domestic violence involving regular assaults by the father on her and on her son J. The three younger children were also assaulted but to a lesser extent. The trigger was incessant and excessive drinking. She sought refuge twice at a women's shelter with all four children shortly after the birth of V in 1996. According to her she required medical treatment on several occasions and exhibited medical reports to her affidavits, relating to injuries to herself and also to J. She alleged that in 1998 she was forced by the father into prostitution. It seems clear that she was regularly visiting a nearby motorway long distance lorry park and was taken there and back by the father who waited for her while she went from lorry to lorry.
In 1998, she said that a social services agency, La Service d'aide a la jeunesse (SAJ) became involved with the family after a reference from the women's refuge. A representative visited the house. Also in 1998, J was becoming out of control and was stealing, among others from the paternal grandmother. The grandmother gave him a whip, said to be a cat-o-nine-tails, as a St Nicholas' Day present. The mother cut off the thongs off the whip and the father replaced it with another with which he used to beat members of the family. In 1999 the police were called by the school after M and V were seen with cuts on their faces. The police investigated and interviewed the children and both parents but, on this occasion, the cuts were accidental. The local Children's Court (Le Tribunal de la Jeunesse) became involved and a Mme Abbras, from the Court, sought a meeting with the parents in May 1999. Shortly before the meeting, on the 14 th May 1999, the mother alleged a very serious assault after which the father 'threw' her out of the house. She later collected all four children and drove to France to a friend's house, another lorry driver, where she contacted the police and received medical treatment. The father went to the meeting with Mme Abbras. She 'fled' again to France with the children in October 1999 after another severe beating.
In April 2001 there was a scene with J who, according to the mother supported by a statement from the child minder, was seriously assaulted by the father. The police were called and statements taken by the police the following day. The mother's view of the police was that they were either unwilling or unable to help. The consumption of alcohol by the father increased even further during 2001. At another incident in August 2001 the police were again called. On the 1 st September the mother broke her elbow and her account was that the father was inebriated and attacked her and pushed her to the ground. She called the police and went to hospital in an ambulance. The police checked up a week later after her return home, but treated the incident as closed. In an incident in the car on the 21 st October 2001, the mother called the police because of a severe assault on J.
On the 10 th March 2002 there was another incident with J who was, according to the mother, seriously assaulted by the father and the police and ambulance were called. The mother then took the children to stay with a friend in a two bedroom flat in Thierry. This was clearly a short term arrangement. The father, according to the mother, had threatened to burn down the house where she was living, 'preferably at night' as soon as he found out where she was. The mother said that she took the threat very seriously and that the children were terrified of their father.
The mother said, in her affidavit, that she did not consult a Belgian lawyer
"as I felt that there was no point obtaining a court order that I felt would not be enforced by the Belgian police".
She turned to an English friend she had met in the lorry park who drove regularly and frequently through Belgium and he drove the children to England on the 31 st March. She took the family car. She said that the children had settled down in England and the effect on them of a prospective return to Belgium had been seriously adverse to their psychological well being. The mother suggested that the father was not genuinely interested in the children.
In an earlier statement dated the 29 th January 1999 made to the police, the mother stated that she had been hit by the father in December 1997 and gone to a refuge for several days from which she returned home after she was told that the children would be taken away and she had to go to the psychiatric department of the hospital. She also stated that she did not intend to leave the matrimonial home because she knew that her husband loved her. She said that he was a good father and strict. The children wanted for nothing.
The mother's case was supported by the child minder, the lorry driver who drove them, the lorry driver to whom she went twice in France, and another friend.
The father's case
The father denied that he drank alcohol to excess and denied absolutely the allegations of violence towards her and the children. He suggested in his affidavit that the mother had had a damaging childhood, including abuse, and needed psychiatric help. He did not force her into prostitution. She told him she was going to do it because of a shortage of money and he tolerated it. After she had some trouble with other prostitutes at the lorry park, she persuaded him to take her there for her own protection. He refuted all the serious allegations made by the mother. He stated that after the birth of V, the mother became seriously depressed and began to assault him. She was advised to seek treatment for her depression and that advice was given by the women's refuge but she was not willing to do so. He agreed that his mother bought J a cat-o-nine tails because he did not deserve anything else. The tails were cut off and it was the mother who went out and bought another. He absolutely denied that he ever hit the mother or J with a whip. As far as he knew his children had never alleged that he hit them. He alleged that the mother was sometimes violent towards the children. The incident which caused the mother to break her elbow, on the 1 st September 2001, was started by her hitting him in the back.
The father agreed that there was a quarrel on the 10 th March 2002 as a result of which the mother and children left the matrimonial home. He had an argument with J and the mother intervened and J started to hyperventilate and was sent to hospital. The father agreed that he had pulled a spotlight track off the ceiling to relieve his feelings but he did not assault any member of the family. The mother and the children saw him almost daily after she left and the children spent the...
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