Re A (Hague Convention: Wrongful Retention)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Poole |
| Judgment Date | 11 May 2021 |
| Neutral Citation | [2021] EWHC 1204 (Fam) |
| Date | 11 May 2021 |
| Court | Family Division |
[2021] EWHC 1204 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Poole
Ms Chokowry (instructed by The International Family Law Group LLP) for the Applicant Father
Mr Hepher (instructed by Dawson Cornwell) for the First Respondent Mother
Maria Stanley ( Cafcass Legal) for the Second Respondent Child by her Children's Guardian
Hearing dates: 19 th to 22 nd April 2021
This judgment was delivered at a hearing conducted on a video conferencing platform 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 child A and members of her 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.
Introduction
The applicant is the father, and the first respondent the mother, of the second respondent child, whom I shall call A, who is represented by her Children's Guardian, Ms Baker. The child lives with her mother in England. The father alleges that the mother wrongly removed or retained the child from the Russian Federation, her country of habitual residence, and applies for her summary return under the 1980 Hague Convention. The mother opposes the application. The issues for the court to determine are the date of wrongful removal or wrongful retention, habitual residence, settlement, the Article 13b defence of grave risk of harm, and, if relevant, the exercise of the court's discretion whether or not to order return. In relation to the issue of wrongful retention a question to determine is whether, when parties have agreed to the retention of a child abroad for an identifiable period of time, and the left behind parent resiles from the agreement and demands the return of the child before the expiry of that period, the refusal or failure of the travelling parent to comply with the demand renders the child's retention wrongful at that time.
The brief history is as follows. The father has dual Russian and Moldovan nationality and the mother is Moldovan. The parties met online whilst the father was working in Germany and the mother was studying in the Russian Federation. They began a relationship and the mother became pregnant with A. The father moved to Russia. A was born there on 31 May 2014. The parties dispute the nature of their relationship over the ensuing few years but agree that the mother left with A for Moldova on 26 April 2018. The father followed approximately a month later. On 12 June 2018 the father signed a formal consent document by which, on the face of it, he consented to the mother removing A from Moldova “to all countries of the European Union and Great Britain from 12.06.2018 to back 12.06.2019”. This document was prepared by a notary and states that it was orally translated by the notary into the Russian language for the benefit of the applicant. The mother arrived in England with A on 8 July 2018 and they have remained here ever since. Her parents both live here. Contact between the father and A continued but soon diminished and then ceased. On 20 January 2019, in response to attempts by the father to contact her and A through the Moldovan Police, the mother wrote a letter to the Moldovan Police, witnessed by a solicitor in Leeds, stating that she and A were alive and well, and that A was attending school. She confirmed her location but asked them to keep it confidential from the father. She attached documentation and a video. Although it does not say so in terms, the mother says that the letter “made it clear that we had no intention of returning” [C57 para. 84] and the father agrees with that characterisation of the letter. The father lodged an application for return of A to Russia to the Russian Central Authority but not until May 2020, and the application in this court for return was issued on 14 October 2020.
The father's case is that the mother wrongfully removed A from the Russian Federation on 26 April 2018, and then either wrongfully removed her to this jurisdiction on 8 July 2018 having never had any intention to return her upon leaving, or wrongfully retained her here at the end of August, alternatively in October 2018, or in the further alternative, on 20 January 2019, the date of her letter to the Moldovan police.
The mother defends this application on the following grounds:
a. The father consented to A's removal from Moldova to the jurisdiction of England and Wales (amongst other jurisdictions).
b. The mother communicated her firm intention not to return A by her letter of 20 January 2019. At that date, she accepts, there was a repudiatory breach of the agreement of 12 June 2018.
c. As of 20 January 2019, the child was habitually resident in England and Wales and therefore the case falls out of the scope of the 1980 Convention.
d. Alternatively, since the father's application was made on 14 October 2020 and therefore more than 12 months after the wrongful retention on 20 January 2019, Art 12 applies, the child was settled in this jurisdiction at the date of the application and the court should exercise its discretion not to order return.
e. Alternatively, return of the child to the Russian Federation would expose her to a grave risk of harm or otherwise place her in an intolerable situation, and the court should exercise its discretion not to order return.
At the hearing the mother sought to amend her defence by adding a further element, namely, the child's objections. This application followed the receipt of the Guardian, Ms Baker's report of 7 April 2021. I refused that application. The defence relied upon appeared to be very weak: the child is only six years old and did not express her views about return to Ms Baker in a reasoned manner. The application was made very late and without giving the father a fair opportunity to address it in advance of the hearing. Ms Baker's report had not directly addressed the question of the child's objections and her maturity and understanding. Further evidence would therefore have been required, causing delay. The mother has been represented by experienced solicitors and counsel throughout the proceedings. During the hearing it transpired that there are issues about influence on the child by the parents which would have necessitated further evidence in relation to her objections had the defence been allowed.
In this judgment I shall set out the background in more detail, provide the legal framework for the decisions of the court, comment on the Guardian's evidence, evaluate the evidence and give my conclusions on the issues to be determined.
Background
The parties had only met a few times when the mother became pregnant with A. She alleges that when she informed the father of the pregnancy he told her that he had been diagnosed with leukaemia and strongly urged her to have an abortion. She says that later he told her he had spoken to her parents and they had asked him to force her to have an abortion. Neither assertion was true. The mother's mother gave the father money to ensure that the birth took place in a private hospital but, the mother alleges, he kept the money and her labour care was chaotic. Eventually she had an emergency Caesarean section. The mother says that after the birth she struggled to find suitable accommodation and that the father was no help. Again, her mother handed over a large sum of money and the father largely kept it for himself. The mother says that she was responsible for nearly all the childcare and the father would lose his temper if his sleep was disturbed by their new baby. The father disputes the mother's account of his conduct during this period.
The mother returned to her degree in 2015 and completed it in 2016. She says that during this time they had little money and the father was very controlling:
“[The father] had full control over absolutely everything throughout the course of our relationship. He held mine and A's documents. My phone number was registered to his name so he had access to my call logs. Our home was in his name. He had access to my hard drive, and as a result, access to all my photos. He knew all my passwords. He monitored my conversations, my searches and essentially, my entire life. It transpired that [the father] was watching my every step from the very beginning. [The father] would fall out and have disagreements with my family and with my friends, which meant that I was slowly becoming isolated from everyone. I always tried to avoid conflict, which came at great personal cost.
We argued frequently. Every time I tried to disagree with [the father], or stand up for myself, he would show me the door. There were many occasions where he would pack my things and leave them outside the front door.” [C44]
The father disputes this and says that the mother lived a “rather nomadic existence” during this time and would disappear for days at a time, staying overnight with female friends. He was left caring for A. He says that he organised a nursery for A and he took her to and from the nursery – the mother was little known to the staff there.
The mother says that the father insisted that his name alone appeared on correspondence and documents and then he threatened to kick the mother out of the home and separate her from their daughter. She says that she was on edge and terrified, and she blamed herself for everything that was going wrong. From late 2016/early 2017 she alleges that the father became physically violent. “He would get angry, grab me, pin me down, hit me on the head and on occasion, try and choke me.” She says that she had nowhere else to go and felt she...
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...the skeleton arguments:A County Council v DP [2005] EWHC 1593 (Fam); [2005] 2 FLR 1031A (Hague Convention: Wrongful Retention), In re [2021] EWHC 1204 (Fam)B (A Child) (Family Proceedings: Judicial Guidance), In re [2017] EWCA Civ 1579; [2017] 4 WLR 202; [2018] 1 FLR 1205, CABY v BX [2022] ......