Re K (Child Abduction: Child's Objections)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Family Division |
WALL, J
Child abduction – acquiescence – mother removing children from USA which was the country of their habitual residence – whether father showed acquiescence actively in correspondence – whether father failing to bring proceedings under Convention for six months amounted to passive acquiescence – whether children likely to suffer grave risk of harm if returned – whether child of sufficient age and maturity for views to be considered.
Application was made by the father of two children born on 30 March 1987 and 25 February 1991 respectively, under Article 12 of the Hague Convention for the children to be returned to the State of New York. The respondent mother did not dispute that the children had been wrongfully detained in England.
The parents had married in England on 18 June 1986 and travelled immediately to America. The father was an American national. He had met the mother in 1984, while stationed in England when serving in the United States Army. The parents had lived in America ever since, visiting England on one occasion in 1988. The father alleged that, in June 1993, the mother expressed a wish to visit England and arrangements for a holiday were made. The mother travelled to England with the children on 22 February 1994, and was due to return on 8 March 1994, return tickets having been purchased. On 1 March 1994, the mother telephoned the father to inform him that she did not intend to return, and that she would be seeking a divorce. The mother refused to return when requested by the father, and would not agree to attend marriage counselling.
In her affidavits, the mother alleged serious assaults and threats by the father against both herself and the children, and stated that the children were happy and doing well in the United Kingdom. Now that the children were living in a loving and caring environment surrounded by members of the mother's family, it was in their interests that they should continue to reside with her in the United Kingdom. The mother stated that it was made clear to the father in March 1994 that she had no intention of returning, and she could not see why he had waited so long before making the application.
The mother opposed the application, alleging that the father had acquiesced in the unlawful retention of the children, both actively in letters written to her, and passively by failing to take an early opportunity to bring proceedings under the Convention. The mother further alleged that, under Article 13(b) of the Convention, there was a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Thirdly and finally, the mother argued that the elder child objected to being returned and had attained an age and degree of maturity at which
it was appropriate to take account of her view.
The father categorically denied the allegations made against him by the mother and made counter-allegations against her of violence towards himself and the children. The conflicting statements of fact were effectively unreconcilable. It was submitted on behalf of the mother that these issues could be resolved only by way of oral evidence from the mother, to be followed, if necessary, by an adjournment to give the father the opportunity to attend and give oral evidence.
Held – allowing the father's application and ordering that the children be returned to the jurisdiction of the United States of America: (1) The procedure under the Convention was summary and to hear oral evidence on disputed issues of fact would defeat the essential purpose of the Convention, which was to secure the prompt return of children wrongfully removed to or retained in any contracting State, and to ensure that rights of custody and access under the law of one contract State were effectively respected in the other contracting State. In the majority of cases, a grant of leave to call oral evidence would result in the hearing of evidence from one side only. It was not necessary for specific findings of fact to be made on the contested issues for a defence under Article 13(b) to succeed, as the court was required to assess risk, and not to resolve issues of fact.
(2) The suggestion that the father had acquiesced in the retention of his children in England was untenable. The whole tenor of his correspondence with the mother contradicted the concept of acquiescence. It was quite clear that the correspondence was designed to achieve a conciliation, with a view to the mother and the children returning to America. Although the father did not institute proceedings under the Convention immediately, he had promptly sought legal advice. He was advised that, in order to proceed with an application under the Convention, he was required to obtain a custody order in the United States first. That advice was plainly erroneous. Other difficulties had arisen regarding the advice given to him. All of the evidence of the father's state of mind pointed away from any acceptance of the retention of the children by the mother. The mere fact that he did not make his application for six months did not, on the facts of the case, constitute acquiescence.
(3) The burden of proving "a grave risk" under Article 13(b) rested with the mother and the test was a high one, which was not to be equated with consideration of the paramount welfare of the child. The court was entitled to have regard to the practical consequences of its own order, and thus any risk of harm might properly be reduced, or in some cases, be extinguished, by undertakings or reliance upon court procedures in the Convention States. Even if the mother were able to establish on the facts that the father had been violent to her and to the children in the past, the father was still entitled to argue that the child should be returned because the situation to which they were returning was not one in which there was any danger of physical or psychological harm, and because the children were to continue to live with their mother until the matter had been determined by the American court. The father had put forward a framework designed to protect the mother and the children in the interim. The court was entitled to look to the American court to protect the children from physical and psychological harm. On this analysis, the mother failed to establish a case under Article 13(b).
(4) Following an interview between the elder child and the court welfare officer, it appeared that the child's age and degree of maturity were consistent with her chronological age and that she did object to being returned to America. Following detailed consideration of the authorities, in particular, S v S (Child Abduction)[1993] 1 FCR 12 and Re M (Minors) (Child Abduction)[1994] 2 FCR 750, the court could not be satisfied that the child had indeed attained an age and degree of maturity at which it was appropriate to take account of her view. Her answers to the court welfare officer did not reflect the level and degree of understanding and maturity required by the test in S v S (above). Notwithstanding
this determination, it was clear that the child's fear of violence was a legitimate objection to her being returned. Her objection had though to be balanced against the purposes of the Convention, which imported a concept that it was in the interests of children to be returned to their country of habitual residence for their future to be decided there. The court had to take into account the fact that the child's fears could and would be catered for by the measures which the operation of the Convention put into place, and that she would be protected by the laws of the State to which she would be returned, and by the undertakings offered by her father. It had also to be borne in mind that the policy of the Convention could be circumvented by unscrupulous parents imposing fears and anxieties on their suggestible children, which, if uncritically accepted, could persuade the court into making orders which would frustrate the purposes of the Convention.
Statutory provisions referred to:Child Abduction and Custody Act 1985, Sch 1: The Convention on the Civil Aspects of International Child Abduction, Articles 3, 12 and 13.
Cases referred to in judgment:AF (A Minor) (Abduction), Re[1992] 1 FCR 269.
A (Minors) (Abduction: Custody Rights), Re[1992] 2 FCR 97; [1992] Fam 106; [1992] 2 WLR 536; [1992] 1 All ER 929.
B v K (Child Abduction)[1993] 1 FCR 382.
C (A Minor) (Abduction), Re [1989] FCR 197; sub nom C v C [1989] 1 WLR 654; [1989] 2 All ER 465.
Evans v Evans [1989] FCR 153.
M (Minors) (Abduction), Re[1992] 2 FCR 608.
M (Minors) (Child Abduction), Re[1994] 2 FCR 750.
NB (A Minor) (Abduction), Re [1992] 1 FCR 271; sub nom B v B (Abduction: Custody Rights) [1993] Fam 32; [1992] 2 WLR 865; [1993] 2 All ER 144.
P (An Infant), Re [1965] Ch 568.
P v P (Child Abduction)[1992] 1 FCR 468.
S (Minors) (Abduction: Acquiescence), Re[1994] 2 FCR 945.
SR (A Minor: Abduction), Re[1992] 1 FCR 101.
S v S (Child Abduction)[1993] 1 FCR 12; sub nom S (A Minor) (Abduction: Custody Rights), Re [1993] Fam 242; [1993] 2 WLR 775; [1993] 2 All ER 683.
Katharine Davidson for the applicant father.
Brian Leech for the respondent mother.
MR JUSTICE WALL.I have before me what is on the face of it a straightforward application under Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction as incorporated into English law by the Child Abduction and Custody Act 1985 for the return of two small children to the State of New York.
The mother, who is the respondent to the application, does not dispute that in the circumstances which I shall relate in a moment the children have been wrongfully retained in England under Article 3 of the Convention. She seeks, however, to escape the mandatory effects of Article 12 by relying on Article 13. Although the provisions are well known I will nonetheless read them. Article 3
provides that:
"The removal or the...
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