Re L (Grave risk of harm)(Child's Objections)

JurisdictionEngland & Wales
CourtFamily Division
JudgeThe Honourable Mr Justice Cobb
Judgment Date16 November 2015
Neutral Citation[2015] EWHC 3300 (Fam)
Date16 November 2015
Docket NumberCase No: FD15P00376

[2015] EWHC 3300 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Cobb

Case No: FD15P00376

Re L (Grave risk of harm)(Child's Objections)
Between:
F
Applicant
and
M

and

B (by his Litigation Friend)
Respondents

Miss Jacqueline Renton (instructed by Brethertons) for the father

Miss Katy Chokowry (instructed by Miles & Partners) for the mother

Mr Andrew Powell (instructed by Freemans) for the older brother (B)

Hearing dates: 5–6 November 2015

The Honourable Mr Justice Cobb
1

By application, dated 12 August 2015, brought under the Child Abduction and Custody Act 1985 (incorporating the Convention on the Civil Aspects of International Child Abduction 1980 ("The Hague Convention")), and under Article 11 of Council Regulation (EC) 2201/2003, a father seeks the return of his son to his country of habitual residence, Bulgaria. The application concerns L, who was born in March 2008 and is therefore currently 7 years 8 months old. L has one full brother, B, who is 15 years old and is, in circumstances which I allude to below, represented in these proceedings, although not a subject of them; B is educated in England pursuant to a Bulgarian Court order. L has an adult paternal half-brother, N, and a paternal step-brother, C (aged 15).

2

The application has been case managed by a number of judges of the Family Division in anticipation of the final hearing which was listed over 2 days on 5 and 6 November. At the conclusion of the hearing I reserved my decision for a short time in order to reflect on the evidence which I had read and heard, and the submissions of counsel. This reserved judgment sets out my detailed reasoning. For the purposes of determining the application, I have:

i) Read the statements filed by the parties;

ii) Read the witness statement of Ms Laura Coyle, assistant solicitor at Freemans, who has met both L and B, and was appointed litigation friend under ( rule 16.5 FPR 2010) for B, upon his joinder as a party, at a hearing before Hayden J on 30 October 2015;

iii) Considered a number supporting documents, including orders, judgments and professional reports generated in the lengthy proceedings concerning L and B in Bulgaria;

iv) Read the report of the CAFCASS officer, Ms Janet Sivills, dated 13 October 2015;

v) Heard oral evidence from Ms Sivills.

I was invited to consider hearing oral evidence from Ms Coyle, but concluded, for reasons which I set out more fully at [47] below, that it was not necessary or proportionate to do so.

3

At the conclusion of the evidence of Ms Sivills, I briefly adjourned the hearing in order to allow the parties an opportunity to discuss the issues directly with one another, kindly facilitated by Ms Sivills; this process had been contemplated by an earlier case management direction (Holman J). This discussion did not produce a settlement.

The issues, and summary of outcome

4

The following facts and legal framework are not in issue in this case:

i) L was habitually resident in Bulgaria at the point at which his mother removed him and brought him to England in April 2015;

ii) At the material time (April 2015), L's father had rights of custody in respect of L, and was exercising them;

iii) The core ingredients of Article 3 of the Hague Convention are established.

In issue at this hearing, for my determination, is:

iv) Whether a return of L to Bulgaria would expose him to a grave risk of psychological or physical harm or otherwise place him in an intolerable situation;

v) Whether L objects to returning to Bulgaria, and has attained an age and degree of maturity at which I should take account of his views;

vi) Whether, if either of these exceptions is made out, I should exercise my discretion not to return L to Bulgaria.

5

Having reviewed the material, and for the reasons set out fully in this judgment, I reject the mother's argument that a return of L to Bulgaria would expose him to a grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. I have concluded that L does object to returning to Bulgaria, and has attained the age and degree of maturity at which I should take account of his views. Notwithstanding L's views, in the exercise of my discretion, I have concluded that L should be returned to Bulgaria; accordingly the father's application for summary return under the Hague Convention succeeds.

The background facts

6

The parents are both Bulgarian nationals. They married in 1998, separated in 2008 when L was an infant, and divorced in 2010. The breakdown of this family has on any view been highly conflictual, with intractable disputes between them generating years of contentious litigation in Bulgaria; applications and cross-applications by the parents for orders governing personal protection, child arrangements, and financial provision have continued almost unabated over the last five years. In the course of those proceedings, both parents have made allegations of abuse against the other, and each have alleged that the other has abused the children; the mother contends that the father's conduct has been aggravated by alcohol misuse, the father alleges mental instability on the part of the mother. The predominant theme of the Bulgarian litigation appears to be (to borrow the term from the translated Bulgarian documents) 'parental alienation', that is to say, each parent contends that the other is seeking to 'alienate' the children from them.

7

Tragically, both B and L have been exposed to, indeed caught up in, this conflict, and have been affected by it. The Cafcass officer reporting in these proceedings, Ms Janet Sivills, was clear that the children had been "harmed" by the actions of their parents in the way they have conducted their lives post-separation — a view which is amply justified on the evidence. In the course of the litigation in Bulgaria, both B and L have been assessed and interviewed by multiple professionals, both psychologists and social work. The experts instructed there appear to speak with one voice in concluding that the conflict generated by the parents has affected the boys' "psycho-emotional development". B is recorded as "being deeply traumatised by the continuing conflicts between his parents" (2014).

8

The extensive history of the litigation requires no specific elaboration here. It is sufficient for me to mention only a few key events. In March 2011 the mother applied for, and in August 2011 obtained, an order in the Bulgarian Court permitting her to arrange for B to be educated in England; the application had been opposed by the father, who appealed it unsuccessfully. There is evidence which suggests (albeit this is disputed) that the father allowed his anger and disappointment with the outcome to spill over into his communications with B and with B's English school; the mother, and B, allege that the father sent abusive messages to B and to the school in the early part of 2012. I have seen transcriptions of these messages and if they were indeed sent by the father it portrays him in a disgraceful light. Be that as it may, for the last four academic years, B has been educated as a boarder in a private school in England. As L remained in Bulgaria with his mother during this period, there have therefore been significant periods of time (i.e. term times) between September 2011 and April 2015 when L and B have been living apart; they have come together only for school holidays. In the last six months they have inevitably seen more of each other.

9

On 24 October 2013, the Bulgarian Court inter alia imposed a specific prohibition on the mother removing L from the jurisdiction without leave of the court. For a period of time in the summer of 2014, following a judicial finding that the mother had wilfully obstructed contact between L and his father, L was moved to live with his father; the transfer of care was accompanied by an order that L was to have no contact with the mother. It is not clear now how successful this arrangement was. Photographs taken in the relevant period show L enjoying time with his father; L now looks back on the period through a somewhat different lens, expressing unhappiness about the experience. The mother successfully appealed the order by which the transfer of residence was effected, bringing the arrangement to an end after three months.

10

The relevant current order for 'contact' between the father and children was made in November 2014, at the conclusion of the parents' cross-appeals against the 24 October 2013 order. That order provides for L to stay every first and third Friday to Saturday of each month with his father, plus holiday time in October, December, March and May. There are still extant proceedings in Bulgaria, notably the mother's application to limit the father's exercise of parental responsibility; the father's appeal against the order granting the mother custody of B, and in relation to B's schooling in England is apparently still pending before the Bulgarian Supreme Court.

11

In the spring of 2015, the mother sought the father's permission to remove L from Bulgaria for a holiday to Paris. The father gave his permission. However, instead of taking him to Paris, on 20 April 2015 the mother brought L to this country, and within the space of less than one week enrolled him in private school here. She and L have been here ever since.

The essential legal framework

12

This application is determined by reference to the provisions of the Hague Convention. The objectives of this Convention were summarised by Baroness Hale in the decision of Re D (A child) (Abduction: Custody Rights) [2006] UKHL 51,...

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