Re E (A Minor)
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 2008 |
| Neutral Citation | [2008] EWHC 363 (Fam) |
| Docket Number | Case No: FD06D06035 |
| Court | Family Division |
| Date | 19 March 2008 |
[2007] EWHC 363 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Case No: FD06D06035
James Turner QC (instructed by Charles Russell) for the Plaintiff father S
Charles Howard QC and Charles Hale (instructed by Manches) for the Defendant mother D
Hearing dates: 14 to 18 and 21 & 22 January and 11 to 14 and 22 February 2008
Judgment Approved by the court for handing down
This judgment comprises 309 paragraphs and two schedules. It was handed down in private but the judge gives leave for it to be reported on the basis that it is anonymisd and in particular the anonymity of the child and the adult members of the family is to be strictly preserved
Charles J :
Overall conclusion
This case covers issues that are distressing to both parents. I announced my conclusions in court before circulating this judgment in draft.
As so announced, I have concluded that the child's welfare will be best promoted by me giving permission to his father to take him back Mexico to live there.
Introduction
I shall refer to the parties as the father and the mother and the child as E.
I have before me applications by the father based on the Hague Convention and the inherent jurisdiction of the court for an order that E be returned to Mexico. I also have before me proceedings issued by the mother and the father under the Children Act 1989 for orders relating to residence, contact and the return of E to Mexico. The mother's proceedings under the Children Act were the first in time but they, and the father's Children Act proceedings, are stayed by reason of the Hague Convention proceedings.
In the Hague Convention proceedings there are issues as to whether the Convention applies, and if it does whether the court must order a return of E to Mexico, or whether if the court has a discretion it should make such an order. These issues relate to what was agreed between the parties and acquiescence. A defence was raised under Article 13(b) but correctly this has not been pursued. I will of course return to these issues and others relating to the Hague Convention proceedings in more detail later.
As will be apparent from what I have said the father seeks an order that E be returned to Mexico, where he wishes to live and the mother wants me to refuse such an order and make orders that have the effect that E lives in England, during the school terms and parts of the holidays, which is where she wishes to live.
It is common ground that before E came to England in 2006 he and his parents were all habitually resident in Mexico.
This hearing was set by the Court of Appeal who clearly envisaged that I would hear evidence on all matters relating to the Hague Convention, the inherent jurisdiction and the Children Act proceedings, and thus hold a full hearing on welfare. The Court of Appeal did not address the issue as to what I should do if I concluded (a) that I was bound to order the summary return of E to Mexico, or (b) that as a matter of discretion I should do so. Such decisions would have the result that apart from interim issues, decisions as to E's welfare should be taken by the Mexican courts.
I raised this with the parties at an early stage and it was common ground that, as envisaged by the Court of Appeal, I should hear all the evidence. This took considerably longer than the time estimate given by the Court of Appeal and it is fair to say that I heard a great deal of evidence during which “many stones were turned more than once”. This sadly put both parents through a very emotional and unenviable experience, but one flowing from their inability to agree on the way ahead.
Brief history and chronology
Introduction
The father was born on 22nd of August 1959 in Belgium. He now has rights of residence in Mexico. The mother was born in England on 25 August 1969. Her family moved to Canada in 1971 and in 1974, after the death of her mother, she and her family moved in Canada to Quebec. As a teenager she went to a convent school in England to do her A levels and still has some friends in England from those schooldays. She did her first degree in Canada and in 1994 she started a masters in curatorial studies at Bard College, New York State.
The father was brought up and educated in Belgium. In 1986 he started “community service” in Mexico, which as I understand it is a substitute for Belgium national service in the forces. He had by this time qualified as an architect. After his arrival in Mexico the father began to concentrate on work as an artist. It is now common ground that he is an artist who enjoys a high reputation worldwide. His reputation has been developed over a number of years.
The mother and the father met in 1996 at a time when they both had separate interests in a project. At this time the mother was based in the USA. Their relationship developed and over the period 1996 to 1998 they spent time together in both Mexico and the USA.
The mother and father married in the Bahamas on 1 July 1999 and shortly after the marriage the father bought a flat in a residential district in Mexico City. This needed work doing to it. The father had been living in his studio which was in a non residential or a less residential area of Mexico City.
In 1999 the mother received a gift of $1 million from her father. Some of this was invested in a property in the Bahamas from which the mother received a rental income.
E was born in Mexico on 19 May 2000.
A chronology
During the evidence the history was gone through in some detail. It is sensible to take a chronological approach to the factual issues. For this purpose I have prepared a schedule based on a chronology prepared by those representing the mother with some additions, omissions and alterations. It starts in 1999 and in my view provides a helpful framework for the consideration of the evidence. It is Schedule A to this judgment.
Overall approach and comment
The order in which issues have to be considered is as follows:
i) Does the Hague Convention apply?
ii) Is the court's discretion under the Convention triggered or must it order a return?
iii) If the discretion is triggered how should it be exercised?
iv) If for some reason the Hague Convention does not apply (or an order for a return should not be made under it) should a summary return be ordered under the inherent jurisdiction?
v) If a return is ordered should I express my views on welfare?
vi) If a return is not ordered what orders should I make under the Children Act?
As mentioned earlier the Court of Appeal in giving its directions did not deal with point (v). Before reaching my conclusions on summary return I had concluded that given the directions of the Court of Appeal, and the common ground as to the course of the hearing, I should make findings and give my views on welfare even if I concluded that I was compelled to, or should, order a summary return because:
i) I am confident that the courts in Mexico would not regard this as any usurpation of their role and would pay such attention to my conclusions as they thought appropriate,
ii) the parties may in any event wish to proceed in Mexico on the basis of findings made as a result of this long hearing,
iii) my conclusion on the Hague Convention might be successfully challenged on appeal,
iv) there is some overlap between issues that arise under the Hague Convention and on welfare, for example in respect of consent and acquiescence and the length of time E has now been in England, and
v) in my view correctly it was common ground that I was not precluded by Article 16 from expressing views as to what I would have done if I had been the decision maker on welfare.
In considering the case I have been careful to avoid a thought process that might have founded a bias to my thinking on a mandatory (or a discretionary) return under the Hague Convention because it would, or would not, accord with my conclusion on a full welfare consideration. So I approached the issues in the order set out above. As I have indicated my overall conclusion is that there should be a return and following a full consideration of the issues in that order I am not presented with the difficulty or result that my conclusion on welfare conflicts with a return to Mexico. In my view such return is what is likely to best promote E's short, medium and long term welfare.
My answers to the list of issues are:
i) The Hague Convention does apply,
ii) The court's discretion is triggered because of acquiescence (but not consent),
iii) Absent the full welfare enquiry and argument, following the direction of the Court of Appeal, I would probably have ordered a return under the Convention. But because of that full enquiry and argument I should refuse to order a return for the purpose of enabling the Mexican courts to determine the short, medium and long term welfare issues,
iv) It is not necessary or appropriate for me to consider a summary return under the inherent jurisdiction,
v) I could and would have expressed my views on welfare if I had ordered a return under the Hague Convention, and
vi) I consider that the short medium and long term welfare of E is best promoted by an order that permits his father to take him back to Mexico on the basis of the alternative plans put forward by him during the hearing if this was to be the result. The alternatives depend on decisions made by the mother as to whether she will return to Mexico to live or only to visit E. The detail of those...
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