Re N (Hague Convention: Habitual Residence)

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Cobb
Judgment Date24 January 2017
Neutral Citation[2017] EWHC 63 (Fam)
Date24 January 2017
CourtFamily Division
Docket NumberCase No: FD16P00580

[2017] EWHC 63 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Cobb

Case No: FD16P00580

Re: N (Hague Convention: Habitual Residence)

Michael Edwards (instructed by Goodman Ray) for the Applicant (mother)

The Respondent (father) in person

Hearing dates: 19–20 December 2016, 19 January 2017

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Cobb The Honourable Mr Justice Cobb
1

This is an application dated 18 October 2016, brought under the Child Abduction and Custody Act 1985 incorporating the Convention on the Civil Aspects of International Child Abduction 1980 ("the 1980 Hague Convention"), and under the Council Regulation 2201/2003 ("BIIA"), by a mother (M), in relation to her daughter N, who is now rising 3 years of age. The mother seeks the return of N to Canada, from where it is alleged N has been wrongfully retained. The Respondent to the application is N's father (F); he opposes the application.

2

The hearing of this application took place on 19 & 20 December 2016, and on 19 January 2017. For the purposes of determining this application, I read evidence filed by and on behalf of both parties, together with a number of exhibits. I heard brief oral evidence from M (by video-link from Canada), from F, and from the maternal grandmother of the child. I received oral submissions from Mr. Edwards and from F in person. I also had available to me reports from the Canadian social services in relation to N's baby brother, E, who was born to the parents since N and F left Canada. By the conclusion of submissions in December 2016, it was apparent that some further evidence/information was required, including:

i) Medical evidence of M's current mental health (ordered by Parker J on 21 October, but not filed);

ii) Evidence about F's entitlement to a visa to re-enter and stay in Canada (i.e. holiday visa, work visa, or other visa) in the event that he was to travel to Canada with N, pursuant to any return order;

iii) M's detailed offer of financial support for F in the event that he was to return to Canada with N, albeit to Ottawa (to where it is agreed he would travel and would stay, notwithstanding that it is more than 2000 miles from M's current home).

3

In spite of the fact that there is a heavy obligation on the court to complete a case such as this in 6 weeks unless "exceptional" circumstances "make this impossible" (see para. 2. 14 PD12F FPR 2010) I felt it necessary to adjourn the case to collate this final information before deliberating on the decision and delivering judgment. Further documentary evidence available in January 2017 provided the necessary information. A short letter was available from M's general practitioner, together with limited evidence about F's visa entitlement and the parents' eligibility for state benefits in Canada. The mother had filed a short statement setting out her offer of financial support, limited to a $500 one-off payment, and an offer to forward any child benefit payments to F; as it happens (though it is of no consequence to my decision), I concluded on the material that neither M nor F would be entitled to claim child benefit for N in Canada in the event of her return in the care of F.

Background

4

The mother is 24 years old; she has dual Canadian/British nationality. Her own mother (Canadian) lives in England, and has done so for some time. The father is 32, and is English. The parties met in 2013; they never married, and it appears to me (though this is not an agreed fact) that they endured a fairly consistently volatile and unstable relationship. The father maintains that they separated and reconciled many times. In April 2014 their daughter N was born in England; F acquired parental responsibility for N by virtue of being registered on her birth certificate as the father. It appears to me from what I have read that M did not take easily to parenthood, and preferred being out of the home working; she worked long hours, sometimes seven days per week, in unskilled jobs. The parental relationship suffered. In September 2015, the parents separated again. In the following month, they decided to see if they could make their relationship work by moving to Canada and having a 'fresh start'; they were struggling to make ends meet in England. Issue arises as to the precise terms on which they made the move. I return to this below.

5

Thus it was that in October 2015, they travelled to Saskatchewan, Canada, where the mother's father and step-mother, and her grandparents, live. F and N entered the country on six-month holiday visas. The couple, with N, moved in initially with the mother's grandparents. They had not been there long before the parents' relationship ran into difficulties and they separated once again; the mother left that home in November 2015 following arguments over her fidelity (see below), and moved in with her step-mother's cousin. The parents reconciled over Christmas, before separating again (and finally) in February 2016. The domestic situation for the whole six months remained uncertain and unsatisfactory for all of them. In April 2016, the father and N returned to this country. M travelled to the airport with them to see them off. An 'agreement to travel' document was prepared and signed by the mother and her family, but not the father; it provided for F to remove N from Canada on the basis that he would return with her on or before 16 August 2016. The parents do not agree as to the circumstances/terms on which the father and N left Canada. N has been in this country ever since.

6

After F's return to England, the parents communicated through social media and by phone. I was referred to the following Facebook messages to F from M as follows:

i) "you have [N]. you won. Just get on with your happy life in England"; [29 April];

ii) M asks F if he has "got [N] into playgroup" [2 May];

and

iii) "I don't want to take her away from you. She's better off without me than without you … she's happier without me" [3 May].

7

Further, F says that after a month or so of his return to the UK, in a phone call, the mother confirmed that N could stay permanently in England but then withdrew her offer; the mother confirmed that she recalls telling the father that N could stay here but maintains that she later retracted her offer. She told me that she thought it possible that she had said at one time that he could stay forever but was not sure.

8

In July 2016, M moved from Saskatchewan to Alberta to live close to or with her new partner ('X').

9

On 4 August 2016, the parties' second child, a little boy, E, was born in Alberta, Canada. Within a short time, E fell under the scrutiny of Canadian social services, and in late October 2016 he was removed from his mother's care and placed in state care. He has been with foster parents in Alberta ever since. Neither N nor F have met E. The social work records in the documents before me contain this profoundly worrying description of the local authority's intervention with M and her boyfriend [X]:

"Began working with this family September 16, 2016. Per community report, baby at high risk for exposure to domestic violence, neglect and possible physical abuse by [X] mum's new boyfriend of approximately three months. Mum not taking meds and concerns around her mental health. … September 20, 2016: [M] punched [X] in the face and [X] put his hands around her neck… [X] is open and has described how he feels violent and gets off on this… [X] has spoken of being violent to anyone who enters their home … [X] stated that part of his brain was damaged when his mum gave birth to him and he has tried all different kinds of anger management."

"[M] was honest about her mental health concerns… She stated she had struggled with mental health since she was 13 years old; she has had suicidal ideation and had plans to take her life…[M] stated in April 2016 she cut just to feel, not to end her life. [M] then disclosed that the voices in her head had gotten out of the box."

10

In July or August, F took steps to block all contact from M, following an undoubted barrage of deeply offensive and threatening messages (I have seen some of them) from M and X, her boyfriend in Canada. M maintains that F's blocking of contact was deliberately designed to exclude her from her daughter's life.

11

In late-July 2016, F made an application (without notice to the mother) in the Family Court in his home town for child arrangements orders under the Children Act 1989; the District Judge made a number of section 8 orders, declaring (though it is not of significance to my own independent evaluation) that the child was at that point habitually resident in this jurisdiction.

12

In October 2016, M made application under the 1980 Hague Convention seeking the return of N to Canada. Directions for trial were given by Parker J on 21 October 2016. F indicated his opposition to the application, a stance which he maintains. He originally submitted at the hearing in December 2016 that if N is ordered to be returned to Canada he would accompany her, but would travel to, and stay in, Ottawa (2000 miles from M) where he has an aunt. On sight of the new material at the adjourned hearing in January 2017, he advised me that he would not be able to afford to travel to Canada, or to live there, and that his immigration status and work opportunities would on the material supplied be far too uncertain. In the circumstances, he indicated that in the event of a return order, N would have to travel to Canada without F. F further told me at the adjourned hearing in January 2017 that he had recently been in contact with the social services department in...

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