Re S (Abduction: Children's Representation)
| Jurisdiction | England & Wales |
| Judge | JUSTICE CHARLES |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] EWHC 1798 (Fam) |
| Court | Family Division |
| Date | 14 May 2008 |
| Docket Number | Case No. FD07P002574 |
[2008] EWHC 1798 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Charles
(In Private)
Case No. FD07P002574
MISS MARKANZA CUDBY appeared on behalf of the Plaintiff Father.
MR DERMOT MAIN-THOMPSON appeared on behalf of the Defendant Mother.
MR EDWARD DEVEREUX appeared on behalf of the Children.
This is an application under the Child Abduction and Custody Act 1985 in respect of three children who are in court. They were born, respectively, in December 1992, June 1995 and March 1999. They are the children of the marriage of the plaintiff and the defendant to the proceedings. Their parents are now divorced.
The application is by their father for their return to Argentina. As is my custom in cases of this type when family members are in court, I propose to say what I am going to do now so that they do not have to spend time guessing where they think I am going to end up. I am going to refuse this application. The result of that is that the children can remain in this jurisdiction.
Very briefly, the history is that the parents and the children are all citizens of Argentina. The father is now 49 and the mother 43. They were married in 1988 and separated in or around 2002. In August 2002 the parents entered into an agreement by which the mother was given sole custody of the children and that agreement was ratified by a court in Argentina. The parties divorced in September 2003. That agreement being endorsed at that stage. Both parents have since remarried. The father has another child of that marriage, a young boy.
At the end of 2003 the mother initiated proceedings in Argentina to enable her to bring the children to this country. The mother's purpose in coming here was to study. In the early part of 2004 she travelled to this country alone leaving the children in Argentina in the care of the plaintiff father. There was an agreement entered into in April 2004 reflecting that arrangement namely that the children would live with the father whilst the mother came to the United Kingdom. She came here without the children for a period of about three months between April and July 2004. She returned to Argentina in July of 2004 and in August 2004 the parties agreed and, as I understand it, this agreement was also endorsed or made before a court, that the father was to have custody of the children whilst the mother was studying in England, but part of that agreement was that the mother would be authorised and permitted to collect the children in December of that year and bring them to England for a year to be with her. There were provisions in that agreement/order as to contact between the father and the children. There were also some quite detailed arrangements relating to all the children but in particular to the youngest child as to whether or not he should be returning to Argentina. It was drawn to my attention that at this stage particular provision was included referring to the need to have regard to the wishes and feelings of the children in the context that if they expressed a desire to go back to Argentina the parties would respect those wishes.
In June of 2005 during that period whilst the children were in this country the father travelled for contact. There is a disputed allegation that on that occasion he assaulted the oldest child, Maria. There is an extract from a police notebook in the papers. That notebook indicates that the parents did not wish to pursue or for the prosecuting authorities to pursue, any case against the father. The mother in her evidence says that this did not happen because the father returned to Argentina. Be that as it may, there is a record evidenced by the police notebook that an incident took place on that contact visit. The father denies that he did anything inappropriate or wrong on that occasion.
In December of 2005, that is at the end of the period agreed for the children to be in the United Kingdom, the father sent an email to the mother advising her that he may initiate a Hague Application requiring return of the children. I mention that at this stage because it makes it clear that at this stage in the history the father was aware of the provisions of the Hague Convention. Those proceedings did not go anywhere and their relevance is the one I have just mentioned. The mother, in December 2005, filed in Argentina a request for authorisation for the children to be in the United Kingdom plus a further authorisation, and returned some two months later to Argentina with the children in February of 2006.
In April 2006 the mother married her present husband and for a short period in 2006 the youngest child, recorded in the chronology, attended school in Argentina.
Proceedings then followed in Argentina and in that context a report was obtained from a psychologist. It seems that that report was a follow up to an earlier report in respect of the proceedings in 2004. It is unclear whether it was the same psychologist or a different one. I have been referred to that report and I cite a short passage from it in the following terms:
"There is a strong power alliance instilled by the eldest daughter who tried to place her younger siblings in rebellion towards the rules of their father's home. At that particular time the eldest sister, MI, suffered selective feeding and eating disorders with an extreme maternal dependency lower than her maturing age."
In a judgment of the Argentinean court in the context of the application made by the mother for authorisation to bring the children to the United Kingdom, and the opposition of the father, his evidence indicates that he opposed on a number of grounds. Included with them was his assertion that the mother intended to remove herself and the children to the United Kingdom on a permanent basis. Also, as I understand it, he had other arguments relating to the welfare of the children. The minors' advocate is recorded in the judgment as expressing the opinion that she did not doubt the love that the children feel for their father and the need to start a therapeutic treatment upon return.
The issues that faced the Argentinean court at that stage were therefore these. The parents of these three children were divorced and seeking to lead, and were leading, separate lives. So far as the mother was concerned, that life with her new husband was hoped to be in England. So far as the father was concerned, he was at that stage based in Argentina. The children were expressing views that they wished to be with their mother and they wished to return to England. There was clear evidence of some hostility in the minds of the children towards the father and, as I understand it, there were disputed issues as to the causes for that position.
The solution that the Argentinean court reached was to give the mother permission to take the children to England on the basis that at the end of the permitted period the children would be returning to Argentina to embark upon a therapeutic exercise designed, as I understand it, to improve the relationship between the children and their father, but no doubt it would have had a wider remit to help promote relationships throughout this family. The order made originally on 6 th July 2006 granted permission for the mother to go to the United Kingdom until 27 th February 2007. On the face of it that seems to be a typing error, or some form of error. Also the next paragraph in that order provided that the minors were to be personally informed that the primary objective is that as of February 2008 the father/child relationship is to be renewed with therapeutic support.
The mother returned to court and sought clarification from the court as to what permission had been granted. On 27 th July 2006 the court clarified and amended the court order and granted authorisation for the children to come to the United Kingdom for one year as from the date of their actual departure. On the other point that I have just referred to, the clarification was that the relationship of the minors with their father under therapeutic treatment should commence on the date the minors actually returned to Argentina. So the scheme remained the same, namely that the solution to the difficult welfare issues facing the court was that the children should come to England with the mother and on their return there would be some therapy.
I pause at that stage to comment in respect of that approach and order. As I have already indicated, at the time that order was made the father was fully aware of the existence of the Hague Convention. The Argentinean court clearly would have been aware of the provisions of the Hague Convention. The initial order referred to a date for return. The clarification was that the children would be in the United Kingdom for a year and the therapy envisaged, and to commence on their return to Argentina. Putting myself in the position of the Argentinean judge, I would be very surprised and very disappointed if when making that order I had not had in mind the possibility that at the end of the period that the children were in another country pursuant to my leave real issues might arise under the Hague Convention as to whether or not it was appropriate for them to return. That, it seems to me, flows inexorably from the difficulties that then existed, namely the children indicating some hostility towards their father, a desire to live with their mother and a desire to return to the United Kingdom. It is to be remembered that they had already been in the United Kingdom for a period of a year effectively throughout 2005. Part of the thinking may have been that...
To continue reading
Request your trial