Re S C (A Child)

Hearing: 12 – 14 October 2005

I direct that this written judgment signed by me may be treated as authentic and that no official transcript need be taken.

This case concerns the future of a girl, to whom I shall refer as S, who was born on 28 May 1994, and who is now 11 ¹/₂ years old.

In his judgment dated 12 December 2003 ( Re C (Abduction: Interim Directions: Accommodation By Local Authority) [2003] EWHC 3065, (Fam) [2004] 1 FLR 653) Singer J set out the bare facts of this case as follows:

[3] The factual background which gives rise to the issue can be simply stated. The American father and the Irish mother married in California in 1994. Their only child, S, was born in the same year and is now 9. Until December 1998 the family home was in California, but in that month the mother kept S in Ireland after the end of an agreed holiday there. The father instituted Hague Convention on the Civil Aspects of International Child Abduction 1980 (Hague Convention) proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It was envisaged that mother and child would both arrive there in time for a hearing before the California courts later that month, but the mother did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in the father's favour. What had apparently happened was that shortly after her and the child's return to the USA the mother re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than 4 years later. Prior to the first hearing before me on 17 October, S had been removed from her mother on 15 October and placed in foster care provided through the LA pursuant to a police protection order.

In his second judgment of 28 May 2004 ( Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam) [2005] 1 FLR 127) the same judge made these further observations:

[3] For the factual background I need do no more for present purposes than to repeat what appears at para [3] of the earlier judgment. The American father and the Irish mother (to whom I shall refer as F and M) married in California in 1994. Their only child, S, was born in the same year and is 10 today. Until December 1998 the family home was in California, but in that month M kept S in Ireland after the end of an agreed holiday there. F instituted Hague Convention proceedings in Dublin and in July 1999 a consent order for the child's return to California was made. It was envisaged that M and the child would both arrive there in time for a hearing before the California courts later that month, but M did not appear at court and took no further part in the proceedings, with the result that in October 1999 that court made an interim custody order in F's favour. What had apparently happened was that shortly after she and the child returned to the USA M re-abducted the child in the same month of July 1999, but this time made her way to England. There she assumed names for herself and the child in order to escape detection, which indeed she did until they were traced to Liverpool more than 4 years later. Just before the first hearing before me on 17 October 2003 S had on 15 October 2003 been removed from M and placed pursuant to a police protection order in foster care provided through the good offices of the relevant local authority.

[4] To bring the history up to date, S was reunited with M on 31 October 2003 subject to a variety of conditions, including the tagging order which (at the suggestion of M) I had made, and with which the earlier judgment also deals. M and S were seen by a Children and Family Court Advisory and Support Service (CAFCASS) officer at their home on 19 November 2003 pursuant to a direction I had made for a report to be prepared dealing, in particular, with S's maturity and any objections to her return to the USA within the terms and meaning of Art 13 of the Hague Convention, and the officer's observations concerning her degree of settlement in relation to Art 12. The CAFCASS officer arranged for contact to take place, observed and supervised by her, on 24 November 2003. That contact seemed to go encouragingly well. Sadly the same cannot be said of the next attempt at direct contact which took place on 20 December, when M was to be present throughout. Whatever the reasons for whatever took place (and both are highly contentious) this was in the result a disaster, although (once it becomes clearer to the parties whether or not S is to return to the USA) a setback which may hopefully be surmountable. There has only been indirect contact since then. No clear picture emerges, on the written evidence before me, to establish the true reasons for or the extent of the child's distress arising from that incident

…

[6] There is no dispute but that in July 1999, for the second time, S was wrongfully removed by M from the USA, the country of the child's habitual residence, in breach of the rights of custody of F, and that her whereabouts from then until October 2003 were deliberately concealed from F. The concealment involved assuming new identities for both M and S which included, in the case of the child, elaborate and planned arrangements for her to take over the birth date as well as the name of a child who had died. In terms, therefore, of the degree of parental determination displayed to follow through the abduction and to sever the child's relationship with her father, this case is at the extreme end of the range

These bare facts do not do justice to the endeavours of the father ("F") to locate his missing daughter. He lobbied the press and politicians both in California and Ireland. He set up a web-site about S. The details found their way onto many other web-sites about missing children. His campaign became a cause celèbre such that in September 2002 the California State Legislature passed a Bill providing for measures which:

would require a court, in cases in which the court becomes aware of facts which may indicate that there is a risk of abduction of a child, to consider specified factors in determining the risk of abduction of the child and to determine whether conditions are needed to prevent the abduction of the child. The bill would require the court to consider imposing specified conditions to prevent the abduction of the child.

(citation from the State Legislative Digest)

This statute is named the Synclair-Cannon Child Abduction Prevention Act of 2002 in honour of F and another father whose child was abducted to Russia.

As I have mentioned, in pursuit of the search for his daughter F substantially involved the Irish Press, and they have been keenly interested in this story ever since. The story has sensational aspects, for as Singer J mentioned, the means by which the mother ("M") changed the identity of S was the same as that described in the well-known novel The Day of the Jackal namely to use the name and birth-date of a dead child taken from a tombstone in an Irish cemetery. M obtained a copy of the dead child's birth certificate and then imposed that identity on S. For these purposes she had to tell S that she was now going to be known by a new name and that her birthday would be altered. At the same time M changed her name by Deed Poll so that her surname coincided with that of the dead child.

F's discovery of S in October 2003 was a direct result of his involvement of the Irish Press. According to his web-site:

October 12, 2003, Governor Gray Davis of California and Actor Pierce Brosnan congratulate Josef on the one year anniversary of the "Synclair-Cannon Child Abduction Act of 2002" during a bill signing for Enviromental education at the Santa Monica Pier.

This event was reported in the Irish press and a member of the public reading an Irish newspaper in Scotland recognised the photograph of S as a class-mate of her son in Liverpool. This person contacted the Irish press and as a result S was located.

It has to be said that since the discovery of S the gross deceits and subterfuges of M have been revealed and exposed in the Irish press and that the dead child's mother has been caused considerable distress. I have read a statement from her in which her anguish is palpable.

M's case is that throughout the period of successful concealment she never denigrated F but simply told S that he was away working in the USA or Canada. I am unconvinced by this. There was no satisfactory explanation given to me about what she must have said to S to justify the dramatic steps that were taken to alter her identity. It seems to me that S must have been told that it was being done to prevent her father from discovering her whereabouts. I have reached the conclusion that to a greater or lesser extent, either expressly or tacitly, F must have been demonised in the mind of S by M.

Equally unsatisfactory have been the explanations expressed in the statements about why M abducted S. It is clear that she and S travelled to Ireland initially on return tickets with F's consent. Why she did not return is a matter of controversy but the fact is that upon proceedings being commenced under the Hague Convention M consented to return and an order recording such consent was made by McGuinness J on 18 July 1999. M and S did return to California but a few...