Re S (A Child) (Abduction: Settlement)
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Court | Family Division |
Child abduction – Settlement – Intolerable situation – Child being raised in Lithuania – Father consenting to mother and child travelling to England for holiday – Mother issuing application for residence order during holiday period – Father making cross-application and seeking summary return of child to Lithuania – Whether child wrongfully removed or retained – Whether 12 months having elapsed so as to trigger ‘settlement’ exception to return order – Whether order would expose child to intolerable situation – Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 12, 13(b).
The mother and father, who were Lithuanian nationals, met in 2003. After moving to Sweden, where the father worked as a builder, the mother fell pregnant. It was consequently agreed that she would return to Lithuania. Following the child’s birth in April 2005, the father travelled between the two countries every two months for weekly or fortnightly visits. In December 2006, he agreed that the child could accompany the mother to England for a holiday from 10 January until 1 February 2007. Unbeknownst to him, the mother consulted lawyers regarding the deteriorating state of their marriage prior to departing for England. During the agreed holiday period, she issued proceedings in the Lithuanian court seeking, inter alia, to dissolve the marriage, child maintenance and residence. The father made a cross-application to dissolve the marriage and the proceedings were merged. Although the mother was granted residence of the child in March 2008, the decision was annulled on appeal and returned to the lower court for re-trial. In the meantime, the father had unsuccessfully sought help from the Lithuanian authorities to secure the child’s return to Lithuania. On 1 February 2008, he issued an originating summons for the child’s summary return pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980. Issues arose, inter alia, as to whether the mother had wrongfully removed or retained the child and, if so, whether one year had elapsed since that point, triggering a prospective exception to summary return on the basis of ‘settlement’ pursuant to art 12 of the Convention. It also fell to be determined whether an order for return would place the child in an intolerable situation pursuant to art 13(b) and whether, even if an exception to return could be established, the court should nevertheless exercise its discretion to order return. The mother gave evidence that she had not intended to settle in England until she had been there for six months but conceded that, upon departing from Lithuania, she had not intended to return the child upon the expiry of the father’s agreement.
.
Held – (1) Wrongful removal and wrongful retention were not mutually exclusive. The instant case was one of wrongful retention which subsumed a wrongful removal. The father’s consent to the trip had been obtained by deceit and was therefore vitiated. However, the real mischief perpetrated by the mother had been to retain the child beyond the agreed date of his return; Re H (Minors) (Abduction: Custody Rights), Re S (Minors) (Abduction: Custody Rights)[1992] 1 FCR 45 considered.
(2) An intention to wrongfully retain had to be communicated to the left-behind parent/custodian in word or deed for the purpose of the 12-month period which triggered a prospective exception to summary return on the basis of ‘settlement’. To hold otherwise would threaten certainty and penalise an applicant by commencing the limitation period before he could or should have been aware that his rights had been breached. Accordingly, in the instant case the relevant date for assessing whether the father had commenced the proceedings after the expiration of one year was 2 February 2007, the date upon which the child should have been returned to Lithuania pursuant to the agreement in the absence of any overt indication from the mother that she had resiled from that plan. Therefore the father had negated the mother’s recourse to art 12 of the Convention; Re S (Minors: Hague Convention: Wrongful Retention)[1994] 1 FCR 83 considered.
(3) Undue delay and settlement might, in appropriate cases, constitute the basis of an argument that a child would be exposed to an intolerable situation if summarily returned to their country of habitual residence prior to removal. The word ‘intolerable’ in that context had to be taken to mean a situation which that particular child in those particular circumstances should not be expected to tolerate. In the instant case, to disrupt the child’s living arrangements would have more far-reaching consequences and adverse impact than in the case of an older and less sensitive child able to comprehend a sudden departure from one routine and community and the prospect of the next. It would transgress the inevitable disruption, uncertainty and anxiety which followed an unwelcome return to the jurisdiction of the court of habitual residence. In light of that finding, the mother had discharged the burden of establishing a ‘defence’ under art 13(b) of the Convention.
(4) In the circumstances, the court would exercise its discretion against ordering the child’s immediate return to Lithuania. Furthermore, in the instant case, it was not possible to ameliorate the intolerable situation to which the child would be exposed upon return by ‘suspending’ or ‘staying’ an order for return on conditions. Having adjudged the child to be ‘settled’ to the relevant degree which invoked art 13(b) of the Convention, to delay any appropriate return would mean that the harm which he was at grave risk of suffering would be increased with his ever increasing establishment and security of life in England. Accordingly, the father’s application would be dismissed.
(5) It was appropriate to invite the Lithuanian court to stay the case as it related to residence and contact, and invite the English court to assume
jurisdiction of the same. The mother had become habitually resident in England and its courts would be better placed to conduct any further necessary welfare investigations.
Cases referred to in judgmentA (Z) (child abduction), Re[1993] 1 FCR 733, [1993] 1 FLR 682, CA.
C (abduction) (grave risk of psychological harm), Re[1999] 2 FCR 507, [1999] 1 FLR 1145, CA.
C v W[2007] EWHC 1349 (Fam), [2007] 3 FCR 243, sub nom JPC v SLW and SMW (Abduction) [2007] 2 FLR 900.
D (a child) (abduction: foreign custody rights), Re[2006] UKHL 51, [2007] 1 FCR 1, [2007] 1 All ER 783, [2007] 1 AC 619, [2006] 3 WLR 989, [2007] 1 FLR 961.
F v M (abduction: acquiescence: settlement)[2008] EWHC 1525 (Fam), [2008] 3 FCR 718, [2008] 2 FLR 1270.
G (abduction: striking out application), Re[1996] 1 FCR 173, [1995] 2 FLR 410.
G (abduction: withdrawal of proceedings, acquiescence, habitual residence), Re[2007] EWHC 2807 (Fam), [2008] 1 FCR 1, [2008] 2 FLR 351.
H (Minors) (Abduction: Custody Rights), Re, Re S (Minors) (Abduction: Custody Rights)[1992] 1 FCR 45, [1991] 3 All ER 230, [1991] 2 AC 476, [1991] 3 WLR 68, [1991] 2 FLR 262, HL.
M (children) (abduction), Re[2007] UKHL 55, [2008] 1 FCR 536, [2008] 1 All ER 1157, [2008] 1 AC 1288, [2007] 3 WLR 975, [2008] 1 FLR 251.
M v M[2008] EWHC 2049 (Fam), [2009] 1 FCR 177, [2008] 2 FLR 1884.
N (minors) (abduction), Re [1991] FCR 765, [1991] 1 FLR 413.
Punter v Secretary for Justice [2004] 2 NZLR 28, NZ CA; rvsg [2003] 3 NZLR 54, NZ HC.
S (A Minor) (Custody: Habitual Residence), Re[1997] 3 FCR 293, [1997] 4 All ER 251, [1998] AC 750, [1997] 3 WLR 597, [1998] 1 FLR 122, HL.
S (Minors: Hague Convention: Wrongful Retention), Re[1994] 1 FCR 83, [1994] 1 All ER 237, [1994] Fam 70, [1994] 2 WLR 228, [1994] 1 FLR 82.
Toren v Toren (1999) 191 F 3d 23, US CA (1st Cir).
Zuker v Andrews (1998) 2 F Supp 2d 134, Mass.
ApplicationBy letter dated 21 January 2008, the Lithuanian Central Authority informed the English Central Authority of the father’s application for summary return of his child, who had been retained in England by the mother after the expiry of an agreed holiday period. The father’s representatives first attended on a without notice basis before Bennett J on 31 January, and issued their originating summons on 1 February. The mother resisted the application, relying upon, inter alia, defences pursuant to arts 12 and 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The facts are set out in the judgment.
Teertha Gupta for the father.
Edward Devereux for the mother.
Indira Ramsahoye for the child’s guardian.
MACUR J.[1] This is an application by RS (the father) pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (The Hague, 25 October 1980; TS 66 (1986); Cm 33) (the Convention) and Council Regulation (EC) 2201/2003 (concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility) (OJ 2003 L338 p 1) (the Regulation) as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985, by which he seeks the summary return of his child, LS, ([born] April 2005) to Lithuania. KS (the mother), accepts that LS remains in this jurisdiction since January 2007 without the father’s consent; that the father had ‘rights of custody’ and was exercising them prior to LS’s removal from Lithuania (see arts 3 and 5 of the Convention); and that LS was habitually resident in Lithuania prior to the retention (see art 4 of the Convention). She relies upon arts 12 and 13(b) of the Convention, arguing that in the latter respect there is no ‘adequate arrangement’ that can be made ‘to secure the protection’ of LS after his return. (See art 11(4) of the Regulation.)
[2] (i) I have decided to refuse to order the return of LS for the reasons indicated below.
(ii) I am satisfied that the father has been given the opportunity to be heard.
(iii) I invite the courts of Lithuania to stay the...
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