Re T (Abduction: Child's Objections to Return)

This appeal has become more and more difficult the longer it was heard. It is an international child abduction case. The children are G who was born in London on 9 January 1989, so she is just 11 years old. Her brother, T, is only 6 having been born in Spain on 22 July 1993. Both parents are British nationals but they have lived in Spain since shortly before T's birth. Mother is aged 46 but father is approaching his 60th birthday. The marriage of these parents has been under strain for some time and the mother commenced related proceedings for divorce and custody in Spain in July 1997. The Spanish court has been seised of the difficulties ever since then and, as I must explain in detail later, there have been a succession of hearings and orders made regarding the residence and visiting rights of the children.

On 3 January 2000 the father wrongfully removed G and T from Spain in breach of the mother's rights of custody and has established a home near his adult children by a former marriage and their families in Suffolk. This move, not the first abduction from Spain, was in flagrant defiance of the Spanish court in whom the father has no confidence. My instinctive reaction is to say that an English court will not tolerate behaviour of that kind: these are children who have been habitually resident in Spain, the Spanish court is seised of the matter and it is the Spanish court and only the Spanish court which should determine the many disputes of fact which form the backcloth to the separation and more importantly to the events which have shaped the children's lives.

That was the view taken by Wall J. He rejected the father's defences under Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction that there was a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation. Although it was not in any real dispute that G objected to being returned, he found that she had not attained an age and a degree of maturity at which it was appropriate to take any account of her views which he held were shaped by the father's hostility to the mother. Even if her views were to be taken in to account, he would have refused to exercise his discretion in order to give effect to the spirit of the Convention which demands the return to the country of habitual residence, especially where, as here, the Spanish courts were fully seised of the problems. Thus on 3 March 2000 Wall J. ordered their return to Spain. My first impression on reading his judgment was that that conclusion was hardly a surprise. Now it is no longer as simple as at first it seemed.

Until late in the appeal, attention was focused on G's objections, and scarcely a thought was spared for T. G's position cannot be more eloquently expressed than she herself expressed it in a letter dated 1 February 2000 sent in answer to a letter, which cannot be criticised in any way, sent by her mother the previous day with "lots and lots of love and lots of hugs and kisses." This is how G responded:

"Mum,

As you have been phoning Angie nearly every day and didn't ask to speak to us I was wondering when you were going to contact us but when I read your letter I saw that it was the same rubish (sic) that you sent me on my birth day (sic) so you didn't have to bother.

1st I don't have a clue who these people are that are sending their love like John & Tara.

2nd Uncle Brendan hasn't contacted me since we've been in Spain so I don't see wy (sic) he's sending his love now. Grandad hasn't contacted me either since I've been in Spain either so I don't see wy (sic) he's sending his love. I haven't heard from auntie Carol or Andrew for years so, wy (sic) are they taking interest for (sic) us now?

I'm frightened that I'm going to have to live in Spain again and I'm frightened that I'm going to have to live with you. You know how dangerous you are when you get drunk and don't tell me you've stoped (sic) drinking because you were drunk the day we left and I smelled your breth (sic) when you came to court and you'de (sic) been drinking.

If you want to do something for me and T stop trying to make us go back to live in that crummy little village in Spain were (sic) all my friends know how you keep getting drunk all the time.

I see you've been sending faxes to the school the same as you did in Berja and Albox to make more trouble for us again. Wy (sic) can't you leave us in peace?

We want to live in England near to Gi, Angie, Jay & Kane and now that we are friends again with Nancy & Gary, Leanne & Chelsea. If you realy (sic) want to see us, wy (sic) don't you come to live in England instead of spoiling our lives?

G"

That letter persuaded me to give permission to appeal.

The issues which now arise on this appeal are:-

1. Was the judge wrong to take no account of G's objections?

2. If so, was he wrong to exercise his discretion to order her return?

3. Was he wrong to find that the Article 13(b) argument "cannot get off the ground?"

4. If he was wrong to order G's return, what is to happen to T?

None of these questions admit of easy answer.

I must now develop the story.

The father had long service in the Parachute Regiment until he was invalided out following some injury. He is a tough character. He has an enhanced army pension. He subsequently suffered some other injury for which he has an additional disability allowance. He was previously married and has children and grandchildren.

After leaving school the mother worked in an administrative capacity in television, eventually for Channel 4. Although she had previously been unenthusiastic or ambivalent about having a child, she was surprised and then somewhat overwhelmed by the strength of her maternal feelings after the birth of her daughter. She became very keen to have another child but suffered miscarriages. She blamed her work for that misfortune. She became more and more depressed. She began to abuse alcohol heavily. In that condition, which I have taken from a psychiatric report of Dr Pitcher dated 5 February 1993, she stole some �34,000 from her employer and was given an eighteen month suspended prison sentence. By then she was expecting T. Perhaps to make a new start, the family emigrated to Spain.

The marriage had its difficulties. The cause of the deterioration, according to the mother, was the father's aggressive and violent conduct towards her. Its cause, according to him, was the mother's alcoholism. They separated in June 1997. The mother commenced proceedings in the Spanish court and on 25 July 1997 an interim custody order was made in the mother's favour with liberal visiting rights afforded the father. The children's passports were surrendered to the court where they have remained. In January 1998 there was a reconciliation formally recorded by a notary, the effect of which may have been to suspend the custody order. It does not much matter. On about 28 January 1998 the father took the children to Gibraltar without the mother's knowledge or consent. Believing them to have come to England, she commenced proceedings here under the Hague Convention before she learnt where they were. She then made the children wards of court in Gibraltar and on 24 February 1998 Scholfield C.J., having received written and oral evidence from the parties, ordered the father to return the children to the mother. In his judgment he said this:-

"The documentary evidence I have before me shows that the wife may have abused alcohol in her past but there is no evidence to support the husband's assertions that she is a complete drunk. I am satisfied after reviewing all the material before me that she is perfectly capable of caring properly for her two children.

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I conclude that the reason for the husband's departure from Spain with the children is that he knew he was not going to get his own way with the evidence he could present to the Court and felt he could gain an advantage by taking the children out of the jurisdiction and that he has made up evidence to justify his actions."

It is a damning judgment on the father. It ought also to have given the mother warning of the consequences of her drinking.

A second custody order had been made in Spain in February 1998 following that abduction but it appears to have lapsed. There was then an incident in July 1998 in which the husband alleges that the mother, the worse for drink, struck him with a baseball bat and threw his briefcase into a swimming pool. He removed the children from her. She obtained, for the third time, a custody order in her favour. The father was arrested for not handing the children over pursuant to that order. In September 1998, again, according to the husband, under the influence of drink, mother removed G from hospital in the early hours of the morning and the police were involved again. G was interviewed by the Spanish authorities following these incidents which may have been but two of many.

There was then a major incident early in May. It is common ground that the mother, whether under the influence of drink alone or a combination of drink and the medication she was receiving for depression, was unfit to care for the children and...