Re W
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Peter Jackson |
| Judgment Date | 27 March 2018 |
| Neutral Citation | [2018] EWCA Civ 664 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2018/0045 |
| Date | 27 March 2018 |
[2018] EWCA Civ 664
Lord Justice Moylan
and
Lord Justice Peter Jackson
Case No: B4/2018/0045
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MRS JUSTICE GWYNNETH KNOWLES
HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Haines QC andMs Amiraftabi (instructed by International Family Law Group LLP) for the Appellant
Mr Turner QC andMs Perrins (instructed by Osbornes) for the Respondent
Hearing dates: 21 st February 2018
Judgment Approved
Introduction:
This appeal raises an unusual issue in child abduction proceedings. The abducting parent is willing, if ordered, to return with the children, but may be unable to do so because she has no right to enter the state of their habitual residence. The issue in this case is whether this engages the defence under Article 13(b) of the 1980 Hague Child Abduction Convention (“the 1980 Convention”).
The mother appeals from one aspect of an order made on 30 th November 2017 by Gwynneth Knowles J under the 1980 Convention. She ordered the return of two children aged 5 and 3 to the United States of America. They were to return with the mother, if she could obtain a visa, and without the mother if she could not. The mother appeals only from the provision requiring the children to be returned if her application for a visa is refused.
The order provides specifically that the children are to be returned forthwith to the USA “and by no later than 14 days after the determination of the mother's application for a humanitarian parole visa to re-enter the jurisdiction”. The order contains a number of recitals including that in “the court's view … the best and preferable option for the children is to return to the USA in the care of the mother”.
In the experience of this court the circumstances of this case are unusual. On the evidence before the judge it appeared that the mother, who is British, would be unlikely to be able to obtain a visa to enter the USA. To make matters more difficult still, it also appeared that the father, who is Pakistani, would be unable to re-enter the USA if he was able to travel to the UK, because of his precarious immigration status in the USA. It is, therefore, not a case in which a mother was refusing to return to the requesting State but one in which she would be unable to do so if the relevant authorities of that State decided not to give her a visa.
During the course of his submissions Mr Turner QC, appearing for the father, told us that he is aware of a few cases under the 1980 Convention which involve immigration issues. Whatever the position in those cases, the substantive issue raised in this appeal is whether the judge's assessment of Article 13(b) was materially flawed and/or whether her conclusion was wrong. Simply expressed, the issue is whether the separation of the children from their mother in the circumstances of this case should have led the judge to decide that Article 13(b) of the 1980 Convention was established.
The mother advances two grounds of appeal which can be combined to read: the judge failed properly to apply the principles relating to Article 13(b) when determining that the children would not be placed in an intolerable situation if returned to the USA without the mother and should have determined that they would be.
At the start of the hearing we rejected the mother's application to rely on fresh evidence. This comprised a letter from a teacher at the elder child's school which did not add materially to the mother's evidence in her statements.
Background
The father was born in and is a national of Pakistan. He is aged 38. He is resident in the USA having arrived there with his family when he was aged 12. It appears that the family entered on 6 month visas. They have remained living there since then. Since the father became aged 18 he has been unlawfully present in the USA. One consequence of this is that he would be denied readmission if he were to leave, even for a short period.
The initial opinion of the expert, who provided written evidence for these proceedings, was that: “it seems likely that (the father) is among those individuals in deferred action status (DACA — Deferred Action for Childhood Arrivals) which provides temporary relief from deportation/removal from the United States and permission to work, but no other benefits under US Immigration Law”. Subsequently, he stated that “DACA is not relevant because (the father) is not a DACA recipient”. This appears to be due to the father's age as at 15 th June 2012.
The mother is a British National. She is aged 34. She was born in England and lived here until she and the father married in 2011.
The parties initially met online. The mother travelled to see the father in the USA on a number of occasions before they married in Texas in August 2011. At that time the mother entered the USA under the 90 day Visa Waiver Programme. In November 2011 the mother returned to England before going back to the USA in January 2012. The mother's passport contains a stamp indicating that she was refused entry but she was, nevertheless, able to enter the USA. She says that this was again under the 90 day Visa Waiver Programme. The immigration expert considers this unlikely. I will deal further with his evidence below.
The mother and father lived with the father's parents in their home in Texas. Also living there for various periods were the father's younger sister, his three brothers and a sister-in-law. Both of the children were born in the USA and are, therefore, US citizens as well as British nationals.
Convention Proceedings
The mother travelled to the UK with the children on 15 th December 2016. The father's application under the 1980 Convention was issued on 27 th June 2017.
The mother opposed the summary return of the children initially relying on three grounds: habitual residence; consent/acquiescence; and Article 13(b). At the hearing before the judge the first ground was not pursued. The judge heard evidence from the mother, the father and a friend of the mother on the issue of consent/acquiescence. The judge rejected both this ground and that advanced under Article 13(b) and made the order referred to above.
The Evidence
The written evidence comprised statements from the mother, the father and the mother's friend and two reports from an expert on US Immigration Law.
In her substantive statement the mother made a number of allegations against the father and his family. She described her life as being “characterised by verbal and physical abuse and constant infidelity”. The children were alleged to have witnessed incidents of the former including when the father's mother “hurled abuse at” the mother. The children were “regularly subjected to verbal abuse” by one of the husband's brothers who would “shout at them for no reason” and had physically hurt both of the children. The “unstable and violent atmosphere” had impacted on the children. The father's infidelity was alleged to be with prostitutes. She also alleged that the father was addicted to pornography which he would watch daily.
The mother also said that she had agreed with the father to give the marriage another chance but only if he agreed to the family moving to London and he sought professional help. She said that, after some time, the father agreed.
Since the mother has been in England, the father and the children have had what is described as “video contact”. The mother alleged that the father and his mother have not acted appropriately during this contact. The father “will tell the children that I am a bad mother”. The children, especially the elder child, have “started to dread speaking to him”. The mother also alleged that the father has “constantly” told the older child that she will be returning soon without the mother which “upsets (the child) a great deal”. He shouts at her which also makes her cry. He has also verbally abused the mother and made threats against her.
The mother contended that it would “cause the children grave harm to be separated from me”. They would be “bereft”. The father and his family could not “look after the children for long periods of time and have never done so”
The father contested the mother's allegations, “in their entirety”; they had been “fabricated” by the mother. He gave a very different account of the marriage and of the mother's relationship with his family. The marriage had been a happy one and his family had done all they could to help the mother. He agreed that he and the wife had discussed relocating to Canada or England but that no decision had been made. He offered a number of undertakings including that he would not seek to separate the children from the mother prior to any hearing before the family court in Texas.
The oral evidence was confined to the issues of consent and acquiescence.
The immigration expert provided two reports. He did not give oral evidence and the effect of his reports was as follows.
The father's presence in the USA since he attained the age of 18 has been unlawful. This “could result in a bar to readmission to the US if he were to depart”.
The expert is clearly unsure how the mother was able to enter the USA in January 2012 when her passport indicates that she was refused entry. As a result he states that it is “difficult to definitively determine whether she has overstayed and, if so, for how long”. However, it is clear from his evidence that the mother has no right to re-enter the USA. Further, the expert considers it probable that the mother is subject to a 10 year re-entry bar from having previously overstayed by more than one year.
In the opinion of the expert, the mother would be “highly unlikely” to obtain a business or pleasure visitor visa. She...
To continue reading
Request your trial
-
C. v G
...and combatting of child abduction is a good to be pursued in the interests of children was recognised by Lord Justice Moylan in Re W [2018] EWCA Civ 664 where (at para. 46) he observed: “Child abduction is well-recognised as being harmful to children. As was noted in Re E, ‘the first objec......
- Re S (A Boy, Born on [A Date]) M v F and Others
-
G v G
...than in the country to which they have been removed ( Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 ; [2007] 1 AC 619 (“ Re D”) at [48] per Baroness Hale of Richmond). Delay in return can result in the new factual situation becoming a new status quo, embedded to the ex......
-
G v G
...892; [1985] 2 All ER 301, HL(E)W (Abduction: Domestic Violence), In re [2004] EWCA Civ 1366; [2005] 1 FLR 727, CAW (Children), In re [2018] EWCA Civ 664; [2019] Fam 125; [2018] 3 WLR 1819; [2018] 2 FLR 748, CAThe following additional cases were cited in argument before the Court of Appeal:A......