RS v KS (Abduction: Wrongful Retention)

JurisdictionEngland & Wales
JudgeMrS JUSTICE MACUR
Judgment Date26 June 2009
Neutral Citation[2009] EWHC 1494 (Fam)
Docket NumberCase No: FD08P00203
CourtFamily Division
Date26 June 2009

[2009] EWHC 1494 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice Macur

Case No: FD08P00203

Between
RS
Plaintiff
and
KS
1st Defendant
and
LS (By his Guardian Marion Werner-Jones)
2nd Defendant

Mr T Gupta (instructed by Messrs. Mishcon de Reya) for the Plaintiff

Mr E Devereux (instructed by Messrs. Dawson Cornwell) for the 1 St Defendant

Miss I Ramsahoye (instructed by Messrs. Reynolds Porter Chamberlain) for the 2 nd Defendant

Hearing dates: 11 th– 12 th June 2009

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MrS JUSTICE MACUR

Mrs Justice Macur DBE:

1

This is an application by Mr RS (“the father”) pursuant to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention) and Council Regulation (EC) No 2201/2003 (“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, (d.o.b. 5 th April 2005) to Lithuania. Miss 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 Articles 3 and 5 of the Convention); and that LS was habitually resident in Lithuania prior to the retention (see Article 4 of the Convention). She relies upon Article 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 Article 11(4) of the Regulation.)

(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 proceedings before them in so far as they relate to LS and invite the courts of the United Kingdom to assume jurisdiction.

(iv) I direct that a copy of the court order of non return and of the relevant documents including a transcript of my judgement shall be sent to the Lithuanian court with jurisdiction in relation to LS within one month of today.

The factual background

3

The mother and father are Lithuanian nationals. They met in or around 2003 and in the summer of that year moved together to Sweden, where the father worked as a builder and the monther worked as a cleaner. When the mother was pregnant with LS, the parties agreed that she should return to Lithuania and she did so in or around September 2004. The father apparently visited Lithuania for Christmas in 2004 and in February 2005 when he proposed to the mother. They married on 10 th March 2005 and LS was born on 5 th April 2005 in Lietuva, Prienai. The father then stayed in Lithuania until sometime in around May 2005, when he returned to Sweden.

4

The mother visited and stayed with the father in Sweden in July/August 2005, for about two months. The father visited the mother and LS in Lithuania at Christmas time 2005 and thereafter travelled between Sweden and Lithuania approximately every two months, staying for periods of one to two weeks.

5

In or about December 2006 the father agreed that LS could accompany his mother to this jurisdiction for the purposes of a holiday from 10 th January 2007 until 1 st February 2007 and provided a written consent dated 8 th January 2007 to this effect. The relevant border control authorities were informed as required. The mother and LS travelled to this country on either the 10 th or 12 th January 2007. Unbeknownst to the father, the mother by this time had consulted lawyers about the deteriorating state of their marriage.

6

The mother makes allegations of domestic violence during the marriage against the father. He has made no admission of the same, but the Kaunas Regional Court, sitting in its appellate capacity have upheld them by judgment dated 23 December 2008. They have, I find below, no relevance to my determination of the case and are merely recorded here as part of the background circumstances. Mr Devereux, on behalf of the mother, realistically does not solely rely upon them to establish an exception to the obligation of summary return to the place of habitual residence prior to removal pursuant to Article 13(b) of the Convention.

7

The history of the 'divorce proceedings' has formed the basis for many repeated, un-opposed applications for adjournments in this jurisdiction and are therefore indicated in brief below.

8

By a “statement of claim” made in the Regional Court in the District of Prienai dated 10 th January 2007 and issued by the court on 11 th January 2007 the mother sought, inter alia, the dissolution of marriage, child maintenance and residence of LS.

9

On 1 st August 2007, the father made a cross application to dissolve the marriage.

10

There were directions hearings on 25th October 2007, 13 th or 30 th November 2007, when the two proceedings of the mother and father were merged, and on 20 th December 2007. The final hearing was heard on 29 th February 2008 and judgment reserved. On 14 th March 2008, Judge Urboniene gave judgment for the mother, dissolving the parties' marriage and granting her residence of LS.

11

The father appealed. Directions in the appeal were given on 9 th June and 2 nd September 2008. The appeal was heard on 20 th October 2008 and judgment provided on 23 rd December 2008 whereby the appeal was “granted partially” and the decision of 14 th March 2008 was annulled and returned for retrial. There has been an abortive hearing on 12 th May 2009 when neither party attended before the Court. According to the mother's evidence, she was informed by her solicitor that the father had indicated that he was not going to attend and that therefore it was pointless for her to do so and the next hearing in Lithuania concerning divorce and residence is due in September 2009. I accept her evidence on this issue.

12

The mother has travelled to Lithuania on occasions in order to attend before the Court.

13

The history of court proceedings concerning LS's return to Lithuania commences with letter dated 18 th April 2007, written by the father to the Prienai District Municipality Administration Children Rights Protection Division requesting that they “help me to learn where my son LS currently lives, to help me to take back him, to grant the possibility to take care of him and to participate in son's education”. In a letter dated 26 th April 2007 in response he was told that –

“…the division has no power to repatriate children or to identify their living place in a foreign country. Basing on the fact that your wife was granted the temporary permission to go to a foreign country with her son and if it is determined that she breaches the indicated time of stay, you are entitled to address law-enforcing bodies in any EU country regarding child's kidnapping.”

On the same day, the father's Lithuanian solicitors informed the Prienai District Police Commissariat that the M had wrongfully retained LS and requested a search be undertaken for LS.

14

On 4 th May 2007, the F applied without notice to the Prienai Parish Court requesting the return of LS to Lithuania and a residence order. The issue of his 'petition' was refused on 28 th May 2007. The father successfully appealed this order and by order on 4 th July, 2007 the application was restored.

'Convention Proceedings'

15

The father applied to the Lithuanian Central Authority on or around 14 th January 2008 which communicated the application to the English Central Authority by letter dated 21 st January 2008. Solicitors were instructed by letter dated 28 th January 2008. The father's representatives first attended on a without notice basis before Bennett J on 31 st January 2008 and issued their Originating Summons sometime on 1 st February 2008. The mother was served on 2 nd February 2008

16

The matter was re-listed on 11 th February 2008; 17th March 2008; 7 th April 2008; 22 nd April 2008; 2 nd May 2008; 13 th May 2008; 21 st May 2008; 10 th June 2008; 25 th July 2008; 18 th September 2008; and 3 rd November 2008.

17

Initially public funding “issues” for both the mother and the father delayed progress. The mother was then tardy in serving a statement of defence. A direction that “there shall be no requirement for the parties to give oral evidence” on 2 May 2008 was apparently superseded on the basis of paper application on 12 May 2008 that “the Defendant shall attend the hearing provided for…in person”. The father was then slow to respond to the mother's “statement of defence” and was required to do so by Charles J “on a date prior to the directions hearing which had been listed on 24 June 2008, and yet on 25 July 2008, “upon the basis that the decision of the appellate court Lithuania is still pending, but the final hearing in that court is expected on 2 September 2008” Holman J ordered the mother to file a “Defence Statement” by 11 August 2008, which time was further extended by Parker J on 18 September 2008, when the decision of the Lithuanian court was then said to be expected on 2 October 2008.

18

In September the parties sought and were granted permission to seek an expert's report on the issues of 'rights of custody'. On 3 November 2008 King J accepted the undertaking of the mother to comply with the Lithuanian court's directions as to the provision of documents and the parties were to make contact with Thorpe LJ's Office to seek assistance to “minimize” delay and assist in the determination of the dispute between the parties. On 15 January 2009, Wood J adjourned the hearing to 6 April in the absence of the father due to ill health despite...

To continue reading

Request your trial
13 cases
  • C. v G
    • Ireland
    • Court of Appeal (Ireland)
    • 5 August 2020
    ... ... Record Number: 2020/127 THE COURT OF APPEAL Wrongful removal – Return – Habitual residence – Appellant seeking an order directing the return of a ... the meaning of Article 3 of the Convention on the Civil Aspects of International Child Abduction 1980 and he sought, inter alia, an order pursuant to Article 12 of that Convention directing the ... Article 3: The removal or the retention of a child is to be considered wrongful where: (a) it is in ... ...
  • T.l.m.p. V. A.p.
    • United Kingdom
    • Court of Session
    • 9 July 2012
    ... ... OF LORD STEWART in the Petition TLMP Petitioner for orders under the Child Abduction and Custody Act 1985 and Answers for AWP Respondent ... she would do." In these proceedings counsel concur in submitting that if there were wrongful retention on 24 May 2011 the peremptory obligation to order return is engaged subject to certain ... ...
  • G v G
    • United Kingdom
    • Supreme Court
    • 1 January 2021
    ...ER 626, CARR (Syria) v Secretary of State for the Home Department [2010] UKUT 422 (IAC), UTRS v KS (Abduction: Wrongful Retention) [2009] EWHC 1494 (Fam); [2009] 2 FLR 1231Sanchez v RGL (2014) 761 F 3d 495Soering v United Kingdom (Application No 14038/88) (1989) 11 EHRR 439, ECtHRVigreux v ......
  • C (Children)
    • United Kingdom
    • Supreme Court
    • 14 February 2018
    ...[2015] 2 WLR 1583; [2015] 3 All ER 749; [2015] 2 FLR 503, SC(Sc)RCL v APBL [2012] NZHC 1292RS v KS (Abduction: Wrongful Retention) [2009] EWHC 1494 (Fam); [2009] 2 FLR 1231S (Minors) (Abduction: Wrongful Retention), In re [1994] Fam 70; [1994] 2 WLR 228; [1994] 1 All ER 237; [1994] 1 FLR 82......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT