S (Father) v D (Mother)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 15 January 2019 |
| Neutral Citation | [2019] EWHC 56 (Fam) |
| Docket Number | Case No: FD18P00719 |
| Court | Family Division |
| Date | 15 January 2019 |
[2019] EWHC 56 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: FD18P00719
Poonam Bhari (instructed by Birmingham Legal Limited) for the Applicant (father)
Naomi Scarano (instructed by Charles Strachan Solicitors) for the Respondent (mother)
Hearing dates: 14 December 2018 and 15 January 2019
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.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This case concerns one child, A, a boy aged 4 years 3 months. He is the only child born to the relationship of the Applicant (who I shall refer to as “the father”) and the Respondent (“the mother”). The mother and father are married; each parent has children from previous marriages and/or relationships. They are Hungarian nationals, and last lived together in March 2018 in the Federal Republic of Germany.
The application before the court has been brought by the father pursuant to the provisions of Child Abduction and Custody Act 1985 (incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (“The Hague Convention”)), and under Article 11 of Council Regulation (EC) 2201/2003. The application is dated 24 October 2018; he seeks the return of A to Hungary.
For the purposes of the proceedings, I have read the statements of the parties and various supporting documents, and have received the able submissions of counsel for both parties. I am bound to observe that the general preparation of the Applicant's case was not the finest example of its type. The father failed to comply strictly with the direction (Order 6.11.18) to provide a list of the protective undertakings he was prepared to offer, and his generalised comments (cited below at [33]) fell rather short of the onus on him to “establish that adequate arrangements have been made to secure the protection of the child after his return” ( Art.11.4 BIIR). Furthermore, his statements contained internally contradictory information, reflective, I believe, of a lack of care in their preparation. I make these points as the deficits in the preparation of his case – uncharacteristic of the generally high quality of case preparation which the Courts are accustomed to seeing from solicitors on the ICACU accredited panel – have rendered my task, in this essentially summary process where heavy reliance is placed on the filed documents, all the more difficult.
There is no dispute in this case that the A's removal from Germany (and if not removal certainly his retention from Germany) was wrongful. In her statement of evidence, and in the preparatory documents for this hearing, the mother tentatively suggested that the father had consented to or acquiesced in her removal or retention of A in this jurisdiction, but she does not pursue either argument at the hearing.
The mother nonetheless seeks to establish that there is a grave risk that the return of A to Germany (where they were last habitually resident) or Hungary (where the father now lives) would expose him to physical or psychological harm. In evaluating whether that Article 13 exception is established, the case raises some interesting evidential and legal difficulties.
Background facts
The father is 53 years old, the mother is now just 40. Both have had previous partners. The father has three adult children who live independently, but with whom he says he maintains a good relationship; the mother has two teenage children who live with their father in Hungary. The mother last saw her older children in April 2018, but I am told by her counsel that the mother speaks with them every day.
The parents' relationship commenced in or about 2009/2010, and they apparently lived together from about that time. A was born in 2014; he suffers from hypotonia (low muscle tone, often involving reduced muscle strength) and apparently has poor eye sight; he is otherwise a healthy little boy.
In early January 2017, when A was 2 1/2 years old, the parties married. At or about the time of their marriage they moved to Germany 1. Until that point both parents had lived all their lives in Hungary. No steps have been taken, so far as I am aware, to dissolve the marriage.
During the marriage, the father was variously a courier or truck driver; the mother was studying. A attended nursery.
The parties give rather different accounts about their relationship. The mother describes it as emotionally and physically abusive. The father denies this, pointing out that the couple were together for some eight years before the mother agreed to marry him – inconsistent, he says, with a chronic history of abuse. That said, he accepts in a statement he gave to the police after the abduction (on 3 April 2018) that “they (sic.) were conflicts, but such degree the problem no I thought (sic.)”.
Shortly before the hearing the mother filed and served evidence from her GP in Germany in the form of an undated letter. Although there was a translation of the letter this was not certificated, so I caused the mother's court interpreter to provide a sworn translation from the witness box at the hearing. It reads as follows (the words in [square brackets] are those used by the interpreter in court):
“In February (2018) this patient visited me in desperation. She felt intimidated by [in fear of] her husband who regularly abused [assaulted] her both verbally and physically, threatening her and her child by saying that if they tell anyone or see a doctor or get outside help, then he will pull [tear] them apart and wherever they go he will find them and ruin their lives.
After each abuse where there were visible signs on the body my patient stayed in her apartment restricting social relationships until her body had recovered [was completely healed]. This is why recorded diagnosis did not happen and on the other hand I patient was so badly frightened that she did not dare to undertake the procedure involved.
Several times we talked [we had many conversations] about looking for a way out of this situation, taking into account the possibilities and their consequences.”
The father asserts that he enjoys good health, and has produced a letter from his Hungarian GP to confirm this. The mother challenges this, asserting that the father suffers from a bipolar disorder or personality disorder; there is no clear supporting or corroborative evidence of this, though there is a record of the father self-reporting to
medical professionals in Manchester on 15 April 2018 (see [15] below) “Hx bipolar” which appears to offer some support for the mother's caseIn the same vein, the father asserts that the mother has been “treated for borderline personality disorder, and her behaviour is unpredictable”; he further states that the Hungarian court had previously ordered that her two older children live with their father because of the mother's “lifestyle”, based in part on psychological evidence filed in those proceedings (on which, I infer, her former husband had relied). He refers to the mother's “psychological imbalance”, adding
“In the court case, the Judge ordered a full psychological report into her mental health due to her unstable behaviour and the psychologist found [the mothers ] mood very changeable and erratic.”
I have not seen this evidence, or anything like it, and the mother has not specifically addressed it in her evidence; I can, accordingly, reach no conclusion about it. The father further asserts that the mother has historically made (and continues to make) a living as a stripper, and that this lifestyle contributed to her former husband's success in his bid to care for her older children.
In March 2018, the parties travelled from Germany to Hungary for a short holiday. After a few days, the father returned to Germany. Shortly thereafter the mother and A travelled to England. There is a dispute on the face of the documents about whether the father knew or consented to the mother travelling to England; it is not necessary for me to determine this, as it is not now the mother's case that the father consented to her bringing A to this jurisdiction permanently. The mother travelled to visit her sister and the sister's partner who live in Manchester. It is the father's case that the mother's sister is a professional stripper, and that the sister's partner abuses drugs. Indeed, it is the father's case (as I mentioned at [13] above) that the mother continues to make a living from working in strip clubs; she claims to work in a restaurant.
The father was aware that the mother had left Hungary by 3 April; on that day he sent a report to the police (referred to at [10] above). The text of the report/statement is rather garbled, but the gist is clear enough. He rightly suspected that the mother had travelled to England, and indeed he followed her here. He booked into a hotel in Manchester. He asked for and was allowed contact with A. The mother and father had discussions about their future; the mother reports that she told the father that she wished the relationship to end. It...
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