T B v J B (Abduction: Grave Risk of Harm)
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,LADY JUSTICE ARDEN,LORD JUSTICE LAWS |
| Judgment Date | 19 December 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1219-11 |
| Docket Number | Case No 2000/3506/B1 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2000 |
[2000] EWCA Civ J1219-11
Lord Justice Laws
Lady Justice Hale and
Lady Justice Arden
Case No 2000/3506/B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION, PRINCIPAL REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Kirk and Richard Harrison (instructed by Messrs Charles Russell) for the Appellant
Mr Michael Nicholls and Ms Debbie Taylor (instructed by Kingsley Napley) for the Respondent
This is an appeal against the order of Singer J who on 27 October 2000 dismissed the plaintiff father's application, under the Child Abduction and Custody Act 1985 and the Hague Convention on the Civil Aspects of International Child Abduction, for the return of his three children to New Zealand. The Judge based his decision on Article 13(b) of the Convention:
'… the requested state is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that …
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.'
The father appeals on the ground that the Judge was wrong to hold that ground made out, or if it was, that it was wrong so to exercise the discretion thus conferred upon him as not to order the children's return. The mother wishes to uphold the decision, not only on the grounds given by the Judge, but also on wider grounds related to the objections and risks to the oldest child, K.
History
The facts of this case are unusual, in that the source of the alleged risk to the children is not their father, the mother's first husband, but the mother's second husband, the father of her youngest child, who is not the subject of any proceedings. It is important to remember, however, that the Convention is concerned with the return of the children to the country of their habitual residence, and not with their return to any particular person. The relief sought is an order for their return to New Zealand. The risk of harm must stem from that return, but not necessarily from the person who seeks it. The fact that he is not to blame for the situation facing them is not strictly relevant to Article 13(b), although it may be relevant to the exercise of the court's resulting discretion.
The father is a New Zealander, now a senior sergeant in the Police Force. The mother is British but emigrated with her parents to New Zealand in 1964 at the age of 6. The parties married in 1979. Their oldest child K was born on 1 June 1986, and is now aged 14 and a half. Their second child A was born on 21 Dec 1987, and is now nearly 13. Their youngest child KI was born on 13 May 1990, and is now aged 10 and a half. All were born and brought up in New Zealand.
The parents separated in July 1990, soon after KI's birth. The father has not seen KI since and at one stage wished to be reassured as to his paternity, although he has paid child support for all three children since the New Zealand equivalent of our Child Support Act was implemented. The mother left the former matrimonial in W (on the North Island) and afterwards lived with M H, another police officer, at various places, all a considerable distance away from the father's home and from 1991 to 1993 on the South Island.
The parents made a separation agreement dated 30 August 1991. They agreed to joint custody, with the mother as principal caregiver and the father to have day to day care at times to be agreed between them during the school vacations. They acknowledged that both remained guardians. The mother was not to 'take the children overseas for other than holiday purposes during school vacations except with leave of the husband' (clause 2.02).
K and A spent the second half of their 1991 Christmas holidays with their father. This was the last time K saw him: she says that something happened then which made her refuse to go on any more visits. In December 1992 the father applied for a warrant to enforce their agreement. This was referred to mediation, culminating in agreed orders for defined access between the father and both K and A, made on 17 November 1993. In fact only A has continued to see his father regularly, for about four weeks each year, and obviously has a good relationship with him. K for whatever reason has unhappy memories of him and KI has no memories at all.
The mother and Mr H married in June 1994. Their son B was born 26 October 1994, and is now aged six. They moved to their last matrimonial home, at O on the western side of North Island in 1995.
In about February 1997, the mother and Mr H separated. The mother's case is that Mr H is an abusive and unpredictable person, who maltreated both her and the children, and whose behaviour was in many ways bizarre. He went into a psychiatric unit for a short time when they separated. She and the children received professional counselling for some time afterwards. She remained very frightened of him and what he might do. He continued to cause them trouble after the separation, last visiting the home in February 2000 and having an altercation with the estate agent who was trying to sell the house.
The mother had finished a course of training as a teacher in December 1999 and was offered work here. She decided to take it. She says that her primary motivation was to get away from Mr H although she also had financial worries and believed that her creditors would not pursue her here. She wanted a 'breathing space'. Her case throughout has been that she was too frightened of what Mr H might do to bring proceedings against him. Now that he has been brought into this case by the father, she is too frightened to go back at all.
She did not ask either the father or Mr H to agree to her bringing the children here or make an application to the court for permission to do so. She kept her plans a secret. The father's case is that he would have agreed to a trip here to work for few months provided that there were safeguards to ensure their return. Even now he is prepared to wait for their return until the end of January, in time for the new school year.
They came to this country at the end of March 2000. The father was very upset when he found out and launched these proceedings by originating summons on 30 May 2000. Affidavits were filed, by the father's solicitor, the father, Mr H, and two by the mother.
On 30 June 2000, Sumner J directed that a Court Welfare Officer interview the three children, and their half brother B, 'to determine whether they object to being returned to New Zealand and whether they have reached an age and degree of maturity at which it is appropriate that the court should take account of their views.' Mr R interviewed them on 27 July 2000. His report, dated 31 July 2000, bears witness to 'just how profoundly upset they were.' K objects to returning and is, in the Court Welfare Officer's view 'of an age and maturity at which it is appropriate to seriously take into account her views'. He would say the same of A, but A was confused about having to choose between his parents. KI was clear that he did not want to go back but his maturity was more difficult to assess.
On 14 July 2000, Sumner J gave leave for the mother to obtain expert evidence of her present mental health and the impact upon her of a return to New Zealand. She was seen by a consultant psychiatrist, Dr Y, on 1 August 2000. In his report dated 3 August 2000, he found the mother to have symptoms of mild to moderate depression, with features of post traumatic stress disorder, which seemed to have recurred with the instigation of the proceedings. If returned, the depressive illness would become more profound. The risk of suicide would be heightened but the children would not be at risk from their mother (which I take to be a reference to the risk of extended suicide).
The Judge's decision
Three objections to return were raised on behalf of the mother. First, she accepted that the father had rights of custody by virtue of his guardianship and her agreement not to take them overseas without his consent. But she argued that he was not in fact exercising those rights in relation to K and KI, not having seen K since 1991 and KI since 1990. Thus, under Article 13 the requested State was not bound to order their return because
'(a) the person, institution or other body having the care of the child was not actually exercising the custody rights at the time of removal … '
However, the Judge held that it was clear from the correspondence that the mother kept the move secret from the father deliberately lest he took steps to delay or frustrate it. There was every reason to suppose that had he known would have exercised his right to prevent the removal. Hence, in accordance with the reasoning in the New Zealand case of Ryan v Phelps [1999] NZFLR 865, she cannot pray in aid a failure to exercise rights which she has by her very action in removing the children prevented him from exercising. There is no appeal on her behalf against that holding.
Secondly, the mother relied upon K and KI's objections to return. Article 13 also provides, independently of (a) and (b), that:
'The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views.'
Mr R evidence in support of the conclusions already mentioned is quite striking. K had been happy here until she learned of the...
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