VR v YD
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 29 September 2021 |
| Neutral Citation | [2021] EWHC 2642 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD20P00168 |
[2021] EWHC 2642 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts DBE
Case No: FD20P00168
and
and
Richard Harrison QC and Mehvish Chaudhry (instructed by Osbornes Solicitors) for the Applicant
Catherine Wood QC and Emma Spruce (instructed by Brethertons Solicitors) for the First Respondent
Christopher Hames QC and Charlotte Baker (instructed by Goodman Ray Solicitors) for the Second Respondent
Alan Payne QC (instructed by the Government Legal Department) for the Intervenor
Hearing date: 30 June 2021
APPROVED JUDGMENT
The issue before the court can be described shortly. It relates to an application for disclosure in the context of proceedings brought under the 1980 Hague Convention. The subject matter of the application is material generated in the context of an application for asylum made by the child who is at the centre of the mainframe Convention application in which his father seeks his return to Ukraine. Counsel who have appeared today to make submissions on behalf of their respective clients agree that the disclosure application requires a wider consideration of the impact upon, and status of, those proceedings in circumstances where the Secretary of State for the Home Department (“SSHD”) has recently granted asylum to the child. As a consequence of the principle of refoulement, the child cannot now be required to leave this country. In circumstances where there are orders made by this court requiring his return to Ukraine, subsequently upheld by the Court of Appeal prior to the grant of asylum, does this court have locus or jurisdiction to take any further steps in the 1980 Convention proceedings or do they now come to an end by operation of law?
That is the wider context in which Mr Harrison QC and Ms Chaudhry make their application for disclosure on behalf of the father. I was asked to consider these matters in the context of the judgment recently delivered by the Supreme Court in G v G [2021] UKSC 9, [2021] 2 WLR 705. In that case their Lordships considered the interplay between the 1980 Hague Convention on the one hand and asylum law on the other, including the Convention and Protocol relating to the Status of Refugees adopted on 25 July 1951 (Cmd 9171) and 16 December 1966 (Cmd 3906) (“the 1951 Geneva Convention”). It is accepted by all parties to this litigation that the grant of asylum to this child now prevents his expulsion or return to a country where, as the SSHD has accepted, he is likely to face persecution as a result of his particular circumstances.
The father had, and has, no locus in the asylum proceedings. He does not know on what basis the SSHD reached her decision nor the evidence which was submitted to her in support of the child's application. It is the provision of that information which he seeks in the context of his current application within the Hague Convention proceedings. Immediately prior to the grant of asylum to the child (‘M’), the focus of the 1980 Convention proceedings was the applicant father's applications for implementation and enforcement by committal of the previous return orders. When this hearing was listed, there had been no decision by the SSHD and thus no specific consideration of how the court should deal with the issues which flow from that very recent decision in relation to the current status of the Hague Convention proceedings.
A brief background: the course of the litigation to date
The child with whom the court is concerned is M who is now 12 years old. The applicant is his father who is now 67 years old. The respondent is his mother. She is 45 years old. M's parents are both academics from professional backgrounds. They had a short relationship whilst the father was married to another woman. M was born as a result of that relationship. All three are Ukrainian citizens and, until the institution of the Convention proceedings, each was living in Ukraine which is where M was habitually resident. M's mother subsequently married a British citizen with whom she had been in relationship for two years.
Until 2016, it appears that M had been having some contact with his father in Ukraine. Whilst the frequency and consistency of that contact was disputed by the parties in the course of the Convention proceedings, it is accepted that M has not seen his father since mid-2016 and he has been clear in his wish to avoid any resumption of contact at least in the context of the foreseeable future. He is currently living with his mother and step-father in a home which they share in this jurisdiction.
In January 2018, some six months after her marriage, the respondent made an application in the Ukrainian court seeking permission to remove M abroad for a period of seven years. She had by that stage secured a spousal visa to come to England to join her husband who was working in this jurisdiction as a transport infrastructure consultant. She was obliged to make that application because the applicant held, and holds, parental responsibility for M under Ukrainian law. She had previously applied to terminate those rights although no order was made in the context of that application and the applicant continued to provide financially for M despite the difficulties over the contact arrangements.
The parties were able to reach an interim agreement in the context of those Ukrainian proceedings whereby M and his mother would be permitted to travel to England for a period of six months from January to July 2018. That agreement was incorporated into a Ukrainian court order on 25 January 2018 and shortly thereafter the respondent travelled with their son to join her husband in this jurisdiction. M was enrolled at a local English school.
The respondent did not return with M to Ukraine at the end of the six month period. The applicant commenced proceedings in that jurisdiction seeking a residence order in respect of M. He referred the wrongful retention of M to the Central Authority and made a formal complaint to the Ukrainian police. His application under the 1980 Hague Convention was heard by Theis J at a contested hearing in May 2019.
Theis J rejected the respondent's case that the applicant had consented to M's permanent removal from the Ukraine. She found that there was a specific and time-limited agreement between them on which the applicant was entitled to rely. Ordering a return of the child to Ukraine, she recorded in her judgment that “This case cannot be viewed in any other way than a blatant retention of [M] here by the mother after an agreed time limited stay here”. The respondent's Article 13(b) defence was similarly rejected. That defence was founded on a submission that M was at grave risk of harm in circumstances where he would be uprooted from a settled home and school environment in the UK. That risk, on the respondent's case, was likely to be compounded by the possibility of a deterioration in a health condition from which he suffered. The court rejected both limbs of the Article 13(b) defence on the basis that the evidence relied on by the respondent had not established either a credible risk to M or a risk which passed the high threshold required under Article 13(b). The final limb of the respondent's defence to an order for summary return was based upon M's own objections. Whilst accepting that the child was then articulating an objection to returning to Ukraine, Theis J declined to exercise her discretion on this basis.
As a result, the respondent returned with M to Ukraine. The collective expectation at the time was that she would apply immediately in the domestic courts in that jurisdiction for permission permanently to remove M to live with her and her husband in the home they had established in England. That did not happen. After what appears to have been a somewhat peripatetic existence, she left Ukraine at the beginning of October 2019 and travelled via Lithuania back to England.
Predictably, that wrongful removal (for such it undoubtedly was) prompted the applicant's second Hague Convention application which was issued on 23 March 2020. It is that application which provides the platform for the disclosure application now made by the applicant following substantive determination by Robert Peel QC (as he then was) sitting as a Deputy High Court Judge on 25 and 26 June 2020. On that occasion, the judge described the respondent's actions in these terms:
“This was a blatant act by a person who did not truly accept the decision of the English court in May 2019 and elected to take the law into her own hands by fleeing clandestinely to the UK” (para 25).
The judge rejected each of the defences which the respondent re-ran on the basis that they amounted to little more than an attempt to relitigate the very same issues which Theis J had rejected in the first set of proceedings. In para 44 of his judgment, the judge said this of the defences raised by the respondent:
“They were all advanced, and failed, just over a year ago. Nothing in the way of compelling new evidence, whether by reference to events since May 2019 or otherwise, has been presented to me. And there is the opportunity for therapeutic engagement in the Ukraine if M chooses to access it on [the child's] behalf.”
Concluding his judgment with a further order for M's summary return to Ukraine, the judge made the following findings (para 53):-
“(iii) I cannot ignore the plain fact that M has taken the law into her own hands once again in a determined effort to achieve that which she wants. 4 months after a return order made in this country, she abducted [M] from the Ukraine. She did so, I am satisfied, knowing and...
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