W v W

JurisdictionEngland & Wales
JudgeTHE HONOURABLE MRS JUSTICE BLACK
Judgment Date04 March 2010
Neutral Citation[2010] EWHC 332 (Fam)
Docket NumberCase No: FD09PO2690
CourtFamily Division
Date04 March 2010
Between
W (Applicant)
and
W (Respondent)

Before: The Honourable Mrs Justice Black

Case No: FD09PO2690

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Mr Edward Devereux (instructed by Bindmans and Company) for the Applicant

Ms Annmarie Harris (instructed by Slater Bradley and Company) for the Respondent

Hearing dates: 12th February 2010

THE HONOURABLE MRS JUSTICE BLACK

This judgment is being handed down in private on 4th March 2010. It consists of 14 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Black J:

1

This is an application under the Hague Convention for the return of 3 children to Southern Ireland.

2

The children are D (8 years old), G (6 years old) and C (3 years old).

3

The plaintiff is the children's father (F), who is Irish.

4

The application is opposed by the children's mother (M), who was born in England. Her opposition is put on a number of bases: consent/acquiescence, Article 13(b), and the older two children's objections.

5

The parties cohabited for some years, then married in October 2007 after the children had been born.

6

Until the middle of last year, the family was based in Southern Ireland. There had been earlier separations between the parents but the separation that is of relevance to these proceedings took place on 19 June 2009. On that day, M left Ireland with the children and came to England without asking F for his consent or even telling him of her intentions; he simply came home from work to find the family gone. There is no dispute that the children were habitually resident in Southern Ireland at that point and that the removal was wrongful.

7

M says that her departure was provoked by F's behaviour towards her over a long period of time. Her case is that he was violent and abusive towards her, at times in front of the children, and that he drank excessively and was controlling and possessive.

8

F denies these allegations in their entirety. He says in his statement that “apart from the odd argument our relationship was normal” but that included, on his case, M having a drink problem and behaving badly in a number of ways. On his case, he was the responsible one in the relationship. He says that M was not entirely dependable as a mother, for instance staying in bed after a night out drinking and failing to take the children to school. He says she was violent to him. He asserts that he gave her his wages and she was supposed to deal with the household bills but she failed to do so and rent arrears accrued. He says he thinks she left Ireland to escape her debts rather than for any reason to do with him.

9

M says that after her departure, F contacted her and made threats to kill her; he denies that. She lived for a period with her family and was then re-housed by the local authority.

10

F arrived in this country 10 days after M left Ireland, once he had obtained a passport enabling him to travel. He stayed with M's mother and her partner from then until September 2009. He got a job with M's sister's partner, he says so that he could provide money to M for the children because she had no money. His hope was that the family could be saved and M encouraged that hope by telling him that she needed time to think.

11

M says that there continued to be problems with F's behaviour during this period. He still drank heavily and did not attend work on time. She says that he lost his job because of this but F says he was not drinking and the job simply came to an end at the end of a particular contract. M says there continued to be frequent arguments; F says there were not. The relationship had not, at this point, been resumed.

12

In September 2009, M agreed to give the relationship another chance and agreed that F should move in with her and the children. She says that she made it clear to F that this was a trial and not a permanent reconciliation. I think, judging from paragraph 19 of F's statement, that he accepts this.

13

M describes further problems after the resumption of cohabitation, in particular an incident when she attended a funeral and F looked after the children. She says that, having found out that F had been drinking, she returned immediately from the funeral but F refused to let her in so she had to spend the night with her sister. When she returned next day, she told F that she was taking the children and wanted him to leave. He tried to prevent her leaving by force but then left himself when she pretended to telephone the police.

14

F denies he had been drinking on that occasion. He says they had arranged that M would pick up the older children from school following the funeral but she did not confirm that she was going to do that and he had to take the youngest, who was ill, out with him and pick up the older two himself. Eventually, he got a text message from M to say she was staying with her sister. He says that he found out later that she had gone to a nightclub and stayed out all night. He says she did not return home until 5 p.m. the next day. On his case, it was M who got very aggressive over taking the children to her sister's. He says he thought this was an unwise plan and he stood in the gate. M was violent, ramming the buggy into his ankle and kicking him. He did not realise that it was a pretence when she rang the police and, not wanting to waste police time or to have a scene develop, he left and went to stay with an uncle.

15

This incident seems to have been the end of the attempted reconciliation. M told F she wanted to stay in England and F accepted that the relationship was over. He returned to Ireland on or after 16 November 2009.

16

F says he had never accepted that the children's home would be permanently in London. He says he always felt that what M had done in removing the children from Ireland was wrong but he did not know his Hague Convention rights until after the reconciliation attempt ended. It can be seen from the documentation that he was in contact with the Central Authority, with a view to making this application, by 26 November 2009 (the date on which he signed a Central Authority authorisation form).

17

Although her defence refers to both consent and acquiescence, M's argument is, in fact, that F acquiesced to the children being in this country.

18

The parties are not in dispute as to the law to be applied in relation to this issue, or indeed any other, with one possible exception to do with the age at which a child may be sufficiently old and mature for their views to be taken into account.

19

In re H (Minors)(Abduction: Acquiescence) [1998] AC 72 sets out the proper approach with regard to acquiescence. Whether someone has acquiesced depends on his actual state of mind. The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. There is one exception to the normal rule and that is “[w]here the words and actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return”, in which case, justice requires the wronged parent to be held to have acquiesced. M's case is not founded upon this exceptional type of acquiescence but upon the normal subjective form of acquiescence.

20

In seeking to discharge the burden of proof that is upon her in this respect, M relies on a number of matters, commencing from the time F arrived in this country. The backdrop is that she says that she told F very clearly, on his arrival, that she wanted to stay in London indefinitely and start a new life here and reiterated that repeatedly. Her case is that F agreed to her and the children staying here but wanted to reconcile with her and decided to stay in London himself. F says he was hoping all the time that they would sort things out and go back to Ireland and did not accept that the relationship was over until M told him after the incident on the day following the funeral that she had no intention of returning to Ireland. He never consented or acquiesced in the children staying here because at no point up until then did he “think it was a permanent possibility”.

21

M relies on the fact that F, who made several trips back to Ireland between June and mid November, brought a number of documents back for her that she needed to get the children into the Catholic school, to register them with the doctor and to get housing. He also brought back clothing for M and the children, as well as C's passport and M's passport. M says that she was fully open with F about arranging new schools for the children and he did not say that he was not happy with this or tell her that he wanted them to make plans to return to Ireland. It is M's case that F facilitated the living arrangements in England in this way because he was agreeing to her and the children staying here on a permanent basis.

22

F does not agree that he accepted the move. He says that he was motivated by considerations of the children's comfort in bringing clothes for them and collecting medical...

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