COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE KIRKWOOD)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GAGE
LORD JUSTICE WALL
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MR J ROSENBLATT (instructed by Messrs Zermansky & Partners) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Thorpe:
"The father is Lucas Klentzeris, who is aged 50 and is Greek. By profession he is a consultant obstetrician with a consultant post in Athens. The mother, Anita Vivien, is aged 48. She is English and by profession she is a nurse. The parents married in the United Kingdom in October 1985. There are three children of the union all born in the United Kingdom. The oldest is Danielle, who is now 20 and is outside the scope of these proceedings. These proceedings concern… "Demi", who was born on 9 December 1994. She is now 12 years and three months, nearly 12 years and four months old…Robert who was born on 23 July 1996. He is now 10 years and eight months old."
"a) a grave risk that any such return would expose each of the children to physical or psychological harm or otherwise place them in an intolerable situation, and b) any such proposed return by their father's application results in their now objecting to such a proposed return, the said children themselves having attained an age and a degree of maturity at which it is appropriate to take account of their views."
"His final words were that he would kill himself if he went back to Greece. Mrs Klentzeris told me that Robert has had a number of these panic attacks."
"In their different ways, the children have been emotionally damaged by their experiences in Greece. From their account they have witnessed domestic violence and have been physically and emotionally abused themselves. The level of distress that Robert exhibited during our meeting was palpable. When recalling painful events he had difficulty breathing and had a number of panic attacks. However, up until the very end of our meeting he wanted to continue. I have never before witnessed a child having a panic attack during a meeting.
"The children, it would seem, felt hopeless and powerless when they were in Greece as neither parent was able to shield them from the difficulties in their relationship."
"In my assessment a return to Greece is likely to be psychologically and emotionally damaging to these two delightful children, and their mother accompanying them would not serve to ameliorate this."
Understandably for someone whose focus is on proceedings in our domestic courts, she went on to say:
"Whilst their habitual place of residence is Greece it makes little sense to Demi and Robert for their future to be determined in that country, where they have lived for only five months of their lives."
"I make clear that in doing that I would have attached very full weight to the letter and spirit of the Convention, to its objectives and purposes."
In paragraph 27 to like effect:
"In exercising my discretion I have regard, in particular but not solely, to the letter, spirit and object of the Convention to which I attach very great importance."
Finally, paragraph 28 he says that in weighing the matters he comes to a fine balance, "because of the weight I attached to the Convention itself".
"I would have held in mind the father's proposals for the mother and the children to live independently of him except financially in Athens, pending the court being there seized of the case. I may very well have concluded that in all the circumstances and notwithstanding the objections of the children a return should be ordered nonetheless."
"A court cannot refuse to return a child on the basis of article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return",
the judge considered very carefully and extensively the proposals advanced by the father to make the family independent both in housing and financially upon return to Athens. He had guidance from Mrs Demery as to whether those safeguards offered by the father would be sufficient to safeguard the children, and he had well in mind her advice that the proposals would not diminish the likelihood of psychological harm to the children. His ultimate conclusion is to be found in paragraph 28, which is worth citing in full. The judge said:
"The state of my mind is that weighing these matters leads to a fairly fine balance, perhaps because of the weight I attach to the Convention itself, but then I am left with the advice that if I order the return of the children to Greece and they go there they are likely to be caused psychological harm, for which the foundation of emotional damage has already been laid. Professionally I feel an uncomfortable tension between my obligation to the Convention and my regard for the Greek judicial authorities on the one hand, and my concern for these children on the other. As a family judge I have great difficulty in taking a course with these children that I have been warned will be likely to cause them psychological harm. It is, in my experience, extremely unusual for a judge to receive so stark a warning. I cannot overlook it and I find that I cannot persuade myself that it is unreal or overstated. It is because of the likelihood of psychological harm in the particular and special circumstances of this case and for that reason alone that I exercise my discretion not to award the return of the children to Greece. In other words, it is that factor which brings the scales of the balance in my exercising discretion down against ordering a return."
Lord Justice Wall:
Lord Justice Gage:
Order: Appeal dismissed.