This judgment was handed down in private on 26th July 2007 It consists of 32 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.
Strand, London, WC2A 2LL
B e f o r e :
|- and -
(Also known as VRM)
Mr. Michael Nicholls Q.C. and Mr. Edward Devereux for the Mother
Hearing dates: 18th July to 20th July 2007
Crown Copyright ©
Mr. Justice Roderic Wood:
The Hague Convention:
i. it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
ii. at the time of removal or retention those rights were actually exercised, either jointly or alone ...
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child".
i. the person ... having the care of the person of the child ... had consented to or subsequently acquiesced in the removal or retention; or
ii. 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 "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 its views".
The Purpose of the Hague Convention:
'The recitals and Art 1 of the Convention set out its underlying purpose. Although they are not specifically incorporated into the law of the UK, they are plainly relevant to the construction of an international treaty. The object of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence. This is to be achieved by establishing a procedure to ensure the prompt return of the child to the State of his habitual residence.'
Defences - General Comment:
"In weighing the evidence of an abductor seeking to justify or explain conduct, the judge needs to subject the evidence to rigorous and perhaps sceptical scrutiny, particularly where, as here, there is a history of previous abduction and an outstanding application for permission to re-locate."
Article 12: Settlement:
a) Settlement requires consideration of the physical aspects, but also the emotional/psychological aspects.
b. The abducting party must establish the issue with appropriate evidence.
c. Even if settlement is established the court has a discretion to return the children, pursuant to Article 18.
See also Re C (Abduction: Settlement)  1 FLR 938 where a similar approach is adopted.
Article 13: Consent:
"'If it is clear, viewing a parents words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Article 13. It is not necessary that there is an express statement that "I consent".' "
Article 13: Acquiescence:
i) For the purposes of Art 13 of the Convention the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) (Abduction: Acquiescence)  1 FLR 819:"... the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question of whether the applicant acquiesced in fact."
ii) 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.
iii) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent that to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.
iv) There is only one exception. Where the words or 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, justice requires that the wronged parent be held to have acquiesced."
"In the present case, however, the extent of the father's knowledge of his rights is in my view crucial to the consideration of acquiescence and whether he formed the subjective intention to agree to the child remaining in the UK.
In earlier decisions of this court the lack of knowledge and misleading legal advice had been considered relevant factors to which the court should have regard". [There then followed relevant citations].
"In Re AZ (A minor) (Abduction: acquiescence) 1993 1 FLR 682 this court held that it is not necessary, in order for the defence under article 13 to succeed, to show that the applicant had specific knowledge of the Hague Convention. Knowledge of the facts and that the act of removal or retention is wrongful will normally usually be necessary. But to expect the applicant necessarily to have knowledge of the rights which can be enforced under the Convention is to set too high a standard. The degree of knowledge as a relevant factor will, of course, depend on the facts of each case."
Article 13: Harm:
"A very high threshold had been set to establish defences of a grave risk of physical or psychological harm or of the placement of the child in an intolerable situation: the court should require clear and compelling evidence of a grave risk of harm or other intolerability, to be measured as substantial, not trivial, and of a severity which was much more than was inherent in the inevitable disruption, uncertainty and anxiety which followed an unwelcome return to the country of habitual residence."
"There is therefore, an established line of authority that the court should require a clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity that is much more than is inherent with the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."
He also quoted with approval Ward LJ's comment on:
"… the high standard which, in my judgment, it is vital that our courts maintain in order to give full effect to the purpose of the Convention so as to carry out our international obligations. Stringent tests must be enforced not diluted."
"Article 13(b) was an exceptional remedy intended to deal with unusual issues of welfare of the child which took the case outside the normal provisions of the Convention. In testing the validity of an Art 13(b) defence, judges should ask themselves what were the intolerable features of the child's family life immediately prior to the wrongful abduction, and if the answer was scant or non-existent, then the defence was in difficulty."
"Intolerable" is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'. It is, as article 13 (b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels 2 Revised Regulation (Council Regulation (EC) number 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of article 13 (b) "if it is established that adequate arrangements have been made to secure the protection of the child after his or her return". Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm".
Article 13: Child's Objections:
a. Does child object?
b. Is he of sufficient age and maturity at which it might be appropriate to take account of the child's views?
c. Is it appropriate to take account of his views bearing in mind:
i. What is the child's perspective of what is in his interests in the short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate.
ii. To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded?
iii. To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?
iv. To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence of the abducting parent?
"(a) The scheme of the Hague Convention is that in normal circumstances it is considered to be in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed, and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. That discretion must be exercised in the context of the approach of the Convention - see Re A (Abduction: Custody Rights)  Fam 106, per Lord Donaldson of Lymington MR.
(b) Thus if the court should come to the conclusion that the child's views have been influenced by some other person, e.g. the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention."
Article 13(b) "Intolerability/Grave Risk"
Grave Risk/Mother's Personal Circumstances:
Grave Risk/Intolerability: The State:
i) The mother's case is in two parts: it is submitted first that, regardless of our obligations under the Convention, returning the children to Zimbabwe would have such a potential to breach their rights under the European Convention on Human Rights, "the ECHR", that no court should contemplate it.
ii) Secondly, it is submitted that (a) such is the state of Zimbabwe that to return the children there would not achieve the purpose and objectives of the Convention; and/or (b) on the facts of this case, the mother is able to rely on one or more of the "defences" within the Convention.
Grave Risk/Intolerability: Findings:
i) The children do object;
ii) At their ages (12 and 10) and upon Mrs Morris' assessment of them, their age and maturity (bearing in mind their age and circumstances) are sufficient in principle to permit me to consider their wishes and give them all due weight;
iii) Their wishes (whether they be designated objections or preferences) are inevitably coloured by the fact of having been in the care of the mother and her new husband, neither of whom are in favour of a return, and both of whom are more likely than not to have spoken of Zimbabwe in such a way as to give both children a comparatively negative view of the current circumstances operating in that country, even if the girls had good memories of it from the past (which they seem to hold);
iv) There is a strong theme of a wish to remain with the abducting parent in the account of both girls to Mrs Morris, and each of these girls will be in no doubt that their mother does not wish to return. It is more likely than not, in my view, that the mother will have made that clear to them prior to their discussions with Mrs Morris;
v) Whilst the children do not care for the father's new partner, and would not wish to be in her care, they have a good and loving relationship with their father, who has cared for them for extended periods before (including a lengthy period when their mother took no part in their lives); I have not ignored the few complaints they make of him (see D 4-6 paragraphs 2:11 to 2:15).
vi) Although the mother raises issues of maltreatment of the children by the father (and the children speak of maltreatment by his new partner) they are not of a sufficiently high order to be of sufficient weight to disqualify from a return;
vii) Neither child gives any sense of awareness (perhaps happily) of the precariousness of their position in this country in terms of their immigration status;
viii) Neither child gives any sense that they have considered medium to long term issues, including permanent separation from their paternal and maternal families (with the possible exception, should they remain here, of the father flying to visit them from time to time).
And in support of the obligation and power conferred on this Court under Articles 12 and 18 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction this court accepts the undertakings given to this court by the Father and the Mother set out in the First and Second Schedules hereto and being part of this order, such undertakings constituting binding and enforceable obligations.
And upon the parties undertakings being given without any admission of fact and without prejudice to any contentions that they may make when matters relating to M and T (hereafter referred to as "the children") are considered by the courts of Zimbabwe, such undertakings only to last for such time as is specified or until the first inter partes hearing in the Zimbabwean Court, whichever is the later, save for the undertakings numbered 7, 9, 10, 12 & 15.
PREAMBLE TO THE FIRST AND SECOND SCHEDULES
The undertakings set forth in the First and Second Schedules below have been accepted by the Court to achieve the objects of Article 12 of the Convention and for the limited purpose of returning the children to Zimbabwe and securing their welfare until such time as the courts of Zimbabwe shall exercise jurisdiction over them AND HAVE BEEN OFFERED freely and voluntarily by both M M (hereafter "the Father") and V M (hereafter "the Mother") having been advised of their binding and enforceable nature both in England and Wales and in the courts of Zimbabwe. The undertakings shall have effect for the period specified or until such time as the courts of Zimbabwe shall exercise jurisdiction over the children, whichever is the later, save for Undertakings numbered 7, 8, 9, 10, 12 & 15 which shall have permanent effect. Nothing in the undertakings shall be construed as usurping the jurisdiction of the courts of Zimbabwe or as constituting any admission or concession as to the position once the Zimbabwean courts are seised of this matter.
The Father undertakes for a period of 3 months, following the arrival of the children in Zimbabwe if accompanied by the mother;
And the Father further undertakes,
Undertakings Sought by the Father
The Defendant mother undertakes that;
To the Plaintiff and to the Defendant
TAKE NOTICE that if you disobey the terms of your undertakings and or the terms of this order you will be in contempt of court and you may be liable to imprisonment.