Strand, London, WC2A 2LL
B e f o r e :
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Ms Claire Renton (instructed by Just Family Law) for the Respondent
Hearing dates: 25th February 2014
Crown Copyright ©
Mrs Justice Theis DBE :
(1) Any court which is determining any question with respect to the upbringing of a child has a statutory duty to regard the welfare of the child as its paramount consideration. In non convention cases the court must act in accordance with the welfare needs of the particular child.
(2) There is no basis for the principles of the Hague Convention being extended to countries which are not parties to that convention.
(3) A power did remain in accordance with the welfare principle to order the immediate return of a child to a foreign jurisdiction without conducting a full investigation of the merits.
(4) A trial judge had to make a choice, having regard to the welfare principle, between a summary return or a more detailed consideration of the merits of the parties' dispute.
(5) In making that choice the focus must be on the individual child and the particular circumstances of the case.
(6) It was wrong to say that there should be a 'strong presumption' that it is 'highly likely' to be in the best interests of a child subject to an unauthorised removal or retention to be returned to his country of habitual residence so that any issues which remain can be decided there. The most one could say was 'that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed…that allowing a child to remain here while his future is decided inevitably means he will remain here for ever'.
(7) A number of factors were relevant, amongst all the circumstances of the case, in deciding whether to order a summary return or not(a) The degree of connection of the child with each country – what is his home country?
(b) The length of time he has spent in each country
(c) Depending on the facts of the case, any differences in the legal system of this country and the other country, including whether the other country had an absence of a relocation jurisdiction
(d) Impact of any decision on the child's primary carer
(8) Any decision about whether to order a summary return or not should be taken swiftly.
(1) Bermuda has always been L's home and is his country of habitual residence. He was born there and apart from relatively brief visits to see the maternal family here has not been anywhere else.
(2) Bermuda has been the parties' home during their marriage; they were married in Bermuda and have spent all their married life living there.
(3) There was an element of pre-planning by the mother prior to leaving Bermuda on 23 September 2013 which supported the father's concerns that she did not intend to return. For example, in the letter from her GP in Bermuda dated 14 September 2013 written to the family GP here it refers to the letter being written to the GP and for the mother 'to pass on to other non-medical personnel as she sees fit'. Also the mother had clearly instructed lawyers soon after she arrived here as they were writing to Dr R on 1 October 2013, some 7 days after her arrival here.
(4) Whilst Mr Devereux accepted on behalf of the father the diagnosis of the mother with depression, he referred to it as being 'low level' to be expected in the context of a relationship breakdown. He submits the mother was receiving counselling prior to September 2013 and had access to GP support in Bermuda as well. The health care system in Bermuda remains available to the mother, as it was prior to her departure to the UK. She will remain in receipt of health insurance through her employers, although it is accepted that will cease if she is unable to return to work prior to 11 April 2014. The father has produced details of alternative health insurance. That would not only need to be funded but appears on the limited information the court has to be somewhat inferior to what the family currently benefit from.
(5) The legal system in Bermuda effectively mirrors the English legal system in relation to divorce, issues of custody and relocation. It is based on the welfare of the child. The mother does not appear to dispute the jurisdiction of Bermuda to determine welfare matters regarding L as in her acknowledgment of service to the divorce petition she takes no issue as to jurisdiction. The first hearing regarding welfare is fixed for 3 April. During this hearing Ms Renton, on behalf of the mother stated that the mother has issued divorce proceedings here based on the mothers domicile and was ready to issue Children Act proceedings. According to Ms Renton the mother has instructed Bermudian lawyers to apply for a stay of the divorce proceedings there.
(6) The father does not seek to separate L from his mother pending any inter parties hearing in Bermuda. He has offered undertakings to secure that position.
(7) There is an issue as to the extent of the care provided by the father for L when the parties were together in Bermuda. The father submits he played a significant part as the mother was working full time, although it is accepted L has had a full time carer or been in nursery since the age of 4 months.
(8) The father is being denied a relationship with L by him being retained here. If L remains here, it is submitted the father would be severely prejudiced not only in his relationship with L, which was contrary to L's welfare, but also in his ability to be able to effectively participate in proceedings here.
(9) The father will provide the necessary undertakings to ensure there is a 'soft landing' for the mother in Bermuda, which includes depositing a sum of money prior to their return of $5,200. The father submits the mother has considerable sums of money available to her. Her accounts disclose between early November and mid January she has made payments to her parents totalling £32,500, £22,000 of which Ms Renton said, on instructions from the mother, was to repay a loan of £50,000 made by them in 2007 to enable the mother to purchase a property in South of England prior to the marriage. It is submitted that this is very much a 'soft loan', which there was no need to repay and, together with the assets she has, the mother has more than adequate funds to contribute to hers and L's living costs should she return to Bermuda.
Discussion and Decision
(1) A matter that has weighed heavily in my balancing exercise is the adverse impact that not ordering L's return to Bermuda will have on his relationship with his father and his father's ability to be able to fairly participate in any proceedings in this jurisdiction. L was born and brought up in Bermuda. The mother's unilateral actions in retaining L here have denied him a proper opportunity to develop a relationship with his father, following the breakdown of the marriage. It is right the mother has encouraged Skype contact between L and his father and has sought to encourage the father to come over and see L here. The father has not come over. Mr Devereux submitted these were tactical moves by the mother. However, he did not submit the father could not come over and see L or participate in proceedings here although he did say to do so would be highly prejudicial to the father. I have to weigh carefully in the balance that if L remains here there will be an inability for L to be able to begin to develop a relationship with his father in the same way he would if they were all living in Bermuda, although the mother makes it clear that in the long and short term she wants to encourage future contact between the father and L both here and in Bermuda.
(2) Whilst I fully recognise the evidence has not been tested, it is apparent from the information I have read that the mother is in a fragile emotional state. She has been signed off work since the end of September, initially for severe stress and more recently for depression. The father accepts the mother is depressed but states that the medical support she had prior to leaving Bermuda is still available and she will be returning to a different situation, as she will not be living with the father. The mother states that her best chance of recovery, in the short and long term, is to remain in this jurisdiction, with the support of her family and hopefully return to part time work with her current employers. This is supported in part by the letters from the GP. The most recent one dated 31 January 2014 states the GP has had 5 consultations with her since 9 October 2013 where he has provided support and medication (anti depressants and sleeping tablets). Despite that medication and support he describes her as experiencing fluctuating levels of anxiety and depression characterised by insomnia, rumination on the possible outcomes of various forms of action and bouts of tearfulness and she has found the stress of dealing with ongoing proceedings difficult to manage. The concern expressed about the impact on her mental health of a return to Bermuda is prefaced on the basis that she would be entering back into a situation from which she fled where she was isolated. Mr Devereux submits the court should place limited weight on these letters from the GP as they are untested, were not sought on joint instructions, are tainted by being reliant on self assertion, inconsistent in content as to whether the mother has depression, paint a somewhat dramatic picture, relies upon a report from Dr R that the court has not seen and only gives a possibility of a risk of deterioration if the mother returns to Bermuda. Whilst I, of course, factor in that the GPs opinion has not been tested in oral evidence it is clear on the face of the written material I have that a return to Bermuda, even if the mother is living separately from the father, is likely to be stressful for her. She has limited or no social support in Bermuda, her living situation will be very uncertain and there is a risk her psychological position may deteriorate. This could have an adverse effect on L's welfare as she is in reality his main carer. Whilst I recognise there is an issue between the parties as to the extent to which they had the care of L in the past, it is not disputed that even though the father has not been working L was with a full time carer or in nursery from the age of four months old and has not been in the sole care of the father overnight or for any extended periods of time. It is clearly in L's interests that his mother makes a full recovery as soon as possible and on the information I have that is more likely to take place if she lives here with the family and other support that is immediately available to her. It is also most likely to be the environment where she will be able to return to work and be financially independent in the long term.
(3) Another factor is if the mother returned to Bermuda with L it would be to a relatively precarious financial situation. The father does not work and does not have any significant assets, he accepts as much in the document attached to his own statement where he describes his earnings and savings as nil/negligible. The mother is unlikely to be in a fit state to work if she returns to Bermuda and there is a real question mark as to whether any suitable part time work would be available for her. There was an issue regarding her immigration status and her ability to work in Bermuda following the filing of the divorce petition but that issue is now clear that if she was medically able to she would be able to work. The father submits that he has offered sufficient undertakings to tide the position over until there can be a hearing in the courts in Bermuda, although there is no information as to when a hearing could take place to deal with finances. He has offered to pay $500 per week towards suitable accommodation, to pay L's nursery fees, $150 per week support for L and to cover the cost of any medical insurance. During the hearing he gave instructions to Mr Devereux that he would be willing to deposit $5,200 as a condition of L's return, which was the equivalent of 2 months of the payments he was proposing up front, to give additional security. The father relies on the mother's financial resources which consist of savings of £54,000 here (£40,000 of which she says are earmarked for L), $8,000 in Bermuda and the £22,000 she paid to her parents as being, in reality, still available. This is in addition to rental income she could obtain from her property here. Whilst these resources would be available to help provide for the immediate financial needs they need to be factored in with the other considerations and that they are very likely to rapidly run out if the parties are unable to reach agreement, or there is any significant delay in court proceedings. The mother estimates her monthly expenses if she returns to Bermuda to be in the region of £5,000 per month, ignoring any legal costs for contested proceedings in Bermuda, which she estimates are likely to cost in the region of $80,000.
(4) The mother would be without the support of her wider family if she returned to Bermuda. However, it appears from the papers that her parents, in particular her mother, has been able to regularly spend time with her in Bermuda to provide support. There is nothing to suggest that support would not be available in the future until the parties have either reached agreement or the court in Bermuda has made an order. In addition, there is no evidence to suggest the medical and psychological support that was available to the mother would not be available again.
(5) I have carefully considered the very powerful points made by the father that there was an element of planning in this move. This is supported by the letters written by the GP on 14 September 2014 and the mother's solicitor in early October.