ON APPEAL FROM THE FAMILY DIVISION
MR JUSTICE CHARLES
FD 11 P 01290
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE MCFARLANE
|- and -
James Turner QC and Geraldine More O'Ferrall (instructed by Rosleys) for the Respondent/Mother
Hearing date : 26 October 2011
Crown Copyright ©
LORD JUSTICE THORPE:
"The application shall be listed before a High Court Judge at 10.30 am on 27 July 2011 with a time estimate of 1 day (including 2 hours of judicial reading time) as follows:
(a) For consideration of whether, taken at their highest, the allegations made by the mother would come within the Article 13(b) exception having regard to the proposed undertakings/protective measures.
(b) For consideration of whether there is an arguable basis for asserting that the father consented to the child's removal within the meaning of Article 13(a).
(c) Subject to the Court's conclusions as to (a) and (b) above, summary disposal or directions to enable a further hearing with such oral evidence as the Court considers appropriate to take place. "
"16. However, it seems to me that given the emphasis that Re E places on the assessment of the protective measures and in particular that they will actually be in place and practically enforceable it is appropriate for me to adjourn to enable the parties to put in further evidence directed to the rival contentions on that central point and that is what I propose to do. I confess that I do so with some considerable reluctance for a number of reasons. First, I accept, as Re E clarifies and determines, that these are summary proceedings and remain summary proceedings. Both from the perspective of the child, albeit a very young child here, and the relevant adults, the sooner they are decided the better.
17. However, I have concluded that given the guidance in Re E and the need to approach each case having regard to its own particular circumstances and to ensure that it cannot be said that any decision was arbitrary or mechanical, I need further information in particular, it seems to me, as to the precise protective measures that the mother will be able to enjoy from the moment of her arrival in Australia.
18. My suspicion, and I put it no higher than that at this stage, is that the protective measures would necessarily involve in the circumstances of this case, given the risk the mother advances which is in large measure on her perception of how the father will react and is reacting, which I should record he hotly asserts is wrong, would be ones which have the result that he actually cannot act in that perceived and feared way and the position is, therefore, much closer to that which the mother now enjoys in this country given the distance between them. So, if, for example, the father does not know where she is and she has appropriate public support and, importantly, support in the legal process, it could be said that the decision can be made in Australia in circumstances where essentially the mother is protected, if not cocooned, and then it would seem to me that the mother may well have greater difficulty than would otherwise be the case in establishing article 13b. That, of course, is subject to any further medical evidence she puts in as to any trigger to an onset of clinical depression."
"2. Unsurprisingly in the directions given in this case the very recent decision of the Supreme Court in Re E was plainly at the forefront of the minds of the parties and the court. However, I confess that with hindsight it seems to me that the directions given on 30th June which have their basis in paragraphs 36 and 37 of the judgment in the Supreme Court have caused more difficulties than would have been the case if the matter had simply been set down in the normal way for determination on a summary basis of a case under the Hague Convention. To my mind, this is often so whenever a court tries to define preliminary issues because their very definition creates problems."
- The mother's current psychiatric or psychological condition.
- The psychiatric or psychological impact of the mother on the return to Australia.
- What, if any, protective measures such as psychological interventions, accommodation, the address of which was unknown to the father, support from the mother's close family or any other measure, would it be necessary to put in place to safeguard the effect on the mother's mental health of a return to Australia.
"Her current psychiatric and psychological condition is stable and healthy and she does not display any current features of depression nor post traumatic stress disorder. Her symptoms of acute stress have resolved."
"The likely psychiatric and psychological impact on the mother of a return to Australia is significant and severe. The source of her stress (the father) is in Australia. Contact with this source of stress (re-exposure to the father) puts her at risk for further acute stress and post traumatic stress. She has a prior history of anxiety and depression which not only lowers her threshold for acute stress and post traumatic stress but also increases the likelihood of a recurrence of her anxiety and depression."
5. I set out in paragraph 56 of my Statement signed on 21st July 2011, my comments regarding the protective measures sought by the mother and the Undertakings I am prepared to offer to smooth the return of W and the mother to Australia. For the avoidance of doubt, the Undertakings I am willing to provide are as follows:
6. Financial Undertakings
1. To pay to the mother the sum of $2,500, by way of a lump sum, 7 days prior to her return to Australia;
2. If the mother chooses to return to the apartment at the address, I will undertake to pay 2 months rent in advance towards renting an alternative property to a maximum of $4,866. This money will be paid into the client account of my Solicitors, Messrs. Lyons Davidson, no later than 7 days in advance of the mother''s return to Australia. Lyons Davidson will hold the money and pay it directly to the landlord once the mother has found accommodation;
4. If the mother rents an alternative property for less than $2,433 per month, I will undertake that the mother may retain the difference between $4,866 and the sum which is paid pursuant to paragraph 3 above. The balance will be paid to the mother upon her taking up her new accommodation;
5. If the mother wishes to return to the apartment at [address] I would undertake that myself and my tenant will vacate the property not later than 3 days prior to her return;
6. I will undertake to pay for the economy class flights of the mother and W to Australia and will arrange for the information regarding the flights and/or the tickets, whichever is required, to be delivered to the mother not less than 7 days before the date of the flight.
7. If the mother returns to the apartment at [address] to agree to the mother retaining the bond paid for the property of $2,433;
8. If the mother does return to the apartment [address] in addition to paying 2 months rent in advance on the apartment I will also undertake to pay the sum of $1,333 per month, towards payment of the rent, until a first inter partes hearing;
9. I will also undertake to pay the sum of $300 per month, for maintenance for W, upon the mother's return;
7. In addition to the financial undertakings set out above, I am also willing to provide the following undertakings:
1. Not to prosecute or support any criminal or civil proceedings against the mother arising from her wrongful removal of W from the jurisdiction of Australia;
2. Not to attend at the airport upon their return;
3. Not to remove W from the physical care of the mother save by an Order of a Court of competent jurisdiction in Australia or by agreement between us, and for the purposes of contact, until a first inter partes hearing in Australia;
4. Not to make any applications concerning W to an Australian Court save on notice and to ensure that the mother is given not less than 7 clear days' notice of the hearing;
5. Not to contact the mother in Australia, save through Solicitors;
6. Not to enter or attempt to enter the accommodation at which the mother and W will live on their return to Australia, nor to approach within 250 metres of that address;
7. In the event that the mother resides at a confidential address in Australia, not to take steps designed to learn that address and not to attend any workplace at which the mother may be employed, until an inter partes hearing in Australia;
8. If the mother does return to the apartment at [address] to provide a cot and a changing table prior to their return;
9. To lodge a copy of any final Order made, in these proceedings, with the local Australian Family Court, 7 days prior to their return."
"I therefore proceed on the basis that on a return to Australia the mother and W would have a home and a full and appropriate package of support in and outside it from professionals in Australia."
"…asking myself what I believe to be the essential question, namely whether a return to Australia with the protection offered by the undertakings and the protective measures in Australia I have referred to would be one that would nonetheless give rise to the grave risk referred to in Article 13b, my answer, is yes, it would."
"Accordingly, on the approach dictated by the direction of Coleridge J I have concluded that article 13b is satisfied. In this case, that conclusion on that basis would dictate the exercise of the discretion it triggers and I would refuse this application."
"So, such an approach to the disputed allegations on the assessment and management of risk would on effectively the same reasoning process found the same conclusion on article 13b as that based on the assumption that the mother's allegations of abuse were true."
"If there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child."
"It seems to me that pre Re E the court may well have been persuaded to take the robust approach sought on behalf of the applicant father in this case, saying that the mother has had her opportunity to put in medical evidence, valid criticisms can be made of the medical evidence and the court therefore should attach reduced weight to it. Also, and this is powerfully argued on behalf of the father and I do not gainsay it, the court is in a position to make assumptions as to what is likely to happen in a Hague Convention country."
"I think probably all of us are learning where one goes as a result of Re E in these cases."
"58. On the basis of the direction given by Coleridge J I have to consider whether the impact of such a protected return to Australia of W with his mother:
(i) who, on that direction, must be assumed to have suffered severe abuse at the hands of the father and thus has a sound factual base for her expressed fears and anxiety, that she and her son would be at significant risk from the father should they return to Australia,
(ii) who has a history that includes bouts of diagnosed depression,
(iii) who has been referred to a psychologist in Australia, who has concluded that she is predisposed to suffering anxiety and stress and has been observed by her to have panic attacks,
(iv) who, as is essentially common ground, will be isolated on a return to Australia, albeit that she has lived there for some time, and whose only support network outside professional help would be friends and acquaintances rather than family members and who would be living in circumstances in which her financial position would be precarious and
(v) who would be involved in emotionally draining litigation will create the situation set out in article 13b.
59. As to that issue, a submission was made on behalf of the father, I think on the last occasion, which seemed to me to have force, that her position would be no different to what it would have been if she had simply left the father and remained in Australia. One can see the attraction of that in the context of the underlying purpose of the Hague Convention but I think one has to go on and ask, whether that situation would be one which placed the child in a situation that he should not be expected to tolerate? My answer to that would on the basis of the direction made by Coleridge J would be "yes". This is because it would have placed this mother, in my judgment on the evidence and that assumption, in a situation in which there was a grave risk that:
(i) she would suffer significant stress of the type described by Dr. Kampers and thus would herself suffer psychological harm, and that
(ii) the knock on effect of that would have been to place W in an intolerable situation."
"I was concerned she find out about her legal standing with this plan. She saw it as like a holiday and a rest."
LORD JUSTICE MCFARLANE:
LORD JUSTICE LONGMORE:
I also agree.