ON APPEAL FROM
MRS JUSTICE GWYNNETH KNOWLES
HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PETER JACKSON
| W, Re
for the Appellant
Mr Turner QC and Ms Perrins (instructed by Osbornes) for the Respondent
Hearing dates: 21st February 2018
Crown Copyright ©
Lord Justice Moylan:
1980 Convention Proceedings
"59. The mother made a variety of allegations about the father's conduct towards her. She claimed he was addicted to pornography and prostitutes and tried to force himself on her sexually. She also alleged that the father and his family mocked her beliefs as a Shia Muslim (his family being Sunni Muslims). She also asserted that the father was verbally abusive to her throughout their marriage and described an incident of physical violence by the father when she was pregnant with (the younger child) when she said he gripped her arm hard whilst they were arguing.
60. She alleged that his family treated her as a servant and were verbally abusive towards her. She made a variety of allegations about the father's siblings including the involvement of a brother with drugs and violence from another brother to (the children).
61. As to intolerability the mother said that the children would be in an intolerable situation if they returned to the US because she would be unable to accompany them by reason of her compromised immigration status. She has been the children's main carer throughout their lives."
"69. Even if a visa were to be refused, I have concluded that this would not satisfy Article 13(b) as so to place the children in an intolerable situation. I remind myself that the situation which these children would face on return must be evaluated in the context of what would be available in the US to protect them from harm or from experiencing an intolerable situation. Though intolerability may be demonstrated by the separation of a child from his main carer, I am satisfied that, if the mother were denied entry to the US, the children would not be placed in an intolerable situation since they could return to the care of the father - a man to whom, on the mother's case, she intended to remain married when she left the US and who, on her case, she envisaged being a parent for her children - and to their extended family in a home with which they are familiar. As the father has done pending this hearing they would also be able to have contact with their mother via telephone and Skype whilst proceedings were afoot in the Texas family court. Whilst the children's separation from their mother would undoubtedly be upsetting, it would in the circumstances of this case not create a situation which these children should not be expected to tolerate".
Lord Justice Peter Jackson: