Neutral Citation Number: [2018] EWCA Civ 664

Case No: B4/2018/0045
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MRS JUSTICE GWYNNETH KNOWLES
HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/03/2018
Before:

LORD JUSTICE MOYLAN
and
LORD JUSTICE PETER JACKSON
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	Re W		
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Mr Haines QC and Ms Amiraftabi (instructed by International Family Law Group LLP)
for the Appellant
Mr Turner QC and Ms Perrins (instructed by Osbornes) for the Respondent 

Hearing dates: 21st February 2018
Judgment Approved
Lord Justice Moylan:

Introduction:

1.	This appeal raises an unusual issue in child abduction proceedings. The abducting parent is willing, if ordered, to return with the children, but may be unable to do so because she has no right to enter the state of their habitual residence. The issue in this case is whether this engages the defence under Article 13(b) of the 1980 Hague Child Abduction Convention (“the 1980 Convention”).
2.	The mother appeals from one aspect of an order made on 30th November 2017 by Gwynneth Knowles J under the 1980 Convention. She ordered the return of two children aged 5 and 3 to the United States of America. They were to return with the mother, if she could obtain a visa, and without the mother if she could not. The mother appeals only from the provision requiring the children to be returned if her application for a visa is refused.
3.	The order provides specifically that the children are to be returned forthwith to the USA “and by no later than 14 days after the determination of the mother’s application for a humanitarian parole visa to re-enter the jurisdiction”. The order contains a number of recitals including that in “the court’s view ... the best and preferable option for the children is to return to the USA in the care of the mother”.
4.	In the experience of this court the circumstances of this case are unusual. On the evidence before the judge it appeared that the mother, who is British, would be unlikely to be able to obtain a visa to enter the USA. To make matters more difficult still, it also appeared that the father, who is Pakistani, would be unable to re-enter the USA if he was able to travel to the UK, because of his precarious immigration status in the USA. It is, therefore, not a case in which a mother was refusing to return to the requesting State but one in which she would be unable to do so if the relevant authorities of that State decided not to give her a visa.
5.	During the course of his submissions Mr Turner QC, appearing for the father, told us that he is aware of a few cases under the 1980 Convention which involve immigration issues. Whatever the position in those cases, the substantive issue raised in this appeal is whether the judge’s assessment of Article 13(b) was materially flawed and/or whether her conclusion was wrong. Simply expressed, the issue is whether the separation of the children from their mother in the circumstances of this case should have led the judge to decide that Article 13(b) of the 1980 Convention was established.
6.	The mother advances two grounds of appeal which can be combined to read: the judge failed properly to apply the principles relating to Article 13(b) when determining that the children would not be placed in an intolerable situation if returned to the USA without the mother and should have determined that they would be.
7.	At the start of the hearing we rejected the mother’s application to rely on fresh evidence. This comprised a letter from a teacher at the elder child’s school which did not add materially to the mother’s evidence in her statements.
Background
8.	The father was born in and is a national of Pakistan. He is aged 38. He is resident in the USA having arrived there with his family when he was aged 12. It appears that the family entered on 6 month visas. They have remained living there since then. Since the father became aged 18 he has been unlawfully present in the USA. One consequence of this is that he would be denied readmission if he were to leave, even for a short period.
9.	The initial opinion of the expert, who provided written evidence for these proceedings, was that: “it seems likely that (the father) is among those individuals in deferred action status (DACA - Deferred Action for Childhood Arrivals) which provides temporary relief from deportation/removal from the United States and permission to work, but no other benefits under US Immigration Law”. Subsequently, he stated that “DACA is not relevant because (the father) is not a DACA recipient”. This appears to be due to the father’s age as at 15th June 2012.
10.	The mother is a British National. She is aged 34. She was born in England and lived here until she and the father married in 2011.
11.	The parties initially met online. The mother travelled to see the father in the USA on a number of occasions before they married in Texas in August 2011. At that time the mother entered the USA under the 90 day Visa Waiver Programme. In November 2011 the mother returned to England before going back to the USA in January 2012. The mother’s passport contains a stamp indicating that she was refused entry but she was, nevertheless, able to enter the USA. She says that this was again under the 90 day Visa Waiver Programme. The immigration expert considers this unlikely. I will deal further with his evidence below.
12.	The mother and father lived with the father’s parents in their home in Texas. Also living there for various periods were the father’s younger sister, his three brothers and a sister-in-law. Both of the children were born in the USA and are, therefore, US citizens as well as British nationals.
1980 Convention Proceedings
13.	The mother travelled to the UK with the children on 15th December 2016. The father’s application under the 1980 Convention was issued on 27th June 2017.
14.	The mother opposed the summary return of the children initially relying on three grounds: habitual residence; consent/acquiescence; and Article 13(b). At the hearing before the judge the first ground was not pursued. The judge heard evidence from the mother, the father and a friend of the mother on the issue of consent/acquiescence. The judge rejected both this ground and that advanced under Article 13(b) and made the order referred to above.
The Evidence
15.	The written evidence comprised statements from the mother, the father and the mother’s friend and two reports from an expert on US Immigration Law.
16.	In her substantive statement the mother made a number of allegations against the father and his family. She described her life as being “characterised by verbal and physical abuse and constant infidelity”. The children were alleged to have witnessed incidents of the former including when the father’s mother “hurled abuse at” the mother. The children were “regularly subjected to verbal abuse” by one of the husband’s brothers who would “shout at them for no reason” and had physically hurt both of the children. The “unstable and violent atmosphere” had impacted on the children. The father’s infidelity was alleged to be with prostitutes. She also alleged that the father was addicted to pornography which he would watch daily.
17 The mother also said that she had agreed with the father to give the marriage another chance but only if he agreed to the family moving to London and he sought professional help. She said that, after some time, the father agreed.
18.	Since the mother has been in England, the father and the children have had what is described as “video contact”. The mother alleged that the father and his mother have not acted appropriately during this contact. The father “will tell the children that I am a bad mother”. The children, especially the elder child, have “started to dread speaking to him”. The mother also alleged that the father has “constantly” told the older child that she will be returning soon without the mother which “upsets (the child) a great deal”. He shouts at her which also makes her cry. He has also verbally abused the mother and made threats against her.
19.	The mother contended that it would “cause the children grave harm to be separated from me”. They would be “bereft”. The father and his family could not “look after the children for long periods of time and have never done so”
20.	The father contested the mother’s allegations, “in their entirety”; they had been “fabricated” by the mother. He gave a very different account of the marriage and of the mother’s relationship with his family. The marriage had been a happy one and his family had done all they could to help the mother. He agreed that he and the wife had discussed relocating to Canada or England but that no decision had been made. He offered a number of undertakings including that he would not seek to separate the children from the mother prior to any hearing before the family court in Texas.
21.	The oral evidence was confined to the issues of consent and acquiescence.
22.	 The immigration expert provided two reports. He did not give oral evidence and the effect of his reports was as follows.
23.	The father’s presence in the USA since he attained the age of 18 has been unlawful. This “could result in a bar to readmission to the US if he were to depart”.
24.	The expert is clearly unsure how the mother was able to enter the USA in January 2012 when her passport indicates that she was refused entry. As a result he states that it is “difficult to definitively determine whether she has overstayed and, if so, for how long”. However, it is clear from his evidence that the mother has no right to re-enter the USA. Further, the expert considers it probable that the mother is subject to a 10 year re-entry bar from having previously overstayed by more than one year.
25.	In the opinion of the expert, the mother would be “highly unlikely” to obtain a business or pleasure visitor visa. She could alternatively apply for “humanitarian parole” which is a “discretionary means of allowing an individual into the United States for urgent humanitarian reasons or significant public benefit”; in “practice, this is an extraordinary means of obtaining entry”. If granted, parole is temporary and “typically authorised for a time limited to the need for parole”. An application for humanitarian parole can take anything from a few weeks to several months.
26.	It appears from the expert’s evidence that the basis for the application for parole entry would be for the purposes of attending custody proceedings in Texas, The expert simply noted that the facts “should provide sufficient grounds for parole in the event of a visa refusal”. He then commented that information published by the US Citizenship and Immigration Services shows that “the approval rate for humanitarian parole is 25%”.
The Judgment
27 The judgment contains a summary of the legal principles and sets out the judge’s conclusions on each of the issues raised by the mother.
28.	The judge spends the greater part of her judgment dealing with the issues of consent and acquiescence. After setting out the legal framework and carefully analysing the evidence she concludes that neither consent nor acquiescence are established. As set out above, there is no appeal from these conclusions.
29.	In respect of Article 13(b) the judge refers to Re E (Children)(Abduction: Custody Appeal) [2012] 1 AC 144, Re K (1980 Hague Convention: Lithuania) [2015] EWCA Civ 720 and AT v SS [2015] EWHC 2703 (Fam). She sets out the guidance from Re E. In summary, that the article is of “restricted application”. The judge also sets out (from para 36 of Re E) the approach to allegations of domestic abuse and the role of protective measures.
30.	The judge summarises Re K as showing that the court “is entitled to decide that an Article 13(b) case “falls at the first hurdle”, making any assessment of protective measures unnecessary. In addition, she refers to AT v SS as demonstrating that, although Article 13(b) “may be satisfied in a case where the intolerability flows from the separation of a child from his main carer, in cases where that had been caused by the parent themselves the source of the alleged risk was relevant to the assessment of whether in fact Article 13(b) was satisfied”
31.	The judge’s analysis of the mother’s defence under Article 13(b) is relatively brief. She summarises the effect of the evidence as follows:
“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.”
32.	The judge then states her conclusion that “the mother’s case falls at the first hurdle”. This was substantially, if not exclusively, based on her assessment that the mother’s case under Article 13(b) was “wholly inconsistent with the mother’s case on consent”, namely that the marriage was “intact with both parties wishing to make a go of it as a family and using relocation as a means to that end”. This meant that it was not necessary to consider the question of protective measures. Further, the judge considered that, even if the mother’s allegations “could potentially create a grave risk to the children, the mother’s case nevertheless fell at the second hurdle because of the protective measures which the father has offered to put in place. He was for example, willing to fund separate accommodation for the mother and children pending the Texan courts being seised of children proceedings. This would obviate the necessity of the children returning to the former family home”.
33.	At the end of her consideration of the mother’s case under Article 13(b), the judge made some additional observations specifically about the mother’s case on the children being returned to the USA if her application for a visa had been refused. The judge says:
“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”.
Submissions
34.	The mother’s case on this appeal can be summarised as follows. The judge failed sufficiently to consider the position which the children would face if they returned to the USA without their mother. If she had, she would have concluded that this would be an intolerable situation for them. Mr Hames QC submits that the judge’s conclusion that the mother’s case failed at the “first hurdle” led her to dismiss the mother’s case based on separation without any sufficient analysis of what the children’s situation would be in those circumstances.
35.	Mr Hames submits that the judge’s error is made clear when, having set out the mother’s case under Article 13(b), the judge immediately states her conclusion that the case “falls at the first hurdle” and that her case is “inconsistent” with her case on consent. This, Mr Hames, submits was clearly wrong because this part of the mother’s case under this Article, based on her being refused a visa, was not inconsistent with her case on consent. Mr Hames further submits that the judge’s focus on what she described as the “first hurdle” led her inadequately to consider the situation from the children’s perspective if they had to return without the mother.
36.	A number of factors are advanced which, it is submitted, should have led the judge to conclude that Article 13(b) was established in this situation. They are (a) the young ages of the children; (b) that the mother has been their primary carer throughout their lives; (c) the mother’s unchallenged evidence that the father and the paternal family “cannot look after the children for long periods of time and have never done so”; (d) the mother alone has cared for the children since December 2016; (e) the children have never been separated from the mother; (f) the court had no information as to who would care for the children when the father and other members of his family are in employment or otherwise unavailable; (g) the mother’s evidence that the elder child had become increasingly distressed following telephone contact with the father because the father had repeatedly told he that she would be returning to the USA without the mother and would not see her thereafter.
37.	More broadly, Mr Hames submits that the judge failed to take into account the emotional and psychological impact on the children of separation from their mother for what was likely to be an indeterminate period with no certainty as to when, if ever, they might be reunited. The evidence did not entitle the judge to conclude that it would be no more than “upsetting”
38.	In his oral submissions, Mr Hames submitted that the judge was also wrong to leave wholly out of account the mother’s allegations of domestic abuse. They were relevant to the situation which the children would face if they were returned without the mother,
39.	Mr Hames referred to Re GP [2017] EWCA Civ 1677 in support of his submission that the judge failed to have sufficient regard to the “predicament” of the children which needed to be considered with care. He also questioned whether the judge had been unduly influenced by some of MacDonald J’s observations in AT v SS (see 43 below).
40.	For the father, Mr Turner QC reminded us of the scheme of the 1980 Convention and, in particular, the need for courts to adopt a robust approach because parents will otherwise have an incentive to abduct.
41.	Mr Turner was not enthusiastic about the introduction of a “first hurdle”. In his submission, when determining whether Article 13(b) was established, the court should consider the whole situation including such protective measures as might be available. In some cases this might not be lengthy because the case did not “get off the ground”, to quote from Black LJ (as she then was) in Re K (para 53).
42.	In his submission, the judge reached an evaluative determination which was open to her and which was not “outwith the wide ambit of potential conclusions”. Her conclusion, that to return the children to the USA without the mother would be upsetting but would not create an intolerable situation, has, he submits, not been shown to be wrong. He reminded us of the observations made by Lord Wilson JSC in Re S (A Child)(Abduction: Rights of Custody) [2012] 2 AC 257 (para 35), warning against too-ready interference with the assessment of the trial judge.
43.	Mr Turner additionally referred to AT v SS where MacDonald J said that the court should assume that, “unless the contrary is proved... the administrative, judicial and social services in the requesting State are as adept at protecting children as they arc in the requested State” (para 34). He argues that if the children returned without the mother, the Texas court could order contact with her: if it decided not to do so on welfare grounds, that outcome could not as a matter of law be said to be intolerable.
44.	Finally, Mr Turner submitted that if we allowed the appeal we should send this aspect of the case back for a rehearing.
Determination
45.	I can state my conclusions shortly because I have come to a clear view as to the central issue in this appeal. Before doing so, however, I propose to make the following general observations.
46.	Child abduction is well-recognised as being harmful to children. As was noted in Re E, the “first object of the Convention is to deter either parent ... from taking the law into their own hands and pre-empting the results of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any disputes can be determined there”.
47 It is also well-established that Article 13(b) through the use of the words “grave”, “real”, “harm” and “intolerable” is of “restricted application”: Re E (para 31). It is in this context that intolerable means something “which it is not reasonable to expect a child to tolerate”: Re E (para 34). The focus is on the child and not the source of the risk. Whilst, of course, the court must be astute to avoid providing opportunities for a parent to seek to act manipulatively, the ultimate question remains the same.
48.	I agree with Mr Turner’s hesitation, which was also supported by Mr Hames, about the introduction of a first step by way of an initial hurdle. In Re K, Black LJ rejected the argument that a judge was “bound” to adopt the approach set out in Re E (para 36) “if the evidence before the court enables him or her confidently to discount the possibility that the allegations give rise to an Article 13(b) risk”. I do not think she intended to introduce a two-stage process. I respectfully agree with her observation but I do not consider that by it, or by the later use of the expression, “not got off the ground”, Black LJ was intending to introduce an initial hurdle. The question of whether Article 13(b) has been established requires a consideration of all the relevant matters, including protective measures, although, as Mr Turner submitted, in some cases this may not require lengthy analysis.
49.	Looking at the structure of the judgment it is apparent that, having focused on the issues of consent and acquiescence, the judge dealt with Article 13(b) more quickly because she had concluded that the whole of the mother’s Article 13(b) defence could be discounted. As Mr Hames submits, this is evident from her immediate conclusion that the mother’s Article 13(b) “case falls at the first hurdle”.
50.	In my view, this led the judge into error because I do not consider that she was in a position “confidently to discount the possibility” that the separation of the children from the mother by returning them without her to the father’s home brought the case within Article 13(b). This part of the case required a more extensive analysis of the whole of the mother’s case. On this, I agree with Mr Hames’ submission that the allegations made by the mother as to the abuse which she claimed to have suffered were potentially relevant. Mr Turner’s answer, that the children would not be witnessing domestic abuse because the mother would not be there, does not make this aspect of the mother’s evidence irrelevant,
51.	Although it is not clear how much weight the judge placed on AT v SS, in my view, and despite the submissions of Mr Turner, I do not see that that case had any particular relevance to the circumstances of this case. First, the situation being addressed was if, and only if, the mother was prevented from returning because her application for a visa had been refused. Secondly, this is not a case such as AT v SS in which the relevant authorities in the USA would be engaged in protecting the children. Furthermore, I do not accept Mr Turner’s submission that the Art. 13(b) defence cannot arise as a matter of law in circumstances where the court of the stale of habitual residence might be unwilling or unable to direct contact to take place.
52.	Each case is different but there are some similarities between the decision in Re GP and the present case. I consider that, as in that case (para 69), the judge’s approach to this part of the case was flawed and she “failed to consider in sufficient detail” what the situation would be from the children’s perspective. This probably arose because of the heavy focus at the hearing on the other aspects of the mother’s case.
53.	The only specific reference in the judgment to this aspect of the mother’s case is in paragraph 69 (quoted above para 33). Much of what the judge says does not impact on the effect on the children of their being returned alone to the USA. It is not clear to me what would be available in the US to protect them from the effect of their separation from the mother. Nor do I see the significance that the judge clearly places on the mother’s case as to the parties’ intended relocation. This was not relevant to the separation of the children from their mother if they had to return without her.
54.	I therefore consider that the judge’s decision cannot stand and that the appeal must succeed.
55.	The consequent question is whether this court is in a position to determine this issue or whether we should send the matter for a rehearing on this aspect of the case. This latter course is not attractive because we would be only providing for one part of the mother’s case to be reheard.
56.	In my view, we are in as good a position as the trial judge to determine whether the mother’s case under Article 13(b) is established in the event of her being refused a visa. As to the discretion that would arise if the defence is made out, it is, as Baroness Hale said in Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 (at para 55), “inconceivable that a court which reached the conclusion that there is a grave risk that the child’s return would ... place him in an intolerable situation would nevertheless return him to face that fate”.
57.	Putting it simply but, in my view, starkly, if the children were to be returned to the USA without the mother, the court would be enforcing their separation from their primary carer for an indeterminate period of time. It would be indeterminate because the court has no information as to when or how the mother and the children would be together again. These children, aged 5 and 3, would be leaving their lifelong main carer without anyone being able to tell them when they will see her again. In my view it is not difficult to describe that situation, in the circumstances of this case, as one which they should not be expected to tolerate. I acknowledge that the current situation has been caused by the mother’s actions, and that she was herself responsible for severing the children from their father but, as referred to above, the court’s focus must be on the children’s situation and not the source of the risk.
58.	It is therefore clear to me that if the judge had analysed all the circumstances from the children’s perspective she would have come to the conclusion that to return the children to the USA when the mother had been refused a visa would be to place them in an intolerable situation.
59.	Accordingly, I propose that the appeal should be allowed and that the provision in the order that provides for the return of the children without the mother in the event of her visa application being refused, be discharged. This does not mean that the children will not be returned to Texas. On the contrary, provided a visa is granted to the mother by the authorities in the requesting state, the children will return. Moreover, the judge’s order contained a provision (paragraph 17) granting the parties liberty to apply as to the timing and implementation of the order. If there is any indication that the mother is not pursuing her visa application, the matter can be restored to the judge for further directions.
Lord Justice Peter Jackson:
60.	I agree.