England and Wales Family Court Decisions (other Judges)

 

 

No. FD17P00306

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

 

IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

AND IN THE MATTER OF THE HAGUE CONVENTION 1980

AND IN THE MATTER OF INHERENT JURISDICTION OF THE HIGH COURT

 

Royal Courts of Justice

Friday, 20^th October 2017

Before:

 

HER HONOUR JUDGE HILLIER

(In Private)

(Sitting as a High Court Judge)

 

B E T W E E N :

 

WM                                                                                                                                            Applicant

 

-  and  -

 

JD                                                                   Respondent

 

__________

 

MR M. HOSFORD-TANNER (instructed by A & N Care Solicitors) appeared on behalf of the Applicant.

 

THE RESPONDENT appeared in person.

__________

 

 

J U D G M E NT

JUDGE HILLIER:

 

1                    Pursuant to an application made on 5^th October 2016, issued in this country in May 2017, I am required to determine the immediate future of two girls, L who is 11 and P who is 10.  The girls are South African nationals as are their parents.  The application is made by their mother who is represented by Mr Hosford-Tanner.  The father represents himself.  The case is listed for final hearing before me to determine the mother's application for a summary return of the girls to the jurisdiction of South Africa, pursuant to the provisions of the Child Abduction and Custody Act 1975 incorporating the Hague Convention and also under Art.11 of the Council Regulations Brussels IIa.

 

2                    I have read the bundles including the statements that have been filed by both of the parents, a s.37 report prepared by English Social Services and a further report from their South African equivalents concerning the mother.  I also have a CAFCASS report from Miss Julian, who was tasked with reporting on whether the children, or either of them, have wishes or objections which are relevant to the Hague Convention.  One of the bundles is comprised of Skeleton Arguments, chronology and a bundle of authorities.

 

3                    I heard Miss Julian's oral evidence on the issue of the girls' "objections" and the oral evidence of the parties in respect of one of the defences, consent, which was raised by the father.  It is a part of his case that the mother consented unequivocally to the children moving here from South Africa to live with him.  She says that her consent was vitiated by deceit and that he unlawfully retained the girls once that deceit was uncovered.  They had agreed that oral evidence on this issue should be heard as part of this hearing, and directions were made at a prior hearing.  Such evidence is quite unusual and should only be heard where there is a dispute about whether there is consent itself.  In this case there is an agreement that there was consent.  It is a question as to whether that was vitiated or not.  In this case oral evidence was necessary on that issue.

4                    It is important for me to record at this stage what is agreed between the parties.  At a hearing on 13 June of this year before Hayden J the father gave some sworn evidence and I have a transcript of that hearing.  The father agreed that at the relevant time, i.e. when the children came to the UK, they were ordinarily resident in South Africa.  In addition it was recorded on that day that Hayden J concluded that the father's wife, Mrs Z: "... holds entrenched and negative views against the mother and that it is likely that these were communicated to the two children directly, or indirectly."

 

Background to the Marriage

 

5                    The applicant mother is a 41year old South African.  Her first language is English.  The father's first language is Afrikaans, but I have to say that his English is fluent and excellent, and he did not need any assistance with it.  Both of them work in the IT world.  They married in South Africa in 2005 and they have three children, L, P and A, who is eight.  They separated in March 2009 and divorced in November 2009.  They came to a very detailed written agreement about finance and child custody as part of the divorce and that is encapsulated in a document which forms the basis of a court order at the time.  Under that order, which has not been varied, they hold joint custody of the three children who would reside permanently with their mother.  The documents provided for alternate staying "access" for the father and a monthly payment of child maintenance, payable by him to the mother.

 

6                    The father met Mrs Z in about December 2010 and they became engaged in June of the following year.  In July 2011 the father sent the mother a ‘bombshell’, pivotal email: "I hate writing this email but I want to give up all custody of the kids." The mother replied that he could not just give them up and she asked what had brought this about.  He said that he was not in position, or condition, to care for them the way they deserved and he asked her to: "Please just accept it."  He said that he would still maintain the children. 

 

7                    From that time the father by his choice had no communication with the children, nor did he pay any maintenance.  The mother soon moved to a home which was about five minutes from the paternal grandparents' home.  The father married Mrs Z in November of that year.  In early 2012 the mother sought to enforce the maintenance, which by that time was in arrears.  As soon as that happened the father and Mrs Z moved to the United Kingdom.  The father's family assisted the mother financially and also with child minding. 

 

8                    In mid 2015 the paternal grandfather told the mother that he was going to retire in September 2015 and that he would be no longer able to provide financial assistance.  The paternal grandfather’s family were moving to Cape and therefore they would also be unable to assist with childcare.  The paternal grandfather told his son of this withdrawal of support at the time.  In August, shortly before the grandparents moved, the father sent the mother the first of a series of emails saying that he would like to, "mend a couple of things," and asking for her bank account details.  He emailed her in September saying he would pay money every month and saying thank you for doing a good job.  The following month he asked to speak to L and the mother received a letter from his solicitor requesting contact in the December.

 

9                    At around that time  "a fictitious name" became active in the Facebook groups which the mother belongs to.  She appeared to be a woman in a similar situation to the mother.  She appeared to support her. 

 

10                In January 2016 the father started having some Skype contact with the children.  The mother raised the issue of sole custody with him because she said that that would be easier given their circumstances, and the father for the first time raised the possibility of the girls coming to study in the UK.  He also explained to the mother that his son, born in the UK with Mrs Z, is autistic and he paid for an autism assessment of L and A.  The parents discussed the possibility of possible treatment for L in the UK and this developed into discussions about the girls moving to live with their father in the UK, in the context of the mother moving to the UK within two to four years.  It is accepted that the mother had some significant concerns about the educational and other systems in South Africa.

 

11                The father returned consensually to South Africa in April 2016.  He was by that time reconciled with his family, who had not been speaking to him as he had left his own family stranded without maintenance.  The parents obtained passports for the children.  They entered into negotiations about varying the 2009 court order and it was proposed that the order would, in fact, be varied before the girls moved.  The terms of the agreement they reached were never registered in court.

 

12                In May 2016 the mother moved with the three children to live with Mr M and his two children.  She married him in December 2016.  In June 2016 the mother agreed with the father that the girls would travel to the UK with the paternal grandmother.  They flew here with her on 25^th July 2016 and she stayed with them and their father and his family until 9^th August to help them settle in.  Between 9^th and 24^th August contact was reduced and then curtailed.  The mother sought legal advice and applied under the Hague Convention for return of the children in early October.  The South African Central Authority made a formal request to the UK on 25^th December but unfortunately, for reasons not entirely clear to me, it was not issued until 31^st May.  That delay is regrettable.  It does not lie at the door of either the mother or the father.

 

13                The First Directions Hearing was held on 13^th June with further hearings on 4^th July, at which time Skype contact between the mother and the children was reinstated, and a further hearing on 3^rd October.  At the 3^rd October hearing before Knowles J her Ladyship carefully explained to the parties, and recorded in the order made on that day, both the format of the hearing before me, including the order in which the evidence would be taken and the burden of establishing the defences, which fell upon the father. 

 

The evidence that I have considered

 

14                Both parents have filed extensive written evidence, which I have carefully considered, together with their oral evidence and the evidence of the CAFCASS officer, the submissions that have been made both by counsel and by the father, and the relevant cases. 

 

Summary of exceptions to return

 

15                The exceptions relied upon by the father are:

 

(1) That the mother consented to removal and that the consent was not vitiated by deceit.

(2) That returning the girls to South Africa would place them at grave risk at physical or psychological harm, or place them in an otherwise intolerable situation under Art.13(b).

(3) That L and P object to returning to South Africa and are of an age and level of maturity where it would be appropriate to take account of their views under Art.13.

 

The Hague Convention Brussels IIa, Art.11 and relevant law

 

16                This application is determined by reference to the provisions of the Hague Convention and Art.11 of Brussels IIa.  The objective of the Hague Convention were summarised by Baroness Hale in the decision of Re D (A Child:  Abduction; Rights of Custody) [2006] UKHL 51.  Baroness Hale said at para.48:

 

"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

 

17                The starting point is Art.3 which specifies that the removal or retention of the child is to be considered wrongful where:

 

(a) It is in breach of rights of custody attributed to a person, an institution, or any other body, either jointly or alone under the law of the State in which the child was habitually resident, immediately before the removal or retention; and

(b) At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or the retention.

 

In this case the children were habitually resident in South Africa prior to removal.  Both parents were exercising jointly their parental rights over the children, as the father needed either the mother's permission or the court consent to remove the children.  That was the position under the order of 2009.  There was no permission from the South African Court for the children to move here, and unless the mother's consent is shown there has been a wrongful removal or retention of the children.  I must, if that consent is valid, consider whether the children stay here pursuant to the exercise of my discretion, or, if the consent is vitiated I must order the return of the child forthwith, pursuant to Art.12 unless one of the exceptions in Art.13 apply.

 

18                The father is very aware, and it has been explained to him very clearly by Knowles J, that the burden is one him to establish these exceptions. He has represented himself before me in a difficult case and I have, throughout, endeavoured to consider the legal matters, which a lawyer might have raised had he been represented. 

19                The law in this area was reviewed by Black LJ in the case of Re M (Republic of Ireland: Child Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26.  In that case Black LJ reminded us that these cases should be dealt with speedily and summarily.  The aim is to return abducted children as soon as possible.  I am sorry that this case has taken so long to reach a final hearing.  Black LJ suggested that the sensible place to start in these cases is with the Convention itself and its core provision.  That is what I have done.  Article 12 provides that where a child has been wrongfully removed or retained in terms of Art.3, and at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting State where the child is, a period of less that one year has elapsed from the date of wrongful removal, the authority concerned shall order the return of the child forthwith.  On the dates in this case, less than a year has elapsed. In this case it is clear and agreed that both parents had rights to custody and were exercising them at the relevant times.

 

20                The case of P-J (Abduction:  Habitual Residence:  Consent) [2009] EWCA Civ 588 provides a useful summary given by Ward LJ in respect of the defence of consent.  He said:

 

"In my judgment the following principles should be deduced from these authorities.

 

(1) Consent to the removal of the child must be clear and unequivocal.

(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.

(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.

(4) The happening of the future event must be reasonably capable of ascertainment.  The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled.  Fulfilment of the condition must not depend on the subjective determination of one party.

(5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life.  It is not to be viewed in the context of, nor governed by the law of contract.

(6) Consequently consent can be withdrawn at any time before actual removal.  

(7) The burden of proving the consent rests on him or her who asserts it.

(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case.

(9) The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?"

 

 

21                In this case the mother accepts that she consented to the children travelling to England with their grandmother to be with their father.  The issue is not whether the parties ever reached a clear and unequivocal agreement about what was to happen.  This issue is about whether the immediate cessation of contact was in fact a planned severance of ties, which vitiated the mother's consent.  On this point Mr Hosford-Tanner referred me to the case of M v. T (Abduction) [2008] EWHC 1383, a decision of Pauffley J.  In that case the father claimed that his consent had been vitiated by the mother's true intention, which was to sever contact between himself and the children.  The mother in that case argued that the father had consented or acquiesced to relocation and she also raised the issues of grave harm and children's objections as defences.  Pauffley J returned the children on the basis that the mother never had "the slightest intention," of complying with the terms of the agreement, and that her deception had been "cruel and serious," which had the effect of vitiating the father's consent.  In addition, the father had shown willingness to adhere to the contact arrangement.  The authority also provides useful guidance on the issue of a situation where the parents have mutual distrust and antipathy, discussing the issue of whether a parent who has caused or contributed to emotional difficulties in a child should then be allowed to rely on those difficulties when alleging that return would cause emotional harm.

 

22                The court may also refuse to order the return of a child if it finds that the child objects to being returned to the country concerned, and has attained an age and degree of maturity at which it is appropriate to take account of its views.  I have adopted, and been much assisted, by the concise and useful summary of the law in relation to Art.13(b) set out by MacDonald J in the case of BK v. NK (Suspension of Return Order) [2016] EWHC 2496 at para.45.  He also referred to Re M (Abduction:  Undertakings) [1995] 1 FLR 1021 as authority for the principle that delay can also, in appropriate circumstances, constitute the basis for consideration of whether the children returning could amount to a situation which they should not be expected to tolerate.  In MacDonald J's judgment the answer will always be fact specific, as will the extent to which it can be said that the return of a child in such circumstances could be said to be placing that child in an intolerable situation.

 

23                L and P have a right for their views to be heard.  Article 11 of Brussels IIa reinforces the 1980 Convention, indeed it takes precedence.  It states that Art.11(2):

 

"When applying Arts.12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."

 

In this case the girls were given the opportunity to discuss their wishes and feelings, and any ‘objections’ with Miss Julian, the CAFCASS officer. P chose to write a letter to which I have read carefully. 

 

24                When considering the objections to return under Art.12 the approach to follow is to break the procedure down into the ‘gateway’ stage, followed, if the gateway is passed, by the ‘discretion’ stage.  I must ask three questions.  Do the girls, or either of them, object to being returned to South Africa?  Secondly, have they obtained the age and maturity by which it is appropriate to take account of their views?  Thirdly, if so, how then should I exercise my discretion and what order should I make in all the circumstances?  The question of whether either of them has attained the age and degree of maturity at which it is appropriate to take account of their wishes and their views, is a question of fact for me.  Black LJ summarised the position at para.76 of Re M. 

25                The threshold for establishing intolerability is necessarily a high one, because one is looking at the issue of grave risk.  In such circumstances I must not refuse to return the children if it is established that adequate arrangements have been made to secure the protection of the child as to his or her return (Art.11(4).  I have also reminded myself of the case of X v. Latvia [2014] 1 FLR 113.  Courts must satisfy themselves that adequate safeguards are convincingly provided in the country of proposed return, and in the event of a known risk ensure that tangible protection measures will be put in place.  I bear in mind the principles of judicial comity.  I already have evidence of the South African Social Services’ rapid response to a complaint in respect of child protection issues in respect of this mother, and evidence of the reporting procedure which ensued.  Miss Julian has recommended that in the event I order the return of the girls, that her report and the s.37 report are disclosed to the South African Child Care Authority.

 

26                Finally, given the fact that during the course of his evidence on oath before me, the father admitted that he had lied about his knowledge of his wife's action in befriending the mother through the Facebook alter ego of A fictitious name.  I have given myself what is known as a Lucas Direction.  That direction is simple.  People lie for many reasons and many causes.  The fact that they lied about one thing does not mean that they have lied about everything.  I have, of course, considered the father's admitted lie in the overall context of his oral evidence and the written evidence.

 

 

The mother's case

 

27                The mother's case is that although she consented to the girls coming to England on 25^th July 2016, the agreement was that they would stay with their father until she immigrated with their brother to live nearby and to resume care of them.  She said that it would be expected she would have a visiting contact on at least occasion, if not two, per year, extensive Skype and telephone contact, and that it was hoped that she would be able to relocate in England within two to four years.  It is her case that the father and Mrs Z planned all along to cut her out of the children's lives once they were here, and she says that as soon as she realised that that was happening in August 2016 she immediately sought their return, seeking legal advice and commencing Hague Convention proceedings.  She said that she would never have agreed to removal if she had known what was in store.

 

28                The mother accepts that she has physically chastised the girls.  She denies that returning them to South Africa would put them at grave risk at harm and she says that their "objections" to return are no more than a preference to stay here.  She says that in the event that any defence is made out I should exercise my discretion to return the girls to her care in South Africa.

 

The father's case

 

29                Mr D does not dispute that he needed the mother's consent for the children to leave South Africa, or that at the date when they came to England on 25^th July 2016 they were habitually resident in South Africa.  He says that the mother freely consented to them coming here and that there was no deception on his part that could possibly be said to vitiate her consent.  He denies any prior plan to curtail her contact, or to cut the girls off from their brother, A.  Mr D also raises a defence of risk of grave physical or psychological harm, or intolerability, based on what he said is the mother's neglect and physical abuse of the children.  He alleges that they may also be at risk of sexual harm.  Finally, Mr D's case is that the girls object to returning to South Africa and that they are of an age and level of maturity where their wishes and feelings should be considered.

 

Discussion - Consent

 

30                Having considered the written and oral evidence I am satisfied that the mother consented to the girls coming to England in July 2016.  I am also satisfied that she consented on a very clear basis.  There is compelling evidence that she was very troubled when the father started communicating with her in late 2015.  I am satisfied that she was at a vulnerable time.  She was losing both the practical and financial support of the paternal family.  She has bipolar disorder controlled by medication.  She had little support from friends and family in late 2015.  The father's departure from the children's lives some four years before had been abrupt and must have had a devastating effect upon her.  As soon as she sought financial support for their three young children and as soon as he formed a lasting relationship with Mrs Z, he left South Africa for England and cut them out of his life absolutely and abruptly.  Suddenly he was back.  He offered her support.  “A fictitious name”, her new Facebook friend, told her to forgive and forget.  His family urged her to do the same.  She received some gifts from him, some financial aid and some practical support from him for the first time in several years.

 

31                I am afraid she was taken in.  It is now clear to me from the evidence that Mr D and Mrs Z sought to bring the girls to the UK and that they planned to curtail contact with the mother at the earliest opportunity.  I have asked myself why they did not seek to bring A here too.  For some reason the issue of A's paternity had come up and it is clear that Mrs Z felt that A might not be Mr D's child.  There is absolutely no evidence of that and Mr D accepted, when I asked him, that although A was born after this couple had separated they had had a sexual relationship at the relevant time.

 

32                The attitude towards A was illustrated abundantly by Mr D and Mrs Z's attitude to his family. Mr D blocked A’s contact to the sisters he had lived with all his life -sisters who told CAFCASS they wanted to speak to A.   Under Mrs Z's proposed ‘agreement’ I note that she and Mr D would not have needed to maintain A, so the arrangement would have been cost neutral if he stayed in South Africa and the girls came here as the agreement was that the mother would not pay anything for the girls and the father would not pay anything for A.

 

33                Mr D's family, who had been extremely supportive of the mother, had had a rapprochement with him.  During the course of oral evidence Mr D challenged the mother about why, having held negative views about their ‘disappeared’ father for so long, she had changed her view from ‘bad, bad, bad’, to ‘good, good, good’.  I think there are a number of reasons for this.  Firstly, as I have said, she was at a vulnerable time.  Secondly, she holds a clear Christian belief in forgiveness and thirdly she was supported to this view by his family, and her fictional ‘friend’.  I feel it is important to highlight now who, in reality, the fictitious friend actually was.

 

34                The evidence shows that following the initial contact and as time passed and the mother got to know Mrs Z via social media, through email and text, the fictional friend fell by the wayside.  Later when the mother's contact was blocked by Mrs Z, the fictional friend reappeared and started asking questions.  The mother became suspicious.  The fictional friend put herself forward as a South African woman who was in a similar situation to the mother.  The mother traced the person’s IP address not to South Africa, but to the exact location where the father lives in England.

 

35                 In oral evidence the father stridently denied any knowledge of the false Facebook friend.  He lied on oath to me and then said that he had a confession to make.  I think he realised that it was absolutely obvious who the false friend was and that the game was up.  He admitted that the Facebook friend was invented by himself and Mrs Z to gain information about the mother and to thereby influence her, and I am satisfied to entrap her.  This was a significant deception.

 

36                I accepted his apology for lying on oath.  I believe he was lying to hide the clear evidence of a scheme to trick the mother rather than through shame, or any other reason of being found out.  This is a further example of his deceitful and obstructive behaviour, all of which was trying to hide the plain truth.  Further, it is self-evident from the chronology and the social media screenshots and other evidence in the bundle that this was a plan of deception. The couple kept all their plans from the mother. When the father went to South Africa in April 2016 he kept up a pretence of being entirely supportive of the mother, and grateful for her care of the children. I find that Mr D and Mrs Z knew what their plan was and that it was that the girls would go to reside with them on a permanent basis.

 

37                In his statement the father said: "Before the children arrived all communications were friendly.  The children would not have left the country if the mother felt that she was being deceived." How very true this was.  He reiterated in emails to the mother that the separation from her was "temporary."  He also acknowledged in a letter to the Home Office in respect of seeking asylum for the girls that fighting for custody of the children in South Africa would (a) be very costly, and (b) he knew he would lose.

 

38                Mrs Z also referred to cost of maintaining the girls on occasion, for example in a genuine Facebook message in August 2016.  In that message she said that the mother would not get the chance to do anything further to the girls: "We always wanted them.  Always."

 

39                Mrs Z has been extremely and openly critical of the mother.  She referred to her as a "c**t" in one social media message, demonstrating the depth of her hostility.  I am unsure whether Mrs Z believes what she says about a woman she really does not know.  I have not heard her evidence and I am not making any findings other than ones which are amply documented in the papers before me.  What is crystal clear is that the findings of Hayden J are absolutely reinforced by the evidence revealed since then and the fact that her husband now admits her role as A fictitious name. 

 

40                The final pieces of the jigsaw are revealed by the fact that Mrs Z contacted JD, a therapist, in late June 2016, even before the children had come her.  The basis of that contact was that the mother had behaved inappropriately towards the girls and an enquiry was made about whether JD could provide a report for later legal use.  This was before Mrs Z had even met the children.  It is clear from Miss D's subsequent letter that her initial report was based on a far from adequate history.  Mrs Z did most of the talking including most of the explanation of the history.  She did not make it clear that she herself had a very limited relationship with the children.  Miss D was unaware that the father had been out of the girls' lives for four and a half years.

 

41                The father also asked an educational psychologist to keep L back one year at school, but said that she was not to tell the mother.  Correspondence shows a clear intention for the children to be removed from their mother permanently, and that she was unaware.  The plan was carried out and as soon as the paternal grandmother left the country the mother’s contact was blocked.  She was clearly desperate.  She tried to contact the children via the father’s parents.  She tried via WhatsApp, SMS and emails.  She pleaded: "What is going on?"  The answer is now clear.  The plan had swung into action and serious abuse allegations were made to professionals with contact first reduced and then stopped.

 

42                The question for me following this is whether the mother's consent was vitiated.  I am satisfied that the father never had the slightest intention of complying with the terms of the signed agreement.  To use a description from M v. T (Abduction), the father's deception of the children and the mother was ‘cruel and serious’.  The mother's action of desperately seeking contact and immediately seeking legal advice to commence recovery show her expectations under the initial agreement were that contact would occur.

 

43                I want to make it clear that I have not disregarded the father's other evidence as a result of the lies he has told.  I have reminded myself that one lie does not mean his testimony was completely fallacious.  Sadly, however, I have come to the conclusion that a large proportion of his evidence on consent was simply untrue.  I am satisfied that he tricked the mother into believing that the separation would be temporary.  They talked about between two and four years, and there is written evidence of that.  She really believed that they would maintain unlimited Skype and other contact, and that she would come to the UK at Christmas of 2016 to see the girls.  There is clear evidence of negotiation about the father paying for an annual trip or trips.  There is also a signed agreement which they intended to formally use to vary the South African court order regarding custody in August 2016. 

 

44                A further example of the father's deceit is that he told me very clearly that he had not "signed" the agreement.  He even denied it when Mr Horsford-Tanner took him to the initials at the bottom of each page, by saying he may have initialled it but he did not sign it.  Taken to his signature he eventually agreed that he had agreed the document, but he questioned whether it had been altered by the mother. I am satisfied that it had not.

 

45                The mother tried desperately to adhere to the contact proposals but she did not come at Christmas 2016.  By then it was absolutely obvious to her that she would not be able to see the girls and as she did not have any finances she could not in any event have come.  She applied and issued Hague proceedings promptly.  I am satisfied that her consent was vitiated and that the father's reliance on the consent defence must fail.  There can be no question of acquiescence in this case.  This mother acted promptly and as soon as she was aware of the deception.

 

Art.13(b), grave risk of physical or psychological harm, or otherwise placing the girls in an intolerable situation. 

 

46                For this there must be clear and compelling evidence of the grave risk of harm.  I cannot refuse to return the girls on the basis of this defence if it is established that adequate arrangements have been made to secure the protection of the girls on their return.  The mother in this case has actually admitted inappropriate physical chastisement of the children.  That is evidenced in the s.37 report.  In my assessment she has been open and she has been honest.  She showed clear insight during the course of her evidence before me.  She had followed a pattern of parenting which both she and the father had received when they were children.  She told me that she had lived by the principle, "Spare the rod and spoil the child."

 

47                The mother offered an undertaking to refrain from physical chastisement and to remain open and co‑operative with South African Social Care.  She explained to me that her view on chastisement was that physical chastisement was only used until one could reason with a child, and she was clear that the girls were now of an age when they could be reasoned with.  She was looking at was taking away privileges from the girls in future rather than using physical punishment.

 

48                Miss Julian's evidence was that the girls' objections to returning to their mother's care may well be different if they knew that that aspect of their former life would not recur.  They have, in my assessment, been exposed to much talk of ‘abuse’ by Mrs Z and they may have come to see their mother as a bad person.  They may need psychological assistance to rebalance their history.  That could be provided either here or in South Africa.  The girls have now had contact re-established and they are aware that I am making a decision about their futures. 

 

49                The father's case is that the girls have been neglected by the mother, have been physically abused by her and he has raised the spectre of sexual abuse.  That allegation has been raised on scant evidence.  It has been raised, for example, on the basis of a description by them of their mother having boyfriends and describing her as having "big boobies."  There is no evidence whatsoever of sexualised behaviour at school or any such behaviour observed by any of the counsellors they have seen, nor by the CAFCASS officer and others who have seen them as part of these proceedings.

 

50                I am satisfied that the report of the therapist, on whom the father places significant weight, is very seriously flawed, and that the scores that she and her colleagues gave to the girls, which were said to demonstrate high levels of risk, were based mainly on the tainted and severely biased views of Mrs Z.  They were very obviously manipulated by her.  They had no evidence from the mother. 

 

51                I do have some objective evidence of the mother's care of her children.  She was close to the paternal family who never raised any concerns about her upbringing of the children.  The father went so far as to thank her for doing a good job.  The children's schools did not record any concerns.  In 2016, when the mother's stepson, who is 16, went missing for a short time the father and Mrs Z alerted the South African authorities to the allegations of abuse they felt were going on in the mother's household.  The South African Social Care and police system swung into action.  A swift investigation of the family circumstances took place and they were objectively satisfied with the standard of care that was being offered.  I am satisfied that the report that they provided, although short, was thorough and adequate.

 

52                Miss Julian recommends that her report and the s.37 report are disclosed to the South African care system along with my judgment.  It is very important when looking at these cases not to put a gloss on the wording of Art.13(b).  The level of assault against these girls, both admitted and alleged, is significant.  However, even taken at their highest, the risk of physical harm does not reach the categorisation or grade which is required by the Convention.  I want to make it clear that I do not in any way condone what the mother admits she has done and what the girls have alleged.  I take them at their word.  But I cannot categorise this as a grave risk of physical harm.  Nor can I find that they would find a return to their mother intolerable.  It is inevitable that these girls have been psychologically and emotionally affected by the past 12 to 18 months.  I cannot turn the clock back, even though they might want me to.  I recognise that they may feel that if they go back to South Africa they will have to rebuild their educational contacts, their friendships, their sibling relationships and their attachment to their mother.  They were close to her and I am sure they can be again.

 

53                I have to say that a very large part of their current emotional turmoil is down to their father and Mrs Z.  They will need help and advice.  I am not satisfied that the father can demonstrate evidence anywhere near to satisfy this aspect of his defence, and I reject this part of his case without hesitation.

 

The children's objections

 

54                The final matter for determination is as to whether the children object to returning to South Africa.  In her carefully written report Miss Julian documents that there are no recorded safeguarding matters against the parents.  She had fully considered the s.37 report by Richard Devine, and the information about the mother's home and family provided by the South African Social Services, following the referral in May that I have just referred to.

 

55                Miss Julian met with P first.  P explained that her father and Mrs Z had told her it was okay if she cried during the meeting.  She said that her mum had loads of boyfriends, one of whom fought with her mum.  She described living with her mum as "scary."  She remembered being smacked on her bottom with a belt or a spoon and of being hit on the face.  She said that she recalled this happening to herself and L, "more than once."  P felt that her mother had lied about her father, had slept during the day and that her mother was too lazy to make her dinner on occasion.  She said that her grandparents had said that they had seen her being hit and that A was the one who was hit the most.  P said that school in South Africa was fine.  She had ‘loads of’ friends including a best friend who was there.  She liked going to the pool with her mother, on picnics, to birthday parties or to a bookshop. 

 

56                P thought they had come to England "…because my dad wanted me back with him, 'cause he just imagined all the things I must have gone through."  Asked what her father imagined, P described being hit and giving Piri Piri, a chilli powder, as a punishment.  P said she would like to stay here.  The last year, she said, had been "pretty good."  She has loads of friends here.  She described being worried about therapy that she was having here, saying that Mrs Z had said she would have therapy when school starts, and that she gets stressed about it.  She said she did not have these worries in South Africa and she does not know why she has them now.  I find that illuminating evidence.  She said she does not want to go back to live "the really bad life" she had, and that she would be happy if she stayed in England. 

 

57                The school assessed P's level of understanding and maturity as commensurate with her age, and Miss Julian broadly agreed that that assessment.  In Miss Julian's oral evidence she confirmed that P was generally positive about South Africa.  She said that P is not afraid to visit and was clear that she did not want to live there because of what had happened to her in the care of her mother.  Miss Julian agreed that given the circumstances of this case, including the very clear hostility to the mother as recorded by Hayden J, that it would be difficult for P to make sense of what had gone on in the past.  She was clear for these children, however, that physical chastisement carries a fair amount of weight and that P's objections were going back to the life ‘as it was’.

 

58                L told Miss Julian that her mother has asked if she wanted to move to England and they had agreed.  She said she was not sure why their mother wanted them back.  She would like to stay with Mrs Z and her father because "it won't be fair if I have to start my life over again."  L said her father had to leave the country, South Africa, because of their mother who had told the police about him.  She said: "They believe the woman, not the man."  L said she would like to visit South Africa sometimes to see her mother, to see her friends, to go to camp or to go to the beach.  She would want to live with her grandparents because they really love her and she would sad and shy if she had to go and live with her mother again.  She told the CAFCASS officer that her father had ‘…tried to get A over here because he is not safe’.  Miss Julian agreed with the school's view that L is a little immature developmentally, but her understanding is age appropriate.

 

59                I have weighed the written evidence including P's letter to me, where she says she would like to stay here because she is happy and if she went back she would not have much contact with her friend, who I think is going to move to New Zealand.  I have also considered Miss Julian's oral evidence including her view that the girls' views might be different if they knew that their mother would not be using corporal punishment in the future.

 

60                In my assessment these girls do not hold objections to a return to South Africa.  They would be happy to visit and their focus was very much on not wanting to return to a situation where they may be assaulted by their mother.  The weight of the evidence is very much that they would prefer to live here and that they would object to living with their mother if their circumstances meant that she assaulted them or gave them Piri Piri powder.  The father has given no indication that he would go to South Africa to care for the girls if they returned, so a return would probably mean a return to their mother's care.  This is not inevitable because, of course, the authorities in South Africa would be free to make an assessment of that care.

 

61                In my assessment their "objections" are limited to that aspect of the case alone and do not amount to objections to return to South Africa per se.  If I am wrong and if they do hold objections to returning to South Africa, I accept that they have attained an age and degree of maturity where it would be normal for me to take account of their views.   I would have to consider whether the views that they expressed were actually their own, or had been shaped by the strong views of Mrs Z and their father, both of whom have very significant influence on their lives. 

 

62                This is one of the worst cases one could imagine of parental alienation and influence.  The transcript of the father's evidence before Hayden J demonstrates the father's acceptance of the negative views that are expressed in the household by Mrs Z, and his acceptance that the girls have been exposed inevitably to it.  From the moment they arrived in this country these girls have been treated as if they have been abused by their mother, and have been kept from contact which might have reassured them that in fact she is not a monster.  They have clearly overheard or been told directly things by their father and Mrs Z, and they have absorbed that version of their history.

 

63                I know that some of that history is true because the mother accepts she chastised them.  It was extremely clear to me that when speaking to Miss Julian there was evidence that they were at times giving their own views.  Equally though there was exceptionally clear evidence that they were repeating some of what they had been told or heard, and that the repetition inevitably involved potential fabrication and exaggeration.  Mrs Z's abusive language in describing the mother to others and her hostility towards the mother cannot have failed to influence these children.  I am not satisfied that all of their expressed views are authentic.  There is unequivocal evidence of influence and I am unable to place very much weight on their views as expressed, even given their age and understanding.  That inevitably leads to the failure of this defence.

 

Discretion

 

64                Even if the father had established objections by P and L of a return to South Africa, and I was clear it was their own views, I would have still exercised my discretion in favour of returning this case.  The father and Mrs Z had sought to exclude not only the mother, but their brother, A, too, from these girls' lives.  They have little good to say about the mother.  General Hague Convention considerations mean that I would consider the readily available treatments or services in South Africa by Social Services, or by psychologists and educational psychologists, and the South African Court to make timely decisions about these children's future safety and welfare.  The evidence on my evaluation would clearly have pointed to a result of summary return on any basis.

 

65                I have, in saying this, clearly borne in mind Baroness Hale's wise counsel in the case of Re M (Abduction: Zimbabwe) [2007] UKHL 55.  In a similar vein, if the father had established an Art.13(b) defence my exercise of discretion would have inevitably resulted in summary return.  These children have lived most of their lives in South Africa.  There are unfinished variation of order proceedings which have been left in limbo in South Africa.  Judicial comity gives me confidence in the South African legal system, and in a social care system which already has provided a short but insightful report into the mother's household.  

 

66                Hague Convention policy is clear that children should not be put at grave risk of harm or in an intolerable situation.  In my view, throughout the time they have been here, there has been a sustained campaign to exclude the mother from their lives.  Hayden J was concerned, and I think rightly so, about the therapy and assessment pursued by Mrs Z.  They may, or may not, need psychological support in South Africa.  I was struck by the fact that P was not sure what stressed her here, but she knew that that it had not happened in South Africa. 

 

67                I am very reassured by the mother's evidence that she does not approach discipline now on the basis of corporal punishment, or administration of Piri Piri in the children's mouths.  She has given me an undertaking, which would be recognised in South Africa, to that effect.  Social Care are aware of the situation and will have documentation disclosed to broaden their knowledge of this family, including this judgment.  Accordingly, if I had been required to conduct the balancing exercise under Art.13(b) the result would have been exactly the same.  These girls must return to South Africa as soon as possible.  That is my judgment.

 

Postscript

The parents told me following my oral judgment that they would jointly convey the decision to the girls and that they would work together to ensure a smooth return to South Africa.