England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 December 2003

Mr Justice : Sumner

1. This is a claim by 41 year old Mr Anthony C, the Plaintiff, for the return of 2 children to Germany pursuant to the Hague Convention. The children are JA who is 13 having been born on 25 February 1990, and JE who is 11 born on 1 April 1992. The claim is resisted by the Defendant mother, 39 year old Mrs Vivian C. I shall refer to the parties as the father and the mother.
2. The mother accepts that she brought the 2 children to England just for the half-term holiday from Germany on 24 October 2003. She did not return them. She told the father on 29 October that she would not do so. It is accepted that this was an unlawful retention under the Convention.
3. The mother has raised a number of defences. Those of consent, acquiescence, and whether the father had custody rights were rightly not pursued. That leaves two. The first is that the children object to being returned. The second is that to return them would expose them to a grave risk of harm.
4. Before I come to the arguments presented on behalf of the father by Mr Harrison and on behalf of the mother by Mr Arnot on 5 and 6 December, I shall set out the essential background. Neither party applied to give oral evidence though the mother was in court. Given the number and extent of the disagreements between the parties and the absence of the father, this was an appropriate course to take.

The Background

5. The parties are from Australia and are Australian nationals. The mother is also a Greek national. They met in Australia. They married there in October 1991. The Plaintiff father is not the father of JA.
6. In December 1998 the father was posted to Germany in connection with his employment with Ericcsons. He went there with the family. In January 2001 the mother moved with the children to England. Shortly afterwards she applied for various orders under the Children Act 1989.
7. On 15 February 2002 a consent order was made before Mr Recorder Cohen QC sitting in the Royal Courts of Justice, London. The children were to live with the father in Germany permanently after March 2002. A residence order was made in favour of the father provided he did not move their residence from Germany for a period of 3 years without the mother's permission or order of a competent court.
8. The parents accepted that the children should be educated in schools in which the teaching was predominantly in English. Agreed contact to the mother was set out, providing for the children staying with the mother not less than 2 weeks in the summer, and a week at half-term. Further contact was to be agreed.
9. The mother says in her first affidavit that in 2002 she lost her job and employment in England. She felt the father was better able to provide for the children. That is why she consented to the order.
10. The father disputes this. He says the children were very unhappy living in England with the mother in cramped circumstances. Furthermore the mother did not lose her employment until some 6 months after the order was made.
11. The children returned to live with the father in Germany. They attended schools in Aachen. They had staying contact in the summer of 2002 and 2003 with the mother.
12. The mother says that in the summer of 2003 JA began to complain about the father's conduct to him. He was unsettled in Germany. The father agreed she says to JA returning to England to live with her, but this did not take place.
13. The mother was then alarmed by a report from JE. She said she had found JA with a plastic bag over his head.
14. On 16 October 2003 the mother was due to go to Germany to pick up the children for half-term. Two days earlier the father rang her to say that there was a court hearing in Aachen on the following day.
15. On 17 October she spoke to the judge at the court. He told her that the father was apparently seeking sole custody and leave to return to Australia with the 2 children. There would be a hearing in November or December. The mother says this was the first she knew of the father's applications.
16. The father denies this. He says that she knew about the applications earlier. The papers had been personally served on her in Greece and he had spoken to the mother about them.
17. The mother was not successful in locating the father. She returned to England. She then went once more to Germany when she learned that he was at his address.
18. The father was unwilling to let her collect the children and the police became involved. On the following day, 23 October, she attended a Youth Welfare Office. The children were there. As a result it was agreed that the father would allow the children to go with the mother for half-term in England.
19. Over half-term the mother says that the children told her repeatedly that they did not want to go back to Germany. She believes JA destroyed his passport. She told the father that she was not sending the children back on 29 October.
20. The father denies that the children were unhappy in Germany with him or his girlfriend of the last year. He makes accusations against the mother of being unstable and a compulsive gambler.
21. He says that a year before he had found that she was encouraging JA not to return after the holiday. He gives a detailed account of the events in Germany in October 2003 involving the mother.
22. In particular he says that when he returned to his flat between the mother's visits he found it in complete disarray. It was clear from what he learned from the neighbours that it was the mother who was responsible for this. She had then involved the police.
23. The children were shocked and scared as a result of all this and the mother's aggressive behaviour. JA told a police officer that his mother planned to keep him in England the year before. He was asked where he wanted to go and he said he wanted to live in Australia with his father.
24. There was a scene with the mother. This was the day before the meeting which the mother and the children attended on 23 October 2003 with Mr Krosch from the Youth Welfare Office. He was aware that JA did not know that the father was not in fact his true father. He recommended that JA be told soon but this was to be discussed by both parents and explained in a sensitive and careful manner.
25. The father says that shortly afterwards the mother simply told JA. It was done in a way which was devastating for him. He says she was no more sensitive when she told JE.
26. The father thought it best to allow the children to visit the mother in England for the half-term holiday after their meeting with Mr Krosch. He insisted that the mother bought return train tickets for the children.
27. He had been troubled by JA' behaviour. He had arranged counselling for him but the mother encouraged JA not to go.
28. He says that faced with imminent redundancy from his employment in Germany, it was best for him to return to Australia where there was work with his present employers. That is why he had applied earlier in 2003 for permission to take the children there. He exhibited a report from Mr Krosch on his interview with the children on 23 October 2003.
29. The mother in an affidavit in reply disputes the father's imminent redundancy. She denies, as he asserted, that she has been living permanently in Greece. She had visited for not more than 3 weeks at a time. She agreed to the father having the children in February 2002 because she could not cope financially.
30. She claimed that the father locked JA in his room and hit him. She does not accept the father's version of events in Germany in October 2003. She points out that the children have not been in Australia since early 1997.

The Hague Convention

31. The 1980 Convention was incorporated into English law under the Child Abduction and Custody Act 1985. In essence it provides for a summary procedure whereby children abducted from one Convention country are ordered to be returned to another.
32. The formalities provide that the child must have been habitually resident in the country from which it was abducted. The parent demanding the child's return must also have rights of custody.
33. The authority to return a child and the defences relevant to this application are to be found in Articles 12 and 13.

Article 12.

"Where a child has been wrongfully removed or retained in terms of Article 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 than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith ………..

Article 13.

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that ……

b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."

The Children's Objections to Returning to Germany

34. Mr Harrison for the father accepts that JA has objected to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views under Article 13 of the Convention. However it is both the way in which that position has been reached, the conduct of the mother, and the assistance available to the mother in Germany which he says should affect the exercise of the court's discretion. JE did not truly object. He submits in any event their return should be ordered.
35. Mr Arnot disputes that. The children's objections are well founded and should prevail. There is no good reason to exercise the court's discretion against their clear views. I turn to the relevant events to summarise the position.

Report of Mr Krosch

36. He is the Youth Welfare Officer from Germany. According to the mother he spoke very little English and the children grasp of German is not particularly good. I bear that in mind. On the other hand, as Mr Harrison pointed out, Mr Krosch had the advantage of having met the children before.
37. Mr Krosch in his statement of 12 November 2003 said that JE made it very clear on 23 October that she wanted to continue living with her father and that she was very happy in Germany. She also made it clear that she only wanted to stay with her mother for the duration of the autumn holidays.
38. JA made it clear that the situation with his father was difficult at present.

"Thus there had been some arguments with him and JA did not feel totally happy at present in Germany. He attributed this mainly to the language barrier. The arguments which he had with his father, however, focussed principally on the use of computer games and time spent watching television. My impression is that these are conflict situations between parents and children which are typical at that age."

39. There was an additional point noted by Mr Krosch. It related to an assurance by the mother "that she would definitely be bringing the children back at the end of the holidays". This was a reference to half-term.

Report of Mr Hartley

40. A CAFCASS Reporter, Mr Hartley, saw both children on 19 November 2003 in London. They remembered the negotiations between their parents in Germany and that they had been seen by a Youth Worker there. They told him firmly that they wished to live with their mother. The noticeable air of competition between them made it desirable for him to see them individually.
41. Before this both expressed a concern that if they went back to Germany, their father would not let them see their mother alone and would insist on contact being supervised. They did not like where they lived and they were not doing well at German speaking schools.
42. On his own JA said he would rather live without JE. He behaved better when she was not around. He expressed no positive connection with Germany. He was ridiculed and teased by his classmates. He felt isolated. He said of the incident when he put a plastic bag over his head that it was at first a joke.
43. JA had by 19 November learned that the Plaintiff was not his father. He felt an outsider in his father's household.
44. He complained of his father's excessive punishment, shouting at him and hitting him on the hand with a wooden spoon. Though he loved him he could not live with him. He said that if the court said that he had to go back to Germany he would not be very happy.
45. JE told Mr Hartley that JA wished he had never found out that he had a different father. He did not hate her father but he had tempers and her father tried to calm him down. In the last few months the atmosphere in the home in Germany had been quite nice.
46. She did not want to return to Germany. She wanted to continue to live with her mother. Her main objections like JA was returning to their school and their neighbourhood. She repeated her fear that her father would not allow her to see her mother.
47. Mr Hartley concluded that they had an age appropriate level of maturity. JE had an attachment to her father and her objections to returning were based on external factors. He wondered whether her objections would be sufficient to prevent her return.
48. He felt that there was a more serious breakdown in the relationship between JA and the father. The awareness of his relationship must clearly be significant.
49. Mr Hartley gave evidence. He said he had wondered whether JE's objections were serious enough. The paternity issue had certainly had its effect. JE he considered could be more objective. There was some unfairness in the father's conduct.
50. He felt that JA' relationship with the father was strained and under some difficulty. His feelings of isolation and alienation from his father were serious enough to make JA feel it would be intolerable to return. He felt the incident of the plastic bag was a strong statement at his age.
51. The children had had difficulties in their relationship. It was not sufficient to divide them.

The Mother's Position Should the Children be Ordered to Return to Germany

52. The mother indicated that were the children to be ordered to return to Germany contrary to their wishes, she would feel compelled to go as well. She did not want to. She appreciated that she could not make their objections stronger by refusing to go though that would be her wish.
53. The question of her position in Germany should that happen led to discussions and letters from the father's lawyers in Germany overnight. In the first letter of 26 November it was pointed out that children of this age must be heard themselves in a German court.
54. As a result of further communications on Friday 5 December, there was I understand an agreed view about the mother's situation. It is that she would be entitled to be paid benefits, she would have the equivalent of legal aid, and housing would be available provided the children were with her.
55. The father agreed to pay the sum of 600 euros for a 2 month period. The father would in addition undertake not to issue any proceedings of a criminal nature in relation to the mother's retention of the 2 children.
56. Finally it was accepted between the parties that the German courts could arrange a hearing within 2 or 4 weeks. That might not be the final hearing. I understand that that would not be delayed but would be about 1 or 2 months later.
57. This was also the period stated by the father in a late affidavit joining issue with the mother on a number of points. In particular he felt having read the CAFCASS report that the children had been manipulated by the mother.
58. He said there could be a final hearing in Germany within 2 months. The proceedings are well advanced. The Youth Welfare Service had already commenced their investigations.
59. The hearing proved a great strain for the mother. She wanted to address me directly which I permitted from where she sat.
60. She said that the father abused JE orally and JA physically. He had not attempted to contact them since 6 November. She had never tried to tell the children what to say. They wanted to come to court. She had tapes which showed how the father was emotionally blackmailing JA.

The Father's Case

61. Mr Harrison pointed out that the father's application to relocate to Australia had been started in a court in Aachen in Germany in April 2003. He had started divorce proceedings there in November 2003. Though Hague Convention proceedings are an exception, under the Convention known as Brussels II, German courts would have exclusive jurisdiction to deal with applications relating to JA.
62. He emphasised the different nature of the children's feelings as expressed on 23 October to Mr Krosch in Aachen and what they said to Mr Hartley on 19 November. In Germany JA spoke of a difficult relationship with his father at present and not feeling totally happy in Germany. It was mostly the language barrier. Mr Krosch felt that this was a conflict situation typical at that age.
63. By the time that JA saw Mr Hartley he was objecting strongly together with JE to returning to Germany. His father was unfair and cruel and the environment at school and at home was horrible.
64. JE's views too had changed. She told Mr Krosch that she was very happy with her father and only wanted to stay with her mother during half-term.
65. By the time she saw Mr Hartley she wanted to stay with her mother and did not want to return to Germany. He noted however an attachment to her father and little alienation. She had a fear of total separation from her mother.
66. Mr Harrison attributes this change of attitude to the conduct of the mother. She had caused chaos in the father's apartment. She had over-reacted by involving the police. She had only persuaded the father to let the children come with her for half-term by giving an assurance about their return as recorded by Mr Krosch.
67. It is doubtful he argues that she ever intended to do so. She had then made matters considerably worse by choosing the moment shortly before the children arrived in England to tell JA that the Plaintiff was not his father. Whilst he should know soon as Mr Krosch had said, the timing can only have been to frustrate any wish JA might have to return.
68. The result had been that the children had not seen their father, his fears that the mother would not keep to her assurance had been well founded, and JA had still not started at school. They were living in lodgings. What plans there were for their future with their mother was still unknown.
69. The father had acted speedily in bringing the proceedings. The delay in resolving matters of residence and contact here would not arise in Germany. The courts there were already well seized of the matter. The mother would be looked after under German welfare procedure. She could live with the children in Germany pending a court determination of where and with whom they were to live.

The Mother's Case

70. Mr Arnot says that 2 particular features of the application are the strength of JA' feelings, and the father's wish to return with the children to Australia thereby distancing them from their mother. In relation to JA, he points to the fact that at his age greater weight can be given to his objections. The plastic bag incident is a particularly serious matter.
71. The children would obviously know of their father's reluctance to let them go at half-term with their mother. There was therefore a foundation for their fear that, if returned, they might not see their mother again.
72. Whilst accepting that the timing of the revelation to JA about his true father could be open to criticism, it was nevertheless an important matter. It was only part of the picture because JA was objecting to the whole idea of returning to Germany.
73. The children perceived their best interests as remaining in England. JA did not trust the Plaintiff father to meet his needs. JE at 11 ½ saw her best interests as being with her mother. It demonstrates that there is a basis in truth underlining their objections.
74. There were difficulties with language for the children in Germany. It had been anticipated in the consent order of February 2002; apparently finance had not made a predominantly English speaking school possible.
75. He submits that there is no sufficient evidence to show that the mother has influenced the children views. They were relaxed with Mr Hartley and gave no suggestion that they had been coached. To force JA now to return would be likely to have a bad influence on his relationship with the Plaintiff father.

Authorities

76. I have been referred to a number of decisions. The first is Re: HB (Abduction: Children's Objections) [1997] 1 FLR 392.
77. The case concerned a boy of 13 and a girl of 11 living with their mother in Denmark. She had been given permission to move there from England 7 years before. The children were living with her and their step-father. Hale J. held that there was no doubt of the strong and valid objections of both children.
78. They were very critical of their step-father. He had kicked the boy severely; the mother would smack and hit him hard. The welfare officer however did not sense that the children were in danger. It was, said Hale J. some difficult relationships, some insensitivity on the part of the mother and step-father, and from time to time some inappropriate chastisement. They had both made very dramatic objections to returning and were of an age and maturity in which their views should be taken into account.
79. She summarised the children's objections and their reasons. She went on at p.399 –

"They have to be weighed against the whole policy of the Convention which is that children should be returned, as I say, to have their future decided in the country of their habitual residence ………..

The policy of the Convention is, in my view, particularly important in cases where children come to another country for visits. It is obviously in the best interests of children whose parents live in separate countries that the parent with whom they live should feel able to send them on visits in the knowledge that the children will be returned at the end without difficulty. Otherwise parents may be tempted not to allow the children to come, and that will be detrimental to the children…….

More to the point, therefore, is the conclusion that there is no good ground to refuse to return C a further reason for returning A as well? I have found this a very difficult decision, but I have reluctantly come to the conclusion that it is and that A should also be returned. His welfare is not paramount, but it is undoubtedly relevant to the exercise of this discretion. It is not usually advisable to separate siblings who are close in age and obviously allied with one another. Whether A sees it as a punishment or a reward, singling him out for different treatment from his sister and from what is asked of other children in this situation, does not seem an appropriate response to the problems his is presenting. I conclude, therefore, that both children should be returned."

80. She had also considered a defence under Article 13(b), namely whether there was a grave risk that a return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable position. She said in relation to that –

"It is recognised that defences under this Article and paragraph carry a heavy burden of satisfying the court that there would indeed be a grave risk of substantial harm. Otherwise there is the risk that the courts in the country to which the children are abducted or in which they are wrongfully retained will be tempted to try the custody or other dispute between the parents…….. This adds up to some difficult relationships, some insensitivity on the part of the mother and the step-father, and from time to time some inappropriate chastisement. But it does not add up to deliberate ill-treatment or abuse such as would expose either of the children to a grave risk of physical or even psychological harm. Any risk of psychological harm or being placed in an intolerable position is, as a matter of fact in this case, more closely connected to the children's objections to return, to which I shall now turn."

81. The case was appealed. It was allowed because of events that had arisen principally since the hearing. In the course of her judgment Butler-Sloss LJ as she then was said, [1998] 1 FLR at p. 428 –

"The decision of Hale J. in October 1996 is not open to criticism."

82. I have also been referred to the case of Re: T (Abduction: Child's Objections to Return) [2000] 2 FLR 192. It was an unusually difficult case relating to a girl of 11 G and a brother of 6 T living with their mother in Spain when their father wrongfully brought them to England where they had been born and of which both parties were nationals. The court was highly critical of the father's behaviour. G objected to returning because her mother was drinking too much and her words were "you know how dangerous you are when you get drunk…….". The father did not succeed before Wall J. and successfully appealed.
83. In a detailed judgment Ward LJ pointed out a number of important factors. Firstly was the need to know why the child objected. Secondly to consider the age and degree of maturity of the child and thirdly to examine the strength and validity of the views.
84. That latter consideration involved looking at the child's own perception of what was in her interests both short and long term. It was also necessary to see the extent to which they were based on reality, how much they had been subject to any undue influence, and the extent to which they would be mollified on return.
85. A further difficulty in the case was that the objections raised by G did not arise with T. However the court held that to return him without his sister would place him in an intolerable situation.
86. In the circumstances the main arguments for his return related to the spirit of the Convention and the acknowledgement that the Spanish court was in the best position to decide his future did not prevail against the intolerability of T's situation. With considerable hesitation the Hague Convention application was dismissed.
87. Ordinarily I would quote at some length from the judgment of Ward LJ. I would however just refer to the passage at p.213 where he said –

"In the last analysis the balance is between allowing (G) her Article 13 defence or enforcing the spirit of the Convention despite the Article 13 defence. In my judgment the demands of comity, convenience and even the welfare of the child in having her future decided in the court of her habitual residence, do not override the respect which should be paid to her wishes in this particular case."

88. I have also been referred to the decisions of TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 in the Court of Appeal. In that case with a strong dissenting judgment from Hale LJ as she then was, the Court of Appeal ordered the return of 3 children aged 14, 12 and 10 to New Zealand against the wishes of the 14 year old.
89. Finally there is the case of Re: L [2002] 2 FLR 1042, a decision of Wall J. Mr Arnot has referred me to it in part because of a reference by the learned judge to the proposition that –

"…….. the mere fact that there are proceedings continuing in the requesting State is not of itself a reason for refusal to exercise the discretion not to return."

90. It is however right to note, as the learned judge did, that in that case the proceedings followed the child's removal. In this case there were relevant proceedings before the mother's unlawful retention.

Conclusions

91. This is yet another Hague Convention application with seriously disputed evidence, where it is not possible to resolve even some of the more important points, yet there is an obligation to reach a summary conclusion. It is one of the most anxious and difficult jurisdictions. This case has emphasised that in good measure.
92. I start off with the undisputed facts. JA and JE have expressed objections to being returned to Germany. The Plaintiff father is not the biological father of JA, something that JA has only just learned.
93. They are of an age and a degree of maturity at which it is appropriate to take account of their views. The present strength of their objections was only formed after their arrival with their mother in England.
94. It relates to their continuing relationship with the Plaintiff father, in particular that of JA, and a fear of not seeing their mother. The issue for me is the strength and reasons for the objections and whether I should exercise my discretion in favour of their objections. Before I do so I consider the defence of grave risk.

Grave Risk

95. As Mr Arnot rightly points out, the court must give separate consideration to this defence. It arises under Article 13(b) which I have set out.
96. As Ward LJ said in Re: C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 –

"There is, therefore, an established line of authority that the court should require clear and compelling evidence of the gravity of risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is must more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

97. Experience shows that many claims to a defence under Article 13(b) are met by undertakings or arrangements made by the parent claiming that their child has been abducted. In a case such as this, they are aimed firstly at ensuring that the abducting parent may not be immediately exposed on their return to criminal charges.
98. They are also intended to ensure that where a parent will accompany the children if they are ordered by the court to return, they have available such accommodation, financial support, and legal representation as are reasonably required. Thus any situation which might give rise to a grave risk in relation to the children with the parent from whom they are abducted is safely avoided. This usually continues until the court in the country to which they are returned has given a judgment about the children's future.
99. In this case the father is prepared to give an undertaking not to take any criminal proceedings if the mother were to return with the children. Furthermore he has made an offer of money. This is to supplement the financial support, provision of accommodation, and right to legal representation which the mother would in any event have available to her on her return to Germany. I am satisfied that this would ensure that the mother and the children can be together in Germany pending the determination by a German court.
100. I do not in any event consider that the mother has established a case of grave risk to the necessary high degree based on the matters which I have read and the submissions which have been made. It was clearly an uncomfortable time for JA. I have however no reason to doubt that the assessment of Mr Kosch was a fair one at the time he was discussing the matter with JA. That does not in my judgment meet the requirement of clear and compelling evidence of the necessary degree of severity.
101. In summary the views and concerns expressed to Mr Hartley show that JA had problems at school. He had been having a difficult relationship with the Plaintiff father.
102. There were tempers on both sides and quite possibly some inappropriate chastisement. This was made worse for JA on learning that the Plaintiff was not his father.
103. JE, recognised as being more objective by Mr Hartley, saw the atmosphere with her father in the last few months as quite nice. Her father had shown some unfairness to JA.
104. These allegations are not accepted. But looking at them objectively they are not the deliberate ill-treatment or abuse giving rise to a grave risk of physical or psychological harm of which Hale J. spoke.
105. The mother cannot rely upon the upheaval caused to JA by her act in choosing the moment just before his departure on half-term to tell JA of his true paternity. It may well provide some explanation for both change and the strength of the views he expressed to Mr Hartley.
106. Even if I had been satisfied that a grave risk had been established, I would not have exercised my discretion. I would have ordered the children's return to Germany, given the assistance which is available for the mother and the offer and undertaking of the father.

The Children's Objections and Discretion

107. JA' objections expressed to Mr Hartley were to school, the strained and at times difficult relationship with the father, and the fear of not seeing his mother. The extent of those objections had increased from being not too happy in Germany in October to a sense of isolation and alienation by November.
108. For JE she had moved from being very happy in Germany, to not liking her school and neighbourhood, and fear of not seeing her mother. They did not appear strong objections to Mr Hartley.
109. I have been concerned about the greater intensity of JA' objections since his arrival here with his mother. There is also JE's change of view though not expressed so strongly. I have to attribute part of those changes to the time with their mother. She has been an influence on this. They are objections likely to reduce somewhat on any return to Germany. These are factors which affect both the weight given to their objections, and the exercise of discretion.
110. I find that in isolation JA' objections from a boy of his age and maturity carry weight. That is only if they are limited to the views he expressed to Mr Hartley as they have a basis in reality. That is considerably reduced when compared to his earlier views and his mother's timing and mode of telling him of his true identity.
111. JE's objections are not too strong in any event. I accept Mr Harrison's submission that they lack the weight to be determinative on the issue of her objections. They are not true objections.
112. I conclude that JE could more readily overcome her objections on her return. It would be more difficult for JA but possible. I would have hesitated to say they were sufficient objections given their dramatic increase or change whilst in England.
113. I turn then to the question of the court's discretion in relation to the children's objections. I have come to the same conclusion in relation to this defence. The reasons include those I have already set out. They also cover other matters which I now set out, though in no particular order.
114. The children were habitually resident in Germany at the time of their unlawful retention. They have little connection to England save for a period of just over 1 year when they lived here with their mother.
115. German courts are already involved in relation both to the father's wish to relocate the children to Australia and in relation to his application for a divorce. But for the Hague Convention proceedings, under Brussels II German courts would have been the only forum that could deal with matters relating to JA at the time of a divorce.
116. Not only are the German courts already involved, it is common ground that the time that they will take to resolve these issues whether it be by one or two hearings will be shorter than in London. The matter will be resolved by the same court with which the mother has already had contact.
117. The children's wishes have intensified since they left Germany. The contrast between their views as recorded on 23 October and 19 November is marked. Whether it is because of pressure from the mother or the fact that they have been illegally retained may not matter. I accept that their views have been accurately recorded on both occasions.
118. Part of the children's upset has been caused by the mother. They were shocked by the chaos she created in the father's flat. She added to the difficulties by telling JA of his true paternity at a difficult time. It is not readily understandable unless it was intended by her to gain some advantage from the timing of that disclosure.
119. The father's consent in mediation proceedings was only obtained after an assurance from the mother that she would return them. It is difficult to believe in the light of the way she behaved both before and afterwards that this was sincere on her behalf.
120. I look at the support and representation available to the mother in Germany. I am not satisfied that this is a case where, to use the words of Ward LJ, "upholding the spirit of the Convention is too high a price for these children to pay".
121. I feel bound to order the return of the children upon the father's undertaking and offer of money.