England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/06/2007

Sir Mark Potter, P :

Introduction:

1. This is an application by the Plaintiff mother for the return of her daughter S (now aged 14 years and 3 months) to the jurisdiction of the Republic of Ireland pursuant to the Child Abduction and Custody Act 1995 and Council Regulation EC No 2201/2003 ("Brussels II Revised"). The Plaintiff is an Irish citizen and resident in Ireland. She is represented by Miss Ramsahoye. The First Defendant is the natural father of S and is presently resident here. There are two other children of the family. M, (the younger brother of S) is aged twelve, and R, (her younger sister) is aged 10. Both reside with the Plaintiff in Ireland. S was joined as Second Defendant to these proceedings by Sumner J on 22 January 2007. She is bright and intelligent (indeed she is educationally gifted or near-gifted) and well able to instruct a solicitor herself. She is represented before me by Mrs Taylor of counsel. The father appears in person. He does not dispute that he wrongfully removed S from Ireland, but asserts that the mother consented and/ or acquiesced in that removal, later changing her mind. He relies upon S's objections to returning to Ireland into her mother's care and asserts that she would be at grave risk of physical or psychological harm if she were ordered to be returned. (See Article 13 of the Hague Convention).
2. There is a long history of proceedings between the parties which is somewhat complicated and has been characterised by a degree of evasion and prevarication on behalf of the father, leading to a number of adjournments. I do not propose to rehearse the earlier history at this stage, save to say that the father is in breach of his obligations under various Irish Court orders to pay maintenance to the mother.
3. These proceedings for the return of S were instituted by the mother as long ago as January this year. Their disposal has been unfortunately delayed by reason of the necessity for a number of orders for directions, as well as an adjournment in the course of the original hearing date on 22 February 2006 for the purpose of mediation between the parties when it appeared that an agreed solution might thereby be achieved. Upon such arrangements proving unproductive, there were difficulties in fixing a hearing date because of the international commitments of the father's job and the imminence of his partner's giving birth to a child in America. Eventually a date was fixed for a hearing before me on 25 April 2006. At the outset of that hearing, the father applied before me for a yet further adjournment on the grounds that he wished to further his so far unsuccessful application for Legal Aid. In the light of the history, the unlikelihood of the father obtaining Legal Aid in view of his employment position, and the fact that his position in the proceedings essentially involves identifying himself with the case of S, who objects to her return, I refused his application. Upon completion of the hearing before me, I was obliged to reserve my judgment, the grounds of which hereafter appear.

Background

4. The father is aged almost 42 and the mother is aged 44. The parties met in 1986 and married on 30 May 1992. S was born on 1 March 1993, N on 19 January 1995, and R on 17 September 1996. The father had fairly senior corporate positions in the field of finance in Germany and Tokyo, where the family moved during the course of the marriage but, in 1998, the parties separated, the mother returning to live in Ireland with the children who there went to local schools. Upon termination of his employment in Japan with a substantial golden handshake, the father went to live in London. After a while the father failed to pay regular maintenance and as a result the mother endured an unsettled period in relation to her accommodation and the children's schooling. The father came over to Ireland for regular contact.
5. In 2001 the mother fell ill with depression, and was diagnosed as suffering from bi-polar disorder. Later that year, she was admitted to hospital during an acute phase. By agreement the children went to live with the father in England where he looked after them for several years affording generous contact to the mother.
6. Eventually the mother's condition improved, and, in the light of her improved condition and difficulties which had developed over contact with the children, she brought custody proceedings in respect of them which were the subject of a judgment by Mr Justice McKechnie in Dublin on 2 April 2004. A transcript of that judgment is before me. I do not need to refer to it at length. It helpfully summarises the nature of the mother's disorder, namely one that is amenable to treatment and control by medication, as was the case by the time it came before the judge, but it cannot be cured and she remains and will remain vulnerable to further episodes or relapses, the risk as to which it is not easy to quantify.
7. By the time of those proceedings, the mother was in a good job with a leading bank in Ireland and had obtained outline planning permission for a house in which she proposed to live with the children.
8. For reasons made clear in a long and careful judgment, Mr Justice Mckechnie made an order for joint custody of the children, the primary custody in the terms of the school year to be with the mother, but with generous access provisions in favour of the father. At page 28 of his judgment the judge observed that the children were, intelligent, capable and related well to both the mother and the father. The Children were then at school in England. S was at a High School in Surrey. However, Mr Justice McKechnie had no fears that if they went to live with the mother they would not adapt to their new circumstances and surroundings. He equally had no fears that their intelligence, brightness and learning capability could be furthered by education in either jurisdiction.
9. Following that order, the father failed to return the children to the care of the mother, who issued proceedings here for its recognition, registration and enforcement.
10. On 5 August 2005, Mr Justice Singer made an order for the return of the children to Ireland into the mother's care. A transcript of Singer J's judgment is also before me. By that time, the mother was still holding down her responsible job and taking steps to construct the house in Drogheda for which she had obtained planning permission. Her house was said to be nearing completion.
11. The judgment of Singer J made clear that, at that time, the children were vigorously objecting to an order for their return to Ireland and it appeared that S, and perhaps also M, would fiercely resist. The judge had been very concerned at the situation, and with the consent of the parents, enlisted the intervention of Dr Hamish Cameron in mediatory efforts to help the parents come to terms with each other. Unfortunately those efforts proved unsuccessful. After a degree of judicial agonising and a broad evaluation of the evidence, the judge came to the conclusion that although the children's opposition to the moves and changes contemplated by the Irish order would be real and significant, if the order were implemented then they would accommodate to the changes. In those circumstances, he held that it was appropriate to order a return of the children to the mother.
12. I pause, in parenthesis, to note that the judgment of Singer J is principally devoted to arguments raised by counsel of a technical nature relating to the applicable enforcement procedure and in particular whether the Hague Convention governed the situation and, if not, whether the Brussels II Regulation or Brussels II Revised applied. The conclusion of the judge was that the Convention did apply and that the Irish orders should be recognised, registered and enforced at the earliest practicable opportunity. He stated that he would have reached the same conclusion if either Brussels II or Brussels II Revised applied. He added, however, that, if none of those regimes had been applicable, he would not have ordered peremptory return of the children in exercise of the court's inherent jurisdiction as he did not feel satisfied that an order for them to move to Ireland made without investigation of the merits would be in their overall welfare interests.
13. On 4 October 2005 the Court of Appeal dismissed the father's appeal against the order of Singer J.
14. Following the return of the children to Ireland, on 5 October 2006, upon an application by the mother for various heads of relief, including an application for sole custody of M, Mr Justice Abbott made an order that S and R should remain in the custody of the mother and that the husband be restrained from removing them from the jurisdiction without leave of the court. The order of Mr Justice Abbott recites that he heard from the children in chambers before making his order and I have before me an extract from the transcript of his conversation with S. By that time, the house in Drogheda which the mother was building was still not finished and she was living with her three children in the home of her new partner and his teenage son C. It is apparent from that conversation that, on being asked how she was finding life at the moment and whether there was anything special she wished to bring to the Judge's attention, S replied "Okay, the only thing that I would really like to change is so that I can see my dad more and his girlfriend and my half sister, but that is it." [The reference to S's half sister was to the father's female child, aged seventeen months, by his new partner]. S said in terms that she was happy living with her mother, but would like to see her father more, only having seen him three times since the family came back to Ireland. She found the accommodation with her mother's new partner somewhat crowded but made no great complaint. She also wanted to go to England to keep in contact with a number of friends she had there. However her "friend situation" in Dublin and at her Irish school at was "not too bad".
15. I have also seen the conversations which the judge had with S's younger siblings. It is apparent that they were content in the care of their mother and M was particularly strong in his desire to be in Ireland.
16. Despite what S had said to Mr Justice Abbott, just three months later, on 13 January 2007, the mother went to collect S from school and found that she was not there. S had for some time been in contact with her father to persuade him, in the light of her developing unhappiness at home (for reasons to which I will shortly turn) to come over to Ireland and collect her in order to go and live with him in America where he was at that time employed and living with his new partner who was pregnant.
17. The situation has changed since then, in that the father is no longer employed in America, having recently returned to England for his new partner to give birth here. At the time of the hearing before me on 26 April, he was about to take up the offer of a good job here in the financial sector.
18. Since it is not in issue that the removal of S was wrongful, being in breach of the mother's rights of custody by virtue of the order of Mr Justice Abbott on 5 October 2006, (S being habitually resident in Ireland at the time of her removal), I shall first summarise the father's case, before turning to the evidence of S to which it is essentially parasitic.

The Father's Case

19. He states that, following the return of the children to Ireland in July 2005, he had little contact with them, despite making repeated attempts to contact them by telephone and e-mail. He states that his attempts were frustrated by the mother and her partner. Having visited Ireland on one occasion in May 2006, he needed the assistance of the Irish Police to see his children, although the mother had agreed the details of his access the day before. He was reduced to surreptitious e-mail communications with S, which apparently resulted in her getting into trouble on a number of occasions when they were discovered. Since November 2006, S had been communicating with him, largely by e-mail, complaining of difficulties in her life at home. She stated that she had been hit by her mother and told on occasion to leave home and go to live with the father. After a gap of communication in about the second week of December, S's complaints started again. The father attempted to speak to the mother who would put down the telephone whenever he called.
20. On Christmas Day, the father spoke to all the children for a few minutes, but on 28 December when he called, he could hear the mother screaming at S that she should leave and that he should arrange the flight immediately. S told him that she and M wanted to leave to live with him and he told S to call him back later when everyone had calmed down. Following the return of the children to school, S contacted the father by telephone in a state one day and begged him to come and get her to take her away from the mother. The father states that he told her to think hard about this but, over the next few days, she hardened in her stance, complaining of her mother's conduct. At that point he felt that the only course of action open to him was to go to Ireland and meet S to assess the situation. Upon doing so, and without seeing the mother, he decided that S would be in a "terrible situation" living with her mother and he bought a ticket for S to fly home with him to England, which they did.
21. Whereas, in his initial statement provided to the court in February 2007, the father was still living and working in the United States, that job had finished by the time he swore an undated affidavit in April shortly before the hearing, in which he made clear that he was now living in Kent having resigned his employment in the United States and had available a position with a derivatives company in London which he was about to take up, in the absence a better offer, as to which he made clear in his submissions before me that he had none. He was in the process of looking for a rented property in Surrey in which to live with his new partner, his elder child of sixteen months and their very recently born daughter. At the hearing before me, he produced a contract for a four bedroom property which he was about to sign and where he proposed to live with his new family, making clear that when he did so there would be room for S, who was currently living in the home of the family of her closest friend, IB, while attending her Surrey High School, where she had re-started in January 2007 and where he proposed she should continue her education. His position was that he repeatedly encouraged communication between S, her mother and her siblings by mobile telephone and e-mail and that if S were to remain within the jurisdiction, he would continue to encourage such contact, expressing the hope that S would agree to visit Ireland for contact with her mother, he believing that she should do so.

The position of S

22. S has set out her position at considerable length in two statements. The first was undated and made following the affidavit of the mother's solicitor which referred only briefly to the circumstances of S's removal and made no reference to the events leading up to S's departure save to refer to the "accommodation difficulties" the mother was having in Ireland, namely that, until her new still uncompleted house was built, she, S, M and R were all living with her partner and his son, Connor (aged 16) in a three bedroom property. The mother also referred to her financial difficulties as a result of the father owing her over €100,000.00 in respect of her maintenance. S's second statement dated 22 February 2007 was made in short response to her mother's subsequent lengthy (undated) statement, in which she elaborated her case.
23. The combined statements of S make clear that, for the four years when she, M and R had lived with their father in England she had been happy, attending primary school where she had a large number of friends and one "special friend" IB with whom she moved on to High School and had virtually daily contact. [It was the family of IB with whom S was living at the time of the hearing before me]
24. She also made clear that, at the time S and her siblings returned to live with her mother in 2005, she was willing to go to Ireland because she wanted to attend a particular school there in Dublin, which she did. She also believed and understood that she would continue to see a great deal of her father and that he would come to visit them. Contrary to her expectations, however, she has only seen her father on three occasions since August 2005; once at Christmas 2005 which the children spent with him; second on an occasion when he visited Ireland to attend R's communion in May 2006; and third, for one week's holiday with him in June 2006. The rarity of these occasions was the cause of argument and unhappiness between her and her mother.
25. She accepts that when she spoke to Mr Justice Abbott in autumn 2006, she had told him that she was prepared to remain in Ireland, largely because she was very happy at school and believed that she was in the joint custody of both her parents. However she also made clear that seeing her father more frequently was important to her. She says that she felt reassured by Mr Justice Abbott in that respect.
26. In her statements, S speaks to a number of rows with her mother and incidents of strife arising from her relationship with her mother's partner and his son C, all of which occurred before her conversation with Mr Justice Abbott. For the purposes of these proceedings I do not regard them as of great significance, given the family conditions, and what S told Mr Justice Abbott. I turn therefore to the reasons given by S for the change from her attitude as in October 2006 to that which led her to ask her father to take her away in December 2006.
27. In that respect S states that, rather than contact with the father increasing as she had expected, the mother, supported by her partner, obstructed contact with the father and forbade S to have e-mail or telephone contact with him. This was the subject of repeated rows and shouting matches. At the same time, S was unhappy because of regular strife with C, with whom she was having to live in close proximity and who did not get on with her, being (as she states) allowed to call her "a fucking bitch" without reprimand or being required to apologise.
28. S states that her mother's medical condition appeared to be deteriorating. She frequently did not get up until 4 or 5 in the afternoon, which was what used to happen when she was in her prolonged depressive stage pre-2004. Further, in the course of the frequent rows which occurred, she would hit S, causing bruising to her arms and legs.
29. S says that, during those rows, on at least 4 or 5 occasions, her mother said words to the effect "if you are so unhappy go and live with your dad".
30. S says that, on 21 December 2006, when her father telephoned her, S told him that her mother was ordering her to go and live with him, to which her father responded that she should "think about it".
31. The general picture is conveyed in paragraph 12 of S's first statement where she says:

"After that I did think about it a lot. I decided that I would go and live with him. There was a whole bunch of reasons but principally it was plain that mum wanted me to go; but her own position was such that she was unable to provide us with a proper home; that I was really not wanted and the situation was likely to deteriorate. I told them my decision. [The mother's partner's] response was to forbid me to go out and to order that I should have no contact with my father. There was another huge argument on about 28 December. I remember a telephone call when mum screamed down the line at dad 'come and get her'. In what has become a not unfamiliar pattern the following day, mum simply ignored everything she had said and pretended it had not happened."

32. On 2 January, after the mother's partner and M had hacked into and read S's e-mails, she asked her father to come and get her. Again he told her to "think about it". However, over the next week she repeated her request and started sneaking possessions to school so that she could take them with her if and when her father came to collect her. That is what happened on 13 January 2007.
33. A further matter appears to have influenced or contributed to S's decision to leave. Because of the growing tensions and arguments within her new extended family, on 6 January 2006 the mother's new partner told her that she and her children could no longer spend the weekends in his home where they were living and should make alternative arrangements. Accordingly, they went that evening to the flat of a friend of the mother's who was not using it. S understood that that would be a weekly occurrence until their expected move to Drogheda in the summer some forty miles from their then home, which would in turn necessitate a change of school for S from her former place at school in Dublin.
34. In relation to her defence of acquiescence, S states that, after her arrival in England when she spoke daily on the telephone to her mother, her mother said words to the effect "I know why you have done this" and "that's what I would have done in your position".
35. S makes clear in no uncertain terms her objections to returning to Ireland. She states that her departure was entirely her own decision and because she could put up with the situation no longer. She did not tell the mother of that decision because she wished to avoid a huge row and involving the other children. At the same time she makes clear that she believed her mother's repeated statements that she should go to her father were genuine, but says that she knew that it was impossible to rely on her word as she might be overruled by her partner at the last minute.
36. She also adds to her objections a stated change in her attitude to education at her Dublin School. She says that the principal reason she originally agreed to go back to Ireland to live was because she wanted to attend that school where, she did well. However, her performance deteriorated under the strains of her situation post-October 2006 and she no longer wishes to attend, preferring to be educated in England at Croydon where she is happy and doing well. As already indicated, she also understands that a further change in school would be involved after the end of the summer term, should she return to Ireland and make the move to Drogheda.
37. From shortly after the time she arrived in England, until the hearing before me, S has been living in the home of JB and BB, the parents of S's best friend IB, who, in a short statement, make clear that they have been happy to provide her with a "home from home" for "as long as it takes" for her position to become settled. S and IB have together been going to High School, which S previously attended when she was living with her father in England and S has been in regular contact with her father. It was made clear to me at the hearing that, once S's father had found accommodation for himself and his new family, JB and BB preferred that S should go to live with him, as did S, if only from a feeling of embarrassment should she outstay her welcome. At the time of the hearing before me, it appeared that the father had just found suitable accommodation and was in a position shortly to take S into his new home to live with his new family. In those circumstances, when reserving judgment on 26 April, I made an order which permitted that course to be taken pending judgment.

The mother's case

38. In her affidavit sworn in February 2007, the mother outlines the long history of litigation between the parents in respect of the children and describes the difficulties she has encountered in enforcing financial orders made at the parties' judicial separation. She also refers to her medical history and states that she has not taken any medication for the condition of bi-polar depression since April 2004. She disputes S's recollection that she was happy during the period she was living in England with the father and emphasises the sacrifices she (the mother) made to visit the children regularly over that period.
39. The detail of the mother's statement is mainly directed to the events after early October 2006 when S expressed contentment with the idea of remaining in Ireland. The mother acknowledges that "on two occasions there were short periods of time when I asked the children not to speak to" the husband. She says that while she appreciates she may be criticised for that action, S understood that she regarded the husband's behaviour as unreasonable and that he was responsible for the family's overcrowding problem by not performing his obligations. She also acknowledges that S and her partner's son do not get on, saying that they have nothing in common and this creates tensions. She asserts that one of the upsetting incidents relied on by S was in fact the product of bad behaviour on S's part and asserts that, while her partner's son was sorry for what he did, S showed no remorse whatever for her own behaviour.
40. The mother also acknowledges that, as a result of two deaths in her family earlier in the year "combined with the unsuitable living arrangements and lack of finances" she became depressed and went to her GP who advised a return to anti-depressants, prescribing a drug called Ciprimal. She has since returned to work and has ceased to require or take such medication. She exhibits a short medical report from her general practitioner dated 16 February 2007 which makes clear that she is not now taking any medication or anti-depressants, that she is "very healthy" and that "there is no evidence to support risk of relapse of bi-polar condition for which she has not needed medication since 2004."
41. The mother further accepts that she has on occasion said to S in anger "if you are so unhappy go and live with your dad". However, she makes clear that these remarks were made in the heat of the moment. They were not intended, and she does not believe they were taken by S, to indicate her consent to S's later departure. She also asserts, that, had S genuinely believed that she was consenting to S living with the father, she would not have left Ireland surreptitiously with her father's assistance in the way that she did.
42. The mother also accepts that, shortly after S's arrival in England, she said to her on the telephone "I know why you've done this". However she states that it was in the context of understanding that had S wanted a room of her own if possible. She states that, at no point in any conversation with S, did she indicate agreement or acquiescence with her decision to go to England.
43. The mother understandably expresses concern at the unfairness of a situation where the father, having created severe financial hardship for her, so that she has had to divert monies which she has earned and which were destined for building of her new family house, and having thus brought about the position of overcrowded living which the mother acknowledges has led to difficulties with S, is seeking himself to become S's primary carer. She states that, while S is intelligent and articulate, her objections are not well thought out, and does not appreciate that her welfare will be better served if she returns to Ireland to live with her siblings and to education at her Dublin School to continue her education there. In this respect the mother exhibits material from that school which demonstrates S's outstanding ability and the school's willingness for her return, whether to a boarding place, fees permitting, or as a day pupil if preferred. She does not, however, deal with her intentions as to the education of S after the summer and following the intended move to Drogheda. She indicates her willingness to pay boarding fees up to the end of this term to enable S's immediate return. However the future availability or source of boarding fees is left uncertain; nor does she advert to the fact that S no longer wishes to return to her Dublin School. Indeed, the mother gives no details of the practicality of a move to Drogheda in the summer or as to how near her new house is to a state fit for the family's habitation.

The overall picture

44. The broad picture which emerges upon the evidence, and in particular the circumstances leading to S's departure is, on analysis, a fairly clear one. Following the decision of Mr Justice Abbott, there was a deterioration in the mother's mental health by reason of deaths in her family. That deterioration appears to have been an attack of depression, rather than a resurgence of bi-polar disorder. It would, indeed, be surprising if that depression was not contributed to, or exacerbated by, the crowded conditions in which the mother was living and the situation of conflict which was building up between her partner and C on the one hand and S on the other. As a result S, who had hitherto found her position tolerable, began to find it hard to bear the conflict, her own lack of privacy, and her mother's increasing inability to cope, which included episodes of anger and occasional violence directed at S. S thus began to turn towards her father for comfort and as a repository for e-mailed complaints. This increased closeness between S and her father was a further source of stress for the mother, who regards the father's former intransigence and failure to meet his obligations as largely responsible for the mother's financial difficulties and the delay in the completion of her home in Drogheda, with consequent difficulties in accommodating her family. The mother's increasing volatility in the course of her depression, her obstruction of contact with the father (contrary to the intention of the Irish Court) and her arrangement, or at any rate tolerance, of interference with S's e-mails were enough to make S see her future happiness as lying with her father as her primary carer. S's subsequent happiness in the home of her best friend's family, while attending a school where she had formerly been happy, are for her a favourable contrast with the relative unhappiness of her life in Ireland during her mother's illness.
45. It has not been in dispute in these proceedings that the removal of S from the care of her mother in Ireland was wrongful for the purposes of Hague Convention proceedings. I now turn to consider the defences raised on behalf of S and her father to an order for her return, against the background I have set out above.

Consent/ Acquiescence: Article 13(a)

46. I am wholly unsatisfied that the mother either consented to or acquiesced in the removal of S to England by the father. I have no real doubt - indeed it is conceded – that in the heat of argument and resentment which was generated in the period either side of Christmas 2006, the mother was on occasion making remarks to the effect that, if S was so unhappy , she should go to live with her father. However, I am equally not in doubt that these were expressions of upset and anger made in haste and distress which were never intended by the mother, nor truly understood by S, as permission or consent to such a course being taken, particularly at a time when the husband was still living and working in America and his future intentions were uncertain. This applies equally to the telephone conversation of 28 December 2006, upon which the father relies. It seems plain to me that the joint stratagem of S and the father, concealed from the mother, was so concealed because it was well appreciated that the mother would object to S's removal and not simply because of the influence or attitude of her new partner. I am equally far from satisfied that there is any evidence of acquiescence by the mother to the removal of S, or indeed to any change of residence on the part of S, or that the mother's expression of understanding as to why S had done what she did amounted to acceptance of, or acquiescence in, her continuing residence with the father.

S's Objections

47. I have already set out the firmness and clarity of S's objections. In addition to reading her evidence and hearing the submissions of counsel on her behalf, I saw her in my room for some 15 to 20 minutes in accordance with Article 11.2 of Brussels II Revised. I did so in the presence of her solicitor and the mother's solicitors as note-takers, having explained to the parties that I did not consider their presence appropriate in the light of the inhibitions it might place upon my conversation my with S, which position was accepted by the mother and father. Apart from hearing anything which S wished to tell me, I was concerned to explain to her the nature of my task and why, in the face of her objections, I might none the less feel obliged to order her return in the light of the nature of the Hague Convention jurisdiction. I was impressed by her articulacy and her understanding in relation to those matters as explained to her. She did not rein back upon any of the views she had expressed in her evidence; however, I was encouraged by her apparent (albeit reluctant) acceptance of the possible necessity for her to return to a further hearing before the Irish Court (preferably before Mr Justice Abbott) for a decision as to her future welfare in the light of events as they have turned out since October 2006.
48. Where a child's objections are relied upon by way of defence, there are of course three stages in the consideration to be given by the court to those objections. The first question is whether or not the objections to return are made out. I have no doubt that they are. The second question is whether the age and maturity of the child is such that it is appropriate for the court to take account of those objections. I am also quite satisfied upon that aspect. S is a highly intelligent fourteen year old as I have described her. Whereas it does appear to me that she has made insufficient allowance for her mother's medical condition during the period prior to her departure, and has by reason of her age been unable to bring to the situation in Ireland the level of tolerance which it demanded, she has nonetheless considered her position at a level calling for careful examination and consideration by the court, albeit she lacks the right to self-determination. The difficult question in this case is the third stage of the court's consideration, namely whether or not it should exercise its discretion in favour of retention or return; see S v S (Child Abduction)(Child's Views)[1992] 2 FLR 492 at 501 and Zaffino v Zaffino (Abduction: Child's views) [2006] 1 FLR 410 per Thorpe LJ [at para 19] and per Wall LJ at paras [30]-[31], in relation to the Hague Convention generally; and see Vigreux v Michel [2006] EWCA Civ 630 [2006] 2 FLR 1180 at paras [20] –[35] and [60] – [62] in relation to Brussels II Revised.
49. In my view, despite the clarity of S's objections and the consideration to which they are entitled, and despite the fact that it may well be that ordinary welfare considerations militate in favour of her being permitted to stay with her father in England, this is a case where I should exercise my discretion in favour of an order for her return, in order to enable the Irish Court to examine and deal with those welfare issues in accordance with the plain intention of the Hague Convention, as reinforced by Brussels II Revised.

Intolerable situation: Article 13(b)

50. I pause for completeness to observe that the additional defence advanced under Article 13 of the Hague Convention, namely that were S to be returned, it would place her in an intolerable situation, was but lightly pursued before me and in my view is far from established. There is before me no medical, psychiatric, school or other report of the kind customarily relied upon to assist in establishing the level of proof and 'intolerability' required by the relevant Convention jurisprudence. In any event, as I have indicated, it appears to me that S understands and will reluctantly "live with" an adverse decision by me, on the basis that her position is to be re-examined promptly in Ireland. Thus the matter resolves into the question whether the objections of S are such that hers is one of the "exceptional" cases justifying the court in using its discretion to refuse an order for immediate return. That involves balancing the nature and strength of S's objections against both the Convention considerations (including comity and respect for judicial process in Ireland as well as the policy behind the Convention of Brussels II Revised) and general welfare considerations.
51. As already indicated, I have no doubt as to the strength of S's objections and I also have concerns about her general welfare. However, not only do I find that the Convention considerations are very strong in the circumstances of this case, it is also clear that the courts of Ireland, a short journey away, are the forum far and away best suited to deal with these concerns. I also consider that S, whilst not reconciled to any need to return for that purpose, nonetheless appreciates that an order for her return is on the cards and I do not believe that her welfare will be unduly affected, provided that her case is swiftly dealt with on her return, preferably by Mr Justice Abbott who is already acquainted with her case. I have contacted his office to this end and he has expressed willingness to list the case for expeditious directions with the view to a holding of a welfare hearing before him, upon the appropriate steps being taken by the mother's solicitors.
52. The substantial welfare reservations which I have centre principally upon (a) the living arrangements to which S will be returning in Ireland and the likelihood and timing of the move to Drogheda; (b) the interruption which has already taken place and may be further exacerbated if this gifted young person is again required to move schools in the middle of term; and (c) the health of the mother who it is clear has, under the strains of depression, struck S in the course of arguments. In this respect the assertions by the mother of a full return to health and the succinct nature of her doctor's certificate will no doubt fall to be further explored in Ireland.
53. On all these matters, if an order to return were to be put into immediate effect, I am not satisfied on the information before me that S's welfare would be properly protected in the short period prior to a hearing before the Irish Court.
54. As to (a), the mother asserts that the family home in Drogheda is nearly complete and S will not have to return to live with her partner. However, the history of the construction of the house at Drogheda has been one of persistent postponement of its completion and I have before me evidence that it is fit for habitation yet. Further, I have no details of the current living arrangements to which S would be returning in the immediate future. As to (b), the mother asserts that she will continue to pay S's fees as a boarder at King's Hospital, at least until the end of the current term. However, the practicalities of this are equally not clear and the end of term is not far away. As to (c) the mother states that she will take part in counselling with S. While it may be that such counselling would be beneficial, again I have no proper material before me to incorporate any such undertaking in an order for return, bearing in mind the effect it might have on a possibly unwilling S. What I consider would be more welcome on the part of the mother is a recognition and assurance that it is inappropriate for her to strike or use violence towards S or to interfere with her communications with her father by e-mail or otherwise to obstruct her contact with her father.
55. Finally, the mother undertakes that she will do all necessary to ensure a swift welfare hearing in respect of S in the High Court in Dublin. (see paragraph 51 above).

Conclusion

56. In those circumstances, and upon the giving of such undertaking by the mother, I propose to make an order for the immediate return of S to Ireland, but to impose a stay upon the enforcement of that order prior to the first Directions Hearing in the Dublin High Court, at which stage no doubt that court will consider the appropriateness of any further postponement of S's return which may be sought by S or her father.
57. I would only add that there should be made available to the Irish Court for the purposes of such hearing a copy of this judgment and of the solicitors' agreed note of my conversation with S.