England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/06/2007

The Hon. Mr Justice Sumner:

Introduction

1. This is an application under the Hague Convention by the Plaintive father, Dr N M. It was issued on 3 April 2007. He seeks the immediate return of his two sons to Greece. They are 10 year-old L, born 11 November 1996, and 6 year-old A, born 19 September 2000. They were brought to England on the 31 January 2007 by their mother, Mrs J M.
2. The father is a 43-year-old medical physicist. He has Greek and British nationality. The mother is a 40-year-old air hostess and a British national. They married in the UK in July 1992. They lived in London and Norfolk, where they have retained houses and furniture. They moved to Greece in 2002.
3. It is accepted that the mother's return to London with the children was with the father's consent. The issue is the extent of that consent. In particular it focuses on whether the father was or was not to join them later.
4. It is common ground that the mother was unhappy in Greece. She attributes this to the failure of her relationship with the father with the added strain of living next door to his parents and brother. L was at a private British school in Athens at a cost of £5000 a year. A started at a Greek school in September 2006. He was not doing well and was unhappy. There were problems over meeting similar school fees for him.
5. In December 2006 the mother looked for English schools for the children whilst staying with her parents in the UK. The father was in agreement. She found St Peter's Main School, Chiswick, West London. It only had a place for one child. She returned to Greece with the two boys. Later in January two places became available. She resolved with the father's consent to place them in the school quickly and to leave Greece at the end of January.
6. This she did. The father visited on 17 February after telephone conversations between them. He only remained for one night. He subsequently started the present proceedings.

The Hague Convention

7. The Convention governs the removal of children unlawfully by a parent from Convention country A to Convention country B. It arises where the other parent in country A has rights of custody and the children were habitually resident in country A before they left. That parent may then bring proceedings in country B to obtain an order for the immediate return of the children to country A.
8. There are limited discretionary reasons which, if proved, do not compel the courts in country B to order the children's prompt return. One of these is that the parent in country A consented to the children going to country B.

The issue

9. On this application it is accepted that the father had rights of custody and that the children were habitually resident in Greece when they left in January 2007. It is also agreed that he consented to the children leaving.
10. It is the father's case that it was always intended that he should join the mother and two children in England. The mother was in breach of that agreement or understanding by issuing divorce proceedings the day after she arrived. He only became aware of that when, on 5 February and by mistake, her claim for ancillary relief was sent to him in Athens.
11. It is the mother's case that the father never intended to leave Greece. She had been saying for some time that they should divorce. However it was only shortly before she left that the father agreed to a divorce. There was no agreement or understanding that he would come later to England. The case turns on whether the father agreed to a divorce and the mother returning alone to England before she left.
12. There is a common ground between the parties on the following points. If the father's account is correct, there was no consent by him to the children leaving Greece within the terms of the Hague Convention. If the mother's account is correct, then he consented in Convention terms to the children leaving. The father argues however that, if the court holds he did consent, it was ineffective because he later rescinded it. The mother has to prove that there was consent. If she does, the court has a discretion whether to order their immediate return or not.

The hearing

13. It was appreciated that, if the court was to resolve this issue without there being anything in writing to support either contention, it would be necessary for both parents to give evidence. Accordingly on 21 May 2007 I heard evidence, firstly from the mother and then from the father. Following submissions from Mr Gupta on behalf of the father and Miss Murray on behalf of the mother, I reserved judgment.

My decision

14. Having reread much of the papers and considered the evidence of the parents, I have, after careful thought, come to a clear conclusion. It is that for the purposes of the Convention the mother has proved that the father consented to her bringing the children to England in January and remaining here on her own. There was no effective rescission. I have accepted her account where it differs from that of the father. In the light of that consent, and on the facts of this case, I do not consider that it would be right to exercise my discretion to order the return of the children. I turn to the evidence and my reasons.

The mother's evidence

15. She considered the marriage was unhappy when they were in Norfolk. She only went to Greece because the father had said that she could come back with the children at any time. Whilst there, she had said for at least 12 months that the marriage was not good and that they should divorce with her returning to the UK alone with the children. The father did not comment. The father says it was only in December 2006 and he agreed to the return if it would make her happier.
16. The father was very unhappy in his job in Greece. He said that being a medical physicist was not good. He wanted to stay in Greece to pursue his investments. He never wanted to go to England. He had not applied for jobs here. It was never discussed.
17. By the end, it was clear that the marriage had broken down. She considered him unreliable and irresponsible over childcare and complained about school fees but bought an expensive car.

"We had not had a sexual relationship for about 9 months. Our only communication was tense and brief. The tension was intolerable."

18. When he was with her family at Christmas 2006 he had never mentioned returning. He had told her uncle and family members that he was doing business on the Greek islands. It was to do with a tourist operation. He had also talked about buying medical equipment and setting up with a friend their own radiotherapy business. He wanted to pursue this.
19. She had applied for schools in Chiswick in December 2006. They had both signed application forms for St Peter Main School on 22 December 2006 as the forms show. She returned to Greece after Christmas because at that time there was only one place available for the children at the school. A further place became available in January.
20. About five days before they left, the father came to her room and said that he consented to her going to London alone. They could not live in the two countries. "Out of sight, out of mind, and I want a divorce." She was shocked. It was the first time he had confronted the situation. She agreed. He said it in rather a legal way. She thought he had consulted solicitors in Greece.
21. She immediately telephoned a Greek lawyer, Mr Tateos. He has written to confirm their conversation.

"I am writing this letter to confirm that Mrs J M telephoned me at the very end of January 2007. Mrs M informed me that her husband has asked for a divorce, and that she also wished to divorce. Therefore she asked me about the procedures of a Greek divorce and the duration involved. She also told me of her returning to England with the children. She said he had consented to her returning to the UK with the children."

22. She only mentioned the separation to one friend in Greece. She had not mentioned it to Mrs TD, the wife of the father's best friend. She did not tell L' private school at the beginning of January that the father would follow her and the children to England at a later date.
23. She had rung solicitors in England on 19 January. They sent their terms of business. She visited them on the day after her arrival. She instructed them to issue a petition for divorce, which was then sent away to be translated. She also issued a claim for ancillary relief. She gave instructions that this was not to be served on the father until after she had spoken to him. By mistake it was sent to him and he received it on 5 February.
24. She had been saving money for the children and had some £23,000 in an account. It was not a secret from the father.
25. The father changed his outlook when he knew of the financial consequences of divorce when she was back in the UK. If he had not agreed, she would have waited until he arrived in the UK and served divorce proceedings on him here.

The father's evidence

26. The father said that he was not aware that the mother wanted a divorce until February 2007. He realised she was moving back in December 2006. He had been looking for a job in the UK since January 2007. He would have come over when employment was available. The wife subsequently produced a list of jobs from an institute of which he was a member of December 2006. He agreed he had not applied for any of them. They were not suitable for him.
27. He had agreed to come back here because the mother was unhappy. There had never been any serious mention of divorce. Mention of it was the way the mother ended every serious quarrel. He had not understood how unhappy she was.
28. He accepted that he talked about his venture in the Greek island at Christmas 2006. This was in front of her relatives.
29. He had called the mother after it he had received the finance papers. She told him she said she was not divorcing him. It was a mistake, and he was to ignore the papers.
30. He came over for one night, on 17 February. He had not pleaded with her to return. It was when he had rung the Principal Registry and learned that there was a petition, that he realised she had tricked him. He had not at that stage heard of the Hague Convention.
31. He had started injunctive proceedings in Greece at the same time as the Hague Convention proceedings seeking their immediate return of the children. He had subsequently applied for their permanent custody. That application is to be heard in Athens on 12 November 2007.

February 2007

32. I set out briefly what I find happened after the mother arrived in the UK. The mother contacted her solicitors immediately as I have said. There were frequent telephone calls from the father. He was asking how they were getting on. There was no request for her to return.
33. She had been shocked to hear that the ancillary relief papers had been sent to him. It was only when he was later served with the divorce petition that he became angry. He wanted to get divorced in Greece. They did talk about reconciliation when he came to the UK on 17 February. He was most concerned about the money he would lose.
34. He realised he would lose over a half of their capital in the English properties worth net £400,000 plus. Their talk was about the financial situation. He asked if she would go back to Greece. She did not agree. She told him that he had wanted a divorce and she did. They agreed to go their separate ways. She had started proceedings without notice for an interim residence order on 21 March when he would not give an undertaking not to take the children.

The law

35. The relevant parts of Article 13 are as follows –

"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 … which opposes its return establishes that –

of the person … having the care of the person of the child had … consented to all subsequently acquiesced in the removal or retention; …"

36. It is agreed that consent does not have to be in writing, it must be clear and unequivocal. It was well expressed by Charles J in Re T (Abduction: Consent) (1999) 2 FLR where he said –

" Additionally and again in my judgment correctly, it was accepted that if the mother is to succeed I must find that the consent was real in the sense that it was not based on a misunderstanding or non-disclosure, which would vitiate the consent for the purposes of the Hague Convention. It is not sensible to me to try and give a general definition of what would constitute such a misunderstanding or non-disclosure. For the purposes of this case, in my judgment, such a misunderstanding or non-disclosure (and thus the deception asserted by the father) would exist if the mother knew that the father was proceeding on the basis of a misunderstanding, or she had not told him something, and in either case, he knew or ought to have known that such misunderstanding, or non-disclosure, would, or would be likely to, affect the father's decision to consent to her taking H to England (whether that consent was given on the basis she alleges, or on the basis of the father alleges). In such circumstances, the mother could not believe (as she assets) that the father had unequivocally consented to her taking H to England on 2 May 1997 on the basis that he would make his home here."

37. In reaching my decision I have considered all the evidence, inevitably covering many points to which I have not referred. I have to decide whether the mother has persuaded me that her account is more likely. I have noted CAFCASS' interview with the children. Amongst those to which I attach particular weight are the following.

Agreed or independent facts

i) The acceptance by the father that the mother frequently spoke of divorce.

ii) His signing of an application form for St Peter's Main School on 22 December 2006.

iii) Speaking of the ventures he was considering on a Greek island at Christmas 2006 to the mother's relatives when he knew the mother and the children were shortly returning to the UK.

iv) The mother contacting the lawyer Mr Tateos in Athens in late January 2007 about divorce and telling him the terms she now says the father agreed to.

v) Her immediate instruction of solicitors on arrival in the UK to petition for divorce.

Other findings

38. The mother was aware of the Hague Convention. She was so confident of the father's intentions that she did not feel it necessary to seek any more formal recognition from him. That confidence was justified. The relationship between them was to all intent and purpose over. The father had made no effort to find employment in the UK but was pursuing other interests in Greece. He did not mention coming over at any time before she left either to her or her family at Christmas 2006. He then agreed to a divorce and her coming alone to the UK, which is well supported by the letter from the Greek lawyer to which I attach much weight.
39. Those are positive points in favour of the mother's case. Against that is the evidence of the father and 2 other factors. Firstly there is the report from the school that the mother said the mother said the father was coming to England. The second is that she made no mention to the wife of the father's best friend.
40. The lack of mention to so close a friend of the father I do not regard as significant. In relation to a conversation early in January with the headmistress of the private school, I make the following findings. It was in early January 2007. The headmistress was asked to remember the conversation in April. It has been denied by the mother.
41. I am left in doubt about its validity. Even if it was correctly recorded, it is less surprising a month before departure. I have not found either matter persuasive.
42. His attitude to money on which the mother relies is shown by his reaction when he learned that the mother had been saving for the children when they were grown up. She had about £23,000. It was not spent on education as he said it should have been. He was however prepared earlier in 2006 to spend €40,000 or some £26,000 on a new car and then complain about the cost of school fees for A.
43. The cumulative result of those findings is to persuade me that the mother's account is to be preferred. There is evidence of clear and cogent consent. There are additional if negative reasons. The father's case is that he never agreed to a divorce and did not agree to the mother going to the UK without him prior to her departure.
44. The mother's case could have been so readily embellished by her. She relies on one occasion only that the father gave his agreement. She was firm that he had not spoken about divorce in front of her family at a Christmas 2006. An invented account is less likely to have left the matter there.
45. The most persuasive elements on their own have been my view of the respective parties. I have preferred the evidence of the mother on the vital matters. Secondly there are the actions and recorded words of the mother immediately afterwards. It would need convincing evidence to persuade me that the combination of those elements should not be accepted. It has not been forthcoming. I find that the father consented to the mother coming to the UK in January on her own and that he would not accompany her nor join her later.
46. There has been some discussion about the effect of the father's attempts at persuading the mother to return when he came over. I am satisfied that that attempt was as a result of the father discovering the potential financial consequences of an English divorce given his attitude to money. I do not regard that as a change of mind which in some way alters his original consent. Furthermore I would be reluctant to hold that discussion after separation in a Hague Convention case with a view to a possible reconciliation could thereafter be held against either party. Such a possibility is always to be welcomed and not run the risk of upsetting established rights.

Discretion

47. In determining how my discretion should be exercised, eyes should consider both the wording and the spirit of the Hague Convention as well as the particular facts of this case. Purchas LJ said in Re G (A Minor) (1989) 2FLR at page 479 –

" The provisions of art. 13 are clear. It is merely a discretionary release from an otherwise absolute obligation to return the child if the removal from his country of residence is, within the terms of the convention, to be described as "wrongful".

48. I have not heard argument about whether a consensual removal of the children from Greece was unlawful nor has much been said on the exercise of my discretion. The whole purpose of the Convention is to provide summary relief where unlawful abduction of children occurs between Convention countries. I am not aware of a case where the discretion has been exercised to order the return of the child where consent to the removal is proved.
49. The reasons are not hard to imagine. It amounts to the consenting party being given the option to change their mind after the other party has acted in reliance on the consent. There could be circumstances where this might be appropriate. I do not see that they arise here.
50. The father was on his account agreeing to his children leaving Greece and not just temporarily. The factor in dispute was not the removal but whether he had agreed that there should be a divorce and that he would not join the family later. His relationship with the mother was to all intents and purposes over. He did so agree. I am satisfied that it was only the realisation that the financial consequences could be unfavourable that led the father to seek the return of the children. In all the circumstances I shall not exercise my discretion to order the children's return.
51. Accordingly in my judgment this application should be dismissed.