England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL
ASPECTS OF INTERNATIONAL CHILD ABDUCTION
AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF COUNCIL REGULATION (EC) NO 2201/2003

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/04/2008

Mr Justice Coleridge :

1. By an originating summons dated 21st August 2007 the Father, the Plaintiff, in this application seeks an order for the immediate return of his two children to France. The children concerned are P and F, twins, now 5 years old born on 21st October 2002. The children were removed from France on 10th October 2006 and the Mother, the defendant, accepts that when she removed them she did so wrongfully. The Mother defends the Father's application on one basis only, namely: that the Father has acquiesced in their removal in accordance with article 13(a) of the Hague Convention and the Child Abduction and Custody Act 1985 and that, in the exercise of my discretion I should not order their return
2. This application has had a somewhat unusual history. In the first place it only came to be instigated because of the actions of Mr Recorder Sir Gavyn Arthur on the 24th July 2007 when he transferred proceedings relating to the children that were before him to the High Court as he was concerned that the facts engaged the Hague Convention. It was following upon that transfer to the High Court that the originating summons which instigated these proceedings was issued on 21st August 2007.
3. After a series of further interlocutory hearings the case came before me on 25th and 26th October 2007. I had both written and oral evidence put before me on those dates. The written evidence was in the form of four sworn statements, two sworn by the Mother and two sworn by the Father. Importantly, I also had disclosed to me the whole of the solicitor's file compiled by the Plaintiff Father's solicitor from 30 November 2006. I also heard oral evidence from both the Mother and the Father.
4. During the course of the hearing in October both parties indicated that they would be prepared to consider the possibility of resolving their dispute by mediation. Accordingly during an adjournment an organisation with particular expertise in this area, Reunite, was contacted. Reunite indicated that they would be in a position to attempt to help the parties resolve their difficulties. Accordingly at the end of the second day of the hearing, on 26th October 2007, I adjourned the proceedings to enable the mediation to go ahead. However prior to doing so the Mother indicated that she would be only prepared to enter into full negotiations with the Father if the Court gave an indication as to the view it had reached on the Father's application for the children's return.
5. That being the case I there and then gave a short preliminary "judgment" indicating the conclusions I had by that time reached. A copy of those conclusions in transcribed form is available. In paragraphs 6 to 14, in particular, of that preliminary judgment I set out the conclusions I had reached but with very little explanation. The case was then adjourned whilst mediation took place. Unfortunately, mediation of the substantive issues as to the future residence of the children came to nought. On 10th December 2007 the case reappeared before me and I was informed that the mediation had failed. In those circumstances I was asked to provide a further and fuller judgment supporting the conclusions which I had reached and to which I have already made reference. This then is the further judgment.
6. The important dates so far as the substantive issues are concerned are contained in two chronologies, one produced by the Father and the other by the Mother. There is no particular issue as to the dates. The children, as I have indicated, were born on 21st October 2002 and the parties married, in Scotland, on 21st June 2003. In the summer of 2004 the Mother and Father bought a property "C G" in France. From that date it is clear that they were habitually resident in France. Between 2004 and 10th October 2006, the date of the acknowledged wrongful removal, there was a certain amount of "toing and froing" between France and England depending upon the precise state of the parties' marriage from time to time. It is apparent that the marriage was in a state of severe decline as early as February or March 2005 when the Mother attempted suicide.
7. There is no doubt that the children were wrongfully removed from France to the United Kingdom without the Father's knowledge on the 10th October 2006 and it is also clear that by the end of that month, or by early the following month, the Father was aware that the Mother had no intention of returning. On 7th November 2006 the Mother issued proceedings for divorce in the Coventry County Court in England. It appears that in December, January and February 2007 the Father consulted no less than 3 French advocates to obtain legal advice as to what remedies were available to him to secure the children's return. It is an extraordinary feature of the case that none of those 3 advocates advised him to begin proceedings in this country via the Central Authority pursuant to the Hague Convention. Had they done so it is likely that there would have been a very early hearing in England and order on a summary basis for their return to France. However he did not receive such advice and accordingly no such order was made.
8. Meanwhile in England on 8th January 2007 the Mother issued Children Act proceedings for a residence order. On 11th April 2007 the Mother's proceedings for residence were heard before District Judge Waterworth in the Coventry County Court. Orders for contact were made and the case then took a conventional course although there were difficulties about contact.
9. For reasons which do not need to be amplified upon the case in due course came before Mr Recorder Sir Gavyn Arthur on 24th July 2007. It was only his intervention and concern that the Hague Convention principles had been engaged which gave rise to these proceedings. I turn to consider the mother's defence.
10. Article 13 of the Hague Convention provides that:

"Notwithstanding the provisions of the previous 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 –

(a) the person, institution or other body having the custody of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention."

11. Accordingly, the central issue to be determined by me is whether or not the Father had indeed, by the time of the issue of these proceedings in August 2007, acquiesced in the removal of the twins from France to this country. If the Mother is able to satisfy me that the Father had, as a matter of fact, so acquiesced, it then falls for me to consider whether, as a matter of discretion, I should nevertheless order the children's return to France or whether, taking all the other circumstances into account, I should refuse to order their return.
12. The definitive statement of the law in relation to the defence of acquiescence is to be found in the case of Re. H and Others (Minors)(Abduction: Acquiescence) [1998] AC 72, [1997] 1 FLR 872. That was a House of Lords decision and the leading speech was by Lord Browne-Wilkinson. I shall not burden this judgment with the whole of his reasoning which is to be found at page 88E and page 882E and following. However his Lordship summarised the law in 4 paragraphs as follows:

"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) 'the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question of whether the applicant acquiesced in fact.'

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstance of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law

(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."

13. Both parties have filed lengthy and detailed skeleton arguments for the purposes of the hearing on 25th/26th October 2007. I do not propose to repeat all their arguments here. It is the Mother's case that, taking into account in particular the Father's actions and by reference to a number of the attendance notes and other documents in the solicitor's files which were quite properly revealed to the Court, there can be no doubt that by April 2007 the Father had acquiesced in fact to the removal of the children from France and their remaining in this country. It is, on the other hand, on the Father's case that he never so acquiesced. He maintains that he remained in a state of ignorance so far as his legal rights and remedies were concerned and that he was presented with something of a fait accompli to which he, in effect, succumbed.
14. I have heard the evidence of the parties and read their statements and, in particular, had the opportunity to read a number of the documents which are in the solicitor's files produced to me for the hearing.
15. There is a particularly illuminating series of attendance notes emanating from the Father's solicitors in February and then in April 2007.
16. In an attendance note dated 27th February 2007 (which is to be found at page 30 of the file of the Father's solicitors) the following is to be found relating to a conversation that he had with his solicitors on that date. I quote:

"He would like to pursue specific issue application in this country but that depends upon the progress of the case that he says is currently pending in France with his French lawyers. He said that nothing as yet has actually been issued in the French courts but he has been told that within the next few days that will happen and his lawyers are apparently highly optimistic that they will be able to get orders requiring her to return to France with the children."

17. It is plain from that document that at that date the Father was contemplating pressing for the return of the children. However, two weeks later on 12th March 2007, a further attendance note was brought into being. It can be found at page 40 and 41 of the solicitor's file. It contains these further remarks. I quote:

"He said he has had some further thoughts and is prepared to sell up in France and return back to England and live close to where her and the children are living and be as fully involved in the children's life as possible. Ideally he would like an arrangement whereby they have one week with him and one week with her. He now feels that coming back to this country is a better course of action than trying to push for the return of the children to come over to France and he is prepared to wind things up in France and restart his life back in this country". (my underlining)

18. On the face of that document, it seems beyond a doubt, in my judgment, that by that date the picture had changed and the Father had come to terms with the children remaining in this country. In oral evidence to me the Father said that this attendance note did not disclose the whole story as he put it. However, I can have no doubt that, having heard him give evidence and having read that document that that was a reflection of his state of mind at that time.
19. Later in the file at page 61 there is a copy of counsel's brief for the hearing at the Coventry County Court on 11th April 2007. In the body of that brief when instructing counsel, the Father's solicitors record the following instructions from his client, and I quote:

"The respondent has however on reflection decided that on the basis the applicant clearly intends to remain in England long term, and the basis that the children have already had one move back to the UK, that questions as to the children's future should be decide in this jurisdiction and he would not seek to challenge that. If necessary he will sell the property in France and wind up his affairs there to return to the UK and to achieve a child care arrangement which will allow him maximum involvement in his children's upbringing. The Respondent further acknowledges that if he is to remain living in France and the children remain living in this country, his contact will clearly be limited and it is therefore for this reason that he would prefer to return to the UK so there can be greater and more regular level of contact".

That note seems to be further confirmation of the father's state of mind then.

20. Taking the oral evidence of the parties with those documents, altogether I have no difficulty in coming to the conclusion, as indicated in my preliminary judgment that the Father had acquiesced in the children's removal from France and their remaining in this country by the time he issued his proceedings under the Hague Convention.
21. I take into account and accept the fact that he did not have correct advice about or a detailed knowledge of his rights under the Hague Convention. But those are not a prerequisite for the establishing of defence of acquiescence. What is important is that he knew he could bring proceedings for their return to France but he chose instead, by April 2007, to accept the situation of the children having returned to their home country. From then on it seems to me he acted in accordance with that decision and the Mother cannot but have believed that he had accepted the situation which by then had arisen.
22. Accordingly on the basis of both limbs of the test set out by Lord Browne-Wilkinson in Re: H I find that the Father had acquiesced in fact to the children's retention here and he had also given the Mother the clear and unequivocal impression that he had so acquiesced.
23. It therefore falls to be considered whether or not I should nevertheless order a return of the children to France as a matter of discretion.
24. I have come to the clear conclusion that it is not in the children's interests nor would it be a proper exercise of my discretion to order the children to return now. In paragraph 28 of the mother's skeleton argument she sets out in sub-paragraphs (a) to (k) the matters upon which she relies to persuade the court not to order the children's return. I read them in full:

"(a) The F's acquiescence

(b) The fact that the children are settled, happy and well cared for her (see school [C91: "they have settled well and have made friends with children who live in the area"] and the CAFCASS report; and the M's affidavit).

(c) The emotional harm that will come to the children by their being uprooted from this country

(d) The fact that the children are British: their cultural roots are in the UK.

(e) All of the children's extended family, who they see regularly, are in this country and are British citizens (including their paternal grandmother and their half brothers and sisters): see [C5].

(f) The further emotional harm that will come to the children by being separated from the mother (she being prevented from returning to France because of her employment here which she needs to continue to allow her and the children to subsist, the F having no proper means of income at all).

(g) The proceeding here are well advanced with the appointment of a CAFCASS Reporter who has already carried out part of his investigation.

(h) The father has delayed significantly (which he does not adequately explain) in seeking to rely on his Hague remedy.

(i) The mother has shown herself to be willing properly to promote contact and to seek to involve the F in the Children Act proceedings: see, for example, extracts from the M's diary. She has not sought to evade the F or conceal the children from him.

(j) The F fails to provide sufficient undertakings to ensure the wellbeing of the M and the children if they were to return (see [C107]). Despite specifically being asked to in correspondence (and by virtue f the M's affidavit at [C20]), he provides no financial disclosure as to his means. He has widespread debts which he cannot meet: [F5 "he owes…thousands"; [F14]; [F43]).

(k) The M has always been the primary carer for the children"

25. The Father on the other hand seeks to persuade the court to exercise its discretion in favour of the children's return; his principal argument being that the French court may in due course, in accordance with the Brussels II Convention, order the children's return in any event.
26. I do not find the Father's arguments in this respect persuasive.
27. I do not think it is by any means certain, or even likely, that the French court will in the circumstances of this family which now exist, order the children's return to France.
28. These British children have now been in this country in the care of their mother since 10th October 2006; they are settled, happy and developing well. The Mother has no intention whatever of resuming her life in France. In the circumstances I would be surprised if a French judge would order their return to France in the circumstances of the Father's clear acquiescence and acceptance of the situation last summer. Accordingly I decline to order a return of the children to France pursuant to the Hague Convention.
29. The children are now, in the normally accepted sense of the term, resident in this country and making their life here.
30. Accordingly the Father's summons is dismissed.