England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		5 November 2012

1. These proceedings concern H. H is aged 12 (born [on a date in] October 2000). His parents are SH ('the mother') and KH ('the father'). Until 11^th August 2012 the family lived together in Florida. On 11^th August the mother left the family home taking H with her. Three days later, on 14^th August, she and H flew to London from whence they went to live at an address in Wales. In reliance upon the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, the father issued proceedings seeking an order for the summary return of H to the USA. The mother defends those proceedings. It is her case that H objects to being returned to the USA and that he has attained an age and degree of maturity at which it is appropriate for the court to take account of his views. She invites the court to exercise its discretion to refuse an order for H's summary return.

Background history

2. The mother is 50 years old. The father is 39 years old. The mother is English. The father is American. The mother has been previously married.
3. The parents formed a relationship in or around 1999. The mother was then living in Wales. That is where H was born.
4. In January 2001 the family moved to live in Florida. K, A and J, the mother's three daughters from her first marriage, moved with them.
5. The parents were married in, Florida, on 21^st April 2001.
6. Within two years of the move to Florida K and A returned to live in the UK. J remained living in Florida. J is now aged 20. She suffers from cerebral palsy. She is dependent upon her mother for support.
7. In May 2011, after months' of illness, the father was diagnosed with Cushing's disease. He stopped work on 6^th May 2011. A tumour was found on his pituitary gland in October 2011. He underwent surgery to remove the whole of the right side of the gland. That did not cure the disease. On 26^th July 2012 he underwent further surgery to remove his adrenal glands. In his written evidence the father says that he has been told that he should make a full recovery within the next 6 to 12 months.
8. It is clear from the written statements filed by the parents in these proceedings that the marriage became increasingly unhappy. Each parent makes criticisms of the behaviour of the other. It is neither possible nor appropriate to investigate and make findings in respect of those issues within the context of a hearing such as this. The father's illness had added to the pressures on this marriage. By August 2012 both parents accepted that the marriage was in difficulty. The father had gone so far as to issue divorce proceedings. The father had not told the mother he had done this. At the time of the separation the mother had not received the divorce papers though she had become aware proceedings had been issued.
9. It is clear that by August 2012 the mother had planned to leave the father and return to the UK. In her written statement she refers to having had conversation with H about leaving the father and coming to the UK. She says,

'24. …I had spoken to H about the possibility of us returning to the UK and made it clear to him that it was his choice where and with whom he wanted to live, even though I had grave concerns about leaving him in the US. I understand that he spoke with the Applicant about this, who also told H that it was his decision as to where he wanted to live. After thinking about it, H decided that he wanted to return to the UK with me and J to see if he liked it and as such I started to make arrangements to leave…

27…Before leaving, I again spoke with H about whether he wanted to stay or return with me to the UK. I didn't tell the Applicant when I planned to leave as by now all communication between us had broken down. I left the family home on the night of the 10^th August with H and J. It is true that we left through a bedroom window as the Applicant sleeps in the lounge, which is where the front door is. The family home is a bungalow.'

10. Having, as she accepts, wrongfully removed H from the USA the mother's position at this hearing is that even if the court were to decide to order H's immediate return to the USA she herself would not return. I was told that paternal grandmother is willing to come to the UK to collect H. It is clear that H is aware that if he returns to the USA then he will do so without his mother.

Child's objections

11. At a directions hearing on 4^th October, Mostyn J ordered Cafcass Cymru to allocate an officer to prepare a report as to whether H objects to returning to the USA and, if he does, whether he has attained an age and degree of maturity at which it is appropriate to take account of his views. A Children & Family Reporter, AS, was allocated to undertake that work.
12. Although AS is a very experienced Cafcass officer this is only the second occasion when she has been asked to interview a child in an international child abduction case. Notwithstanding her very modest experience in this area it was clear that she understood the extent of her remit and in particular that she was not being asked to advise the court on welfare issues.
13. AS saw H at the Cafcass office in Swansea on 23^rd October. She has prepared a written report. She has also given evidence at this hearing.
14. AS reports that H's clear view is that he wishes to remain in Wales and does not want to go back to the USA. AS formed the very clear view that H is of an age and maturity at which it is appropriate that his views be taken into account.
15. In her discussions with H, AS explored his reasons for objecting to returning to the USA. She records that,

'3.3 H told me that he felt he had been emotionally abused by his father and grandmother. I asked him to explain what he meant by this. H was unable to give an explanation, he told me [he] had read about 'emotional abuse' on the Child Line website and felt what he had read had happened to him. He said his father was always shouting at him and neither his father nor grandmother ever asked him what he wanted or felt, he just had to do what they wanted.

3.4 H told me his father was frequently angry and would shout very loudly at him for small things. He gave an example of tidying his bedroom and how his father would just shout unreasonably. H told me his mother was much calmer about things and would ask him to do things rather than shout…

3.6 …He told me his mother listened to him more, whereas his father did not and just told him what to do…

3.7 H did demonstrate a level of anger and blame towards his father in our discussions.'

16. AS said that H has made it clear that the basis of his objection to returning to the USA was because he didn't want to return to live with his father. There are aspects of life in America which may also influence his decision. The fact that he says that he only has one friend in America and the fact that he is enjoying the wider curriculum in his school in Wales are issues he raised with AS. However, she said that H always referred to living with his father as the basis of his objection to returning to the USA. It is not entirely clear whether he volunteered that as being his primary reason or whether he was led into it by AS. In her oral evidence AS said that she had asked him bluntly, 'do you object to going back to America to live with your Dad'. It is unfortunate that she phrased the question in that way.
17. AS asked H directly what his view would be if the court ordered his return to the USA. She records that

'3.9 H said this would make him very sad and he hoped the Judge would listen to him, as he really did not want to go back to the USA. H said that if he had to go back he would be sad because he knows his mother will not be returning with him and he will miss her, his sisters and his extended family, who he feels are important to him. H is very aware that his mother and sisters will remain in the UK.'

18. This raises questions about the extent to which the mother has influenced H's views. AS reports that in her interview with H 'there was no direct evidence that he had been influenced by his mother'. She says in terms that during her interview she

'3.10 did not consider that H had rehearsed what he had said, as many of the questions I asked him he gave spontaneous answer [to] and he gave thought to what he was saying….

5.5 Although there is no evidence of direct pressure on H by his mother, it is realistic to expect that his mother's views have some indirect influence on his thinking'

However, I referred earlier to passages from the mother's written statement in which she makes it clear that she had involved H in the decision about leaving America. She had also effected the separation in the middle of the night and in an unconventional way, escaping through a bedroom window. H had made it clear that he was aware of at least some of the things his father had said in his written statement. He was also well aware that his mother has no intention of returning to the USA. H had also made it clear that he is worried about going back to America and having to face his father. AS accepted that all of this was likely to have had some influence on H's thinking.

19. However, against that, AS is equally clear that although H said that he does not like his father shouting at him and not listening to him, he nonetheless loves both of his parents. Both are important to him. This could perhaps be an indication that his objection to returning to the USA is not simply the product of the factors to which I have just referred but is a balanced, thought-through position.
20. Given the possible multi-factorial influences on H's thought processes it is perhaps significant that in her report AS says that in her view

'4.5 H's objection to returning to the USA, as expressed to me, was inextricably linked to his objection to returning to live with his father. He did understand the importance of maintaining a relationship with his father and relatives in the USA and his response was measured and rational when he discussed this. In my opinion he has given this a lot of thought and he told me he would like to visit the USA in the future if he was allowed to stay in the UK, providing he could be reassured he could return. Clearly H sees both of his parents as important in his life.'

21. In light of her meeting with H, AS reaches some very clear conclusions. She says,

'5.2 In my view H is of an age and degree of maturity at which it is appropriate to take account of his views. H appeared to have an appropriate understanding of why he was meeting with me. While H displayed a degree of anxiety (which reduced as our meeting progressed), he was able to give considered responses to the questions I put to him.

5.3 I would characterise H's views as rational, rooted in reality, from his perspective and conveying: (a) a strong desire to live with and maintain his closeness in relationship with his mother and siblings and continue his life in Wales and (b) a strong desire not to return to live with his father and to his father's style of parenting.'

Those conclusions again betray the inextricable link between H's objection to returning to live in the USA and his objection to living with his father.

The law

22. Article 12 of the Hague Convention provides that

'Where a child has been wrongfully removed or retained in terms of Art 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less 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.'

23. In Re E (Children) (FC) [2011] UKSC 27 Baroness Hale and Lord Wilson make it clear that the first objective of the Hague Convention

'8. …is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there.'

24. It follows, therefore, that normally a parental dispute should be resolved in the country in which the child was habitually resident until her wrongful removal or retention. However, that is not an absolute rule. There are exceptions. The Hague Convention provides defences which may be raised by a parent who has wrongfully removed a child from the country in which she is habitually resident or who has wrongfully retained her in another country. Those defences are to be found in Article 13. Article 13 provides that

'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 established that:

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

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…'

25. So far as concerns the issue of a child objecting to being returned Mr Perkins, for the mother, refers me to a footnote in the Family Court Practice which provides a summary of the approach to be taken when dealing with this defence. Whilst I do not doubt the accuracy of that footnote it seems to me that it would be unwise to apply the headline points arising from the cases referred to without going to the cases themselves.
26. In De L v H [2010] 1 FLR 1229 the former President of the Family Division, Sir Mark Potter, said that,

[63] 'Gateway' findings which are required of the court in relation to the discretionary defence of 'child's objections' under Art 13 of the Hague Convention are of course:

(a) that the child does in fact object to being returned; and

(b) that he has attained an age and maturity at which it is appropriate to take account of his views.

On being so satisfied, the matter involves a wide range of considerations in relation to the exercise of discretion…

[64] As to (a) it is important to bear in mind that the objection to return must not simply be based on the child's preference to be with the abducting parent. The basis of objection is that of return to the State of habitual residence rather than simply to the care of the applicant…Nonetheless, leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated…In relation to this question and, in any event, in relation to the exercise of the court's discretion once satisfied the objection is established, the court analyses on the evidence before it the grounds on which the child's objections are based in order to determine and weigh the strength, soundness and validity of those reasons against the background of the overall purpose of the Hague Convention, namely one of prompt return to the country of habitual residence so that the courts of that country may determine the question of custody and residence on the basis of a full welfare investigation…'

27. Both counsel rely upon a passage from the speech of Baroness Hale in Re M (Abduction: Zimbabwe) [2008] 1 FLR 251. Under a section headed Discretion under the ordinary law and under the Convention, Baroness Hale said that

[32] The difference between the two was summed up thus by Thorpe LJ in Cannon v Cannon at para [38]:

'For the exercise of a discretion under the Hague convention requires the court to have regard to the overriding objectives of the Convention whilst acknowledging the important*-+ce of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the child is paramount if the discretion is exercised in the context of our domestic law'

There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thjus exaggerating the differences between them.

[43]   My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para [32] above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

[44]   That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention.

[46]   In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and secondly, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of Art 12 of the United Nations Convention on the Rights of the Child 1989, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are 'authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.

28. Having outlined the relevant law I turn to the facts of this case.

Discussion

29. Before I consider the evidence it is appropriate that I should refer to one particularly unattractive feature of this case. The mother has decided that even if I were to order H's return to the USA she will not return there with him. Whether that is a reasonable decision for a mother to take is an issue about which I do not venture an opinion. However, what is very clear is that it would be wholly wrong for me to take that decision into account in determining the father's application. To do otherwise would be tantamount to allowing a parent to hold a pistol to the judge's head. As a matter of principle, that is an approach which should never be allowed to succeed.
30. Having made that general point, there are three questions for me to determine. Firstly, does H object to returning to the USA? Secondly, if he does, has he attained an age and degree of maturity at which it is appropriate to take account of his views? Thirdly, if I am satisfied that the answers to both of those questions is 'yes', should I exercise my discretion to rebut the Art 12 presumption that H should be returned immediately to the USA?
31. Does H object to returning to the USA? Answering that question is made more difficult by the way AS put the question to H. Linking returning to the USA with returning to live with the father could be said to have enhanced the likelihood that H will have answered that question in the affirmative, as indeed he did. It then becomes difficult to extrapolate an answer to the question implied by Art 13, namely does H object to returning to the USA.
32. However, as a matter of fairness to the child, the inelegance of AS's question should not stand in the way of the court endeavouring to answer the question that should have been put. In making that point I have firmly in mind the point made by Sir Mark Potter P in De L v H that 'leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated'. Indeed, that is the very point made by AS at paragraph 4.5 of her report.
33. It would be surprising if a child of H's age had the sophistication to advance a reasoned objection to returning to the country from which he has been wrongfully removed without linking that objection to his own life in that country. In this case, that is exactly what H has done. He has said he doesn't want to return to live with his father. He has given reasons why he doesn't want to live with his father. He does not want to return to the restricted lifestyle that that would entail. For him, America is his father; returning to America means returning to live with his father. He is unable to separate out his objections to returning to America from his objections to returning to live with his father. They are, as Sir Mark Potter said in De L v H and as AS says in her written report, 'inextricably linked'. The fact that they are inextricably linked does not mean that they are outwith the scope of an Art 13 defence.
34. Though very much secondary to his objection to returning to live with his father, H raises two other issues. He has said that in Florida he only had one friend whereas he believes he is beginning to make friendships with his peers at school in Wales. Having experienced education in Wales he has also made the point that he enjoys the wider curriculum opportunities that are available here. These are, I recognise, slender threads. They do, though, highlight the limits to what can be achieved in the kind of brief meeting AS was able to have with H, a meeting which only lasted just over an hour. Given the need to build a rapport and the fact that, as AS reports, at the beginning of their interview H presented as being anxious, it is perhaps unrealistic to expect a child to be able to present what an adult might regard as cogent and compelling reasons for not returning to the country from whence he was abducted.
35. In order to evaluate H's expressed objections to returning to the USA it is appropriate to take into account the factors which may have influenced his decision. In this case, Mr Perkins, for the father, refers to the way in which the mother put H under pressure to choose whether to accompany herself and Jade in returning to England; to the manner in which they left the family home; to the fact that H appears to be privy to some of the statements made by the father in his written evidence and thus to have been inappropriately enmeshed in the parental dispute; and to the fact that in the two and a half months he has been in Wales he will have been exposed only to the mother's perspective on what has happened and what should happen. Those are all valid points. However, AS was clear that although those factors are likely to have had an impact on H it remains the case that he has demonstrated an affection and loyalty towards both parents equally yet despite that has nonetheless come to the view that he objects to returning to the USA.
36. On balance, I am persuaded that H does object to returning to the USA. I am satisfied that his objections are real, rational and reasonable. Whilst I accept that he has been influenced by each of the factors to which I have just referred, I am not satisfied that those factors have so influenced his decision-making that his expressed objections become unreliable or tainted
37. That leads to the second question, namely whether H has obtained an age and degree of maturity at which it is appropriate to take account of his views. For the father, Mr Perkins concedes that at the age of 12 H is of an age when his views should be taken into account.
38. The points made concerning the influences to which H has been subjected could equally be made in respect of the maturity of his views. Although AS made the point that H came across as being rather less mature than his chronological age it did not appear that she was suggesting that his degree of maturity was such that it would not be appropriate for the court to take account of his views. Indeed, it is clear from her report that the opposite is the case.
39. I am satisfied that H has obtained both an age and a degree of maturity at which it is appropriate to take account of his views.
40. Having answered the first two questions in the affirmative, it then remains to consider whether the court should exercise its discretion to rebut the Art 12 presumption in favour of summary return. In determining that issue I remind myself again of the cautionary words of Baroness Hale. Although I have come to the conclusion that I should take account of H's objections, taking account does not mean that his views are determinative or even presumptively so. I must go on to consider the nature and strength of his objections, the extent to which they are 'authentically his own' or the product of his mother's influence, the extent to which they coincide or are at odds with other considerations which are relevant to his welfare, as well as the general Convention considerations. Although it is the case that the older the child, the greater the weight that his objections are likely to carry, that is far from saying that his objections should only prevail in the most exceptional circumstances.
41. Much of this ground has already been covered in addressing the first two questions. In the light of the evidence from AS, both her written report and her oral evidence, I am satisfied that H not only genuinely objects to being returned to the USA but that he strongly objects. Although I have acknowledged the extent to which H is likely to have been influenced by, for example, his mother asking him to choose whether to travel to England with her, I have already concluded that his objections have not be determined or tainted by those influences. Although the decisions I have to make are not welfare decisions, on the basis of the information presently available I am not persuaded that refusal to order summary return would be at odds with his welfare interests.
42. I acknowledged earlier the rationale which underpins the Convention principles. It is not open to a parent to take the law into their own hands. The normal approach to abduction should be summary return to the country from which the abduction took place. It is there that any dispute concerning the child's future should normally be resolved. It is in that forum that the child's welfare interests must be considered. All of this is the norm, reflected in Convention obligations which this country and many other countries have freely entered into. Yet the fact remains that the presumption of summary return is not absolute. The Convention itself sets out defences in Art 13 and accepts that if such a defence is made out the court has a discretion not to order summary return.
43. In this case there are understandable concerns about the manner in which the mother removed H from the USA. It was both premeditated and clandestine, though those descriptions could be applied to a great many child abductions. It does not logically follow that a parent who removes a child in such circumstances thereby disqualifies themselves from being able to rely upon the defences provided in Art 13. That, as it seems to me, is a point of particular importance in circumstances where the defence relied upon is the child's objections. Were it otherwise, the child's voice, which must be heard and considered if age and maturity so require, would effectively be neutered by the behaviour of the abducting parent.
44. In this case I have come to the conclusion that H objects to being returned, and that he has the age and maturity to be entitled to have his views taken into consideration. Is that alone sufficient to displace the presumption in Art 12? And if it is not, what more is required in order to displace that presumption?
45. I have acknowledged the central importance of Art 12. I have also referred to the guidance given by Baroness Hale in Re M that taking account of a child's views 'does not mean that those views are always determinative or even presumptively so'. It seems to me to be implicit in the way Her Ladyship expresses herself that there will be cases in which the child's views will be determinative. In my judgment this is such a case. I shall refuse the father's application.