FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Z |
Applicant |
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Y |
Respondent |
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Mr. E Devereux of Counsel (instructed by Bindmans LLP) for the Respondent
Hearing dates: 23 and 26 September 2013
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Crown Copyright ©
Mrs Justice Parker :
i) Rights of custody (either not existing, or not exercised);ii) Child's objections;
iii) Article 13 (b) grave risk of harm or intolerable situation;
a) a lump sum of 11,500 (representing maintenance at 1,250 per month for 9 months);
b) A's school fees to be paid in advance;
c) 4,000 for her legal fees;
d) The costs of return flights;
e) Not to be present at the airport on arrival;
f) Not to remove A from the mother's care save for the purposes of agreed contact or order of the court;
g) Not to use or threaten violence and not to harass the mother;
h) Not to prosecute any civil or criminal action in relation to the removal of A from X.
a) Not to support any criminal prosecution;
b) To provide accommodation until such time as the mother can make her own arrangements;
c) 700 per month, plus half the school fees: but he will pay until the mother can find employment;
d) That he will travel from X to collect A.
e) To pay for A's flight but not for the mother's.
i) tell her that I was conducting a limited evaluation in accordance with an international agreement;ii) see her in accordance with the Guidelines for Meeting Children [2010] 2 FLR 1872. The Guidelines stress that the child should be assisted to feel part of the proceedings, and to understand the process as well as expressing their views.
a) so that there could be a recording;
b) because I consider it important that a young person of A's age should appreciate the seriousness of the issues and that the meeting is part of the court process;
c) Mr Devereux in particular stressed that I should see A in court so that our discussion could be recorded and the mother's legal team could obtain a transcript.
a) I should stress to A that she had a responsibility to comply with an order of the court, if made after I had considered her objections and concluded that they did not justify non-return.
b) I was entitled to form an evaluation of her wishes and feelings including on her presentation and demeanour and take into account any differences in what she had said.
A's objections: the law: Article 13(2)
a) (at [17]) Although the defence was originally intended to apply to children shortly to become 16, there is no doubt that it can apply to younger children, and in Re D Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3WLR 989, [2007] 1 FLR 961, at [59], that "children should be heard far more frequently in Hague Convention cases than has been the practice hitherto" where there is a defence of a child's objections.
b) (at [22]) to "take account" means no more than what it says, so, albeit bounded of course by considerations of age and degree of maturity, it represents a fairly low threshold requirement. In particular it does not follow that the court should "take account" of a child's objections only if they are so solidly based that they are likely to be determinative of the discretionary exercise which is to follow: see Re D above per Baroness Hale of Richmond, at [57], and Re J and K (Abduction: Objections of Child) [2004] EWHC 1985 (Fam), [2005] 1 FLR 273, at [31].
"requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others.
(a) What is the child's own perspective of what is in her interests, short, medium and long-term? Self perception is important because it is her views that have to be judged appropriate.
(b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear ...my emphasis) to the child to be so grounded?
(c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent?
(d) To what extent will the objections be mollified on return and where it is the case, on the removal from any pernicious influence from the abducting parent?"
i) the court does not have to find something exceptional in that case over and above the child's objections: "exceptionality" is a description - not an additional test to be applied at the discretion/evaluative stage.ii) But "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 are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations . 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".
"[24] There must be a very clear distinction between the child's objections and the child's wishes and feelings. The child who has suffered an abduction will very often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, however fragile the bubble may be, but the expression of those wishes and feelings cannot be said to amount to an objection unless there is a strength, a conviction and a rationality (my emphasis) that satisfies the proper interpretation of the article."
A's Objections Analysed
i) A note which she provided for Ms Bartley, written, according to her, some weeks before the hearing;ii) Her meeting with Ms Bartley, of some 2 hours and 20 minutes, on 10 September 2013;
iii) Her meeting with me on 23 September 2013;
iv) What she said to Ms Bartley outside Court after that meeting;
v) A further meeting with Ms Bartley.
i) against her father:a) To Ms Bartley she described him as "moody", spending time in his "man-cave" (her and her mother's description) and as "bi-polar". I do not accept Ms Bartley's view that she would have alighted on this term through internet searches spontaneously, without some adult suggestion as to potential mental illness.b) To me: "He's so gloomy, the room so heavy, like its crushing you. No way to live, not being able to be happy and voice your feelings."c) She complained that he did not listen to her or take her opinions seriously. When Ms Bartley suggested that he might want to protect her from adult decisions she said that she had the "right" to be consulted. She repeated the same complaint to me and I asked her to give an example. She said that she had wanted to discuss what subject she might study at university. He had told her that she did not have to make a decision just yet. She saw that as dismissing her opinions. She could not think of another example.d) She complained to me about a letter he had written to her in which he said that he did not blame her mother or her maternal aunt (who remains in X with her three cousins). She thought this was false. She complained that its tone was "formal". I did suggest to her that he might find it very difficult to know what tone to adopt, and that he was "damned if he did, and damned if he didn't". She reluctantly agreed to consider this.e) She told me that she would continue to receive and read his emails "I have no choice". When I suggested that it might be polite to reply, she agreed to consider this.f) She said that she would not want to see her father whether she was in England or X "not for some years". She then asked why he could not come to see her in England, where his elder daughters live. But when I asked whether this meant that she would be prepared to see him, she repeated that she would not, not for some years.g) She said that she did not want to go back to X because she might see her father "it is a small place". When I asked why, she said that she did not think that she could control her anger, and might shout or become violent to him. She later told Ms Bartley that she regretted having said that. In her note she said that she wanted to spit on her father, and now wanted to do so even more.h) I suggested that she might regret her estrangement from her father in later life. I stressed that all parents have faults. I did not, as she later told Ms Bartley, suggest that her father was blameless. She told me that she had "forgiven him", but she continued to express extreme anger with him, an anger which did not seem to be justified in any way by the examples which she gave.i) She said that he never did anything with or for her, but also said that he would suggest an activity to "spite her mother".j) In her note she said that he had "thrown us out" when she was four. Ms Bartley said that it would have been unusual for her to be able to remember this and wondered whether she had overheard a discussion between the parents. The father denies that this happened, and it seems to me that she must have been told this by her mother.k) She told Ms Bartley that her father can be fun when he "takes the pole out of his arse" (i.e. relaxes) and lets his hair down, rather than spending his time in his "man cave". A was very polite and did not use vulgar language when with me and she did not make any similar comment. Ms Bartley regarded what A said as "unfortunate". I regard it as offensive and rude, particularly for a well brought up girl from a conservative country such as X. What she said does not connote any fear: or even any real criticism: it is simply disrespectful. It is highly likely that it reflects discussion with her mother.l) To me: "just going back to my dad and his family is such a horrible thought wasn't very pleasant to live with my father: never did anything with me: just someone who had given me life."m) Her father makes her mother out to be an "evil woman" who "stole his child." Since A has had little communication with her father, and the correspondence which I have seen and about which she told me was measured and uncritical of the mother that must have come from someone else: I assume the mother or a member of the mother's family.n) Both A and the mother say that A's father is not interested in her and does not care about her. They give different reasons why the father was at fault in not taking A to the hospital when she was ill (the father says that he had no car so someone else had to do it).
a) "It's not particularly nice";
b) she had no trust in the legal system (based upon her mother's problems with civil proceedings, about her restaurant business, apparently);
c) the language and people were "horrible", the people were inbred, stupid (Ms Bartley described those remarks as "unfortunate", particularly since three of A's grandparents are from X );
d) (to me) beautiful and nice beaches but really a holiday place, not the ideal place to live;
e) the tourist areas were full of "pervy old men", (she indicated to Ms Bartley that this was where she and her mother were living, but that is not the mother's case: she says that they went shopping in an area where there were strip clubs: I was not told why);
f) (to me), everyone gossips , the people are odd, not particularly nice, stupid, don't use their indicators when driving, inbred, not very intelligent;
g) Ms Bartley stated in her report that "X is associated with conflict and difficulties that she says are known to her peers and community": that is not actually what she said, either to me or Ms Bartley;
h) Ms Bartley said that X is bound up with feelings of poverty and her father would not fund peer group activities so she did not fit in (the school report does not mention this: mother says that he would not pay for school trips, father says that after separation she did not tell him about them or ask him to pay): finances impacted on her life. But the only concrete example A gave was with regard to school trips;
i) she did not complain about living conditions at all, either to Ms Bartley or to me, save for the comment about her father putting up shutters in the family home, which I did not understand;
Schooling
i) A's school reports, produced by the father, describe a girl who is a keen learner. Her behaviour is described as outstanding, and her attainment between good and outstanding (the three highest categories of six): save in the X language, and maths, with which she seems to struggle. Her personal qualities and social skills are marked good/very good, and she is described as outgoing, confident, empathetic, thoughtful and with good integration into the group.ii) To Ms Bartley she suggested that she had limited friendships: Ms Bartley doubted that was true. So do I.
iii) A did not complain about her school to Ms Bartley. She only said that she could not take part in activities because of finances.
iv) To me she said that she preferred her school here (she had been there for only a week) "it's a very lovely school and the students accepted me straight away". With regards to X she said "I was a bit of an outcast because everyone is so limited there; no one had ever heard of Japanese "Anime" cartoons" (she makes the same complaint about her paternal grandmother in her letter).
v) She told me "Everyone in my year was preparing to go out partying wearing short skirts not appealing at all: partying the only thing you could do".
Returning to X
Evaluation
a) I am just thinking now that it would be helpful if she is given some professional support on return because of the strength of her objections but I do not think that I can say that it is going to be harmful in the long term: it will be a struggle to persuade her.
b) To be forced to return - that is how she sees it - would place her under some emotional and psychological distress and she is likely to need some professional support.
c) In the short term it would be incredibly distressing, in the longer term would depend on a range of different factors.
d) The impact of her immediate return will be significant. What I am not able to say is that that will be the case longer term or even in the medium term. It depends on what support, assistance and changes are in place on her return.
e) Many young people are returned against their will. I am not underestimating the impact on A personally. But lots of young people go back to situations that they are very much against going back to and manage it with the right support.
f) It is a matter for the court: views are clearly very strong, so no, she does not want to return. She is very much against that. Should she be returned will there be some harm? Certainly in the shorter term because it is very much against her will, but I am not able to say how long that harm will be present. It depends on so many different things. So, yes, she will be psychologically distressed for a period but I do not think I can go further than that. More than teenage angst.
g) Yes, certainly in the short term she will need some professional support. She will be distressed. But the longer term impact on her will depend on what environment she returns to.
h) She would find it difficult to withstand ongoing parental conflict in X: has been unhappy about some of the environmental aspects of X and about the parental relationship.
i) the passion with which A expresses her opposition, and not what she actually says; andii) her belief that if A is permitted to remain here her relationship with her father has a greater chance of repair
iii) her concern that A would "struggle" to return.
Article 13 (b) intolerability/ grave hardship: the law
a) Financial hardship.
b) Psychological and emotional effect on A of having her wishes overridden.
"The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. [But, of course] there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it."
i) The burden of proof lies with the mother opposing the child's return. The court will be mindful of the limitations involved in the summary nature of The Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b).ii) The risk to the child must be "grave". "Grave" characterises the risk rather than the harm. Of course, there is, in ordinary language, a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.
iii) The words "physical or psychological harm" are not qualified "Intolerable" is a strong word and must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate". That includes physical or psychological abuse or neglect of the child herself and also exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent.
iv) Article 13(b) is looking to the future as the child's situation would be in the home country immediately or fairly soon. This does not necessarily mean the same as being returned to the person, institution or other body who has requested her return and the situation which the child will face on return depends crucially on the protective measures which can be put in place.
v) Where allegations of domestic abuse are made, the court should first ask whether, if they are true, they would be of grave risk that the child could be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child could be protected against the risk. The appropriate protective measures and their effectiveness will vary from case to case and from country to country.