England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		24th October 2014

MR. JUSTICE BODEY:

A. INTRODUCTORY

1. This is a father's application (I shall not identify the parties) under the Hague Convention for the summary return to Hungary of two children. They are a boy A who was born in 2001 and is now aged 13 and a girl B who was born in 2004 and is now aged 10. The case raises four issues:

(1) rights of custody: the mother says that the father did not have rights of custody and/or that she was entitled under Hungarian law to remove the children from Hungary without the father's consent for a period up to 12 months;

(2) consent: the mother says the father consented to the children's removal: he denies so;

(3) acquiescence: the mother maintains that, in the months following the children's removal to this country, the father acquiesced: he denies so;

(4) the children's objections to a summary return.

2. As to the first of these issues, the burden of proof is on the father. As to the other three, the burden of proof is on the mother. The standard of proof is the balance of probabilities.
3. The Hague Convention works on the basis that it is generally in the interests of children not to be removed unilaterally from one country to another. The receiving jurisdiction will therefore return the children promptly to the jurisdiction from which they came (for that jurisdiction to deal with issues about their upbringing and welfare) unless if certain carefully defined defences can be made out by the parent who has removed the children. That is briefly the philosophy behind the Convention.
4. The father has been represented by Mr Jarman, to whom I am grateful for his contribution. The mother has represented herself, with the support in court of her current husband. She politely complained about the lack of a level playing-field, in that their household is just above the limits for public funding but they do not have the resources to pay for legal representation. I am very sympathetic to that dilemma and have tried to assist her throughout the hearing. In fact, she put across her case with courtesy and effectiveness, cross-examining the father with skill and making cogent written and oral presentations. I have read a bundle of documents and have heard each of the parties give evidence in the witness box, essentially on the issues of consent and acquiescence. I have considered a report of Mr John Power of the CAFCASS High Court Team dated 15 October 2014 into the question of the children's maturity and objections and have heard him briefly give evidence.

B. BRIEF BACKGROUND

5. Both parties are aged 42 and are Hungarian nationals. They were married in Hungary in 2001 and lived throughout in Hungary until the mother's move to this jurisdiction with the two children earlier this year. Both children were born in Hungary and are Hungarian nationals. They too lived all their lives in Hungary until earlier this year. Following the breakdown of the marriage, the parties were divorced in 2006 and the father moved out. Agreed arrangements were approved by the Hungarian court for the children to remain in the mother's custody, with fortnightly weekend contact to the father and with his having contact for parts of school holidays. These contact arrangements, however, were not without their difficulties. There were a number of allegations and cross allegations which led to applications to the Hungarian Child Protection Office for amendments to be made to the arrangements. The details are unimportant. By the beginning of 2014 the contact regime was that the father had the children for fortnightly weekends, one day in the week and parts of school holidays.
6. In 2008, the mother met her husband T and they were married in 2009. In 2010, the mother gave birth to their son E who is now aged 4. The mother's family thus became comprised of herself, T, A, B and E. Her case is that, unhappily, life in Hungary was difficult. T was unable to find work there and her modest income as a teacher was insufficient to meet the family's outgoings. Debts started to run up, which she told me are now around about £10,000.
7. Accordingly, in about August 2013, T began looking for work in England. He is an Englishman whose family comes from the West Country. He had not been able to find work in Hungary because of the language difficulty. In November 2013, he had a successful interview here with employers and subsequently on 18 February 2014 was offered employment here commencing on 6 March 2014 expiring on 5 September 2014 (i.e. 6 months). That employment has since been made full-time permanent employment.
8. On 7 March 2014, the mother removed A and B (and I presume E) from Hungary and brought them to this country. There is a heavily contested issue as to whether or not she consulted with the father beforehand and had his consent.
9. On 10 March 2014, the mother's Hungarian solicitor wrote to the father to inform him that "… as it has been known to you for weeks" the mother had come to England with the children. This was because of the family's "…. extremely critical economic situation". It was said that they had decided to travel to this country "… for a maximum of one year" (the significance of which will appear below) and that the standard of living here would be "… significantly better than here at home (Hungary)". The letter went on to offer the father holiday contact in the summer and winter with the mother paying the travelling expenses.
10. From March to June 2014, the parties were in what seem to have been tetchy negotiations about the children going over to Hungary to see the father in the summer. Various draft agreements were prepared, an example of which appears at B21. These attempts to negotiate agreed arrangements continued into June 2014. Ultimately, for reasons which do not matter, they came to nothing and the children did not see the father over the summer. In fact they have not seen him, except by Skype, between the last contact occasion in February/March 2014 and yesterday, when he had contact, a period of some 6 months. Who bore more responsibility for this is not the issue; but I suppose either parent could have made it happen.
11. The father's case is that during these negotiations he was unaware of his rights to apply under the Hague Convention, but that when it was obvious to him that the attempts to reach an agreement were not getting anywhere, he decided to take matters further and approach the Hungarian Authorities. On 12 June 2014, he made a formal submission to the Hungarian Central Authority. On 5 August 2014 his English solicitors were instructed by the English International Child Abduction & Contact Unit. The case has proceeded on conventional lines from then on until final hearing before me this Tuesday and Wednesday (today being Friday).

C. RIGHTS OF CUSTODY/WRONGFUL REMOVAL/WRONGFUL RETENTION

12. There is no dispute that the children were habitually resident in Hungary at the time of their removal by the mother. The question is whether that removal of them or their retention in this country was wrongful. Article 3 of the Convention states:

"... the removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person … either jointly or alone under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised either jointly or alone ..."

By Article 5:

" For the purposes of this convention (a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence ...[etc]".

13. The starting-point, but not the end point, has to be Hungarian domestic law. By S72/B of the 1952 Marriage, Family and Guardianship Act 1952, it is provided:

"(1) After the placement of the child, the separated parents shall exercise their rights jointly – even in lack of joint parental custody – in any fundamental issues concerning the child's future, except if the parental custody rights of the separated parent is (sic) restricted, suspended, or terminated by court decision.

(2) Fundamental issues concerning the child's future include: [Determining or changing the child's name], determining the residence of the child and determining the school and career of the child".

14. If the matter rested there, it would be straightforward. It would be clear that the father would have had rights of custody, particularly because of Article 5's reference to 'determining the residence' of the child. However, the matter does not rest there, as the Head of Department at the Ministry of Justice in Hungary has expanded on this by way of amplification. He refers first to the separated parent having "… the right to keep contact with his children as per the Order …". Then, citing Opinion No 284 of the Civil Law Board of the Hungarian Supreme Court, he goes on to say that "… if the parent travels abroad with the child placed with him/her for a period of time shorter than one year, the removal of the child is not wrongful …". I here omit some text and the citation continues "… if on the other hand the parent with whom the child has been placed intends to keep the child abroad for more than one year, the consent thereto of the parent remained [remaining] in Hungary or a court decision … shall be required. Thus, in the latter case, it will be unlawful to keep the child abroad without the parent's consent thereto or the court's decision". The Head of Department continues by stating that it is not necessary for the removal abroad actually to exceed one year. It is sufficient if the parent takes the child abroad with the intention that it would do so. The court seized with the request for return therefore has to "… assess all the circumstances of the particular case so as to find out the abducting parent's intentions".
15. I have to say with great respect that, set out in the way it is before me, the Hungarian domestic law on this point is not easy to follow. What is the correlation between the obligation on the parties under S72B (even where joint parental custody is lacking) to exercise their rights jointly as regards determining the residence and schooling of the children, if the mother was entitled to bring the children to England without the father's consent for e.g. 11 months and 3 weeks? If the mother can do that and put the children into English schools without the father being able to exercise his joint right in this respect, then is not that statutory right to contribute to decisions on education negatived? That is, incidentally, exactly what has happened in this case.
16. In a perfect world and without the familiar and severe pressures of time and expense, a dialogue with an expert in Hungarian family law would have been beneficial and could very well have explained how these apparent inconsistencies and difficulties are explicable; but that is not in practice available to me here. Be that as it may, the question for this court is not essentially to interpret still less apply Hungarian domestic law as to the issue of rights of custody/wrongful removal. It is a question of the autonomous application of the Hague Convention. That has been established since Lord Donaldson's pronouncement in Re C (A Minor) 1989 1FLR 403 at 412 and repeated in many cases, most notably in Re F (Child Abduction) 1995 2FLR 31 (CA); Hunter v. Murrow (Abduction: Rights of Custody) 2005 2FLR 1119; and Re D (Abduction Rights: Rights of Custody) 2007 1FLR. In this latter case, Baroness Hale of Richmond said at paragraph 44: "… we are here concerned, not with domestic law, but with the effect given domestically to autonomous terms in an international treaty which are meant to be applied consistently by all member states". In both Re F (above) and Hunter v. Murrow (above) the Court of Appeal, when applying the autonomous meaning of the articles in the Convention, declined to regard itself as bound by the conclusion arrived at by the domestic law of the 'left-behind' jurisdiction. At paragraph 24 of Hunter v. Murrow, Thorpe LJ stated that "… (1) the Hague Convention requires the court to give the expression "rights of custody" an autonomous interpretation … (3) the task of the court is to establish the rights of the parents under the law of [the 'left-behind'] State and then to consider whether those rights are rights of custody for Hague Convention purposes; and (4) in considering whether those rights are rights of custody, the court is entitled and bound to give a purposive and effective interpretation to the Hague Convention".
17. Applying this approach, and notwithstanding the difficulty of factoring in the 'up to one year' aspect, I have reached the conclusion that the rights accorded to the father in Hungary did amount to rights of custody for the purpose of Article 3. That seems to me to be the purposive and effective interpretation of the Convention. Quite apart from anything else, one of the 'fundamental issues' concerning the children in respect of which the father was entitled by S72B to exercise rights jointly with the mother was (as I have said) "… in determining the school and career of the child". In Convention terms, the mother's removal of the children to this jurisdiction and placing them in schools of her choice without even telling the father was a breach of those rights, unless she had the father's consent (which I address below).
18. In convention terms, that conclusion about the father's having rights of custody suffices in terms of the Hague Convention for him to have made out his case, subject to consideration of the mother's three defences. However, in case my interpretation is wrong and since the mother is in person and believes very strongly that she was acting quite within her rights by reason of the 'up to one year' provision as per Ruling 284, I will proceed to make findings in that respect. The mother relies particularly on a recent Memo from her Hungarian solicitor dated 18 September 2014, which states by reference to the 'one year' ruling that "… you have not broken the law". This begs the question about the mother's intention, which I need to deal with. Her case is that she was clearly intending to come here for only one year. As to that, she points particularly to her Hungarian solicitor's original letter to the father of 10^th March 2014 (above); to the draft agreement at B21 in the bundle (above) which speaks of one year here; and to the fact that she tried to keep open the children's places at school in Hungary, although this proved not to be possible.
19. Against that, Mr Jarman submits that the opposite is the case. He says that the removal to this country bears from the outset all the hallmarks of a permanent removal. He relies on the father's evidence that he was not consulted at all and that the first he (the father) learnt of the children's removal was when he received the mother's solicitors letter of 10^th March 2014 shortly afterwards. The mother points out that the certificate of receipt of that letter bears no signature and suggests that the father did not therefore find out by that route. However, he is quite clear that he did and he is supported by a letter from the head-teacher of the children's school in Hungary dated 19^th March 2014 confirming that the children had been enrolled in schools in England. That letter adds that the father had approached the head-teacher and told her that the mother had not told him of her travelling abroad and that he had 'only received a letter from the solicitor on 12^th March 2014', five days after the mother and the children had left. That letter from the head-teacher strikes me as contemporaneous support for the father's case as to how he first learnt of the children's removal.
20. My finding of fact on the issue between the parties as to whether the father consented to the children's removal is this. The father's evidence has been consistent that he was not told and he maintained this position under challenge by the mother before me. He spoke through an interpreter but appeared perfectly credible. The mother's evidence on the same point lacks the detail and sense of conviction which one would expect if there had been any real consultation and discussion during which the father had given an unambiguous consent to the children's removal. In her statement, having in fact first made the point that she did not need the father's consent to relocate, she continued by saying "… I feel this application is an abuse of process, because this is not an abduction. The children are here legally and with the father's knowledge. In any event, he was aware of the relocation and did not do anything that would lead me to believe that he objected to the children coming to England or sought their return to Hungary." That is not put in direct terms of the husband having consented. Nor in the mother's chronology at D25 is there any reference prior to 7^th March 2014, or at all, to a conversation in which the father allegedly gave his consent. Under cross examination, the mother was evasive. The most she said, when it was put to her that there had been no such conversation at all, was "we did speak about it". She accepted that she could not give any dates for this and that it was not shortly prior to the move in March 2014. She accepted that she did not tell the father of any actual planned date for a move.
21. On the 3^rd March 2014 (4 days before the removal) the father had e-mailed the mother with a number of concerns about the children, one of which was a suggestion that they might try different schools in Hungary, as the children were struggling somewhat. The mother gave no reply and Mr Jarman's suggestion is that this is because she would have had to have said "…actually we're moving to England", which she did not want to do. The mother, on the other hand, told me in cross examination that she thought the father would have agreed to her taking the children to England: indeed it is her case that he actually did so.
22. When I consider the objective indications, and the evidence from both parties which I heard and observed in the witness box, I have no doubt in preferring the father's version on this question of whether or not he consented. I find that he did not, and that the mother did not want to consult him because she believed he would be very likely to oppose. These findings not only answer the 'consent issue' referred to further below, but also have an impact on the mother's approach to the father's position generally.
23. Other factors relied on by Mr Jarman for asserting that the mother was not bringing the children here for only up to twelve months, are these. The mother accepts that she has not told the children's English schools that they will only be staying at school for one year. She accepts that when her husband, T, took on permanent employment with his current employers in England, he did not tell them that he would only be staying for one year. Mr Jarman points out that the mother and T have made their home in England in the area T comes from and have placed the children into schools there, where they are settling and doing very well. I have read their school reports which confirm this. He relied on the fact that the mother is now saying that she is going to take advice from her Hungarian solicitors as to what might achievable in Hungary, the implication being that she intends if possible and hopes to be able to stay beyond the end of this year, in effect permanently. So Mr Jarman submits that this removal to England has all the hallmarks of permanence.
24. The question under Hungarian law, as relied on by the mother, is as to her intentions in March 2014. I accept there were contemporaneous references to her removal being for only up to one year. Mr Jarman describes this as 'lip-service'. Having done my best to assess the mother, I conclude that she was not truly and deep-down intending that this move should only be for one year. It is a huge commitment to remove children from one jurisdiction to another in this way, putting them into a new and different educational system and entirely predictably (as has happened) causing them to make a new circle of friends. Their move was stated by the mother's Hungarian solicitor to be on the basis that their standard of living would be better here. It was to get the family away from the "…extremely critical economic situation" in Hungary (per the mother's solicitors letter) with T unable to work and the mother's salary insufficient. They came here hoping to be able to clear their debts. Mr Jarman points out that it would take more than one year on the husband's likely salary here to do so. It is counter-intuitive to think this mother, who obviously cares deeply for her children, would have brought them here with the real intention of uprooting them and the rest of the family after only one year and after, as she expected, having established a much better standard of living. So I cannot accept the mother's case in this respect. Even if I am wrong, there must have been a sub-agenda to the effect that "if the one year goes well, then we plan to stay on". That alone would, in my view, take this out of Ruling 284.
25. There is one last point under this heading. It is quite clear that, now, the mother wishes to stay with the children in this jurisdiction. Hence she is proposing to consult her Hungarian lawyers. She no longer intends to return to Hungary if she can avoid it, precisely because the children are doing well here and a pleasant family life has been created. In my view, even taking account of Rule 284, this converts the situation into one of unlawful retention, since any original intention to stay here for only one year (which I have in fact ruled against) has changed to a different intention.
26. For these reasons, including under the most generous interpretation of the Hungarian domestic law, I find the removal of the children to this jurisdiction to have been a wrongful removal.

(d) CONSENT

27. I have sufficiently dealt with this above. The mother has completely failed to satisfy me that the father consented to the children being removed to this jurisdiction.

(e) ACQUIESCENCE

28. The issue in this respect is as to the subjective state of mind of the father, as the 'left-behind' parent. It is a question of fact. Has he in fact consented to the continued presence of the children in the jurisdiction to which they have been abducted? Can the situation be said to fall into the exception whereby the 'left behind' parent so clearly and unequivocally led the other parent to believe that he was not asserting his rights to a summary return, that it would be unjust for him not to be held to have acquiesced. I paraphrase these guidelines from Re H (Abduction: Acquiescence) 1997 1FLR 872 per Lord Browne Wilkinson.
29. The mother says that the father's participation in the negotiations between about March 14 and June 14 was on the basis of the children remaining here for the remainder of the year until March 2015. Any such agreement, which was nearly reached, would have involved the children coming back from Hungary to England after a summer holiday with the father there. The fact relied on by the mother that the father's parents have said that they thought he was willing to sign up to an agreement adds nothing. The father does not dispute these facts, but says that he did not regard these discussions as his consenting to the children's removal. Throughout most of the time, he says he was unaware that he had potential rights under the Hague Convention. He was just trying to organise contact in the summer and was not addressing his mind to anything more than that. He explains that when agreements appeared to be going nowhere, he looked for further and better advice, which ended up with his submission to the Hungarian Central Authority on 12 June 2014.
30. I accept the father's case in this respect. It is quite clear what he was trying to achieve, namely to see the children in Hungary. I find that he was not, by negotiating, intending to demonstrate any consent to the situation which had been foisted on him. There is clearly insufficient here for it to be said that what took place falls into the exceptional category referred to by Lord Browne Wilkinson above.

(f) CHILDREN'S OBJECTIONS

31. The approach to a children's objections issue is dealt with by Ward LJ in Re T (Abduction: Child's Objections to Return) 2000 2FLR 192, at 202 onwards. I shall not repeat it here. As I have said, the children were seen by Mr Power, who was very complimentary about them. He told me that they are confident, articulate and irrepressible. He said that they have obviously had very good parenting throughout their lives. He did not think that the mother has manipulated them in what they say, but that she has created a 'bubble of respite' here in England: "… a good life which they have bought into and which they enjoy and which they do not want to lose". He said that the children's understanding was that they had come here for one year and would be going back. They spoke of their father looking after their two cats and told him (Mr Power) that their dog was being cared for by the maternal grandparents in Hungary. They told him they would be very, very sad to be separated from E.
32. Mr Power had both children fill in CAFCASS' 'How it looks to me' booklets. B wrote that she did not like her Hungarian school and did not want to go back. She wrote that she is worried about 'losing' her mother. She said "… I want to live with Mum, but in the holidays I want to be with Dad and Grandparents". In answer to "What upsets me about my life", A wrote "going home for ever and losing my mother and this country's education and better chance in life". One of his three wishes was that his grandparents would come over to England. He wrote of wanting to stay in England and of going back for holidays to see the 'other half of the family' in Hungary.
33. Mr Power's conclusion was simply stated. He says that the children would wish to continue living in England beyond the year, although they "… assume with regret that they will be returning". He stated that in his view the children object to a summary return because "… fundamentally this is at odds with their private family life". However, Mr Power says, "… in Convention terms, they do not object to returning to Hungary, because they want to go back during the holidays". He does not make an assessment of their maturity in terms, but that comes over from how he spoke of them in the witness box and a reading of their 'How it looks to me' booklets.
34. I am in no doubt that the children are thoughtful, bright and articulate. They are of an age and maturity where their views should be taken into account. That is, of course, far from saying that they are determinative. They are, to my mind, typical of children who are completely conflicted: caught up in their parents' disagreement and required to identify and express their feelings, when they love both their parents very much, but each parent currently lives in a different country. I agree with Mr Power that, in Convention terms, they do not demonstrate any or any cogent objection to a return to Hungary as such, but rather an understandable preference to remain in this country and thus not be at what they see a as risk of separation from their mother, T and E. There is clearly much which attracts them to Hungary, including particularly A's very best friend, both sets of grandparents, who are important to them, and their pets. In addition, the mother told me that she has a property there.
35. In Re K (Abduction) 2011 1FLR 1268 at paragraph 24 Thorpe LJ said this: "… 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 often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, 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 that satisfies the proper interpretation of the Article". In the result, I am not satisfied on hearing the evidence of Mr Power and reading about A and B that the childrens' objection defence has been made out.

(g) CONCLUSION

36. It follows first that this was a wrongful removal and second that the mother has not succeeded in establishing any of her defences under the Convention. The children must therefore be returned to Hungary. If I were wrong in any respect, there is still an inherent power '… to order the return of the child at any time': Article 18. This is discussed by Baroness Hale in Re KL 2014 1FLR 772 at paragraph 28. It does not require "… a full blown welfare based enquiry into where the children should live". These are Hungarian children who, until March 2014 had been brought up all their lives in Hungary, with their grandparents and other relatives there, their schooling, their circle of friends, their sports, their music, their pets and so forth. They were brought here as found unilaterally, without the father's consent. Granted they have settled in very well at school and are enjoying their activities and new friends here. But they are disabled from regular fortnightly (and one day a week) contact with their father and from regular contact with their grandparents, who are important to them. Their present family arrangements here are only of 7 months' duration. Notwithstanding the short term disruption and disappointment, I am of the view that quite apart from the Hague Convention it would be in their better interests to be returned to Hungary with their mother accompanying them. It would then fall to the court in that jurisdiction (where the court and Child Protection Office have been dealing with the case for years) to consider the mother's intended application to relocate back to this country.