England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		25 February 2014

Mr Justice Peter Jackson:

1. It is an reflection of the international nature of modern family law that this is an application under the Hague child abduction convention brought in London on behalf of a Bosnian father living in Copenhagen against a Slovakian mother living in Newcastle for the return of a child removed from Denmark and brought to the United Kingdom via Slovakia and the Czech Republic.
2. The child concerned is K, a boy aged six. He has grown up speaking Danish, Slovakian and Bosnian and has been learning English since arriving in this country at the end of May 2013.
3. The father is aged 33 and was born in Bosnia. The mother is aged 42 and has a number of older children. One of them now lives in Newcastle, as does the mother's own father. The mother herself moved to Denmark from Slovakia in 2002, meeting the father soon afterwards. They did not marry. K, their only child, was born in January 2008. In the following month, the parents signed a declaration as a result of which they share joint custody and parental responsibility.
4. The parents and child lived together in Copenhagen. The mother worked as a cleaner. In the father's case scarcely a year has passed without him serving some short sentence of imprisonment, usually for driving while disqualified. Indeed, it is a peculiarity of the present application that the father is currently serving a sentence of 60 days imprisonment imposed upon him on 20 January 2014 for driving without a licence. His Hague Convention application was issued the following day and he has participated in the proceedings by video link while on day release. His sentence ends on 20 March.
5. The mother defends these proceedings on the basis that the father consented to her bringing K to England, alternatively that he acquiesced in his being here. She also claims that it would be intolerable for K to return to Denmark. During the course of this hearing I heard evidence from both parents, speaking through interpreters, on the questions of consent and acquiescence.
6. Returning to the history, the mother's case is that the father is a heavy drinker with a bad temper; she does not allege any actual violence against her or the child, but says that they suffered emotional abuse. For the last two years of their time together it is clear that the relationship between the parents was unhappy, with frequent arguments and the police being called a number of times by the mother or by neighbours. On two or three occasions, the mother took herself and K to a refuge for short periods before returning to the father. Not surprisingly, K was affected and his school expressed concern about aggressive behaviour. Social services were also involved but after a home visit they took no further action.
7. On a number of occasions in the course of arguments, the mother told the father that she was going to leave him and she says that he told her to take her stuff and go. He accepts that he said something of the kind during arguments but that he was not referring to K.
8. By January 2013, the mother had begun to form a plan to take K to England, where she has family. The evidence of each parent was not entirely clear about when the father first heard of this. I find that the mother probably mentioned England before she left Denmark but only in the context of one of the many arguments.
9. On 8 March 2013, the father was sentenced to 60 days imprisonment. The mother visited him in prison. In April, her annual work contract expired and she did not renew it.
10. It is common ground that on 3 May 2013, the mother and K left Denmark for Slovakia by bus with the father's knowledge. He and his brother and another man dropped them at the bus station and carried their two suitcases, one for the mother and one for K. The mother says that the father had agreed to her plan to go on to England afterwards. The father says that he was agreeing to the mother having a holiday of about a week in Slovakia to see her older children living there and that nothing was discussed about a move to England. The mother travelled on a single ticket but in the circumstances of this family nothing turns on this.
11. The father variously says that the mother telephoned him from Slovakia on 4 May or from the Czech Republic later in the month, saying that she had a new boyfriend (a Czech man named Mr C who she had known since childhood and who was living in England) and that she would be going to England with him and would not be returning. The mother denies that she had begun a relationship with Mr C at that stage. She says that a relationship only began in England in June.
12. The father says that he was extremely upset to hear of the mother's plans and tried to persuade her to bring K back to Denmark. He would have gone to Slovakia but had no passport. He says that he reported the matter to the police but they would not help. It was only later that he obtained effective legal advice in relation to his rights.
13. In the event, having spent a week or so in Slovakia, the mother and K spent a similar period in the Czech Republic attending the funeral of her father's brother. It was by now the end of May and the mother and K then flew from Prague to England in a group of about ten people, including her father and his partner, another uncle, and Mr C.
14. Having arrived in England, the mother and K spent a month living with her father. They then lived for six months with Mr C before that relationship ended and then moved to live with the mother's adult son. Since 16 January 2014, they have occupied privately rented accommodation.
15. K started at one school in June 2013 and has been at another since 10 February 2014. The mother told the father about the first school after enrolling K there. She did not tell him about the change in school, which he learned about from her court statement.
16. There has been limited contact between K and his father by telephone and Skype. The father has sent a number of sums of money to the mother in England (he says they totalled some £1500, she says £500).
17. In relation to the question of consent, the authorities show that it must be clear and unequivocal.
18. The mother's evidence is that the father knew that she was going with the child to England before she left Denmark and helped her to leave. As she put it: "I raised it all the time, he was sometimes laughing, sometimes aggressive." The father's evidence was emphatic that he never accepted, and never would accept, such a move. "We discussed her staying in Slovakia with her family, that's it. Had I known she wasn't coming back, I wouldn't have let her go."
19. The mother's case is that there are important inconsistencies in the father's account. Ms Guha argues that consent can be implied from the assistance that the father gave to the mother. She points to the fact that no exact date had been fixed for a return to Denmark and that the mother had left her job.
20. The father's case is that it is inherently improbable that he would have agreed to his son being taken to England when he himself was not in a position to visit him there for want of travel documents. Ms Renton also argues that this departure lacks any of the hallmarks of an agreed move (pre-bought tickets, relocation of 10 years' worth of belongings, any plans for life in England, any discussion of such plans, any tying up of loose ends in Denmark). On the contrary, it has all the hallmarks of a unilateral decision to flee, with the mother arriving in England with no accommodation or school arrangements having been made and no plan for the child's contact with his father.
21. My conclusion on this issue is that the father was never asked for his consent to K being brought to England and that he certainly never gave it. I base this on two matters: first, that the probabilities are strongly against it and secondly that I prefer the evidence of the father to the mother on this issue. The mother's evidence scarcely suggested that consent was ever given, while the father's robust denials were convincing. He was a poor witness in relation to dates but that does not undermine his clear account of being placed in a situation after the mother's departure that he could do little about.
22. I find that the mother did not seek the father's consent to move to England at any stage because she knew that he would refuse it. I find that the first time she told him of an actual plan to come here was either from Slovakia or the Czech Republic and that she told him rather than asking him.
23. In relation to acquiescence, the mother points to the period of eight months between her departure and the commencement of these proceedings. She further points to the absence of any documentary evidence of a complaint to the police by the father, to his financial payments and to his evidence that he planned to come over to England to see his son during the summer but cancelled due to lack of travel documents.
24. I have been reminded of the guidance given by the House of Lords in Re H (Abduction: Acquiescence) [1997] 1FLR 872 at 884. Having heard the parents' evidence in the light of my findings on the lack of consent, I find that the defence is not made out either. The father did not at any stage acquiesce in K's retention. His actions should be seen in the light of his limited room for manoeuvre. Financial payments and plans to visit might in some cases denote acquiescence, but not here. I find that the father was doing his best to keep on terms with the mother for the sake of his contact with K, which was very limited. Moreover, there is no basis in the evidence for finding that this non-consenting parent changed his mind about his son being here. On the contrary, his action in starting these proceedings and the evidence of some foulmouthed and threatening text messages that he recently sent to the mother are more consistent with anger at being deprived of contact than with a man who has changed his mind for no apparent reason.
25. Nor is the defence of acquiescence made out on the basis that the father's actions showed and led the mother to believe that he was not insisting on his rights to a summary return. I accept that the mother was surprised to receive these proceedings, but that is because she believed that her unilateral move to England had been successfully achieved.
26. Lastly, the mother raises a defence under Art. 13(b). The particulars are set out in paragraph 12 of Ms Guha's skeleton argument. She refers to the length of time the child has been here, describing him as integrated in England. Since K has only been in his present home for a few weeks and his present school for a few days, this overstates matters. She also refers to the father's abusive behaviour, continuing up to the recent text messages, to his criminality and to the mother's relative lack of family support in Denmark and her need for accommodation and an income. I have been referred to the authorities on Art 13(b): Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27 and Re S (A Child)(Abduction: Rights of Custody) [2012] UKSC 10. I take the mother's allegations at face value. I ask whether a return to Denmark would be likely to expose K to grave harm or place him in a situation that he should not be expected to tolerate.
27. I find that it would not. In this context, I take account of the situation as it was before the mother removed K. I assess her as a reasonably robust and determined person with some wider family support, albeit not in Denmark. I take account of the nature of the undertakings that the father offers and the fact that these will be enforceable in Denmark. Looking at matters overall, a return order will certainly bring significant disadvantages to K in disrupting his current arrangements, but these are not of a kind that engage Art. 13(b) and they should be weighed alongside the advantage to him in his seeing his father again and in having his long-term future determined in the jurisdiction of his habitual residence.
28. I shall therefore dismiss the mother's defences to this summons and hear counsel on the terms of the resulting order for return.
_____________________