England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st January 2014

1. I am concerned with a young person, NB, aged 15 years 6 months. His age is highly significant. His mother is K. She is represented by Mr Anderson. She applies for his summary return to Hungary. The father, B, who is represented by Ms Chipalkatty, objects. Although he has not filed a formal answer, his defence is clear from his written statement. It is essentially based on the mother having consented to the move and more importantly N's objections. The father's case is that N wishes to remain in England, objects to a return and believes that his life here is better. Although the father refers to issues of harm were N to return, Ms Chipalkatty expressly confirmed that he does not rely on an Article 13b defence.
2. The parties were married to each other in 1993, divorcing in 1997. They are both Hungarian. Until last summer, N had lived all his life in Hungary with his mother, who obtained a custody order in 2008. The father came to England in 2011, the mother and N remained in Hungary. The father now lives in Harlow with his new partner and their children.
3. I have read all of the relevant evidence in the trial bundle, in particular the statements of evidence and the very helpful report of the CAFCASS officer, Ms Brooks, to which I will return to.
4. The report of Ms Brooks states that N is opposed to a return to Hungary. Despite N's wish to stay here and his age, the mother maintains that he should be returned to Hungary and argues that he is too young to make such an important decision.
5. In the summer of 2013, N came to spend some time with the father, who was ill. There is a dispute between the parties as to whether this was a visit or a permanent move. The father's case is that the mother consented to a permanent move. In his statement he said the mother agreed N could live with him and be educated here. N told Ms Brooks that he spoke to his mother about his wish to live in the UK with his father. He said his mother accepted this decision. N's understanding was that his mother later changed her mind.   The mother's case is that she only ever agreed to a visit and that she fully expected N to return. She says she never agreed to N studying in England.   When N was not returned, the mother, within 2 months, issued her application pursuant to the Convention for the children's summary return.
6. The father needs to prove the mother's consent was clear and unequivocal. There is no independent documentary evidence to support the father's case. In particular, the father accepts that there are no documents from the mother showing her consent. On the contrary there would seem to be a document entitled 'Declaration' dated 7.08.13 which shows the mother did not consent to a permanent move. In my judgment it cannot be established that the mother so consented. It follows therefore that as a matter of law she did not. N's habitual residence remained in Hungary. Therefore, again as a matter of law, it follows that the father retaining N at the end of the summer holiday was wrongful.
7. I turn to Ms Brooks' evidence. In her report, she outlined what N said to her in interview. He said he would like to live in the UK for a long time. He thought the people were nicer here, where he used to live people were rough. He said if he lives here and learns English he will find it easier to find employment. He said he had the opportunity to study here and he would like to take advantage of that. He would like to live with his father as he has not seen much of him in the last 10 years. He said his father paid him more attention than his mother and he assisted him with his school work. He said he wanted to stay in England with his father. He said that if he was sent back he would be very upset. On a scale of 1-10 he said the score of upset would be 10. He said he wanted to change his life. He feared that if he returned to Hungary it would not turn out well.
8. Ms Brooks spoke to N's previous school who said he was 'a very nice boy' but a little immature. Ms Brooks agreed that from the information she had gathered N could act in a silly immature way but he also understood that this sort of behaviour was not going to help him in school. He said to Ms Brooks that he had thought about his decision and spoken to his friends about it. He said that whilst he had thought moving countries would make no difference and that people were all the same; since starting school he found people here kinder and he would like to stay. Ms Brooks did not think N had been unduly influenced by his parents.
9. In oral evidence on Thursday 30^th January, Ms Brooks expanded somewhat on her views. She said N wanted to live and go to school here. He was not saying he would never go back to Hungary and did say he wanted to see his mother. He was saying he wanted to live here with his father. His understanding was that both his parents had agreed to him coming here and that his mother had changed her mind. Ms Brooks said N was sure in his mind that he wanted to stay here. He appreciated that the mother was upset by his decision but this did not alter his views. He believes his school is better here and thinks that learning English will improve his job prospects. Ms Brooks did not think that N was trying to be fair as between his parents but rather that having not lived with his father or had much contact with him, he now wanted to make up for that.  He also enjoyed living with his half and step siblings. He explained that when he was with his mother he had been left to his own devices; whilst with his father there was more of a routine and a family life because of the other children. Ms Brooks formed the impression that N felt safer being cared for by his father. Ms Brooks thought N's relationship with his mother was important to him and that he wanted contact with her and that he was unhappy that his relationship with her was recently more difficult. He said he missed her, his grandmother and his friends in Hungary, although he kept in touch indirectly. Ms Brooks said she did not get the impression he missed life in Hungary. In particular he was not missing school as he knew people there who were engaged in criminal activity and he did not miss that. Ms Brooks did not think N's views of England were seen through 'rose-tinted glasses' or were one-sided thus indicating that they were balanced.   Ms Brooks considered that N's reasons for wishing to stay in England were grounded in reality. Although the school described him as immature and silly he did not present in that way to her and she thought he came across as thoughtful and focussed; which she was quite impressed by. She thought his scoring 10/10 as a mark of the strength of his objection was considered and thought through. She thought he would be very upset if he was sent back and would be very resistant to this and would be planning a way back to England but that he would probably comply with such an order. At the end of her examination by counsel and in answer to my question Ms Brooks said that she thought N was expressing a preference to stay in England rather than return to Hungary as opposed to expressing an objection to returning. She explained that he had not said that dreadful things would happen to him in Hungary if he returned. She said he wants to live with his father and this was not linked to a specific country as he would e.g. want to live with his father in France. She concluded by saying that in the end he was expressing a preference but he is of an age where he should be listened to.
10. In light of Ms Brooks' evidence and having canvassed the matter with counsel, who agreed, I thought it appropriate, given N's age, that he should be given the opportunity to feel more involved and connected with the proceedings in which such an important decision was being made and given the chance to satisfy himself that I had understood his wishes and feelings. Arrangements were therefore made for him to attend court in the afternoon on Friday 31^st January at 2pm. In making such arrangements I bore in mind the relevant Family Justice Council Guidelines dated April 2010. I spoke to him in my room in the presence of Ms Brooks and through an interpreter and then relayed the conversation to counsel.
11. N told me about his school and the fact the previous day he had had an English test. He told me, with a smile on his face, that he was not that pleased to be missing a day of school in order to come to court. He told me he understood more English than he spoke and it was obvious to me that he understood a lot of what I was saying. I explained the process to him and in making my decision I had to take a number of factors into account. I told him the decision was my responsibility and the responsibility for the outcome, whichever way it went, was not his. I think he understood that. I asked him if he knew what decision I was speaking about and he replied that the decision was 'whether he stayed with his father or his mother.' I asked him what his views were and he said 'I think my future is here.' He said 'the only thing I want to tell you is that there is no way I want to go back.' Ms Brooks then told me that N had been worried before meeting me. I asked him if that was true and he said it was and told me it was because he did not want to go back. He said 'I feel finally in the right place.' He said 'I now feel in a family. I feel that if I return I will end up in an institution or a prison.' He said in England when he came home from school there was a hot meal prepared and his father and siblings were around. In Hungary, conversely, his mother was often not home as she was working.  He said, I thought with conviction 'I feel safe and secure here.' I finally asked him if there was anything else he wished to say to me and he said 'Just don't send me home.'  My overall impression of N was that he was serious, thoughtful, appropriately reserved, understandably anxious and sincere. The conversation lasted about 15 minutes. By the end of it I was satisfied that N felt I understood his wishes and feelings and meeting him assisted me to evaluate them.
12. I turn to the law to be applied in this case. Article 13 of the Convention states that I may refuse to order the return of children if they object and they have attained the age and degree of maturity at which it is appropriate to take account of their wishes. The test to be applied in such an Article 13 case, based on a child's objections, was set out in Re M [2007] EWCA Civ 260, where it was stated that the court should ask itself three questions:

(1) Whether the children's objections to a return are made out.

(2)  Whether the age and the maturity of the children is such that it is appropriate for the court to take account of the objections.

(3) Whether the court should exercise its discretion in favour of a retention or return.

13. In deciding the strengths and the validity of the children's views, the court should examine the children's perception of the short, medium and long term interests; how far the objections are grounded in reality; how far they have been influenced directly or indirectly by the abducting parent; and how far the objections would be mollified or removed by the influence of the abducting parent.
14. I bear in mind also that, in normal circumstances, it is in the best interests of children that they be promptly returned to the country whence they have been wrongfully removed and that it is only in exceptional circumstances that the court has discretion to refuse immediate return.
15. In this particular case, Mr Anderson accepts that N, has reached the relevant age and has the relevant maturity that his views must be heard. I agree.
16. Therefore, the real issue in this case is the nature of N's objections. It is necessary to ascertain why he objects: see Re T [2002] FLR 192. In this particular case, I am guided by the observations of Thorpe LJ in Re K [2010] EWCA Civ 1546, where he made clear, in that case, that, where a child simply expressed a preference, that was not the same as an objection, using the Convention meaning of it. There needed to be, he said, a strength of conviction and rationality to satisfy the proper interpretation of Article 13. Failing to satisfy that test, he said, would be to set the bar too low.
17. In my judgment, although the wishes and feelings of N may be characterised as a strong preference to stay here I also find they amount to a strong objection to return to Hungary. Save for this qualification I accept Ms Brooks' evidence about N's views and do not need to repeat her assessment here.  I agree with Mr Anderson, who accepted in submissions that a strong preference could amount to an objection. I find that N's objections are clear and based in reality and are thoughtful and rational. They were sound objections and widely and broadly based on economic, social, familial, education and lifestyle factors. In my view his wish to stay here is more than a relative comparison between the two countries. I find his objections to be strong. I am satisfied his views are his genuine own and they have not been unduly influenced by the father. They are based on his experiences and result from having thought seriously about them and having appropriately discussed them with friends. I also find his objections to be balanced.
18. In finding that N does so object it follows that I turn to consider the exercise of my discretion. I have formed the clear view that I should exercise it to refuse to order a return. I take into account:

i) N's age;

ii) His maturity;

iii) His expressed views;

iv) The reasons for his views.

19. I am mindful of the fact that by Article 4 the Hague Convention shall cease to apply when a child attains the age of 16 years. N is almost at that age. His views are more important because of his age and I attach more weight to them.
20. I take into account that N needs a relationship with both parents and if he stays here he will inevitably see less of his mother than were he to live in Hungary. However, I hope that now that this decision has been made N's contact with his mother will be easier. The father said through Ms Chipalkatty that he would be willing to pay for N's flights back to Hungary to see his mother.  It is very important that N continues to see his mother and the mother cannot afford to pay to come to England. I would therefore wish this commitment by the father to be recorded on the face of the order. In addition N will be having indirect contact with her. 
21. I hope the mother will give N her blessing and explain to him that a judge has made this decision, that although she wanted him to come home and that she would like him to live in Hungary, that she understands and accepts the ruling of the judge who has said that, as a matter of law, he can stay.

I give permission for this Judgment to be disclosed to the Hungarian Court in the event that there are any proceedings in that country.