England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		4th June 2015

MR. JUSTICE MOSTYN:

1. This is an application made by the applicant, RB, for an order for the summary return of her daughters D, born on 14^th January 2005 (aged 10), and B, born on 27^th May 2009 (aged 6), to Austria pursuant to the terms of the Convention on the Civil Aspects of International Child Abduction, signed in the Hague on 25^th October 1980 as incorporated into the law of this country by virtue of the Civil Abduction and Custody Act 1985.
2. In my own decision of B v B [2014] EWHC 1804 (Fam) I said this:

"2. The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone's rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.

3. There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child's homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.

4. Where exceptions come into play, such as for example the exception mentioned in Article 13 of the Convention, which is that the child objects to being returned and has attained a degree of maturity at which it is appropriate to take her account her views, the type and nature of the exception has to be examined in the context of the limited objectives of the Convention. It must be a sound, reasoned and mature objection to being returned to her homeland for the sole limited purpose of enabling the court of that country to determine her long-term future. Equally, if the exception that is relied on is that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation, that again has to be seen through the lens of the objective of the Convention. We are not talking here about long-term risks. We are not talking here about long-term harm. We are talking about risks and harm that would eventuate only in the period that it takes for the court of the child's homeland to determine her long-term future and to impose the necessary safeguards, if necessary, in the interim."

3. That is, I believe, a classic statement of the law in relation to a case that is governed solely within the four corners of the 1980 Convention. The expressions I will use for the purposes of this judgment are "the home country" as the country from which the child was taken, and "the away country" as the country to which the child has been taken. If the home country and the away country are both members of the European Union, alternatively both are subscribers to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, then those principles which I have mentioned are modified substantially.
4. I have commented on those modifications in a rather lengthy judgment I gave comparatively recently, SP v EB [2014] EWHC 3964 (Fam) which I decided on 26^th November 2014. In that judgment I explained that if the countries in question are within the EU or are subscribers to the 1996 Convention, then there is a significant modification to the operation of the 1980 Hague Convention. Austria and the United Kingdom are both members of the European Union and are both subscribers to the 1996 Hague Convention.
5. As members of the European Union, both Austria and the United Kingdom are subject to Council Regulation (EC) No. 2201/2003 made on 27^th November 2003 (commonly known as "Brussels II Revised"). In Recital (17) to Brussels II Revised it states this:

"(17) In cases In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulation, in particular Article 11. The courts of the Member State to or in which the child has been wrongfully removed or retained should be able to oppose his or her return in specific, duly justified cases. However, such a decision could be replaced by a subsequent decision by the court of the Member State of habitual residence of the child prior to the wrongful removal or retention. Should that judgment entail the return of the child, the return should take place without any special procedure being required for recognition and enforcement of that judgment in the Member State to or in which the child has been removed or retained."

6. That Recital seems to me to represent an uneasy compromise between two opposing factions involved in the framing of Brussels II Revised. As my previous judgment demonstrates, there was a faction - it may have even been the view of the Commission - that the time had come to adopt a system of mutual recognition of orders which would obviate the need for the existence of the Hague Convention at all within the European Union. A scheme of mutual recognition of orders would mean that if a child was wrongfully removed from one European state to another, the home state would make an order for the return of the child and, subject to very limited defences, the child would be returned by the away state pursuant to an order for reciprocal enforcement. One can see that in such circumstances the need for advancing a claim for summary return in the away court under the 1980 Convention, or to allow any kind of expansive defences, would dissolve. That scheme of Brussels II Revised in fact mirrored the 1996 Convention which again provides for a scheme of reciprocal recognition of orders. It is equally clear that another faction wished to retain, possibly having regard to its iconic significance, the 1980 Convention, and so Recital (17) seems to me to represent a rather uneasy compromise between the two factions.
7. What Recital (17) makes clear is that the Hague Convention will apply but as complemented in particular by the provisions of Brussels II Revised, in particular Article 11. For these purposes there are two aspects of Article 11 that are highly relevant. Firstly Article 11.4 states:

"A court cannot refuse to return a child on the basis of Article 13(b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

8. As is known Article 13(b) is probably the most commonly advanced defence in proceedings under the Hague Convention. That provides that if the defendant can establish that there is a grave risk that his or her return would expose the child to physical or psychological harm, or would otherwise place the child in an intolerable situation, then there is a discretion which, if those facts were proved, would almost invariably be exercised against a return. When looking at Article 13 I observe that underneath 13(b) one finds the defence of child objections which states:

"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 which it is appropriate to take account of its views."

That is in fact not formally caught or engaged by Article 11.4 of Brussels II Revised, which is aimed solely at Article 13(b), the grave risk of physical or psychological harm or otherwise placing the child in a position of intolerability.

9. When Article 11.4 was drafted over 10 years ago the measures which the framers would have been contemplating were probably voluntary arrangements between the parents on the basis of undertakings. However, as in all things, there have been further legal developments.
10. The first further legal development is the arrival on the scene, at least in this country, of the 1996 Convention. The 1996 Convention provides, in Article 11:

"(1) In all cases of urgency, the authorities of any Contracting State in whose territory the child or property belonging to the child is present have jurisdiction to take any necessary measures of protection.

"(2) The measures taken under the preceding paragraph with regard to a child habitually resident in a Contracting State shall lapse as soon as the authorities which have jurisdiction under Articles 5 to 10 have taken the measures required by the situation.

"(3) The measures taken under paragraph 1 with regard to a child who is habitually resident in a non-Contracting State shall lapse in each Contracting State as soon as measures required by the situation and taken by the authorities of another State are recognised in the Contracting State in question."

If orders are made under Article 11 then by virtue of Article 23 they shall be recognised by operation of law in all other contracting states.

11. It is true that under Article 20 of Brussels II Revised there was a facility to make provisional, including protective, measures. If such provisional or protective measures were made, then they would be entitled to recognition under Chapter 3 of Brussels II Revised. However, it was, at least to my knowledge, not common place - in fact almost unknown - for protective measures which would satisfy the terms of Article 11.4 to be made under Article 20. However, since the arrival on the scene of the 1996 Convention it has become common, as least in this court, for this court to make orders under Article 11 of the 1996 Convention which then have the effect of satisfying the terms of Article 11.4 of Brussels II Revised.
12. The effect of all this is if the court is armed with the power to make measures of protection under Article 11 of the 1996 Convention which will be recognised by operation of law in the home court, then it follows, as night follows day, that Article 11.4 will apply and it will be impossible to run a defence under Article 13(b) of the 1980 Convention. It is for this reason that, in those cases where the countries in question are within the European Union or are subscribers to the 1996 Convention, I have described the 1980 Hague Convention as being obsolescent. Indeed, that probably was the intention of the first faction of the framers of the Brussels II Revised regulation to which I have referred.
13. The court obviously would not make orders which were toothless under Article 11 of the 1996 Convention. It would only make orders under Article 11 which it felt supplied necessary measures of protection. If it was satisfied that those orders did provide the necessary measures of protection, then ex hypothesi the criterion within Article 11.4 of B2R, namely that adequate arrangements are being made to secure the protection of the child, will be met.
14. Therefore it seems to me that provided the court makes appropriate orders under Article 11 of the 1996 Convention it will be impossible to advance a case under Article 13(b) where one is dealing with a fellow European country or another subscriber under the 1996 Convention.
15. Article 11.4 curiously does not apply to a defence of child objections under the last part of Article 13 of the 1980 Convention. However, if the court has made what in its view are efficacious measures of protection under Article 11 of the 1996 Convention, then it follows, in my judgment, that those measures of protection will overreach a child's objections, even if they are validly expressed and relate to the right question when it comes to exercising discretion.
16. Therefore it seems to me that where the court is in a position to make fully efficacious measures of protection under Article 11 of the 1996 Convention, then save in exceptional circumstances (which are hard to envisage) all defences will cease to be available and will dissolve.
17. In this case the applicant and respondent were married on 14^th September 2004. As I have said, D was born on 14^th January 2005 and B was born on 27^th May 2009. Unfortunately the marriage was blighted by issues in relation to the mother's mental health. The documents in the papers show that she has had a long history of mental illness, has been diagnosed with depression, severe depression and, in September 2012, was suffering from an emotionally unstable personality disorder. The marriage took place in England and the parties lived in Devon for all of the marriage until relatively recently.
18. The mother's mental health difficulties gave rise to extreme stress within the marriage, culminating in the father issuing proceedings in the Exeter County Court, supported by the Local Authority, in 2013 where he sought residence and prohibited steps orders in respect of both children as well as non-molestation and occupation orders. There were hearings in March 2013 and late April 2013. Orders of non-molestation and prohibited steps nature were made against the mother. However, during the course of 2013 and early 2014 the parties gradually reconciled. The proceedings in the Exeter County Court were concluded by an order of 15^th January 2014. By that order the court recorded that the prohibited steps order of March 2013 (as amended on 11^th April 2013) was discharged and that the occupation order made on the latter date was deemed to have expired. There was an amendment to the contact order made on 4^th June 2013. This order was made with the father representing himself and a solicitor representing the mother. The parties had hoped that that order would represent part of their process of reconciliation. A second part of their process of reconciliation was the decision made by the parties either in late 2013 or early 2014 to relocate to Austria where they would try to start anew. In August 2014 the whole family relocated lock, stock and barrel to Vienna.
19. However, the difficulties in the marriage did not abate. It is not necessary for me to go into the details. The father makes very serious allegations against the mother, saying that she has abused him and their daughters grossly both verbally and physically. Although the mother largely denies the allegations, there is some evidence that the father's case is correct, to be derived from the contents of the mother's emails to him which do make alarming reading.
20. The father took the view that the protection of both himself and his daughters required him to take drastic unilateral steps. The step that he should have taken was to have approached the court in Vienna, Austria having become the land of the habitual residence of these children. He should have approached the Austrian court for protective measures, just as he approached the Exeter County Court in 2013 - but he did not do that. What he did instead was to unilaterally and covertly remove the children by car from Austria on 8^th March 2015, and he brought them here. Whatever his motives and whatever his reasons, what he did was very wrong; and this was an open-and-shut case of child abduction.
21. Proceedings were begun on 27^th April 2015 and there have been two hearings before Hayden J. and Wood J. respectively on 27^th April 2015 and 6^th May 2015. This case has been listed before me, rather surprisingly, for two days to determine whether or not the mother's application under the 1980 Convention should succeed. I simply do not understand why the case has been listed for so long in view of the circumscription of the 1980 Convention by the later legal developments which I have mentioned.
22. For the purposes of this hearing, the children have been interviewed by a CAFCASS officer who had been ordered by Wood J. to interview them to establish (i) their views, wishes and feelings in respect of a return to Austria; their maturity; (ii) whether either of the children should be separately represented; and (iii) whether either of the children wished to meet the trial judge. That report has been produced, and it makes interesting reading. It is perfectly obvious to me that both children, and in particular D, are speaking in unnaturally adult language, leading one to the inevitable conclusion – and that is so often the case and is almost an unavoidable really - that their views have been to some extent either consciously or unconsciously inculcated in them by their carer, namely their father. An example of this, which I have to confess I have not seen expressed by any 10 year old, notwithstanding I have been working in family law for a very long time, is in these terms:

"D does not feel that the protective services in Austria will be able to adequately support and protect them. She says the police have no knowledge or experience of their family history and that she feels isolated there. Whereas in England she feels the police and social services are actively available and have knowledge of her family circumstances and can take action which will be respected and adhered to by the mother. She generally had more faith in England being more protective than Austria. This also could be due to her knowing her father does not speak German which potentially placed him at a disadvantage."

23. I have to say that that language simply could not spring unsolicited or un-inculcated from a 10 year old. That is the language of adults and it is the language of an adult steeped in the details of a 1980 Hague Convention case.
24. As I say, I have reached the conclusion that where the other country is Austria, a fellow EU country and a fellow subscriber to the 1996 Convention, provided that I am satisfied that I can make appropriate measures under Article 11 of the 1996 Convention, then none of the Article 13 defences will be available to the father, including the defence of the child's objections if that were validly expressed. However, independently I reach the view that the child's objections as expressed in the CAFCASS report are not valid Convention objections. They do not address the question which I identified in B v B and I reach the firm conclusion that insofar as they express views about the quality of protective services in Austria, they are likely to have been implanted in D.
25. The question is: am I able to issue appropriate protective measures under Article 11? I am perfectly satisfied that I am. I should make it clear that my first decision is that there must be a return of these children to the land of their habitual residence, and that return must be by midnight on 25^th June 2015 for which purpose the father must renew the children's passports. If he does not renew the children's passports, then he will have a lot of questions to answer. That is my primary answer to the question.
26. The protective measures which dissolve the defences will be as follows. (1) The mother shall reimburse the father with reasonable travel costs associated with the father returning the children to Vienna limited to €1,000. €1,000 should pay for economy flights, one way, to Vienna if that is the means he wishes to adopt. Alternatively, if he wishes to travel by car and stay in hotels, then he can do so.

(2) Subject to the requirements of Austrian law the mother shall take no steps to prosecute the father for the wrongful removal of the children on 8^th March 2015 from Austria.

(3) Pending a decision by the Austrian Family Court the children shall remain in the care of the father, and the mother is prohibited from removing the children from his care, save with his written agreement.

(4) Pending a decision by the Austrian Family Court, the mother shall, by no later than midnight on 25^th June 2015, vacate the former matrimonial home at [address] Vienna and not return or approach that property in the absence of prior written agreement from the father. Further in relation to that property the mother shall take no steps to end its tenancy and she shall use her best endeavours to ensure that it remains available to the children and the father for their exclusive occupation. I make that latter order in circumstances where the mother has stated in her witness statement that the tenancy would expire at the end of July. She has to use her best endeavours to ensure that it remains available after that date for the children and the father. However, I do wish to emphasise that financial security is not in my view strictly within the remit of the arrangements for the protection of the children referred to in Article 11.4. Nonetheless I order this in order to enable the father and the children to know that their accommodation is secure for longer than merely the short term.

(5) I make an order that the father, either by himself or by instructing or encouraging any other person, shall not use or threaten violence, intimidate or harass the mother. I make an equivalent order in respect of the mother against the father.

(6) Next, and vitally, I order that the mother and the father must cooperate in ensuring that the Austrian Family Court is in a position to make decisions in relation to the welfare of the children, including determining with whom the children should live, where the children should live and the contact they should have with the parent with whom they do not live as soon as practicable.

(7) In order for the Austrian Family Court to be able to make an informed decision it is, in my opinion, desirable, and there is no dispute about this, that I should make an order that the mother must cooperate in any assessment by any psychiatrist approved by the child protection authorities in Austria; further that both parents shall cooperate with any Austrian child protection agency involved with the children

(8) The final protective measure that I order is that the parents shall fully cooperate with each other and with the applicable Austrian agency to ensure that the family's ability to claim statutory benefits is fully achieved. Again, I do not regard the provision of income finance as opposed to housing finance as being within the remit of Article 11.4, but I do consider it necessary for me nonetheless to make this order so that the father and the children can, until finances are addressed by the Austrian court, have the security of knowing that not only is there a roof over their head but there are funds to provide for their daily bread.

27. That list of measures, in my view, more than amply meets the criterion in Article 11.4. In those circumstances the defence under Article 13(b) of the 1980 Convention advanced by the father is no longer available to him, and for these reasons also, as I have previously explained, even if the views expressed by D and B were valid Convention objections, they would be overreached by the promulgation of these measures.
28. That leaves only the question of the mother's contact with the children until their return to Austria. An order has been made which has not been complied with - I am not blaming anybody - which provided that the mother should have contact on a fortnightly basis for up to two hours, provided it is supervised in a contact centre or by a suitably qualified social worker. Unfortunately it has not been possible to find any contact centre with space or a qualified social worker from Devon County Council who would be prepared to undertake the task. The view was taken in the view of Wood J. on 6^th May 2015 that having regard to the allegations that were made, and the history which to some extent, as I explained, cannot be gainsaid, that supervised contact was appropriate. In my judgment, the mother must, surely, see her children before they return to Austria, given that she is present in this country. The proposal has been made that the supervision should be performed by Mr. and Mrs. X who are married to each other, who are teachers and who are known to the parents and to the children, who are prepared to undertake the role of supervision in their own home. In my judgment, that is an admirable alternative and it should be adopted on one occasion before the return of the children.
29. I have issued the orders under Article 11 of the 1996 Convention as urgent measures of protection. I have not made any firm findings of fact or reached any definite conclusions, but I have reached clear provisional conclusions on the evidence before me that these orders are necessary. My order can certainly recite that that is the case. I have explained how the measures will be reciprocally recognised and enforced by operation of law in Austria.
30. Inasmuch as the measures provide for protection, then they will also fall within EU Regulation 606/2013 dated 12^th June 2013 on the Mutual Recognition of Protection Measures in Civil Matters. This Regulation provides for "reciprocal enforcement throughout the Union of protection measures ordered for the protection of a person where there exist serious grounds for considering that a person's life, physical or psychological integrity, personal liberty, security or sexual integrity is at risk." For example, it is extended to measures that seek to regulate and control violence, harassment, sexual aggression, stalking, intimidation or any other forms of indirect coercion, quoting from Recital (6). Where such orders are made which might extend inter alia to prohibiting the entering of a place where a protected person resides, works or visits or stays or contact in any form or approaching the protected person, then such measures are, by virtue of the Regulation, to be automatically recognised and enforced without any procedure being required or the need for a declaration of enforceability.
31. So in as much as the list of measures I have ordered have extended to protection measures within the terms of Regulation 606/2013 then they will be doubly enforceable in Austria.
LATER
32. I have chosen the date of 25^th June 2013 because that is at the extremity of the concept of a "return forthwith" which is what the 1980 Convention requires. I have given the father three weeks so that he might not only prepare the children for their return but also take such steps as he may be advised in the court in Austria which permits him to seek to stay here with the children pending a final determination of issues of parental reasonability by the Austrian Court. If, before 25^th June, the Austrian Court makes an order that the children do not need to be returned, then my order for return is annulled.