England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF IO (A CHILD)

		Royal Courts of Justice
		11th September 2015

MR. JUSTICE BAKER:

1. This is an application by father under the Hague Child Abduction Convention 1980 for the return to Ukraine of a little boy, I, born 12^th August 2010. The father's case is that I was brought wrongfully to this country by his mother in breach of the father's rights of custody and in consequence this court should order his summary return.
2. The mother accepts that she brought I to this country without the father's consent and therefore wrongfully but she opposes an Order for the summary return to Ukraine on two grounds. First, that the father has acquiesced in his remaining in this country and, secondly, the defence under Article 13(b) of the Hague Convention, namely that there would be a grave risk that an order for his return would expose I to physical or psychological harm or otherwise place him in an intolerable situation.

Background

3. The father is 32 and the mother is 26. The relationship began in Ukraine in 2006. The mother's evidence is that the father has had problems with alcohol and drugs and was, on occasions, aggressive and abusive towards her. She asserts that these problems continued after I was born in 2010. She further asserts that the father did not show any real interest in his son at that stage. In autumn of 2011 they separated and the mother took I to live with his grandparents but the parties reconciled again shortly after.
4. The mother says that the father was subsequently convicted of a drink drive offence and after that their relationship became unbearable. She then realised she could not remain with him any longer and in May 2013 left and went to live with her parents in Belarus. Significantly, she left I in the father's care at that stage. Her explanation for this is that I's paternal grandparents, whom she asserts to be strong, dominant characters within the family, would not allow her to take I with her.
5. She and the father reached an agreement and thereafter I's care was effectively shared. He spent periods at home in the care of his father in Ukraine and some other periods in Belarus with the mother. His registered place of permanent residence was the father's accommodation in Ukraine and he also attended a nursery school there.
6. In 2014 the mother started a relationship with another man called A and together they decided to come to live in England. In November 2014 the mother took I to Belarus with the father's consent for a period of some 12 weeks. On 28^th January of this year she brought I to England. She acknowledges that she did not tell the father in advance that she was planning to do so, and only told him what she had done a few days later.
7. She, A and I subsequently moved addresses on a number of occasions. It is the mother's case, although not accepted by the father, that she kept him informed of their whereabouts throughout. In May she gave birth to her second child, another boy, of whom A is the father. Thereafter the mother has suffered from significant postnatal depression.
8. The father's case is that he tried to reach a compromise with the mother concerning what would happen to I. When the mother refused to agree to return I to Ukraine under any circumstances he decided to start these proceedings via the central authorities. The application was issued in this court under the Hague Convention on 19^th June of this year. A location Order was made on the same date.
9. Thereafter the matter came back to court on four occasions for directions. The mother delayed in filing her response partly because of delays in obtaining public funding. Directions were given by MacDonald J on 28^th July which recorded the defences on which the mother seeks to rely (acquiescence and Article 13(b)) and also records that if the court were to order I's return to Ukraine she would not accompany him because she was suffering from postnatal depression. Further directions were given leading to a hearing before me today, 11^th September. The court directed that both parties should attend the hearing, the mother in this country and the father from Ukraine given that the defence of acquiescence had been raised. It was further directed that the father should attend to give oral evidence subject to the judge's determination. Public funding was eventually extended to cover the mother's representation at this hearing a week ago. Miss Magdalen Case had been instructed to represent her which she has done with conspicuous ability for which the court is very grateful.
10. The mother attended a conference with counsel earlier this week but in the event did not attend court today notwithstanding the direction. Her explanation given through counsel after her lawyers had contacted her at 10:15 to enquire about her whereabouts was that she was unwell and could not therefore make the journey from her home in Lancashire. Miss Case thereafter applied to adjourn the hearing today. I refused that application. A medical report confirming the mother is suffering postnatal depression was produced yesterday which, whilst identifying that she had indeed suffered from that illness, did not suggest that her ill-health was at a level which would preclude her attending court. Furthermore, the mother failed to notify her lawyers or the court that she would not be attending until contacted by her lawyers themselves at about 10:15 this morning. Given the urgency with which child abduction proceedings must be concluded and the delays which had already occurred since the proceedings were issued some 12 weeks ago, and the limited scope of a hearing under the Convention and the 1985 Act, and the fact that no further hearing could be arranged before November, I refused to adjourn the hearing but suggested that efforts be made to enable the mother to participate in the hearing via telephone. In the event she declined to take part either giving evidence or listening on the grounds that she was not well enough to do so. In those circumstances Miss Case did not pursue her previous application for oral evidence to be adduced on the issue of acquiescence.

The law

11. The twin objectives of the Hague Child Abduction Convention are set out in Article 1:

"(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

12. In Re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51 Baroness Hale of Richmond observed at para.48:

"The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

13. Article 12 of the Convention provides:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

14. Article 13 provides:

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

15. The leading authority on the defence of acquiescence under Article 13(a) is the decision of the House of Lords in Re H (Abduction: Acquiescence) [1997] 1FLR 872. In that judgment Lord Browne-Wilkinson gave guidance summarised helpfully by Mr. Perkins in his position statement as follows:

(1) The mother's perception of whether or not the father acquiesced is irrelevant, the issue is whether the applicant acquiesced in fact.

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case.

(3) Particular weight should be attached to contemporaneous words and actions of the wronged parent.

(4) A question of law rather than fact only arises if the wronged parent clearly and unequivocally show and have led to the other parent believing that they were not "asserting or going to assert his right to the summary return of the child" and any return would be inconsistent with the justice of the case.

(5) Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child.

16. As to Article 13(b) I have in mind the observations of Ward LJ in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1FLR 1145:

"There is therefore an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial not trivial and of a severity which is much more than is inherent in the evitable disruption of uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

17. I further bear in mind the observations of Baroness Hale of Richmond in Re E (Children) (Abduction: Abduction: Custody Appeal) [2011] UKSC 27 paras.32-35:

"32. First, it is clear that the burden of proof lies with the 'person, institution or other body' which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course 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) and so neither those allegations nor their rebuttal are usually tested in cross-examination.

33. Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, 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.

34. Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (emphasis supplied). As was said in Re D, at para 52: "'Intolerable' is a strong word, but when applied to a child must mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate'." Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr. Turner accepts that, if there is such a risk, the source of it is irrelevant: e.g. where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

35. Fourth, Article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home."

18. If the respondent establishes that her case passes through one or other of the gateways for refusing a summary return (in this case acquiescence or Article 13(b)) the court then has a discretion as to whether or not the child should be returned. As to the extent of that discretion the leading authority remains the decision of the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55 and in particular the observations of Baroness Hale at paras.43-48. I do not think it necessary to recite those well-known observations in this judgment. I have them firmly in mind and shall apply them if the case so requires.

Acquiescence

19. The mother's case is not that the father consented in advance to I coming to England and Wales, on the contrary, she accepts that he did not and that I's removal to this country was therefore wrongful. Her case is that the father subsequently acquiesced in I remaining in this country. On her behalf, Miss Case relies in particular on the mother's evidence that the father has, since I's arrival in this country, repeatedly said that he has "come to terms with the fact that I will be living in England and that he was happy that I had a whole family and a little brother".
20. Miss Case also draws attention to a comment in the father's subsequent statement filed after this assertion had been included in the mother's own evidence in which the father said he did not remember specifically giving consent for I to reside in England as "after all, in any event this goes against my conviction as regards to the residence of my son". Miss Case submits that this denial is expressed in equivocal terms, and much more equivocal, she suggests, than would be the case if the father had genuinely not acquiesced in I remaining in this country. It is the mother's case that it is the paternal grandparents who are driving this application not the father. She suggests that the father himself, if left to his own devices, would agree to I remaining here and has in fact so acquiesced.
21. On behalf of the father Mr. Perkins submits that this evidence goes nowhere near satisfying the burden on the mother of proving acquiescence applying the legal test and principles as laid down by Lord Browne-Wilkinson as quoted above. He points out that the father and his own father travelled to Belarus in February shortly after I had been abducted to this country to recover him. Mr. Perkins also relies on the mother's acceptance in her own evidence that the father subsequently refused to sign a letter of mutual consent to I's place of residence being in England. Mr. Perkins submits that this is inconsistent with the father having acquiesced in I remaining in this country.
22. In considering this matter I must consider all the evidence together not each piece of evidence in isolation. Taking the father's conduct as a whole, and bearing in mind that he issued proceedings only a few months after I's arrival in this country, I find that the mother has wholly failed to satisfy the burden on her of establishing acquiescence. The evidence does not show unequivocally that the father acquiesced in I remaining here. This defence therefore fails.

Article 13(b)

23. On this point the mother relies, according to Miss Case's skeleton, in particular on: the allegations of domestic violence and abuse to which I have already alluded in the course of my summary of the background stretching over, on the mother's case, the whole period of their relationship; the history of drink and substance abuse (again, already referred to above); and what she describes as the controlling attitude of the father and his family. The mother says that I has witnessed some acts of abuse perpetrated on her by the father. To my mind, however, the strength of this argument is very substantially undermined by the fact that the mother was content to leave I in the father's care when she went to Belarus. Furthermore, she thereafter agreed that substantial periods of time could be spent by I in his father's care in Ukraine – indeed, that this should be registered as his principal place of residence.
24. It is significant that the mother is emphatic that she would not return to Ukraine with I were this court to order his return. I accept Miss Case's careful submission that this court must be cautious and alert to bear in mind the insidious effect of domestic violence. Nonetheless, looking at the case overall, I find that the mother has failed to establish that there is a grave risk of harm to I if he is ordered to return summarily pending the determination by the Ukraine court of any question concerning his future. I has lived in his father's principal care for substantial periods of time in his short life. The evidence from mutual friends and more significantly his kindergarten adduced in evidence all suggest that I is well-cared for in the care of his father. The mother raises various concerns about the details of that care, for example the sleeping arrangements. She draws attention to the fact on her case that I has to share a bed with his grandparents whom she describes as "foul-smelling old people". To my mind this does not go anywhere near amounting to establishing a grave risk of harm applying the test as established in the authorities.
25. The father would be willing to offer undertakings to the mother to facilitate her returning with I. He is prepared to give an undertaking not to use violence or threats towards the mother, nor to instruct anybody else to do so, not to pester or harass her and to pay for tickets for I to return and for tickets for the mother to return were she to come as well. Further, he gives an undertaking not to prosecute her in the Ukraine courts or anywhere else in respect of the abduction for which she has perpetrated of I. However, I accept Mr. Perkins' submission that these undertakings may be of relatively little importance if in the event the mother is determined not to return were a court to order it.
26. The high hurdle which the law establishes created by Article 13(b) is manifestly not satisfied in this case.
27. Accordingly, neither of the mother's defences succeed and I shall therefore order I's summary return to Ukraine. I shall now hear submissions on any consequential orders.