England and Wales High Court (Family Division) Decisions

(a)   A child arrangements order specifying that J was to live with him

(b)  A prohibited steps order preventing the removal of J from the father’s care and from the jurisdiction and the obtaining of a passport for him and

(c)   The immediate return of J to the father’s care.

That application was made because on 16 June 2017 the mother had collected J from school and had moved into a women’s refuge having made an allegation that the father had assaulted J on 14^thJune. She made further and more extensive allegations in the following days.  A social services investigation commenced in which the social worker concluded in effect that the mother had exaggerated matters and that there was no reason why J should not return home. However by this time - the 22^nd/23^rdJune - the mother having discussed matters with her family had decided to take J to Hong Kong to keep him safe and was in the process of implementing that plan.  The father having not been able to persuade the mother to return home with J or at least to return J home had instructed solicitors.

(a)   Read the 3 bundles amounting to some 8-900 pages together with additional documents in the form of a statement from the paternal aunt, some additional correspondence and the parties helpful Skeleton Arguments. I declined to admit into evidence a document produced by Ms Renton which J had left at the family home after a visit with the social worker on 21 June 2017 because it appeared it might contain confidential notes taken by the mother during a meeting with Women’s Aid. I also was provided with two sets of the leading authorities on relocation.

(b)  Heard oral evidence from

-         Ms Janet Sivills the hugely experienced Cafcass officer who has reported to the court.

-         The father

-         The paternal aunt

-         The mother

-         The maternal uncle

(c)   Heard the submissions of Ms McIlroy and Ms Renton.

(a)   The allegations of physical abuse of her were no longer relevant as the parties lived in separate households

(b)  The allegations of coercive control were relevant as they formed part of the mother’s rationale for wanting to live in Hong Kong and thus out of the father’s sphere of influence

(c)   The allegations of physical and emotional abuse of J  arising from the fathers temper and possible OCD were relevant to the amount of time the father should spend with J (albeit she accepted the father should have up to 4 weeks unsupervised contact each summer)

(d)  The mother invited the court to address them in what I described as a ‘light touch’ fact finding within the overall consideration of the competing applications. 

The Legal Framework

-         The parties continue to share the care of J one week on one week off

-         J continues to be schooled at his current school and each of his parents continue to occupy rented accommodation nearby.

-         The property in East London be re-mortgaged to release 50% of the net equity (expected to be around £125,000) to be paid to the mother to provide a fund from which she can house and provide for herself pending her securing work and/or benefits. The father will in addition pay maintenance at CSA rates for J of around £320pcm. He would retain his net income (it is currently £50k pa but will reduce as a result of the re-mortgage) his offer being on open and clean break basis.

-         He will continue in his business, working from home much of the time and travelling abroad on occasions.

-         He will care for J himself with the help during his week of the ‘wrap-around’ care at the school and with input from his sister and mother when necessary.

-         He says the mother with her degree, experience in marketing and with her language skills would be able to obtain employment with little difficulty. She is eligible to work under her visa status and she could convert that to a longer term visa including settling here. It is agreed by both parties that the mother should be able to resolve her immigration status to enable her to remain here and to have recourse to public support in due course.

-         He says she has some support in England through the Chinese church and that she would be able to adjust to living independently in England. He says she is exaggerating the level of distress she would suffer and the extent to which she is unsupported.

-         He proposes that J should not travel to Hong Kong for some time given the risks of a further abduction. He recognises the mother will wish to travel to HK and that her family may wish to travel here to support her.

-         The likely effect on J of a change and the emotional harm that would ensue are central

-         The abduction and relocation are inextricably linked

-     Her rationale for leaving remains in full effect

-     Her behaviour to contact in HK illustrates what might happen

-   Her current position and insight shows that in fact she is hostile to contact       whatever her statements might say and that she has no insight or appreciation into the effects on J of ending his relationship with his father

-         Cafcass: Ms Sivills’ assessment is only one part of the picture and in so far as she reaches conclusions which are adverse to the father she has not compared and contrasted the evidence in the way the court has

-         J  is not now fearful of the father and is having a good experience. Ms Sivills said the balance is good now.

-         The practicalities make living here viable – the father will provide for the mother one way or another. To the extent that Ms Sivills caveated her report – it has been filled.

-         There is a real risk of extinguishing the relationship given the mother’s attitude and behaviour in the past. There is a disconnect between the allegations and J’s presentation which should lead the court to consider the allegations to be fabricated. One has to assess her ability to promote the relationship as against her allegations and compare that with independent observations. She has now watered down the allegations she makes in her relocation statement compared to what she said in Hong Kong and that is tactical.   She says what she thinks she needs to in support of the relocation but it isn’t matched afterwards – her oral evidence is in effect to revert to supervised contact – it is window dressing. It is only when you hear evidence that you appreciate really what she is saying is no overnight contact

-         The mother makes no apology – she says it was to create a safe situation and that dominates her thinking; she has no insight into the effect on J.  She doesn’t have a broader appreciation of his interests.

-         She fought tooth and nail – tried to appeal – bitterly fought and only returned because of a court order. If J had remained the mother’s attitude to contact would have led to the father being swiftly marginalised. Ms Renton refers to the mother’s lawyers letters of August in terms of contact sought. 

-         M and her family view the father in a more negative way. The maternal uncle said he thought it would help the relationship being apart because it wasn’t a good relationship. There is no person there who would say to mother that J  must go. 

-         She wants to put distance between J and the father. She believes he is a risk and so it is unlikely she will promote contact. 

-         If he moves he loses the stability he has in England, his friends and school. J’s own views about living in HK are unreliable. He will struggle to transition into learning in Cantonese as he doesn’t read or write it.

-         She will return to live with her family in the flat her mother shares with her brother.  That will provide her with the family support she needs. When financially independent she will move into her own accommodation. She has some friends in HK from school and college.

-         She says she has no support in England having been unable to establish friendships because the father did not allow her to. She has no family here.

-         J very much wants to live in Hong Kong and with his uncle and he will be very happy and relaxed with that.

-         She has offers of employment from two prospective employers; one in her former field and the other with her brother. She can work hours which will allow her to be home after school and her mother will take J to and from school.  In contrast she will struggle to gain employment in England with her poor English skills and the lack of a network here.

-         J has a place at a school which offers a creative curriculum that he will enjoy. He speaks Cantonese so will be able to make the transition without undue difficulty.

-         Hong Kong is her home and she easily re-establishes herself and provides for Js needs there.  In the UK she will struggle because of financial concerns, difficulty with employment and no support. In addition she will fear that the father will seek to re-establish control over her and will undermine her and marginalise and will not co-parent. She points to his arranging lessons and parties for J without her input.

-         In terms of contact she supports an on-going relationship between the father and J and in could be maintained by J seeing his father for 4 weeks in the summer and for up to 12 days on one or two of the other holidays. She says this actually would be better than the current arrangement because J is fearful of his father and not happy with the shared care. She believes if J is living primarily with her and seeing his father for fun times during holiday periods this would actually help restore J’s trust in his father. 

-         It is not a new existence for J to return; he has family and Cantonese. This is returning home not a new country and culture. He will get extra support at school to adjust.

-         The mother fully acknowledges the importance of the father’s role in Js’s life. In contrast the Father refused to accept M’s role, he portrays her as a ‘helper’ and minimises her importance.

-         The mother has good reason to wanting to go. The situation she was in was one of coercive control and the text messages of June and his attitude to ‘pocket money’ show his attitude to her.  There was financial control – she had to ask for permission to go to counselling

-         There are inconsistencies in the father’s case; about when he knew of M’s whereabouts, about what support M has. He says what he thinks will further his case.

-         There is a real risk to J; the father denies J’s reality. The mother’s motivation is not to terminate the relationship – she thinks it will benefit from distance and positive holiday contact

-         She has an emotional vulnerability – which Ms Sivills recognised

-         The court should conclude she will promote contact because

o  The abduction was welfare related

o  The lack of contact initially is she was scared

o  She was reluctant to contact Father because of her fear and advice she received

o  She was trying to encourage J

o  She stands by her allegations – the record at D30 shows her raising it - she shouldn’t be criticised for not reporting more.

-         Skype can be brilliant and the time difference works well. She thinks skype will not be problematic now.

-         Ms Sivills: she has looked at it as it is now.  Her report is clear as to J’s wishes

-         The finance provides no long term security. It is wholly inadequate.

-         If J stays here the court should – as suggested by Ms Sivills review the shared care arrangement.

The Evidence

22 Aug 1970	F – British National. Consultant with his own business. Now lives in South London. Works a lot from home. Parents not married, raised by his grandmother, two half-sisters, each with children.
1973	M; HK national. Parents divorced when M 2 or 3. Little contact with her F.  M graduates in Translation and worked Marketing.   One older sister and one younger brother. MGM re-married but separated from step-father
1995	F moves to HK and works in sales.
2002	Parties meet in HK.
2007	Parties marry
2009	J born in HK. Dual nationality. M takes 2 months maternity leave from job. F not working for a period. MGM assists with child care . M says F rarely assisted and was not interested. They had helpers as well as MGM F says he was involved in the daily care of J, on weekday mornings, evening and weekends. He set his routines and was involved and played M’s brother who gave evidence said the father was a very good father when J was young which does not sit very well with M’s description.
2010	M gives up work
2011	M suffers mis-carriage. M says the Father was very unsympathetic and unhelpful. F denies this and says the mis-carriage was very upsetting for them both which led to tension and they attended counselling.
2012	Parties attend 6 sessions of marital counselling [HK1 – 3- 153]
2013	O attends school [C66]
Sept 2013	[HK1-3-155] police called because F would not allow M to visit her sister. F then allowed M to visit but M said she would not go. Both parties wanted to settle the dispute. F says he was very worried about his work and thought M might not return to care for J as she had previously stayed away for periods.
Oct 2013	[HK1-3-156] F contacts M and says the problem is on his side and he will contact Dr about OCPD
Oct 2013	F diagnosed with mild OCD and prescribed some therapy which seems to have consisted of self-regulating his cleaning and demand for perfection and anti-depressant and anti-anxiety medication [HK1 – 3- 157
Nov 2013	F sees Dr again [HK2-20] ‘My conclusion was [F] had recovered from his obsessive compulsive reaction and did not need further follow up’
Aug 2014	Parties move to UK. F says for schooling and work. M says mainly for work. -         M says she did most of schooling morning and F collected him after school. -         M says main carer giver, F says no , in particular when M away [HK1-1-33]
Dec 2014	M contacts support group for OCD – refers to F having panic attacks and becoming more obsessive. Says in HK he has records of using physical threats. It is not clear what this latter relates to.
Dec 2014	M returns to HK -         M’s account at C73 is that there was an argument about a mark J had made on the floor and F told her to get out which she did and she stayed in a hotel for a few days. She says she had nowhere to go and returned to HK with flights paid by brother. M denies returning to the flat as described by F -         F’s account is also of a row about but his account is M left and he asked her to return. That she returned to pack items and would not come home. He says she said goodbye to J in another room and departed. She did not make contact on Xmas Day and he could not contact her. -         F says J was very upset and confused. Having heard both parties give their evidence on this I am satisfied that F’s  account is broadly accurate and that he asked her to stay. M seemed to be disconnected from the impact her departure might have on J.
Jan 2015	F makes enquiries about counselling [HK1-3 -189] -         M says counsellor said he treated M like dog on leash. This seems a surprising choice of words for a counsellor.
Feb 2015	F and J in HK for a week -         [HK1-3-177] Facebook message from F – M (doesn’t appear controlling in nature but constructive)
Apr 2015	M returns to UK
May 2015	M stays in HK after family holiday in Singapore. MGM brings J home and stays with him in UK -         M and F seeking work in Singapore [HK1- 3 -180] -         M says I/v in May but stays in HK until July -         M says
Jul 2015	M returns to UK
Oct 2015	O starts at his current school Year 96.5% attendance.
Nov 2015	M returns to HK.
Nov 2015	J starts after school club
Xmas 2015	F and J visit M in HK for 2 weeks. M visits Dr and is referred re possible ovarian cyst.
Easter 2016	F and J visit M in HK for 9 days M and F attend 1 session of marital counselling [HK1-3-154 M attends clinic re ovarian cyst. M due to have operation privately which F provides funds for. M discovers operation will be more expensive and gives money to her brother. Goes on public list.
Jun 2016	M returns to UK
Aug 2016	M attends GP with F as she experiencing breathlessness. GP sees her alone and she tells GP F has been emotionally abusive to J and has restrained him 2 x but no harm. [If F had been as abusive and violent to J as M now alleges  - and in evidence she confirmed that it had been like this for many years although she thought it was getting worse as J gets older and asserts himself- it is hard to reconcile this description]
Sep 2016	M returns to HK for surgery. MGM comes to UK to help care for J. Elective surgery carried out on 9 September. M said she did not want to wait in NHS waiting list – although she waited 6 months for surgery in HK.  By 2 November 2016 she was recovered and discharged. The mother said in evidence she needed a months recovery and that is why she stayed on after  but the medical records do not support this. M said during this time she was attending meditation classes and learning about herself. It is hard to understand why she did not immediately return to care for J.  She again showed no appreciation of the effect on J of staying away nor did she seem to understand the inconsistency of  saying the father was a serious risk but leaving J in his care for very extensive periods of time.  In her statement she also says that the father has never  been able to take care of J – which clearly is inconsistent with her doing so; even if at times her mother was assisting. The M clearly has a strong attachment to Hong Kong – her returns there show that; whether for hospital treatment or family support. There is  little evidence of friendships.
Dec 2016	M returns to UK
Jan 2017	J starts Kumon; [HK1-2-90] Report : enthusiastic learner – regular attender – positive attitude – completes daily work in timely manner – a terrific half year
28 Feb 2017	F alleges M assaults him [C2-3] Parents argued over trivial matter [HK1-1-32]. M throws toy at F and hurts F’s back. F saw GP, physio and osteopath [HK1-3-98] F reported it was child who threw toy at him. Injury not of long term duration and not effecting quality of life. Last appointment on 9 June. M accepts that she has occasionally lost her temper and slapped F.  In her evidence she did not come across as fearful or timid but was prepared to challenge him across the court room about one time he had a panic attack.
17 Mar 2017	M applies for and is granted leave to remain
21 Mar 2017	M is late collecting J from after school club. Club unable to contact her and  says she has been shopping but arrives at 6.30 with no shopping.
10 Jun 2017	Parties separate after argument. ?? J kicked in left eye at school [Hk1-3-241]
11 Jun 2017	M texts F: I hope we can both keep a good term before I go. Please calm down and don’t abuse me with words anymore. (details about her plans before she leaves) I really hope we can end in good terms and in a peaceful way. Please. I can definitely keep peace during this period. I hope you can too. Thanks again. The inference from this is that there were heated arguments when hurtful things were said and F lost his temper as did M. However it suggests M did too as does the evidence of J that he heard arguments and M’s acceptance that she slapped F
12 Jun 2017	M-F: can you send photo of J on my back Thanks :)
13 Jun 2017	F-M: Question: are you back for dinner as J wants to know if you are cooking for him? M-F: on way back – will arrive at 7pm – Sorry I stayed out in the shops. J injured at school – tripped and knocked right shin [HK1-3-243
14 Jun 2017	M alleges F kicked J (F says he prodded him) -         [C38] [HK1-1-34] M’s account. -         F’s account [HK1-1-35] I shall consider this in more detail below.
15 Jun 2017	M contacts Womens Aid.
16 Jun 2017	At HK1-3-100-104 are Text exchanges. Between M and F about a letter F had opened to M which was from ‘Social Care’ {not sure what this was about as the Local Authority did not open file until 18 June after Women’s Aid made a referral} F says it is best if she lets him speak to them and let him take ‘responsibility’ . M then rings them and says it is to do with late pick up. F says ‘ So you need to inform them that I take responsibility for J with you helping me..’  ‘Don’t tell them about our personal relations’ ‘we don’t want them checking up on us. J is fine. M collects J from school and moves into refuge. F attends to F collect J and is told M has him. F contacts M and she says ‘Hey please, no worry we are safe. With J. School will speak to you on Monday after 11am’ [This is Friday evening – so the weekend is ahead] Further exchanges suggest F was getting very anxious (although not abusive) and worrying about his tennis lesson, asking to speak to J. M does not respond.
16 Jun 2017 (date evident from reference to tennis class)	M contacts F’s sister to say F was angry and shout and kick J who is scared of him. SS confirmed ‘an emotional abuse and domestic violence case’. M says she thinks F will be super-angry . M says F thinks its normal discipline and he would say M wrong when she steps in.  Says F holds her hands tight and shouts in her face. Says she says she calmly tells him he is hurting me. [Given M accepts she would lose her temper and has slapped F I think this exchange tends to minimise her role and maximises F’s role. It is significant though that Ms allegations are as limited as they are – she is clearly letting off steam – but she doesn’t say F is constantly throwing J around, physically chastising him or threatening her.]
17 Jun 2017	F contacts M about J’s sports lesson. F contacts police. They tell him J well [Ms McIlroy criticises F for contacting police in these circumstances given the content of M’s text saying they were well. I don’t consider F’s response was unreasonable or unusual given the lack of an explanation or response on Sat morning. It also suggests F did not think he had anything to fear from police in relation to M or J.] F later texts about Fathers Day (18th) and J’s sports day (19th) . M says she is taking advice and should not contact him until Monday.
18 Jun 2017	F frequently texting M asking to speak to J, asking about his routine, tell J he got a B in his Kumon – well done :) M replies saying she had been advised not to contact him but wants him to know they are safe
19 Jun 2017	Local Authority contact F. S.47 investigation.  J alleging kicked by F F texts M: Bromley SS said you need some money so I transferred £50.  F trying to persuade M to come back.
20 Jun 2017	Medical Examination: D1: Various bruising found including one of right forearm which J said was from dad kicking him. Others from fall at school. Bruising to arm was consistent with history given by J. J said ‘I am worried daddy will find us and take us back to his house’  ‘he might hurt me again and shout at mummy’ ‘daddy kicked me on the arm and in the eye’ M told Dr [D2] that F kicked J ‘over his whole body’ J said F had locked him in toilet when 2 and in bedroom when 6 and 7. F- M: I understand you made a serious allegation against me. M-F: J is very clear what you did to him {NB M does not say she saw it , or anything like ‘You know what you did’ which might suggest M did not see it} F-M – he does not respond to the allegation – which may suggest he was aware he had overstepped the mark somehow but might also have been him not putting anything in writing.
21 June 2017	M and J return home to collect clothing -         F and J play for 20 mins -         M says [C41] ‘J was immediately scared and said he didn’t want to see his father. I reassured J that his father would not hurt him’ -         SW [D9] Although somewhat hesitant .. after a minute or so J happily played and interacted with his father and the father’s interaction was gentle and nurturing.  [In letter of 22 June the social worker says ‘J has now been away from his father for several days and has been speaking to people about his father hurting him. After a couple of minutes J was playing and interacting with his father happily and from my observations I am of the view that this interaction was positive.’]
21 Jun 2017	Women’s Aid Risk Assessment [As an aside I would be interested in understanding the reasoning for the wording of the questionnaire which is in parts very leading for instance Q2 says ‘Are you very frightened?’]  The Assessment contains M saying she would feel huge threats on her if she stood up to F, F is abusive to J and throws him around and pushes him hard, he locks J in the bathroom and J cries and begs to be let out, he put his hand over J’s nose until J did what F wanted, abuse is getting worse, F grabbed her neck a very long time ago and squeezed it; F threw her on the floor [HK1-3-246] he made me have sex without a condom; he is OCD and narcissistic; he refused to assist when she suffered a miscarriage
23 Jun 2017	SW tells M, J could return home. M refuses. J not in school. F’s statement. In it he says M has ‘limited support in the UK’. Ms McIlroy rightly says he has now changed his tune by saying M does have support in the UK. F’s application for CAO; PSO and SIO -         Orders made by Recorder Allen for J to be returned to F 3.18-3.20pm -         M informed by F’s solicitor [C12] in 3 calls. -         M says she could not hear what was being said and didn’t understand a PSO made [C18] 15.47 M buys tickets for cash from travel agent to fly to possibly Bangkok and then HK [HK1-3-113][HK1-3-118] [I am prepared to accept that M did not fully understand what had been ordered although I am satisfied that she was aware the matter was in court, that F wanted J back, that he was not agreeing to J going abroad and that M knew it was wrong to remove him. M said in evidence she had spoken to her family a lot (‘every second’) to decide before this what to do and they were worried a court case in England would drag on and she would not be able to go to HK.  I am satisfied that in circumstances where she knew a court was involved and that she would be in breach of the law in some way she decided nonetheless that she was entitled to do what she thought best and so decided immediately to purchase tickets and remove J to HK. Because she had not been served it would not be susceptible to contempt but could have been the subject of criminal proceedings under the Child Abduction Act 1984. As her family paid for the flights it was clear – as she accepted in evidence – that she could have obtained accommodation and dealt with the case but she chose rather to flee. She may have felt in a very difficult position in terms of accommodation and finance but the bottom line is she knew she in breach of the law and was seeking to avoid the intervention of the UK courts and authorities.
23 Jun 2017	After arrival in HK M enrols J in school and takes him to visit it several times [C81] and youth club. M said in evidence she visited several schools and did it almost immediately as she wanted to maintain his routine (I infer from this she sought to get him into school before the end of the school term)
	HK Judgment “The objective circumstances show that at least before the child left England his relationship with the father was not so bad as the mother wants to portray now” [HK2 -27#55] Refers to -         The English social worker, -         A family friend now living in HK -         The HK social worker -         After school club description of F
26 Jun 2017	F informed that M and J are in HK following enquiries by police.
27 Jun 2017	District Judge  adjourns Children Act hearing.
Late Jun/early July 2107	F e-mails F about meeting up to talk or to see or speak to J. M’s last reply is on 22 Jun when she says she has lots on herself and lets try to sort out something Sunday (I think for contact) F continues texting after 23 Jun saying J needs to come home to resume school and that he does not agree to this. By 5 July F is aware J is in HK.  The overall exchanges over 3 weeks do not create a picture of a distorted relationship. It is clear F sees himself as the primary carer and can be assertive but he is not dictatorial but polite. M herself does not come across as submissive and compliant although does not want to be confrontational and seeks to avoid openly refusing anything. F at times is supportive by providing money and sorting out her phone. He is focused on J and his needs; sports day, his tie and bag, Kumon results and F clearly is very anxious to see and talk to J and to have him back.
July 2017	Year 2 School report [HK1-3-126] -         J is polite, conscientious and thoughtful -         Usually follows rules, occasionally needs reminders -         J has many friends -         Always works sensibly -         Beginning to explain ideas with increasing confidence The report depicts a fairly typical Year 2 child performing at or slightly above expectations for a 7 year old.
4 Jul 2017	Hague Summons issued in HK [HK1-1] Ex parte order made Hearing fixed for 10 July 2017 [HK1-1-10]
10 Jul 2017	HK hearing and directions given [HK1-1-15] -         Initially M suggested that she arranged contact before this hearing but later M gave evidence that it was at this hearing after discussing matters with her lawyers that she agreed to skype contact. The correspondence shows M gave an ‘undertaking’ to provide daily skype contact.
11 Jul 2017	SW Assessment [D7] -         Referral due to M’s allegations of DV and assault on J. M said J is not safe in F’s care due to physical chastisement. -         School report J is happy and settled, no concerns in respect of him. No concerns re emotional or behavioural issues, previous school had no concerns and J was happy and made good progress.  Current school surprised at allegations raised by M as they have not observed any concerning behaviour -         J happily played and interacted with F and F was gentle and nurturing. J did not appear afraid and was happy to be left alone with F. This undermined the extent of concerns raised by Ms Lau. -         M was obstructive in giving access to J and removed him from school for several days. LA had concerns as to her mental health and J’s safety. -         When SW spoke to J he presented as nervous, looked to M for reassurance, M answered for him at times, J said F often gets angry but could not say why, he said F kicked him but couldn’t remember why or when, -         M did not make J available to see SS -         SW did not identify any behavioural traits in J which would suggest he had been witness to on-going DV. SW concerned M had not approached police or SS before and had left J in the care of F for extended periods.
11 Jul 2017	After school club report [Hk1-3-95] -         Attending since 16.11.15. Never had any concerns with J’s welfare -         F always tells us about any changes to usual arrangements -         F collects on time and J always seems pleased to see F -         First met J’s mum in June/July 2016.  M then collected a few times but F was main person caring for J. -         M was then absent again for a while and J’s auntie collected him a couple of times. -         From March 2017 M started collecting arriving just as we were about to close. -         F has always been a very reliable person and has always put J first with making sure his childcare needs were met.
11 Jul 2017	Skype: J covered his face with his hands and did not talk. F says M was sitting next to him
12 July 2017	Skype: J hiding face with cap and did not speak. M sat next to him and did not leave him. They seemed to be in a restaurant.
13 July 2017	Skype: J looked at the screen but no verbal reaction.. M stood behind the computer
14 July 2017	Skype: J not before computer just his feet for 2 mins and then an empty sofa. Noise in background. F’s HK sols write to M’s HK sols re concern M is not encouraging or facilitating skype. M’s HK sol’s respond: M alleges F has physically and emotionally abused J and so direct access should not occur. J has not taken well to skype. He has repeatedly walked away and M has taken some time and effort to persuade him to speak, and stay and talk.  As skype is causing J daily distress and anxiety it is demonstrable not in his best interests and will be suspended [This would seem to be in breach of the ‘undertaking’ she gave. It is apparent from M’s evidence to me and in the documents that M does not tell J to engage but encourages him by saying things like, ‘don’t worry, you’ll be safe’
18 Jul 2017	HK hearing. -         Contact Ordered – liberty for MGM to be present at all contact.
18 July 2017	Contact supervised by MGM: -         M’s mother’s note shows J putting his hands over his eyes, refusing to engage – F behaving inappropriately – (no encouragement from MGM)
19 July 2017	Contact supervised by MGM -         J initially not engaging but then did -         J tells MGM he doesn’t want to go to F’s home but did not dare tell daddy as F would be angry
20-21July 2017	Staying contact with MGM provided for. -         F and J and MA go to Disneyworld. MGM joins at dinner. -         J wanted to go to Stanley not with F. He refused to go and cried and shouted. F calmed him. They had dinner -         They went to F’s friends home to stay night. J stayed in same room as F. -         They then went to Social Welfare on morning of 21.7
22 July 2017	Skype contacts: m says difficult to arrange because they were doing activities at 3.30pm [Ms Chow report]  and she had difficulty persuading J to talk to F. J said he did not like talking to F as he had hurt him,
24 Jul 2017	M files statement in HK [C27] Very critical of F in all aspects. -         Controlling and abusive -         Outbursts 3-4 times per week, demanding and narcissistic. will fly into a rage, possessive, manipulative and obsessive -         Has never wished to care for J – he wold lock him in bedroom at night when J wouldn’t sleep -         When J began to talk the relationship worsened between F and J -         On almost every occasion F’s voice rose until he was shouting and screaming -         He would restrain us by grabbing our arms and make us apologise – physically restraining us 3-4 times per week and shouting at us everyday – he is out of control in a rage -         He forced me to have sex without a condom. -         Since the beginning of 2017 the confrontations between F and J have escalated to frequent fighting and violence. He drags J by his feet across the floor, he pushes and throws J about. I have also seen him extract revenge and punish J for example by forcing him into a scalding hot bath as J objects that it is too hot. [This allegation appears in the section about events this year. J was asked about scalding baths by Ms Sivills and his response to her clearly indicated that he had not been forced into a scalding bath by F. This allegation which amounts to child cruelty of the most serious form would if true be a serious criminal act and would almost certainly have resulted in serious injury to J. -         F ‘repeatedly and violently kicked J when he was on the ground. One of the kicks was to J’s face… the father couldn’t control himself and he kicked J repeatedly’ [The evidence from around the time of the incident suggests M may not have seen this event and J told the social worker and the doctor that F had kicked him on the arm and eye. M told the doctor it was over J’s whole body’.  -          I was sure F had the capacity to seriously harm J. -         M plans to respect J’s wishes and bring him up in HK.
28 Jul 2017	GP says from records and his knowledge of J there are no concerns about his welfare in F’s care [HK1-3-242]
7 Aug 2017	Social Welfare report: Ms Chow [HK1-1-29] -         The parents gave a similar account of the marriage and marital relationship with conflicts escalating after J was born- [M does not make significant allegations of physical or emotional abuse of herself and what she says of J is less serious than her statement) -         M described the incident on 14 June as F kicking J when J refused to go to bed. M said she dare not interfere. -         J could not recall what he did on 20-21 July but then said he did not like going to Disneyland with F. he said he was happy going ‘home’. He said he did not want to sleep with F and cried quietly so F wouldn’t scold him. -         F said he put his foot on J’s arm without force as he would not go to bed – J did not cry but sobbed a bit (F said in evidence J cried about being told off and having to go to bed) -         J was excited to play with his mother, very talkative and expressive, M gave lots of recognition and encouragement to J who was very happy. -         With F J did not look at F, F made suggestions for play, J did not respond or have eye contact, they began to interact and talk, at the end J gave F some suggestions on the games. They tidied the room together and F gave recognition to his son.  -         J was happy with the maternal family. He had lots of interaction with uncle and -         M said she had been desensitised by F’s financial control, verbal abuse and physical threats.  She hoped to live in HK. She said she was J’s primary carer and they had a strong bond. She said J found F scary and had a strong resistance to him. M was upset with persuading J to see F as it as against J’s will [HK1-1-44 Concludes ‘M showed great worries about leaving I in the sole care of F’] -         F thought M was alienating J. He said they had arguments about domestic issues and M wold leave the home if they argued.  They argued more frequently in the UK and M had slapped him. He had tapped J with his foot to get him to go to bed. -         Views of family: MGM thought F was demanding and mean and so J and F had poor interaction (no allegation of violence); they said F was controlling financially and did not buy daily necessities.  They thought J was different now and lacked security – he was nervous and looking for their companion (?) J had told uncle F had kicked him and that he liked M the most as she was nice to him. He (U) did not like the father. [Uncle said in evidence he said this and that F had been a good dad when J was small but was not now] -         J: preferred to talk in English; he liked HK because aunt and uncle were there; ‘locked me in bedroom when a baby.. locked me in toilet in London.. held my nose and I could not breathe .. said once F kicked him on arm and eye ‘my father always hurts me. He preferred M to F. He said he would not approach F if upset and the saddest thing he saw was F strangled M. he wanted to be grown up now and help mother (he taking responsibility for her??) He didn’t like Skype as F might hurt him and didnt want to go out with F as F might hurt him. -         Ms M a family ‘friend’ whose children play with J described the parent child relationship as good, she never heard of any physical punishment of J and he was a good boy without any special problems,
7 Aug 2017	M issues Divorce petition [HK2-21]
12 Aug 2017	Contact. Dispute over events.
13 Aug 2017	C50 – Contact J won’t do anything F asks both arguing - – M being consulted – J choosing expensive toy – J at one point says he wants to jump from a balcony – J distressed and refused to go to F’s place.
15 Aug 2017	HK hearing
16 Aug 2017	[C51] Incident when J and F argue at and after restaurant ‘SIT DOWN’ MGM says F angry and grabbed J by arms and dragged him. – J kicked F. Mr C intervenes.  J taken to Dr re ‘sprained wrist’ MGM ‘J’s objections to spending time with L are becoming stronger and stronger as time goes by, and have now sadly resulted in J kicking L, resolutely refusing to return to his apartment and mentioning that he may wish to die. I believe that J will suffer considerable trauma if he is to spend any time alone with F’ [C53]
18 Aug 2017	M files statement re contact ‘I believe that frequent access with the father and the prospect of being left alone with the father is traumatising J. I believe the harm that J suffers from each contact is increasing not decreasing as I had hoped” [C61
22 Aug 2017	Hearing and Judgment and Order for return. Queeny Au-Yeung. Conclusions (1)  Has the child been subjected to physical or psychological abuse? Whilst the child may have been subjected to some physical or psychological harm from the father I am not satisfied on balance that it was as serious as depicted by the mother. Nor am I satisfied that the current psychological state of the child was what existed when he was first brought into refuge. (2)  If the child is return to England would it expose him to a grave risk of harm or place him in an intolerable situation? No. In relation to the deterioration in of the father/son relationship judge not satisfied on balance it was dominantly due to F’s conduct (3)  Does the child object to returning The child objects based on what he said to Ms Chow (4)  Is the child of sufficient age and maturity that his views should be taken into account? The judge concludes there is no evidence of J refusing to go with F in England and no evidence of F scolding J in HK. J expresses fear of F without basis. “the situation greatly deteriorated in HK after separation of the father and son pending this substantive hearing. Skype access was not smooth. … MGM and aunt would not allow the child to have private time with the father notwithstanding the father and child had had excellent moments (according to F) of swimming, visiting museums and eating in restaurants. The child’s narration to Ms Chow shows that he as so stressed that he had forgotten where he had gone during access, he did not want to sleep with F. He cried a but as he worried he would be scolded by F’ ‘His almost complete rejection of the father appeared to have started only after he lives in Hong Kong with the mothers family. The fear of his father was displayed when the mother or her family members were around. The child is not sufficiently mature to take into account is views which were lop-sided. (5)  Should the court exercise its discretion? The judge considered that if she was wrong about the exception that safe harbour and other undertakings would be available to ensure a smooth return
28 Aug 2017	Flight to UK. M DNA
31 Aug 2017	HK Order re-scheduling return.
1 Sep 2017	J returns to UK
3 Sep 2017	Contact: J refuses to go with F alone -         [C19] Parties look for property -         M returns to FMH with F and J and stays for a while
4 Sep 2017	Contact: J refuses to go with F -         M and J meet F [C20] in café and visit properties. M says F became angry and shouted. M says will only continue if F calms and he does.
5 Sep 2017	J returns to his school. F and M continue looking for property that afternoon
6 Sep 2017	M and J occupy property J says F hurt him. F says J fell over.  M says she saw scratches on his ‘knees and elbows’ [D 20 – police report 1 tiny scratch on knee – possibly old – none on elbow] F takes M and J to new home. Takes J into bedroom and shouts at him. J cries. M calls police and alleges F has assaulted J. D20 – SW notes. -         J was reluctant to talk about F. He said he liked his mummy and sleeps in her bed with her. He didn’t know what he likes doing with F. he sleeps in a bunk bed at dads. -         He said his friend hits him – no reference to F -         He likes to play with friends at school -         M repeated her allegation and F repeated his account that it was an accident. He said J was different to him when M was around.  M said when J came back from a contact ‘Daddy didn’t harm me’. M said contact was going well and her concerns were lessening. She said she and F talk everyday about J. -         School said J had settled well on return and they had had no concerns in the past. -         J observed with F and M. J calm and relaxed with M. J content and relaxed at home with F playing Monopoly. J seen alone and although shy at first talked about the game and his next moves. Was less positive about F than M. Was excited to resume playing Monopoly with F -         J lingered around the door when conversations with adults being held and SW noted ‘it is possible J has been aware of adult conversations and issues’ -         ‘I did not observe any other concerns about J’s behaviour. He appeared relaxed in both his mothers and fathers care and his behaviour was consistent in both environments.’ -         SW Manager characterises allegations against F as ‘rough handling’
8 Sep 2017	J has staying contact. J calls distressed M tells J F has promised not to harm him.  [C23]
14 Sep 2017	Hearing: DJ Hudd -         M’s application for SIO to remove. -         Week on/week off shared care -         No fact-finding issues raised and no reference to PD12J. M’s statement ‘I believe the father’s temper is now worse…  I am worried about J having long unsupervised contact sessions … I had witnessed the father kicking J hard on previous occasions.’
20 Sep 2017	J taken to GP re behaviour. F took him as he was concerned about him being confused and occasionally being aggressive to him. GP referred to wellbeing service. SW considered this appropriate [D26]
18 Oct 2017	M 2ndStatement setting out relocation case. Contact I believe that it is in J’s best interests to see his father as much as possible. .. I am glad to seethe father’s behaviour changing.. J is now happier when he is having contact with the father. ‘I will of course ensure that J’s relationship with the father is maintained. It is imperative to me that he knows his father plays an active and important role in his life and that he loves him very much. .. I want to ensure that if my application is granted and J lives in Hong Kong with me he will see and speak to his father as much as possible and as regularly as possible. .. I will do my utmost to make sure this can be facilitated. In M’s oral evidence this position did not stand the test of cross-examination. M made clear she did not think F had changed, save to the extent he was under the spotlight of litigation and had to control himself, and that he presented just as much a risk to J as ever. She thought she would only think it was safe for J to have extensive contact when she saw medical evidence that F had addressed his problems. She said at present she thought J should only be having 3 hours or so with F on a few occasions a week (she initially said 2 but corrected herself) with no overnights. At times I wondered whether she really wanted supervision. She was asked what she would do if J said he didn’t want to go or do skype and was scared. She said she would talk to him about it and satisfy herself whether it was safe. She could not bring herself to say that she would make sure that it happened and I can only conclude that the contents of M’s recent statement are only a veneer over her true views and that in truth she believes J should have a far more limited relationship with F now and that she is not committed to maintaining a full relationship but is saying what she needs to on paper.
2019	M’s spousal visa expires

-         This was not a relationship of coercive control. The parents at times had a turbulent relationship which deteriorated in England particularly with the mother’s absences leading to more conflict on return as she sought to reinsert herself into the routine the father had created. She was disempowered but this was a result of the situation not the father seeking deliberately to sideline her.  He was left in charge and became used to being in charge. The father and mother both on occasions lost their tempers, the father held the mother, the mother slapped the father. It was bad behaviour – no doubt both regret they exposed J to it. 

-         The father has not physically or emotionally abused J. His approach to discipline is at the stricter end of the scale but he is neither physically or emotionally abusive. The injury J sustained was I conclude accidental not deliberate.

The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding ),

-         His uncle is the benevolent uncle who is kind and funny – J does not appreciate that parents have a different function. His uncle obviously will go with what J wants as he said in evidence.

-         The environment in England pre-June 2017 was deteriorating That ended in June in the circumstances described and became magnified into his Father posing a serious risk to him.

-         Hong Kongwas a holiday with I think a doting MGM, M and uncle where J was the centre of their world.  It was free from conflict – save when he saw his father. It was a stark contrast to the home in England.

-         Hong Kongtherefore seems like the peaceful sunlit uplands compared to the conflict-ridden shade of his parents home. 

Their physical, emotional and educational needs,

the likely effect on the children of any changes in their circumstances

His age, sex, background and any characteristics of his which the court considers relevant,

Any harm which he has suffered or is at risk of suffering ( there is obviously a significant overlap here with the effects of a change)

-         The absence of his mother from his life which left him sad and confused and which I think now contributes to a degree of insecurity and his lack of self-worth. Those absences were not justified and thus J would not understand why his mother had disappeared.

-         Fear and anxiety around his father which has arisen in part (although the lesser) from his father’s strict parenting which has been too much of a contrast with the mothers.  The other part though has been the development of an unjustified fear of his father which has been significantly increased by the attitude of the mother and her family. J has been exposed to hearing things about his father he should not have- either because they are not true or should not have been said in his earshot. His mother’s reaction to the father’s discipline which is within the acceptable range of parenting has been so over-dramatised and extreme that it is created a wholly unwarranted fear in J about how safe his dad is. 

-         The mother is absolutely convinced the father presents a real risk to J. Her statements otherwise unravelled in oral evidence. She does not believe he has changed and will not believe he can until convincing medical evidence tells her. Even then I am not sure she would accept it.

-         She believes the father should now be having very limited contact – 2-3 hours for a few occasions each week. Even that ‘belief’ may mask an underlying belief that it should be supervised.

-         Her actions in Hong Kong in seeking to limit contact and the reasons she gave have not changed. 

-         In Hong Kong J’s attitude to his father significantly changed. The change is manifest from the Chronology and the judgment of the Hong Kong court. That change derives primarily from the behaviour of the mother and her family not from a lived experience for J.

-         The mother believes she should do what J wants. She does not believe it is appropriate to over-ride him,

-         The mother has tailored her approach to contact and to evidence to meet the needs of this case. She has agreed to contact she does not believe in and she has said she thinks it is going well when she does not.

How capable each of his parents and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs?

The range of powers available to the court under this Act in the proceedings in question.

-         In England a shared-live with order with a closely defined parenting agreement or orders as to the exercise of PR would ensure balance

-         Both parents would benefit from attending parenting programmes: the father in the field of attuned parenting the mother in guidance and boundaries

-         Mirror orders can be made to seek to ensure a return from Hong Kong from holidays

-         Spend time with orders mirrored in Hong Kong whilst J lives there may be of limited utility where that Court has primary jurisdiction and where J might be refusing to have contact.

Conclusion