England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		15th February 2017

MR. JUSTICE FRANCIS:

1. The court is concerned with S - G, who was born on 8^th August 2014 and is therefore two and a half years old.
2. The applicant is her father and on 5^th January 2017 he made an application under the Child Abduction and Custody Act 1985 and under Art.11 of the Council Regulation, for a location order and disclosure orders to enable him to locate S who he believed was living in England; he having alleged that she was wrongfully abducted to England from Ireland by her mother, who is the respondent to this application.
3. On 6^th January 2017, His Honour Judge Richards (sitting in the High Court as Judge of the High Court) made the relevant Tipstaff orders and also listed the hearing of the main application for a return to Ireland.
4. S was, in due course, located and the matter came before Mr. Justice Cobb on 20^th January 2017, by which time the mother had filed a document with the court in which she sought to defend the application on the basis that the father was not actually exercising rights of custody at the time of the removal. She raised no issue with S's habitual residence, but sought further to defend the application on the basis of Art.12 settlement and Art.13(b) grave risk of harm/intolerability.
5. At the same time, Mr. Justice Cobb set this matter down for final hearing with a time estimate of one day. By para.3 of his order, the Judge ordered that there would be no oral evidence adduced at this hearing, save as may be permitted by the Trial Judge. On that occasion, the mother had indicated through her counsel that she would wish to adduce oral evidence. In the event, no application was made to me to call the mother to give evidence, although I did canvass the matter with counsel from the outset.
6. It is recorded in a recital to the order of Mr. Justice Cobb, dated 20^th January 2017, that the mother accepts that her purported defence pursuant to Art.12 cannot apply and, in the circumstances, she conceded that that would not be pursued.
7. At this hearing, the mother has not pursued the argument that the father was not actually exercising rights of custody at the time of the removal. Therefore, the hearing before me today has concentrated solely on the Art.13(b) defence namely grave risk of harm/intolerability.
8. The relevant part of Art.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-

(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."

9. As is, of course, well-known and accepted by counsel, the burden of proof in such a case is on the parent who has removed the child. In other words, the burden of proof is on the mother to make good her Art.13(b) defence. The standard of proof is the balance of probabilities. It is not in issue in this case that the mother removed S without the consent of the father.
10. The father's original application for Tipstaff orders and for a return order was supported by the statement of his solicitor in England,. Today I have also had the benefit of a detailed statement from the mother, a statement in support of the mother's case by her adult son, C W, and I have also had a detailed statement from the father.
11. The respondent father was born in Pakistan in 1984 and moved to the Republic of Ireland in 2005 where, I understand, he has lived ever since. The respondent mother was born in Jamaica in 1979 and moved to Ireland in 1999.
12. The parties commenced a relationship and started living together in the summer of 2011. S was born in August 2014. The parties separated in July 2016 after what appears to have been a significant altercation between the two of them, albeit that they give very different accounts of what actually happened on that day.
13. In August or September 2016, the mother left Ireland for England taking S with her. It was not until 14^th December 2016 that the father made an application through the Irish Central Authority.
14. The mother says in her statement that the father has a serious alcohol problem and that her relationship with him was peppered by episodes of verbal and physical abuse. She also suggests that he uses marijuana, although there is very little evidence about that issue.
15. Furthermore, she alleges that there were occasions when the father picked S up when she was still a baby and would squeeze her hard and that he would come in in fits of rage and kick pieces of furniture such as S's cot.
16. The father for his part denies that he has an alcohol problem, although he admits that when he does drink he gets drunk easily and quickly. He denies the allegations of domestic violence and, indeed, suggests that there was an occasion when the mother pulled a knife on him, although did not use it.
17. It is very clear that I am not a fact finding tribunal and I do not and cannot make findings on the disputed facts, particularly in circumstances where I have heard no oral evidence. It is not my function at this hearing to do that.
18. The mother makes two serious allegations of threats to kill by the father. The first of these is rather unspecific and appears in para.5 of her statement, dated 19^th January 2017, where she says:

"I kept telling the applicant to leave because I could not deal with the alcoholic behaviour any more. But he said to me that, if he had to leave, he would kill me and kill the baby and would then commit suicide."

19. Paragraph 6 of the mother's statement refers to an incident on 11^th July 2016. It is the incident that I have referred to above where the parties give very different accounts.
20. When I pressed the mother's counsel, Mr. Reid, for details of the relevant chronology so that I could work out when the paragraph 5 threats to kill allegation is purported to have been made, he told me on instructions that the episode in para.5 took place "about three weeks before the 11^th July incident". Therefore, I infer that it took place, according to the mother, sometime in late June.
21. After submissions had concluded, Mr. Reid invited me to hear further from him which I agreed to do. He then told me that the mother had in fact reported the late June threats to kill incident to the police at the time. As I have already noted this is not a fact finding hearing, but I find it difficult to take into evidence something that Mr. Reid tells me on instructions after the case had effectively concluded (apart from judgment).
22. It seems to me that if the mother had told her solicitors that she had reported the late June incident to the police then those solicitors would have put that into her statement.
23. I also think that Ms. Papazian, counsel for the father, makes a good point when she says that the mother would not have been likely to have agreed to allow S to accompany the father on an unsupervised contact visit - which happened long after the late June incident is said to have happened - if she had taken the threat seriously. I note that this contact was arranged by Irish Social Services. We do not have any evidence from them, so I am unable to say whether or not she told Irish Social Services about the threats to kill. But in the absence of evidence that she did then I have to proceed on the basis that she did not.
24. The second allegation of threats to kill is far more specific and is supported by clear documentary evidence in the form of screen shots from the father's mobile telephone and also by screen shots from the mobile phone of the mother's sister, M , to whom the father sent messages. We now know that, at that time, M F was living in Boston. Therefore, the five hours' time difference between the time when the father sent them from his phone and the time when M F is received them on hers is explained - five hours being the time difference at that time year between Boston and Ireland.
25. On 18^th November starting at 01:17 in the morning, the father sent the following series of texts to the mother's sister, M:

"I swear on baby life T go face you go shit.

I need to see my daughter.

I swear I will spend my life to destroy her.

Tell her I will find her, I will kill her and I will sit and laugh.

I will facking. You are shit.

You facking all shit. All shit like shit people. You shit. I thought you can understand."

26. Ms. Papazian, counsel for the father, conceded that these were unfortunate texts. In my judgment, they are vile and abusive in the extreme. Ms. Papazian correctly reminded me that the father later apologised to M F for sending these abusive texts. It seems to me that he must have expected that the mother was going to see them or be told about them. In my judgment, they are disgraceful and inexcusable and, whether or not the father actually meant that he intended to kill the mother, I can well imagine that any reasonable person would have been massively intimidated to have received these messages.
27. As I have said, the mother asserts that she was subjected to abuse at the hands of the father whilst they lived together in Ireland. It is evident from the papers that the mother secured a non-molestation order, pursuant to the Irish Domestic Violence Act 1996.
28. On 26^th July 2016, the Irish Court ordered the father, on the mother's without notice application, not to use or threaten to use violence against the applicant, molest or put the applicant in fear. I make it clear that this was a without notice hearing and, therefore, by definition, the father was not in attendance and did not give any evidence. Therefore, I assume that no findings could possibly have been made against him. Nevertheless, I note that the mother must have filed with the Irish Court evidence that, at least on a prima facie basis, satisfied the court that they should make that order. It is unfortunate that we have not had in this case the evidence that was filed in Ireland as it might have been useful to see it.
29. There was a return date of that hearing on 1^st November 2016, so there was a substantial gap. The reason for that, I simply do not know and nobody has been able to explain. That is not a matter of criticism, but, certainly, you would have expected in this jurisdiction a much earlier return date.
30. It is evident from the Irish papers that we have that the mother did not attend that hearing and, of course, we now know that she was in fact already in England and had been in England for some time with S.
31. At first, we had all proceeded on the basis that it was likely that on 1^st November 2016 the Irish Court did not continue that non-molestation order with the mother not having attended on the return date of her own application. It is now clear, in fact, from the papers and common ground and conceded very properly by Ms. Papazian (to whom I am grateful for taking me to the relevant documents) that the Irish Court continued that non-molestation order on 1^st November 2016 and, so far as we can all tell, it remains in force to this day.
32. This is important because when the father sent those deeply offensive texts - and others to which I have not referred, but which I have read - to M F, the mother's sister, he was, in fact, it seems to me likely to have been in breach of the Irish Court order. I accept that the messages were sent not to the mother but to the mother's sister, but, certainly, if I was to apply English understanding of a breach, it would seem to me that this was a molestation of the mother in the extreme it being expected by the father that the mother would be likely to see or hear about those offensive messages. Therefore, having been subjected to an order of the court in late July, he was prepared to send these messages to the mother.
33. As I have said, there are other seriously abusive text messages. I only refer to a small number of them. On 28^th October at 20:58, the father sent the following series of texts to M F:

"I sure the day my baby daughter born she'll be witness.

If I didn't see my baby daughter on regular basis I will pray to my God take away every happiness from T [the mother], give her pain, make her cry."

Ms. Papazian did a very good job at trying to finesse the effect of these messages and I recognise that the father did later say:

"God please forgive me for asking this. I will not ask you or do not want to do nothing with T unless she just letting me see S on regular basis."

Then he said:

"God knows I want to have simple deal with T."

34. I agree with Ms. Papazian that the father was likely to be very anxious indeed as to where his daughter was. I do not agree that it in any way seeks to excuse, although perhaps it does in some way explain the ferocity of his messages.
35. My attention has very properly been drawn to the decision of the Supreme Court in Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10. In para.34, Lord Wilson said as follows:

"In the light of these passages we must make clear the effect of what this court said in In Re E. The critical question is what will happen if, with the mother, the child is returned. If the court concludes that, on return, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the mother's anxieties will be reasonable or unreasonable. The extent to which there will, objectively, be good cause for the mother to be anxious on return will nevertheless be relevant to the court's assessment of the mother's mental state if the child is returned."

36. My attention has also been drawn to the decision of the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27. In para.7 of her judgment, Baroness Hale said:

"It is also common for such abducting parents to claim that the parental relationship has broken down because of domestic abuse and ill-treatment by the other parent. That is why - she says - she had to get away and that is why - she says - she had to do so secretly. She was too afraid to do otherwise and she is too afraid to go back. Critics of the Convention have claimed that the courts are too ready to ignore these claims, too reluctant to acknowledge the harm done to children by witnessing violence between their parents, and too willing to accept that the victim, if she is a victim, will be adequately protected in the courts of the requesting country…In particular, it is said, the courts in common law countries are too ready to accept undertakings given to them by the left-behind parent; yet these undertakings are not enforceable in the courts of the requesting country and indeed the whole concept of undertakings is not generally understood outside the common law world. At all events, the change in the likely identity of the abductor places a premium on the efficacy of protective measures which was not so apparent when the Convention was signed.

Yet the parties also understand that there is no easy solution to such problems. The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come. And there almost always is a factual dispute, if not about the primary care of the children, then certainly about where they should live, and in cases where domestic abuse is alleged, about whether those allegations are well-founded. Factual disputes of this nature are likely to be better able to be resolved in the country where the family had its home. Hence it is one thing to say that the factual context has changed and another thing entirely to say that the change should result in any change to the interpretation and application of the Hague Convention."

37. In this case I find myself having to consider whether, as her counsel put it in reliance of the judgment of the Supreme Court in Re S, the mother will suffer such anxieties that their effect on her mental health will create a situation that is intolerable for the child.
38. In this case, I have concluded that there is substantial evidence to suggest that the mother has been subjected to longstanding domestic violence and that the father has been guilty of frequent drunken outbursts. Whether or not the offensive text messages referred to above were made in drink or when sober, the fact is that they are appalling and likely to cause extreme anxiety to a mother in a situation such as this mother finds herself.
39. As I have said, it is common ground that the Irish order of 26^th July 2016 was not revoked at the return date of 1^st November 2016 and so, when the father wrote those abusive texts, he was also probably in breach of the order of the Irish Court. Of course, I make no findings because it is not in my remit to do so.
40. I also have the evidence of the mother's adult son, C W. He has just celebrated his twentieth birthday.
41. Whilst I have been careful to avoid making findings of fact, I am entitled and bound to take into account the strong evidence of Mr. W supporting, as it does, what the mother has said. When added together with the evidence of the mother, it presents an overwhelmingly depressing picture from the mother's perspective.
42. The situation now facing the mother is that, if she returns to Ireland, she has nowhere to live. She will be forced to return to a small community where the father also lives and where she will be forced immediately (I suspect) into dealing with the Irish Court process and the Irish Social Services. It is of course clear that, in the event that I were to order a return, all the matters in relation to contact and welfare regarding S would be a matter for Irish Social Services or the Irish Court process and not for this court. In my judgment, the mother's Art.13(b) defence is made out and I do think that the mother considers herself to face a grave risk.
43. I accept Ms. Papazian's analysis that there is an ordinary language link between the application of this standard to the risk and to the harm caused, in the words of the judgment of the Supreme Court in the Re E case referred to above:

"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."

44. As regards "intolerability", the correct approach was set out by Baroness Hale in Re D (Abduction: Rights of Custody) [2007] 1 FLR when she said:

"'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'. It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there."

45. Here the father offers non-molestation undertakings and yet I have already indicated that he was perfectly willing to breach the Irish Court order last year when he sent those abusive texts in October and November. The conditions in which S will live if returned to Ireland are most uncertain. What we do know is that the mother has no current home there and no work there. Those matters, of course, of themselves do not found the defence, but they are part of the overall picture when I look at the circumstances that she will face on return.
46. However, Art.13 to Art.11 of the Counsel Regulation makes it clear that a court cannot refuse to return a child on the basis of Art.13(b) of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. Although the father is on a low income and is of modest means, he has properly offered to cover the cost of the airfares for the mother and S if I order their return to Ireland. He has offered to pay such maintenance as the authorities in Ireland might properly assess. He offers non-molestation undertakings, although (as I have indicated) it looks as if the Irish order in fact remains in force in any event.
47. However, as was proved very clearly last October and November, no court order can act to prevent a perpetrator from acting in a particular way. In this case, as discussed above, the father appears to have been in flagrant breach of the Irish Court order of 26^th July 2016. I, of course, am not criticising for a second the Irish Court process, which, seems to me, to all intents and purposes, to be the same as ours in this regard. The simple fact of the matter is that an order cannot of itself prevent a course of conduct.
48. I accept that the mother is entitled to feel and does feel that the Irish Court order does not adequately protect her and, therefore, in my judgment, the Art.11 basis is not made out. I am satisfied that adequate arrangements are not made to secure the protection of S after her return were I so to order.
49. In the circumstances, having found that the Art.13(b) defence is made out by the mother and having found that the Art.11 compulsion does not force me to return S to Ireland, I am not prepared to make an order returning her to Ireland. Therefore, the father's application is refused.
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