England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		8th March 2017

MR. JUSTICE FRANCIS:

1. The court is concerned with two children, namely: A, who was born on 28^th September 2002 and he is therefore fourteen and a half years old; and B, who was born on 19^th October 2005 and is therefore almost eleven and a half years old.
2. The children's mother is C, the applicant. Their father is D. He is the first respondent.
3. This is the final hearing of the mother's application for an order for the summary return of the two children to Canada, pursuant to the 1980 Hague Convention and/or the court's inherent jurisdiction.
4. The mother has been represented at this final hearing by Christopher Hames QC and Joanne Porter. The mother has not been in attendance personally, but has attended the hearing by telephone with the agreement of her counsel.
5. The father has acted in person, but has been assisted with the permission of the court by his McKenzie Friend, E.
6. The children are also respondents to the application and have been represented by Ms. Penny Logan instructed by their Guardian.
7. Kent County Council, who are the applicants in the care proceedings to which I shall in due course refer, by agreement did not attend the main hearing; but they have attended today for the purposes of hearing my judgment.
8. Although the father has represented himself, he is plainly an intelligent man and I am satisfied that he has fully understood the process. He has submitted a number of documents and, as I shall recount later in this judgment, submitted a number of questions to the instructed expert on Canadian law.
9. By agreement between the parties I heard oral evidence from the Guardian, but I did not hear oral evidence from either the mother or the father.
10. The mother asserts that the children were wrongly removed from Alberta, Canada, by the father in around May 2015. It is the father's assertion that he was allowed to remove the children from Canada, pursuant to an order made by the court in Alberta on 16^th September 2014. Accordingly, the first decision that I have to make is whether the mother had rights of custody and whether the father unlawfully removed the children from Canada in breach of those rights if they existed.
11. Additionally, the father relies on settlement, on the mother's acquiescence and on the children's objections to a return to Canada as well as the Article 13(b) defence of grave harm/intolerability.

The Background

12. The mother was born in August 1981 and is thirty-five years old. The father was born in June 1975 and is forty-one. They were both born in the United Kingdom. The parties met in the United Kingdom in 1998 when the mother was just seventeen. A was born in 2002 and B was born in 2005. The parents married in the UK on 8^th May 2006.
13. In October 2006, not many months after their marriage, the family all moved to Canada where the children lived continuously until their removal from Canada by the father in 2015. It is therefore clear and not in issue that the children were habitually resident in Canada until their removal in 2015.
14. The parties separated in 2009. A domestic abuse incident occurred immediately prior to the separation and the police were involved. It is neither possible nor necessary for me to resolve the issue between the parties dating back to this time in Canada and there is a great deal of dispute about the incident. What is clear is that the father was remanded in custody for a period of time and he says that he underwent therapy thereafter.
15. A number of applications and orders were made in the court of Alberta, Canada, and a significant number of the Canadian legal papers are in the bundle for this hearing.
16. In November 2009 the mother filed a claim for "primary care" of the children. She requested that the father's parenting time should be limited to "supervised visitation", as it is called in Alberta, Canada.
17. On 16^th November 2009, Judge Woods in Alberta granted on an ex parte - that is without notice - basis an interim parenting order stating that the children would reside with the mother and limiting the father's parenting time to supervised visitation. It was also ordered that the mother should have sole decision making authority regarding the children and a return date was set for 14^th December 2009.
18. Although it would be unusual (to put it at its lowest) for such orders to be made ex parte or without notice in this jurisdiction, the orders that were made in November 2009 were re-affirmed by three different Judges during the course of 2009 and 2010 with a final parenting order being made on 21^st June 2010.
19. The final order awarded primary care of the children to the mother and provided that the father was to have unsupervised parenting time from Fridays to Sundays and such other times as might be agreed between the parties. An order was made that neither party could travel outside Alberta without the consent of the other or without a court order. The preamble to the order noted that both parties were guardians of the children.
20. On 19^th October 2010, the father filed a Statement of Claim for Divorce and a division of matrimonial property in the Court of Queen's Bench in Alberta. The father sought joint custody of the children and shared parenting.
21. On 15^th April 2011, Justice McCarthy granted an order in the Court of Queen's Bench, Alberta, regulating the father's parenting time from Friday afternoon until Monday morning except for the last week of the month and every alternate Wednesday night. The preamble to this order shows that it was made by consent.
22. In 2013 the primary care of the children changed in what Mr. Hames QC for the mother described as "heavily contentious and disputed circumstances". The father had made allegations that the mother was working in the sex industry and sought an Emergency Protection Order. The mother disputes this allegation and it does not seem that any substantive evidence was produced by the father in support of it. The father has also suggested that the mother has been a serial abuser of Class A drugs, although, again, this very serious allegation does not appear to have been substantiated.
23. In any event, the Emergency Protection Order was granted in the mother's absence and there is a dispute - which is not for me to resolve - about whether the mother was even served with notice of the proceedings. It seems that the order continued by consent. The mother says that she felt pressurised into agreeing for the order to continue and, again, it is neither necessary nor possible for me to resolve the dispute which was before the Canadian Courts certainly though I note that this is a case where the mother asserts that she was subjected to a deeply abusive relationship, both emotionally and physically, at the hands of the father.
24. On 21^st August 2014, the father filed an application seeking primary care of the children and requested that the mother have supervised visitation. He also requested that he had full custody and decision making with respect to the children. He was critical of the mother in this application, but nowhere in that application did he state that he intended to relocate permanently to the UK with the children.
25. This application was heard on 16^th September 2016 by Justice Nation in the Court of Queen's Bench, Alberta. The mother was not present and she asserts that she was never served with any papers and knew nothing of that hearing. The father says that he served the mother by email. Again, I cannot resolve the issue as to whether the mother was served but certainly it does seem to me to be surprising that she did not attend that hearing had she known of it.
26. The Judge granted a variation order which set out, among other things:

(1) That the father was to have custody of the children with full decision making powers.

(2) The mother's access was to be as agreed by the parties or as directed by the court.

(3) The father could apply to renew the children's passports without the consent of the mother.

(4) The father could travel internationally without the consent of the mother.

The preamble to this variation order noted that the mother had been properly served with the father's application, but had failed to attend the hearing.

27. Whatever the truth of the claims that were made in the Canadian proceedings, the sad fact is the mother has not seen the children face to face since January 2014.
28. The father had formed a new relationship with a F. That relationship appears to have ended in early 2015. F has provided a statement to this court in support of the mother's application. She describes that she was involved in a relationship with the father between February 2011 and March 2015. She makes a series of very serious allegations against the father, which, in many respects, mirror the allegations that the mother had already made. They include allegations that he was controlling, emotionally manipulative, verbally abusive and at times physically threatening to all who lived in the home including the children. She describes how he would often yell in their faces. She says that A and B are terrified of their father. It is after the end of the relationship with F that the father appears to have decided to bring the children to England.
29. I shall return shortly to the detail of the English proceedings, but I have already referred to the fact that here the court has the benefit of an expert's report in this case.
30. On 8^th December 2016, the matter came before Mrs. Justice Theis in the context of English care proceedings, which, as I have indicated, were being brought by Kent County Council (I return to those proceedings later in this judgment). Paragraph 19 of the order of Mrs. Justice Theis gave the parties permission to instruct a suitable expert on Canadian law to advise on the issue of rights of custody. That order also made various provisions for the care proceedings to be stayed and for these Hague proceedings to continue. I will at the end of this judgment hear submissions about what are the appropriate steps to take in relation to the care proceedings.
31. Having received a paper application in late January of this year, I amplified the order of Mrs. Justice Theis relating to the instruction of a Canadian expert. The court now has the benefit of the expert report of Roxanna Petts of Daunais McKay and Harms, a firm of barristers and solicitors practising in Calgary, Alberta. Her report is dated 7^th February 2017 and she has also answered a number of questions which were put to her by the father with my permission. I struck out some of his questions as not being pertinent or relevant to the issues that I have to determine.
32. Ms. Petts' report has not been challenged and, although I am not bound to accept it, in the absence of any challenge or any evidence to contradict it, it is obvious to the parties that I am likely to accept what she says unless there is an obvious reason not to do and none has been suggested to me.
33. At para.43 of her report, Ms. Petts advises as follows:

"The father was not entitled under the relevant law of Alberta and/or Canada to remove the children permanently from Alberta in 2015 without either the consent of the mother or a further order from the courts in Alberta. If the father had been entitled to permanently remove the children from Canada, this would have been stated explicitly in Justice Nation's order. As it was, she limited his [the father's] forays outside of Canada with the children to travel only. It was an implied term that relocation was not permissible. The case law in Alberta and in Canada support this conclusion."

34. I note here in parenthesis that, perhaps unsurprisingly, Canadian law seems to mirror English law in most ways in regards to international relocation.
35. Further, in para.47 of her report, Ms. Petts advises:

"Absent a court order allowing relocation or the consent of the mother, the father was not at liberty under Alberta law or Canadian law to relocate permanently to the UK with the children of the marriage, notwithstanding the fact that the September 16^th 2014 variation order gave him custody of the children with full decision making powers. That variation order in and of itself limited his custody rights to travel abroad with the children. It did not permit a relocation outside of Alberta or Canada."

36. With the court's permission, the father put various questions to Ms. Petts in an attempt to undermine her principled conclusions. His first question was as follows:

"The order of the court dated 16^th September states that D shall have custody of the children, A and B, with full decision making powers. Question: Would this include the right to remove from the jurisdiction unless otherwise stated in the order?"

Ms. Petts answered:

"This question is redundant. The variation order did explicitly state in paragraph 5 that the children could be removed from the jurisdiction by the father restricting the removal to only being for the purposes of travel."

37. D additionally asked the following question:

"Page 7, paragraph 24 of your report: 'Section 21(6) provides that a Guardian has the following powers with respect to a child, except as otherwise limited by law including a parenting order, to decide the child's place of residence and to change the child's place of residence'."

Ms. Petts' answer to this:

"As stated in my report, both the mother and the father are guardians of these children. As further stated in my report, section 21(4) of the Family Law Act states that 'Guardians are entitled to be informed of and consulted about, and to make all significant decisions effecting the children, and to have sufficient contact with the children to carry out these powers'.

Further, as stated in my report, section 32 of the Family Law Act sets out that 'the court may make an order setting out the powers, responsibilities and the entitlements of Guardianship among the Guardians where the parties are unable to agree and are living separate and apart'. It is not lawful for a Guardian to unilaterally usurp the Guardianship powers, rights and entitlements of the other Guardian without his or her consent without further order of the court.

Unilaterally removing a child permanently from the jurisdiction of Alberta impinges on the Guardian's ability to have meaningful contact with his or her children and upon his or her ability to participate in making significant decisions for the children of the marriage."

Ms. Petts the continued:

"The September 16^th 2014 variation order of Justice Nation confines the father's rights to removing the children from Canada being for the purposes of travel only. A permanent relocation to the United Kingdom was not contemplated or permissible within the terms of that order."

38. The father further sought to undermine Ms. Petts' report by suggesting, without being able to substantiate the suggestion, that the mother was guilty of a lack of full and frank disclosure to the Canadian Court. Ms. Petts made clear that this issue did not affect her determination.
39. The father further asked Ms. Petts questions about what he referred to as the concept of parental abandonment. Ms. Petts indicated clearly that there is no such concept within the Family Law Act or the Divorce Act in Canada.
40. The father further sought to undermine Ms. Petts' report by pointing out to her that, when the children passed to his full time care and he left the jurisdiction, the mother was the subject in Canada of an Emergency Protection Order "and was disqualified as a residential parent". Ms. Petts' conclusion was that the Emergency Protection Order does not disqualify a parent from being a residential parent and she did not change any of her conclusions.
41. I should add at this point that Ms. Petts had been asked to and had agreed to be available to be questioned by telephone during the afternoon of the first day of this hearing on Monday of this week, but none of the parties wished to avail themselves of that opportunity. However, the father's case was forcefully put to Ms. Petts through his questions and she stood, as I have indicated, by all of her conclusions.
42. I remind myself at this point that the 16^th September 2014 variation order was made without notice to the mother or, at least, without the mother bring present - as I have indicated, whether she had notice is an issue which I cannot resolve - and, therefore, of course, it was made without the mother being at court or having any representations made on her behalf. However, when it came to international relocation it is clear from everything that has been said by Ms. Petts and from what I have read that the mother had what has been referred to as a "Right of Veto".
43. I have been referred to the decision of the House of Lords in Re D (Abduction: Rights of Custody) [2006]. In that case it was decided, among other things, that the right to insist that the parent did not remove the child from the home country without first obtaining consent from the other parent (in other words, a right of veto) amounted to rights of custody under the Hague Convention. In Re D, Baroness Hale said:

"Article 3 makes it quite clear that, however wrongful the removal might be in the eyes of the English or Scottish laws of parental responsibility, what matters is whether it is 'in breach of rights of custody attributed to a person…under the law of the state in which the child was habitually resident immediately before…

Therefore, the first question is 'what rights does that person have under the law of the home country?' The second question is, 'are those rights "rights of custody" within the meaning of the Convention?'"

44. Having regard to the factual matrix set out above and to the conclusions of Ms. Petts in her report, as amplified by her answers to the father's questions, there is no doubt at all in my mind and I so find that the Canadian Court had restricted the travel rights of the father with the children and that the rights that the mother possessed at the date of the removal including the right to veto a removal of her children to England. Under the autonomous law of the Convention, those rights must be categorised as rights of custody within the meaning of Article 3. Accordingly, I find that the requirements of Article 12 are satisfied and that I am therefore mandated to return the children to Canada forthwith unless one of the exceptions is established by the father.
45. The children have, sadly but plainly, had a mostly unhappy time since they came to England. On arriving in England, the father and the children lived initially in Dover. Social Services became involved in July 2016 with A alleging that he had been assaulted by and was being ill-treated by the father and he went to live with his maternal grandmother from 29^th July 2016. He was made the subject of a police protection order and then an Emergency Protection Order on 23^rd September 2016.
46. B initially went to live with her paternal grandparents, but then moved back to her father's house before moving to her maternal grandmother's home pursuant to a Family Arrangements Order on 30^th September 2016.
47. Following the issuing of care proceedings, the children have remained with their maternal grandmother, subject to that child arrangements order, a prohibited steps order and a supervision order. A has had no contact with his father since July 2016 and B has had none since December 2016.
48. It is therefore in the context of the facts briefly recited above that I consider the issue of settlement. The Guardian, Kay Demery, gave oral evidence to the court. She said that A has consistently said that he wants to return to Canada. She said that he said the same thing to the Guardian in the care proceedings. She said that his views were stark and that he had no ability to see anything positive in his father. She said that, although B was more positive about her relationship with the father, the children both felt isolated, unable to join in activities and both expressed an extremely strong desire to return to live with their mother in Canada.
49. Ms. Demery was cross examined by D who was keen to press his case that the children were the subject of parental alienation and that this theory had not been pursued by anybody including the Guardian, Ms. Demery. Ms. Demery responded by saying that she did not get the impression that the children had been unduly influenced by the mother or anyone else against the father. She described the father as cold and uncaring to B during contact, but she said that she thought B was speaking for herself; that the children remembered Canada well and that it was absolutely clear, in her considerable experience, that they wanted to return. Ms. Demery also made it clear to the court that a permanent home with the maternal grandmother was not a serious possibility for all manner of practical reasons.
50. I was referred during the course of submissions to the judgment of Sir Mark Potter (then President of the Family Division) in Re D (Child Abduction: Settlement) [2006] where he said:

"Article 12 of the Hague Convention provides that where a child has been wrongly removed within the terms of Article 3, if proceedings for recovery of the child have been commenced within a period of less than one year from the date of wrongful removal the court must order the return of the child forthwith. Where the proceedings have been commenced after the expiration of the period of one year (and in this case the relevant period is some five years) the court 'shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment'.

The word "settled" has two constituents. The first is more than mere adjustment to new surroundings; it involves a physical element of relating to, being established in, a community, and an environment. The second is an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future…"

51. The mother did not make her application to ICACU until 20^th November 2016 with proceedings being issued on 29^th November 2016. Accordingly, this was more than twelve months after the wrongful removal of the children by the father from Canada to England. This means that I must look carefully at the definition of "settlement" by Sir Mark Potter in the foregoing paragraphs and more generally in the case to which I have referred. My failure to quote all of the paragraphs of this or any other of the authorities to which I have been referred should not be taken as an indication that I have not taken them into account. I have considered carefully all of the authorities in the bundle of authorities before me and the submissions that have been made orally and in the written submissions of all three parties.
52. It must, I suggest, be obvious to anyone reading the history which I have recounted that it would be quite impossible to describe these children as settled in the United Kingdom. They are anything but settled and are still the subject of care proceedings, albeit that those care proceedings have (as I have said above) been stayed until the determination of these proceedings.
53. I should add that the mother says, and I have no reason to disbelieve her, that it was not until she was aware of the Local Authority involvement with the children and the advice that she was then subsequently given when she took legal advice that she knew that she had remedies available to her pursuant to the Hague Convention.
54. I should also add that the mother in due course discovered, as a consequence of the care proceedings, that the father has two other children from other relationships, has some history of mental ill health and has been the subject of an allegation of sexual abuse. It is neither necessary nor relevant for me to investigate further into the father's situation and I expressly make no findings in that regard. The mother is in a stable relationship with a new partner living in a house in Canada. They have two daughters: G, who is a little over one year old, and a baby girl who was born only a couple of weeks ago on 22^nd February 2017.
55. I am completely satisfied that the father's case as to settlement is not made out. I remind myself that the burden of proof is on him to establish settlement and the standard of proof is the usual balance of probabilities.
56. Next the father asserts that the mother has acquiesced in the removal of the children. It is clear from the authorities that the acquiescence must be clear and unequivocal. Again, the burden of proof is on the father unless, that is, he is able to show that the words or actions of the mother at the time clearly and unequivocally showed and led the father and others to believe that she would not be asserting a right to summary return. In my judgment, there is no evidence whatsoever that the mother acquiesced in the removal of the children from Canada to the United Kingdom. In fact, it seems that quite the opposite is the case.
57. The father relies on the objections of the children to a return to Canada. I have summarised above parts of the very clearly expressed views of the children, which are comprehensively set out in the evidence provided by the Guardian, Ms. Demery. In my judgment, the father's case as to the children's objections falls into the category of completely hopeless and bound to fail. He made no headway whatsoever in seeking to persuade me that the children had been coached by someone to adopt their current views.
58. The Guardian in her written report reported that neither of the children wished to see the father and A said that, if he returned, the only person that he would miss would be his maternal grandmother and her relatives. B was more measured and did acknowledge that she would "sort of" miss her father. However, as I said, she was clearly of the view that she did not wish to see him.
59. The psychological assessment of the father in the care proceedings does not recommend that A be returned to him and was not optimistic about B doing so. Whilst of course I cannot rule out the possibility that the children have been coached, the father has, in my judgment, completely failed to satisfy the burden of proof to which he subject.
60. I have been reminded that the leading case on child objections is Re M (Republic of Ireland: Child's Objections: Joinder of Children as Parties to Appeal) [2015]. In that case, Lady Justice Black stated that there should be a "straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of her views".
61. Having regard to the careful and detailed report of the Guardian, Ms. Demery, amplified by her oral evidence in court, it could not be clearer to me that:

(1) The children are of a sufficient age and understanding where their views should be given considerable weight; and

(2) far from objecting, the children are enthusiastically supporting the prospect of a return to the mother in Canada.

62. Next the father puts forward the defence of grave risk of harm/intolerable position, pursuant to Article 13(b). I have been reminded of the test clearly set out by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011]. The joint judgment of Baroness Hale and of Lord Wilson make clear that Article 13(b) should not be construed narrowly. Its words were plain and needed no further elaboration or gloss. The risk of harm, they said, must be grave and the harm in question must involve something it was not reasonable to expect a child to tolerate.
63. In this case I have been shown no evidence at all that the children would be at any risk sufficient to satisfy the first stage of the two stage approach, which was set out in para.36 of their judgment. The first stage is to ask whether, if the allegations are true, there would be a grave risk that the children would be exposed to physical or psychological harm or otherwise placed in an intolerable situation.
64. Far from there being evidence to support such a risk, I have a picture of a mother who is settled with a new partner and already caring for two children. They appear to have sufficient accommodation for all four children. The children have been doing their best to re-establish their relationship with their mother by way of Skype contact, but, of course, Skype will be limited; it is not like face to face contact. So I do not pretend at all that it will be easy for any of them to be reunited after such a long period of absence, but, the obvious emotional difficulties which will face this family at this difficult time do not begin, in my judgment, to satisfy the Article 13(b) requirement.
65. If, indeed, the children are in need of any protection in Canada then I am completely satisfied that Canada has an efficient, sophisticated and well developed legal system not very dissimilar from our own in terms of its principles; and the Canadian authorities and courts can intervene as and when they might be required.
66. As Mr. Hames observed in para.55 of his skeleton argument:

"That is not in any sense the end of the road for this respondent. There is nothing stopping him applying to the Canadian court for contact, or even residence, to these children. That court will then have to determine what, if any, assessment it still requires of him, and what order ultimately would be in the children's best interests."

I agree with that paragraph of Mr. Hames' skeleton argument.

67. Accordingly, it is my judgment that the father wrongfully removed the children from Canada in breach of the mother's rights of custody. I am, as I have said, mandated to return the children forthwith unless one of the defences is made out. In my judgment, there could be few clearer cases of a failure to make out even the beginnings of any one of the relevant defences. Accordingly, the issue of my discretion does not arise.
68. This application is also brought within the inherent jurisdiction of the court, which had long been used of course to secure the return of a child who was wrongfully removed before the Hague Convention was adopted. When considering the exercise of the court's inherent jurisdiction, welfare of course must be considered. The test is whether it is in the best interests of the children to remain in his country, so that the dispute between the parents can be decided here, or to return them to that country.
69. The Guardian in this case expressed the clearest view that, on welfare grounds, the children should return to Canada. In my judgment, the Guardian is plainly right and in the light of the clear findings that I have made above, it is neither necessary nor appropriate for me to go further into the exercise of the court's inherent jurisdiction.
70. Accordingly, the application for the return of the children to Canada is granted.
71. In discussion with counsel and D and the Guardian during the course of submissions I raised the issue of when, if I were to order a return of the children, it would be appropriate to return them to Canada, having regard to the duty to return them forthwith which is placed upon me by the legislation in the Convention. It is the view of all, with which I concur, that, given the passage of time since they were in Canada, it would be appropriate for them to finish the current school term which ends at or about the end of this month, 31^st March 2017. In other words, in about three weeks or so. I do not think that there is any tension in this case between the slight delay and the duties placed on me by the Convention. Accordingly, it is my order that they should return to Canada as soon as practicable after the end of their school term. Obviously, the necessary arrangements will need to be made before I can set a precise date.