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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> B (A Child), Re [2018] EWHC 1643 (Fam) (15 June 2018)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/1643.html
Cite as: [2018] EWHC 1643 (Fam)
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Neutral Citation Number: [2018] EWHC 1643 (Fam)
Case No: FD17P00490
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 15/06/2018
Before :
MR JUSTICE WILLIAMS
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Between :
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AH |
Applicant |
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CD - and - LONDON BOROUGH OF HARINGEY - and - B (Through his Guardian, Mr William Walker) - and - W (Through the Official Solicitor) |
1st Respondent 2nd Respondent 3rd Respondent 4th Respondent |
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Ms Deirdre Fottrell QC and Mr Richard Jones (instructed by Dawson Cornwall) for the Applicant father
Mr Christopher Hames QC and Mr Paul Hepher (instructed by Hornby and Levy) for the 1st Respondent mother
Mr Alistair G Perkins (instructed by for the 2nd Respondent local authority
Ms Mehvish Chaudhry (instructed by Freemans solicitors) on behalf W by his litigation friend the Official Solicitor
Mr Michael Gration (instructed by Cafcass Legal) on behalf of the Children’s Guardian
Hearing dates: 11th - 15th June 2018
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Judgment Approved
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Justice Williams :
Introduction
The Issues
The enforcement of the Spanish judgments.
i) Have the requisite requirements so as to cause a valid registration of the judgments of the Spanish courts made as a consequence of the orders of;
a) the domestic violence Court number 3 V of judge XY dated 21 May 2015 (the Spanish order of 21.5.15) and
b) 7 April 2016 (the Spanish order of 7.4.16),
been complied with so as to enable the court to consider enforcement of the same?
No party actively pursued this point although LBH refer to it as does the Guardian. He notes that some of the procedural requirements do not appear to have been strictly complied with. Plainly the court in pursuance of its own duties should be alive to it.
Article 23 (b)
CD argues that the Spanish proceedings demonstrate that B was not given an opportunity to be heard. She argues that at no stage do the Spanish court documents record a judge asking let alone answering the question of whether and if so how B’s voice should be heard. They submit that the social enquiry reports which are present on the court file cannot properly be interpreted to reach the conclusion that they were produced as a result of the court determining that B’s voice was to be heard through that medium.
LBH do not resist enforcement of the judgment.
The Guardian on behalf of B has taken the lead on the submissions in respect of this aspect of the case and the examination of the documents. The Guardian submits that on a review of the documents from the Spanish court, it does not appear that the court determined the father’s application for an assessment of the two children. No later document suggests that the question of whether and if so how B’s wishes should be taken into account was ever raised. The Guardian also submits that the context in which the May 2015 judgment was delivered demonstrates that it was not properly viewed as a situation of urgency. In relation to the final order that was plainly so but also in relation to the earlier order.
The father submits that the Spanish court documents make clear that the court must have ordered an assessment of B and this would inevitably have included seeing B and obtaining his views. The report on the court file in November 2015 illustrates this, it is said. Ms Fottrell submits that the content of the report and the absence from it of any views from B is nothing to the point. An attempt was made to get his views which was frustrated by the mother’s abduction and going to ground. It is submitted that an opportunity was given but could not be fulfilled. It is argued that the judgments of 29 January 2015 and the subsequent judgment of May 2015, both delivered by the same judge, demonstrates that the judge was alive to the need to take account of B views.
Article 23 (c)
CD sought to set aside my earlier summary dismissal of her Article 23(c) ground of appeal on the basis that the Spanish court documents demonstrated that by the time the decision was reached in May 2015, the mother did not have lawyers on the record and that in fact they had applied for and been granted permission to come off the record. I granted that application to enable her to pursue this ground. The mother argued that the decision clearly was given in default of appearance because she did not respond to that application which was a fresh application. It was submitted that she had not been served with the document which instituted the proceedings? and she had consequently not had an opportunity to defend the proceedings. It was submitted that her Spanish lawyers failed to contact her to inform her of the ongoing proceedings and therefore she remained in the dark about the application and was unable to respond.
The father submitted that this was all part of ongoing proceedings where custody had always been a live issue from the summer of 2014, and that viewed in the round there was no requirement for service of the specific application. In any event it was argued that service on the mother’s procedural lawyers who were on the record at the time of the issue of the application was good service. It was also submitted that the mother’s position that her lawyers had failed to keep her informed was flatly contradicted by the Spanish lawyers’ own evidence and that the mother’s oral evidence was incredible. The father submitted that the mother ought to have remained in contact with her lawyers and had she done so she would have been able to respond to the application.
Article 23 (d)
The mother relies on this additional ground as well as Article 23 (c). LBH do not seek to rely on this or the other Article 23 grounds.
Article 23 (e)
The mother argues that both the interim and the final care orders which give priority parental responsibility to LBH are both irreconcilable with the decision because they confer on LBH the power to determine where B lives.
iii) Are there any grounds established so as to cause the nonrecognition of the judgment made as a consequence of the Spanish order of 7.4.16?
CD relies on all the grounds above.
iv) The enforcement of the judgment made as a consequence of the Spanish order of 21.5.15.
v) The enforcement of the judgment made as a consequence of the Spanish order of 7.4.16.
9. The public law orders made by the West London Family Court between 27 November 2015-14 June 2016:
i) Was there jurisdiction to make any of the public law orders pursuant to part IV of the Children Act 1989? Inter-alia: -
a) Was B habitually resident in England and Wales so as to vest the West London Family Court with jurisdiction at the requisite time any of the public law orders were made?
LBH argue that B was habitually resident, as confirmed by Her Honour Judge Mayer in her judgment, and thus the West London Family Court had Article 8 jurisdiction.
b) Did the courts of the Kingdom the Spain retain jurisdiction in the event that B had acquired habitual residence in England and Wales pursuant to Article 10 of Brussels IIa inter-alia?
i) Had the mother, father and the London Borough of Haringey acquiesced in the retention of B in England and Wales?
No party pursued acquiescence.
ii) Had B resided in England and Wales for a period of at least one year after the father had or should have had knowledge of his whereabouts at the requisite time?
LBH argue that by early 2015 the father ought to have known that B was in London given the statements that had been made on the mother’s behalf within the Spanish proceedings and the fact that the mother had only left London in April 2014.
iii) Was B settled in his new environment at the requisite time?
LBH did not actively argue that be was settled as at November 2015 but they did argue that subsequently he had become settled and that therefore the Article 10 requirement had been fulfilled after the commencement of the proceedings.
iv) Did either the Spanish order of 21.5.15 or 7.4.16 require the return of B to the Kingdom the Spain?
LBH argued that no request for B’s return had been lodged within one year after the father had or should have had knowledge of his whereabouts, and that the Spanish courts had made a final judgment on custody that did not entail the return of B to Spain.
ii) If the public law orders were made in the absence of jurisdiction do the applications now before this court enable the immediate discharge of the care order?
iv) If the care order made by HHJ Mayer on 16 December 2015 was properly made what impact (if any) does this have on B’s return to the care of his father in Spain?
The applications for summary return pursuant to the 1980 Hague Convention.
v) Was B habitually resident in the Kingdom the Spain immediately before his removal by the mother in or about September 2014?
The mother contends that B was habitually resident in England and Wales at the relevant time, that is that
a) his habitual residence moved from Spain to England soon after the Mother moved to England with B and W in or around February 2011, and;
b) when B travelled to Spain in April 2014 to return to England in October 2014, where he has remained to date, he did not lose his habitual residence in England and become habitually resident in Spain.
If she is right, The Hague Convention is not engaged and the father’s application should be dismissed. The mother submits that in undertaking a comparative analysis of the subject on an objective markers of habitual residence that the seesaw never tipped away from England. She submits that it is plain that B was habitually resident in England by March 2014. It is submitted that he was well integrated into a social and family environment in England and had become familiar with the country, language and life. In particular the mother submits that the chaotic and unstable nature of life in Spain, the lack of any permanent intent on her part to relocate to Spain, the short period of time that the family was in Spain, the instability in the parental relationship, the lack of education and the lack of registration for residents and medical care in Spain all illustrate that B’s roots remained more in England than in Spain.
The father submits that B’s roots in England were shallow indeed. The chaos and instability that had characterised their lives over the three years in England meant that the roots never had time to dig deep. B at one to four years of age was primarily integrated into his family unit consisting of his mother and his brothers. There was little or no social or community integration. When he moved to Spain it was with his entire family unit and indeed that was completed by the presence of his father and paternal family. The move was planned and implemented. England was abandoned. No home, no possessions, no friends and no links were maintained. A family life was established in Spain in a new home opposite a school to which W and B would have gone. A life was commenced involving the extended family. In those circumstances the father argues that B’s habitual residence in England was rapidly lost as the shallow roots were pulled up and new routes were put down in Spain. The seesaw quickly tipped away from England in favour of Spain.
vi) Is Article 3 of the 1980 Hague Convention engaged?
vii) Is B now settled in his new environment?
The mother argues that B is now settled in his new environment. The mother argues that the court must undertake a holistic straightforward and robust examination of the question of settlement albeit having regard to physical emotional and psychological factors. The mother argues that the evidence of the local authority social worker both from 2016 and 2017 which refer to be as being settled together with the evidence of the Guardian as to his physical and emotional settlement all demonstrate that viewed in the round be was settled in his new environment by September 2017.
The Guardian does not agree that B is settled. He accepts that he is physically settled with his foster carers and at an emotional level by which he means a day-to-day level he is settled. But Mr Walker concludes that psychologically, in the sense of a longer-term sense of being where you should be, he is not settled. He does not view his current arrangements as in any sense permanent but is looking to a change in the medium to long term future.
The father does not accept that B is settled given the absence of the father from his life at that point in time, that in September 2017 there was a proposal that B should return to his mother’s care in Brazil. The father points to the instability in B’s life following his return to England in late 2014 and the chaos that reigned in his life over the following year. Ms Fottrell refers to the evidence in the care proceedings in particular Dr Butler and her views on the instability that permeated W and B’s lives. How, she asks rhetorically, could they be settled in the circumstances. By September 2017 B had even been separated from W.
viii) Is Article 12 of the 1980 Hague Convention engaged?
ix) Have the respondents who oppose B’s return to Spain established on the balance of probabilities that:
a) The father consented to the removal or subsequently acquiesced to B’s retention in England?
b) There is a grave risk that B’s return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation?
W argues that to return B to Spain without a fuller consideration of his welfare would meet the Article 13 B threshold because it would leave him in an uncertain position.
c) Does B object to being returned to Spain and has he attained an age and degree of maturity at which it is appropriate to take account of his views?
The mother argues that B’s views amount to an objection not to a preference. His desire to reside with her and his brothers as a first choice it is submitted amount in the context of this case to an objection. She accepts that he is at the lower end of the range but he is old enough and mature enough for his views to be taken into account.
The Guardian also considers that B views amount to an objection. Both what he said and what he wrote together with his previous life experiences lead the Guardian to conclude that this is an objection rather than a preference.
The father argues that these views are a preference not an objection, he having given an escalating range of preferences. Combined with his positive memories of his father and life in Spain the father submits that this properly analysed does not amount to an objection but is no more than a preference. B spoke positively of both of his parents. He had positive memories of life in Spain. “I dearly wanted the family to be together.”
x) If the discretion arises as a consequence of Article 12 or Article 13 should the court refuse to order B’s summary return? The mother argues that the exercise of any discretion to return or not should await the full welfare determination.
The mother, LBH, the Guardian and the Official Solicitor all argue that the discretion should be exercised against a summary return. All invite the court to carry out a full welfare enquiry before deciding whether B should be returned or not.
xi) If the public law orders were made with jurisdiction what impact (if any) does this have on the summary return of B pursuant to Article 12 of the 1980 Hague Convention?
xii) Should the return pursuant to Article 12 occur after the conclusion of B’s current school term and/or the conclusion of the public law proceedings currently listed before the West London Family Court commencing 23 July 2018?
The application for summary return pursuant to the inherent jurisdiction
xiii) Is it in B’s best interests to be returned to Spain forthwith?
CD, LBH, the Guardian and the Official Solicitor on behalf of W all argue that it is not in B’s interests to be summarily returned to Spain forthwith. All maintain that if he is to be returned it should only take place after a fuller consideration of welfare -related matters is undertaken at the next stage of the timetabled proceedings.
The father himself does not seek a forthwith return, in the sense of an immediate return. He accepts that it would be better for B to complete his academic year at school and for a transition to be worked upon. He does however invite me to exercise any discretion that arises in favour of a fourth with return.
xiv) Should any return be delayed until after the conclusion of B’s current school term and/or the conclusion of the public law proceedings currently listed before the West London Family Court commencing 23 July 2018?
xv) If the public law orders were made with jurisdiction what impact (if any) does this have on the summary return pursuant to the inherent jurisdiction?
LBH, the Guardian and the Official Solicitor argue that the care orders were properly made and that as a consequence this court has substantive jurisdiction in respect of B (and W). They all argue that the circumstances of this case compel a full welfare evaluation in respect of both boys before decisions are taken.
The consequences arising from the determinations made within the applications currently before this court upon the proceedings currently listed before the West London Family Court?
These Proceedings
The Legal Framework
Interplay of BIIA Enforcement and 1980 Hague
15. Mostyn J has given guidance stating that in abduction situations involving EU Member States an applicant should use the reciprocal enforcement provisions of Brussels IIA in preference to the 1980 Hague Convention if an order exists in the requesting state given the very limited defences to enforcement: JRG v EB (abduction: Brussels II Revised) [2013] 1 FLR 203; ET v TZ (recognition and enforcement of foreign residence order [2013] EWHC 2621 (Fam), [2014] 2 FLR 373. The reality of this case is that all matters have had to be considered together and I therefore propose to deal with all the issues. I do not think that the recent decision of the Court of Appeal Re: S (Abduction: Hague Convention or BIIa) [2018] EWCA Civ 1226 assists much in this regard as it focuses on the appropriate approach in England and Wales to an outgoing abduction rather than an incoming abduction.
Jurisdictional Issue
17. ‘Article 10 of BIIA deals with ‘Jurisdiction in cases of child abduction’. It provides
In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:
(a) each person, institution or other body having rights of custody has acquiesced in the removal or retention; or
(b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:
(i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;
(ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limit set in paragraph (i);
(iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);
(iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention.’’
See also the BIIa Practice Guide 4.2.1.1.
18. The effect of BIIa, Art 10 is to maintain the jurisdiction of the country of origin where there has been a wrongful removal or wrongful retention from that country. The courts of the other country will therefore not acquire jurisdiction even if the child has become habitually resident there unless the termination of jurisdiction conditions are met: Re A; HA v MB (Brussels II Revised: Article 11(7) application) [2007] EWHC 2016 (Fam), [2008] 1 FLR 289.
19. The court with the retained, and substantive, jurisdiction must be the court which has the primary role in determining whether it continues to retain jurisdiction, or that the conditions of Art 10 have been fulfilled and jurisdiction now lies with the country of the child's new habitual residence. Only if that court declines to determine the issue or cannot determine the issue should the second state seek to determine the matter. This would best promote the avoidance of conflict. Although the point has not been specifically determined in the context of BIIa, Art 10 this approach finds strong support: Povse v Alpago (Case C211/10PPU) [2011] Fam 199, [2010] 2 FLR 1343, ECJ at para 74; A v B (jurisdiction) [2011] EWHC 2752 (Fam), [2012] 1 FLR 768, Wall P; Mercredi v Chaffe (Case C-497/10) [2011] 1 FLR 1293, CJEU; Re G (jurisdiction: Brussels II Revised) [2014] 2 FLR 746.
Enforcement of the Spanish Orders.
20. “Article 23 Grounds of non-recognition for judgments relating to parental responsibility
A judgment relating to parental responsibility shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
(b) if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
(c) where it was given in default of appearance if the person in default was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable that person to arrange for his or her defence unless it is determined that such person has accepted the judgment unequivocally;
(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;
(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought;
(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought, or
(g) if the procedure laid down in Article 56 has not been complied with.’’
Article 23(b)
23. If the judgment was not given in an urgent case two questions arise:
(i) was the child given an opportunity to be heard?
(ii) if not, is that in violation of fundamental principles of procedure in the requested state?
24. The first question is a matter of fact and should be evident from the judgment or the order or surrounding circumstances. It ought to be a yes or no answer. Questions as to whether the means of hearing the child were adequate or would comply with the procedures of the requested court ought not to be relevant to the answer to that question. The BIIa Practice Guide recognises the divergence across Member States as to how a child is given an opportunity to be heard. So far there is no decision on the issue of whether an inadequate opportunity to be heard is no opportunity. In Re D (international recognition) (a child) [2016] EWCA Civ 12 it was accepted that the child had not in fact had an opportunity to be heard and that the court had not considered whether to give the child the opportunity, although at para 42 the court recognised that there were variations of approach and that differences should not undermine the principle of recognition and enforcement.
‘that there are made available to that child the legal procedures and conditions which enable the child to express his or her views freely and that these views are obtained by the court’
26. The requirement to consider the question of whether and if so how to hear the voice of the child applies whether the judgment is delivered at first instance or superior appellate court. It seems to me that it must be an ongoing obligation upon the court to be asked as and when the court is delivering a judgment of substance in relation to a child; and in particular where the child’s views have either never been before the court or have not been before the court for some time. The fact that proceedings are ongoing and that an application within them is part of a continuum does not abrogate the need to consider the question. As Mr Justice Peter Jackson said at first instance in Re D, the court must consider the issue in the context of the proceedings as a whole. In Re S (Abduction: Hague Convention or BIIA) [2018] EWCA Civ 1226 Moylan LJ identified that one of the benefits of the use of Hague Convention remedies rather than domestic orders was the difficulty in enforcing such orders when the child had not been given an opportunity to be heard. This fortifies in my view the approach taken in Re D that even in abduction cases such as confronted the Spanish judge that fundamental principles of procedure in England and Wales require that the court ask the question of whether and if so how the voice of the child is to be heard. It seems to me that the mere process of identifying and asking the question is a safeguard to ensure the Article 12 UNCRC or Article 24 EU CFR rights of the child are at the forefront of the judge’s mind. Identifying the question enables the court to consider a range of options. It is perfectly possible that having considered the question the court might conclude that it was in the child’s best interests for the order to been made notwithstanding that it could not in practice secure the child’s views because of their disappearance. However, and importantly, the court might also pause to consider whether making such an order was in fact the best course to adopt. It might indeed cause the court to consider more fully other options by which the child’s voice might be heard which would then bring onto the radar the issue of the 1980 Hague abduction Convention and the obligation in Article 11(2) on a requested state to give the child an opportunity to be heard. Thus in asking the Re D question a range of other routes to promoting the child’s welfare might fall to be considered. That it seems to me is another reason why it is a fundamental principle of procedure in England and Wales that the question is explicitly asked and answered. The primary reason may be that it directly supports the Article 12 and Article 24 rights of the child but it also indirectly promotes the Article 3 UNCRC and Article 24 rights of the child in respect of their best interests. The Court of Appeal recognised there might be good reasons for not ascertaining their wishes and feelings (which the Court of Appeal concluded was identical to hearing their voice) and a reasoned decision not to hear their voice ought not to lead to the conclusion that the failure to hear it was in breach of fundamental principles of procedure in England. The Supreme Court hinted that the decision of the Court of Appeal may have been expressed in wider terms than they would have endorsed but this was no more than an observation in their judgment striking out the appeal: In the Matter of D (A Child) [2016] UKSC 34.
Art 23(c):
28. The exception is established if three conditions are met:
i) it was given in default of appearance; and
ii) the person was not served with the document instituting the proceedings or an equivalent in sufficient time and in such a way as to enable that person to arrange for his defence; and
iii) that person has not accepted the judgment unequivocally.
See MD v CT (parental responsibility order: recognition and enforcement) [2014] EWHC 871 (Fam), [2015] 1 FLR 213.
30. Default of appearance is not established merely by not being present. Appearance has the technical meaning of having filed a formal document with the court: Re D (international recognition) [2016] EWCA Civ 12 at para 66. So if a party has entered an appearance by filing an acknowledgment or other document or has in fact appeared at a hearing it is likely he will be taken to have appeared for the entirety of the proceedings. An Annex II certificate stating the judgment was not given in default of appearance is not binding on the requested court: Re D at para 72.
31. The second issue sub-divides into two components:
i) first, it must be assessed whether a defendant had been validly served with a document instituting proceedings or equivalent; and
ii) second, it must be determined whether s/he had sufficient time to arrange for his/her defence.
Art 23(d): judgment infringes parental responsibility and person not given opportunity to be heard
Art 23(e): judgment irreconcilable with later judgment given in Member State of enforcement
35. I remind myself of Articles 24 and 26
Article 24 Prohibition of review of jurisdiction of the court of origin
The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.
Article 26 Non-review as to substance
Under no circumstances may a judgment be reviewed as to its substance.
The Hague Convention
Habitual Residence
38. Habitual residence, in a very brief overview, requires an assessment of the degree of the integration of the child in a social and family environment. The interpretation of the principle of habitual residence derives from three cases in the Court of Justice of the European Union, namely Proceedings brought by A (C-523/07) [2009] 2 FLR 1, Mercredi v Chaffe (C497/10 PPU) [2011] 1 FLR 1293 and C v M(C376/14 PPU) [2015] 1 FLR 1, supplemented and clarified by the quintet of cases in the Supreme Court: A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60; Re KL (A Child) (Abduction: Habitual Residence: Inherent Jurisdiction) [2014] 1 FLR 772; In the Matter of LC (Children) (No 2) [2014] UKSC 1; AR v RN (Scotland) [2015] UKSC 35, and In the matter of B (A child) [2016] UKSC 4. They have been summarised to a degree by Mr Justice Hayden in B (A Minor: Habitual Residence) [2016] EWHC 2174 and drawing all of those strands together, the principles which I have to apply in determining where B was habitually resident are these.
(a) First of all, habitual residence is a question of fact and not a legal concept.
(b) Secondly, the question of habitual residence is to be determined identically in respect of a child irrespective of the legal convention, regulation, or Act that the question falls to be determined under.
(c) The test adopted by the European Court is the place which reflects some degree of integration by the child in a social and family environment in the country concerned. Its meaning is shaped in the light of the best interests of the child, in particular on the criterion of proximity. Proximity in this context means the practical connection between the child and the country concerned.
(d) A child will usually not be left without a habitual residence. If a set of facts could reasonably lead to a finding of habitual residence or no habitual residence, the former should be preferred. Complete integration is not required but the ‘see-saw’ analogy helpfully illustrates the linkage between the loss and acquisition of habitual residence.
(e) The social and family environment of an infant or young child is shared with those upon whom he is dependent. Hence, it may be necessary to assess the integration of that person or persons. A child does not automatically have the same habitual residence as a parent. The older the child, the greater the degree of distinction may be. So a school aged child will be different from a babe in arms, and an adolescent will be different again.
(f) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
(g) Parental intent plays a part in establishing or changing habitual residence, but only in so far as it goes to the reasons for a child being present in a country or leaving that country and going to stay in another. Parental intent has to be factored in along with many other relevant factors in deciding whether a child has a sufficient degree of stability and is sufficiently integrated so as to be habitually resident. There is no requirement that child should be resident in a country for a particular period of time let alone there should be an intention on the part of one or both parents to reside there permanently.
(h) The state of mind of the child concerned may also be relevant to assessing their degree of integration. The majority in Re LC held it was only adolescents or those to be treated as adolescents whose state of mind was relevant. The minority (which included Baroness Hale) held that there was no logical reason to exclude the state of mind of younger children;
(i) The assessment of integration requires the consideration of objective and subjective factors. It is a comparative exercise involving consideration of the quality of the previous alleged habitual residence and that of the possible new habitual residence. The judge must take sufficiently into account the facts relevant to the old and new lives of the child and the family although need not necessarily do so in a side by side analysis of the sort carried out by Lord Wilson in Re B as long as it is apparent from the judgment as a whole that the exercise has been undertaken; It is the stability of a child's residence as opposed to its permanence which is relevant, though this is qualitative and not quantitative, in the sense that it is the integration of the child into the environment rather than a mere measurement of the time a child spends there. Expectations which the fact-finder may well find to be unfulfilled in the case before him: (a) the deeper the child's integration in the old state, probably the less fast his achievement of the requisite degree of integration in the new state; (b)the greater the amount of adult pre-planning of the move, including pre-arrangements for the child's day-to-day life in the new state, probably the faster his achievement of that requisite degree; and (c) were all the central members of the child's life in the old state to have moved with him, probably the faster his achievement of it and, conversely, were any of them to have remained behind and thus to represent for him a continuing link with the old state, probably the less fast his achievement of it.”
(j) The requisite degree of integration can, in certain circumstances, develop quite quickly. It can arise in a single day.
(k) The ‘rule’ propounded by Lord Scarman in Shah that habitual residence is to be judged by objective factors is to be consigned to history. Subjective state of mind is as susceptible to proof as other matters particularly in the digital age
(l) The previous rule that ‘habitual residence’ cannot be changed without the consent of all holders of parental responsibility is to be discarded. Whether a holder of parental responsibility has consented may affect the quality of integration but is not a bar to habitual residence changing;
As Hayden J said in Re B
“This will involve a real and detailed consideration of (inter alia): the child's day to day life and experiences; family environment; interests and hobbies; friends etc. and an appreciation of which adults are most important to the child. The approach must always be child driven. I emphasise this because all too frequently and this case is no exception, the statements filed focus predominantly on the adult parties”.
McFarlane LJ made this further point in Re R (a child) [2015] EWCA Civ 674:
“When determining habitual residence there is no requirement that, to be sufficient to support a finding, the individual needs to be happy, well cared for or free from abuse. The 'social and family environment' into which a child might be integrated may include both positive and negative factors. These will not be irrelevant.”
39. In Re F Peter Jackson J said the evaluation of the evidence is a matter for the court with the assistance of the parties' submissions. He said no party bears a burden of proof and that the evaluation is a neutral one. Those observations run counter to the dicta of Sir Mark Potter in E v E [2007] EWHC 276 in which he said that where one party is contending that an established habitual residence has changed, it is for that party to establish that change. The mother says the burden of proof is on the Father to establish that B had, by 2 October 2014, become habitually resident in Spain. As will be seen on the facts of this case I do not think where the burden lies has any bearing on the outcome.
The obligation to return and the exceptions
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”
41. The courts have considered the principles of settlement in a number of cases, the principal amongst which are (a) Re N (Minors) (Abduction) [1991] 1 FLR 413, (b) Cannon v Cannon [2005] 1 FLR 169; (c) C v C [2006] 2 FLR 797; (d) Re M (Zimbabwe) [2008] 1 FLR 251. A recent example of the application of the principles is Re T (A Child - Hague Convention proceedings) [2016] EWHC 3554 (Fam). The principles which can be derived from those cases are these:
(i) The proceedings must be commenced within one year of the abduction. The making of a complaint to police or an application to a Central Authority does not suffice.
(ii) The focus must be on the child. Settlement must be considered from the child’s perspective, not the adult’s. The date for the assessment is that date of the commencement of proceedings not the date of the hearing. This is aimed at preventing settlement being achieved by delay in the process.
(iii) Settlement involves both physical and emotional or psychological components. Physically, it involves being established or integrated into an environment compromising a home and school, a social and family network, activities, opportunities. Emotional or psychological settlement connotes security and stability within that environment. It is more than mere adjustment to present surroundings.
(iv) Concealment and delay may be relevant to establishing settlement. Concealment is likely to undermine settlement. Living openly is likely to permit greater settlement. The absence of a relationship with a left behind parent will be an important consideration in determining whether a child is settled.
(v) A broad and purposive construction will properly reflect the facts of each case – it does not require a 2 stage approach but must, to use a probably over-used expression involve a holistic assessment of whether the child is settled in its new environment. It has to be kept in mind that the settlement exception is intended to reflect welfare. The Article 12 settlement exception of all the exceptions is most welfare focused. The underlying purpose of the exception is to enable the court in furtherance of the welfare of the child to decline a summary return because imposing a summary return (i.e. without a more detailed consideration of welfare) might compound the harm caused by the original abduction by uprooting a child summarily from his by now familiar environment.
44. The leading authorities in relation to the application of the Article 13b defence are
i) Re D (Abduction: Rights of Custody) [2006] UKHL51
ii) Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758
iii) supplemented by Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442
45. The following principles can be drawn from those judgments;
i) There is no need for Article 13b to be narrowly construed. By its very terms, it is of restricted application. The words of Article 13 are quite plain and need no further elaboration or gloss.
ii) The burden lies on the person opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities, but in evaluating the evidence, the court will be mindful of the limitations involved in the summary nature of the Convention process.
iii) The risk to the child must be grave. It is not enough for the risk to be real. It must have reached such a level of seriousness that it can be characterised as grave. Although grave characterises the risk rather than the harm, there is in ordinary language, a link between the two, for instance, a relatively low risk of death may be grave.
iv) The words ‘physical or psychological harm’ are not qualified but do gain colour from the alternative ‘or otherwise placed in an intolerable situation’. 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.
v) Article 13b looks to the future of the situation as it would be if the child were returned forthwith to his or her own country. The situation which the child will face on return may depend on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation. Where the risk is serious enough, the court will be concerned not only with the child’s immediate future, because the need for protection may persist.
vi) The source of the risk is irrelevant.
vii) Separation of siblings created by the return of one and not the other might create an intolerable situation.
viii) Where allegations of domestic abuse are made, the court should ask whether if they are true, there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If they would, then the court must ask how the child can be protected from such risk. If the protective measures could not ameliorate the risk, the court may have to do its best to resolve disputed issues of fact. It will be rare to hear oral evidence.
ix) Article 11.4 of Brussels IIA precludes a non-return where it is established that adequate protective measures are available. The Practice Guide makes clear this is intended to address the situation where authorities have made or are prepared to make such arrangements.
46. The approach to the child’s objections, exception under Article 13 is comprehensively set out in the case of Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] 2 FLR 1074 (and endorsed by the Court of Appeal in Re F (Child's Objections) [2015] EWCA Civ 1022). In summary, the position is as follows.
i) The gateway stage should be confined to 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 his or her views.
ii) Whether a child objects is a question of fact. The child’s views have to amount to an objection before Article 13 will be satisfied. An objection is to be contrasted with a preference or a wish.
iii) The objections of the child are not determinative of the outcome, but rather give rise to a discretion. One that discretion arises, the discretion is at large. The child’s views are one factor to take into account at the discretion stage.
iv) There is a relatively low threshold requirement in relation to the objections defense, the obligation on the court is to 'take account' of the child's views, nothing more.
v) At the discretion stage, there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations in so far as it's possible to take a view about them on the limited evidence available. The court must give weight to the Convention policy considerations and bear in mind that the Convention only works if in general, children who have been wrongfully retained and returned promptly.
vi) Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are authentically the child’s own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to welfare as well as the general convention considerations.
Discretion
(a) that discretion is at large. The court is entitled to take into account the various aspects of the Convention policy alongside the circumstances which gave the court the discretion in the first place, and the wide considerations of the child’s rights and welfare.
(b) The policy considerations which may be weighed against the exception include not only the swift return of abducted children, but also comity between the Contracting States and respect for one another’s judicial processes. Furthermore, the Convention is there not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
(c) In settlement cases though it must be borne in mind that the major objective of the Convention cannot be achieved, there are no longer ‘hot pursuit’ cases. By definition, for whatever reason, if the pursuit did not begin until long after the trail had gone cold, the object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that that country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors which may well include integration in a new community. A child’s welfare cannot be made to suffer for the general deterrence of the Convention.
Joinder of Non-Subject Children
(a) the person alleged to have brought the child into the UK;
(b) the person with whom the child is alleged to be;
(c) any parent or guardian of the child who is within the UK and is not otherwise a party;
(d) the person in whose favour a decision relating to custody has been made if he is not otherwise a party; and
(e) any other person who appears to the court to have a sufficient interest in the welfare of the child.
49. These are in identical terms to the provisions under the 1991 FPR 6.5. In W v W (abduction: joinder as party) [2009] EWHC 3288 (Fam), [2010] 1 FLR 1342 Baker J held that this rule defining the categories of persons to be joined as defendants to Hague Convention applications is expressed in mandatory terms. The court does not have a discretion not to join as a defendant a person who can demonstrate that he/she comes within the rule. Accordingly, it was held that a 17-year-old sibling fell within the rule because she was directly concerned with the welfare of her younger brother, who was the subject of the abduction proceedings in the sense that she had a continuing and potential interest in the provision of his care and some practical, albeit not legal, responsibility for his welfare. In Re S (Child Abduction: Joinder of Sibling: Child's Objections) [2016] EWHC 1227 (Fam), [2017] 2 FLR 384 the Court appeared to go somewhat further and suggests that most non-subject children will satisfy the ‘sufficient interest’ test. However, the Court did not specifically refer to the decision in W v W nor the earlier decision of the President S-v-B (Abduction: Human Rights) [2005] EWHC 733 Fam; [2005] 2 FLR 878 which Baker J considered in W v W. In S-v-B, Sir Mark Potter P had considered the Arts 8 and 6 of ECHR engaged and concluded that ‘sufficient interest’ required some quasi-caring role.
The History including findings
The Facts
56. See the attached Chronology incorporating my conclusions on relevant matters.
Analysis and Conclusions on the Issues
1. The enforcement of the Spanish judgments.
a. Have the requisite requirements so as to cause a valid registration of the judgments of the Spanish courts made as a consequence of the orders of;
i. the domestic violence Court number 3 V of judge XY dated 21 May 2015 (the Spanish order of 21.5.15) and
ii. 7 April 2016 (the Spanish order of 7.4.16),
been complied with so as to enable the court to consider enforcement of the same?
At paragraph 150 of the first instance decision Re D (A Child) EWHC 2756 (Fam); [2014] All ER (D) 65 Mr Justice Peter Jackson (as he then was) concluded that if there had been procedural defects in the process which had led to consequences which made it unjust to permit enforcement the court could have the registration orders set aside. Although this is identified as an issue none of the parties have actively pursued any challenge to the process by which the Spanish orders were registered in the English court and so the registration of the orders affected by District Judge Gibson on 27 April 2018 stand.
b. Are there any grounds established so as to cause the nonrecognition of the judgment made as a consequence of the Spanish order of 21.5.15?
Between them the parties have relied upon the grounds set out in Articles 23 (B), (C), (D) and (E). My conclusions on these are as follows.
Article 23 (B)
I find this ground established for the following reasons
i. Judgment was not given in a case of urgency. Although the judgment itself refers to it being urgent I’m satisfied that it is open to this court to consider independently whether it was urgent given that this ground relates to a fundamental right of the child and arises in relation to an Annex II certificate where the Court of Appeal in Re D considered that it was open to the requested court to consider a matter relating to the circumstances in which the judgment was delivered notwithstanding that the certificate itself addressed that matter. Given that B had been subject to proceedings relating to his custody for some 10 months, whose whereabouts had been uncertain for seven months, in respect of whom a judgment had been given in January where his custody had been conferred on the mother, and where the application for a variation of that January order had been issued in February 2015, I do not consider that a judgment delivered on 21 May 2015 some three months later is urgent. By reference to the approach taken to urgent cases under Article 20 I consider that urgency involves an immediate need to determine an issue. In the context of B having been missing for some months I do not think that this judgment can properly be characterised as urgent.
ii. I consider that B was not given an opportunity to be heard in relation to this judgment which is in violation of fundamental principles of procedure of England and Wales. Although I’m satisfied on balance that the Spanish court initially made provision for the assessment of B which I think must have contemplated his views being taken and this resulted in the filing of a report (albeit it contained nothing in relation to B’s voice) and that fulfilled the fundamental duty identified by Lord Justice Ryder in Re D to ask whether and if so how the child’s voice was to be heard this was relevant to the decision the Spanish court took on 29 January 2015 when custody was granted to the mother. I’m satisfied from the contents of the application dated 6 February 2015 and issued by the court on 20 February 2015 which sought to review the order of 29 January 2015 on the basis of a material change in circumstances and from the court decision which determined that that application was admissible and which subsequently imported the evidence from the earlier custody application that this amounted to a fresh application seeking the transfer of custody from B’s lifetime primary carer to his father and that this constituted a significant further step which brought with it an obligation to consider whether and if so how B’s voice was to be heard. As in Re D such an order represented a very significant step relating to B’s welfare and as Lord Justice Ryder said at paragraph 34 and 35 of Re D the issue must be looked at in the context of the proceedings as a whole. The judgment of May 2015 clearly related to this specific application and the wording of Article 23 (b) requires me to consider whether the judgment was given without the child having been given an opportunity to be heard. The case management orders made and the final judgment contain no reference to whether and if so how B’s voice was to be heard. I appreciate in the context of this case that it being known that B was out of the jurisdiction and his whereabouts had not been ascertained and he was only five years of age that asking the question whether and if so how his voice might be heard may very well have led to the answer that he was too young or that it was not possible to ascertain his views. On its plain and simple wording as applied to this case the judgment was given without B having been given an opportunity to be heard. The Regulation is expressed in simple terms. It does not inquire into the reasons why the child was not given that opportunity. The fact that it was impossible to obtain the child’s views might be a relevant consideration in determining whether the lack of opportunity was in breach of fundamental rules of procedure. The position in England and Wales, as outlined by Lord Justice Ryder in Re D is that in all cases the court must consider whether and if so how the child’s voices to be heard. Even in abduction cases the court must ask itself that question. The court might answer it by saying that it is not necessary or possible to hear the child’s views and may go ahead and make an order. That would be a valid order. However, it is also possible that in asking the question the court may conclude that it was either unnecessary to proceed to judgment, that it was inappropriate to do so or that further steps should be taken to locate the child before proceeding to judgment. The court might also recognise that in proceeding without hearing the voice of the child that an order which might be valid in England and Wales might be vulnerable to challenge in another jurisdiction. The net result in this case was that a judgment was delivered which provided for a change in primary carer in which no consideration was given to B’s views or possible views on that matter and no alternative ways forward being considered. I’m therefore satisfied that the judgment was given without B having been given an opportunity to be heard and that this was in violation of fundamental principles of procedure of England and Wales.
Article 23(c)
I reject this ground of appeal for the following reasons.
i) I will assume for the purposes of this judgment that by the time judgment was delivered it was given in default of appearance because the judgment no longer contains reference to the mother’s procedural representatives who had historically appeared on the orders and no formal response had been filed by the mother or her representatives to the application. I also note that the order from April 2016 generated an Annex II certificate which stated that it was given in default of appearance.
ii) I’m satisfied that the mother was served with the document which instituted the proceedings namely the father’s application dated sixth of February and issued on 20 February. She was served by the procedural representatives who were on the record at the time that the application was made and case management directions were given. The application itself generated an application by the mother’s representatives to come off the record because they had not been able to communicate with her. I’m satisfied having regard to the overall administrative efficiency that emerges from the Spanish processes that the publishing of the application in edicts also took place on balance and constituted valid service.
iii) I’m satisfied that service on CD of that application took place in such a way as to enable the mother to arrange for her defence. The decision of the Court of Appeal in Re D, relying on CJEU authorities makes clear that the question of the mother’s actual knowledge of the application and her conduct in relation to service and her failure to take steps which would have enabled her to respond to the application are relevant considerations. I have reached this conclusion because I’m quite satisfied that the mother was aware that proceedings were ongoing in Spain and that she was well aware that she should have kept in contact with her lawyers so that she could respond to those proceedings. Her evidence was that she was able to communicate with them by phone and by Facebook. I reject her evidence that her lawyers told her not to communicate with them and that they would contact her if anything significant happened. The evidence from the Spanish lawyer makes clear that they were attempting to contact her but she was not responding. I reject the submission that the mother’s literacy in some way hampered her ability to maintain contact with her Spanish lawyers. It is quite clear on the evidence that having left Spain she cut off her links with her lawyers. That was her choice. She could have remained in contact with them and been able to respond to this application. Responsibility for the case proceeding in her absence lies entirely at her door. As the Court of Justice has pointed out, and it is perhaps trite in English law, service is about fairness of the process. This involves fairness to both the individual seeking an order and the individual responding. In this instance I’m satisfied that fairness and justice support my conclusions.
Article 23(e)
I reject this ground for the following reasons
i) I do not consider that the judgment is irreconcilable with the care order. Irreconcilable is not interchangeable with inconsistent. Given that the local authority who have the care order propose that B should now live with his father and agreed to the discharge of the care order on that basis the care order is not irreconcilable.
ii) In any event the care order was made at the conclusion of a process which the father had played no part in because the mother had failed to provide all the information that she could have as to his whereabouts and regrettably Haringey did not make all the enquiries they ought reasonably to have undertaken to ascertain his whereabouts and to involve him in the proceedings. Pursuant to FPR 27.5 the father may apply to set aside the care order. Applying FPR 27.5 (3) the father acted promptly on finding out the court had made an order against him, he had good reason for not attending the hearing and given the assessments of him he has a reasonable prospect of success of opposing the making of a care order. It would therefore be open to the court to set aside the care order on this basis in consequence of which there would be no care order which this judgment would be irreconcilable with.
iii) Furthermore, I’m satisfied that the courts of Spain retained substantive jurisdiction in respect of B pursuant to Article 10 BIIa and that the proper jurisdiction that Her Honour Judge Mayer exercised was in reality a jurisdiction under Article 20 BIIa which permits the court where a child is present to make urgent provisional measures to protect the child pending the court with substantive jurisdiction making orders in respect of the child. When such orders are made the Article 20 measures would lapse. In this case the Spanish court has made an order and whilst it is not enforceable as a result of my decision under Article 23 (b) it remains a valid Spanish order which provides for B’s care. The care order would therefore lapse, or be replaced by the Spanish order if and when implemented.
Enforceability of the Order
It was submitted that the order of April 2016, being a final order, must have superseded and replaced the order of May 2015 which was clearly an interim or provisional measure. Given that the Annex II certificate signed by the judge herself in September 2017 states that this order was still enforceable I’m driven to the conclusion that under Spanish law it remained extant and enforceable and had not been discharged or replaced by the making of the order in May 2015. Given that the same judge made both the main orders and signed the Annex II certificates it seems most likely that for the purposes of Spanish law both judgments or orders remain enforceable.
c. Are there any grounds established so as to cause the nonrecognition of the judgment made as a consequence of the Spanish order of 7.4.16?
Article 23 (b)
i. it is clear that between May 2015 and April 2016 no further steps were taken to give B an opportunity to be heard. By April 2016, B was six years old. It follows from my decision in respect of the May 2015 order that I consider that the lack of any consideration of whether and if so how B’s voice was to be heard constitutes a ground on which this order should not be enforced.
Article 23(c)
ii. this order was given in default of appearance. It seems that notice of it was given by edicts. Although this may amount to technical service for the purposes of Spanish law I do not consider that this would have been sufficient, even allowing for the mother’s nonengagement with her lawyers or the process in 2015 to enable her to arrange for her defence in relation to this final determination. I accept this ground
Article 23 (d)
iii. given my observations in relation to the irreconcilable ground in relation to the May 2015 order and the deficiencies in the process which led to the making of that order and in particular the responsibility which Haringey had for the fact that the father had not been identified and served with the proceedings I do not consider this ground is made out. Had Haringey taken appropriate steps to locate the father in early 2016 they would have been aware of the Spanish proceedings and would have had an opportunity to participate in those proceedings. Having regard to the underlying purpose of the ground, namely procedural fairness I do not consider they did not have an opportunity to be heard. Nor do I consider that the order infringes their parental responsibility given that it is unenforceable for other reasons in England.
Article 23(e)
iv. for the reasons given above I do not consider the judgment is irreconcilable with the interim or the final care order.
d. The enforcement of the judgment made as a consequence of the Spanish order of 21.5.15.
As I have found grounds exist for not enforcing that order this does not arise.
e. The enforcement of the judgment made as a consequence of the Spanish order of 7.4.16.
As I have found grounds exist for not enforcing that order this does not arise.
2. The public law orders made by the West London Family Court between 27 November 2015-14 June 2016:
a. was there jurisdiction to make any of the public law orders pursuant to part IV of the Children Act 1989? Inter-alia: -
i. was B habitually resident in England and Wales so as to vest the West London Family Court at the requisite time any of the public law orders were made?
By November 2015 I accept that B was habitually resident in England and Wales as determined by Her Honour Judge Mayer.
ii. Did the courts of the Kingdom of Spain retain jurisdiction in the event that B had acquired habitual residence in England and Wales pursuant to Article 10 of Brussels IIa inter-alia?
1. Had the mother, father and the London Borough of Haringey acquiesced in the retention of B in England and Wales?
The father had not acquiesced in the retention of B in England and Wales he had been striving to the utmost to secure his location and return.
2. Had B resided in England and Wales for a period of at least one year after the father had or should have had knowledge of his whereabouts at the requisite time?
By November 2015 B had been in England for 13 months but the father’s knowledge or constructive knowledge of his whereabouts arose 12 months later.. Given the mother’s impulsiveness and general unreliability whilst the father might have suspected she had returned to London in late 2014 I do not think it can be said that he had actual or constructive knowledge at this stage. By about February 2015 when both his mother and his lawyer received calls or messages from the mother on English phone numbers it can be said that the father had at least constructive knowledge of the mother’s whereabouts.
3. Was B settled in his new environment at the requisite time?
Although there is limited information about B in the period November 2015 it appears that the mother had again uprooted the family to go to Ireland or Scotland and as at November 2015 it does not appear likely that he was settled in his new environment. He was then taken into care with the possibility of remaining in care or returning to his mother. It appears unlikely that he was settled at any point between November 2015 and the making of the care order in June 2016.
4. Did either the Spanish order of 21.5.15 or 7.4.16 require the return of B to the Kingdom the Spain?
Given my conclusions on settlement this does not need to be answered.
I have addressed the issue of jurisdiction and the applicability of Article 10 BIIa in particular to inform myself as to what the jurisdictional position is likely to be in the event that I were to reject both the father’s Hague Convention application and his application to enforce the Spanish orders. I also need to consider the status of the care order that was made. It seems to me that it is for the Spanish courts to determine the Article 10 loss of retained jurisdiction questions rather than me. It is clear from the orders that the Spanish court made in the course of 2016 and 2017 that they consider that they still have jurisdiction in respect of B. If the Spanish court continues to exercise substantive jurisdiction in respect of B pursuant to Article 10 then this court cannot exercise substantive jurisdiction over him even though he is now habitually resident here. It seems to me that with the benefit of the wider perspective that this court now has in relation to a retained jurisdiction in Spain that the true jurisdictional basis upon which Her Honour Judge Mayer’s order lies is the Article 20 jurisdiction which permitted the court in November 2015 and thereafter to make urgent provisional protective measures in respect of B. That Her Honour Judge Mayer was unaware of the retained jurisdiction of Spain does not render the orders made void providing there was some proper jurisdiction for making them. I’m satisfied that the Article 20 jurisdiction was properly available to Her Honour Judge Mayer at that point in time. The fact that it was not identified as such does not mean that it was not in fact that jurisdiction which was being exercised.
b. If the public law orders were made in the absence of jurisdiction do the applications now before this court enable the immediate discharge of the care order?
Given my conclusions in respect of Article 20, the ability of the father to seek a set-aside of the orders on the basis of FPR 27.5 and the matters I will turn to I’m satisfied that the orders made in June 2016 do not need to be immediately discharged but fall to be considered at the next stage of these proceedings.
c. If the public law orders were made with jurisdiction what impact (if any) does this have on the enforcement of the Spanish orders?
I have answered this question in dealing with the enforcement application.
d. If the care order made by HHJ Mayer on 16 December 2015 was properly made what impact (if any) does this have on B’s return to the care of his father in Spain?
I have answered this question in part above and will answer the remainder below.
3. The applications for summary return pursuant to the 1980 Hague Convention.
a. Was B habitually resident in the Kingdom of Spain immediately before his removal by the mother in or about September 2014?
I conclude that B was habitually resident in Spain immediately prior to his removal by the mother in October 2014. He was undoubtedly habitually resident in England immediately prior to his journey to Spain in March 2014. However, the roots he had in England were shallow. The chaotic and unstable life he had led moving from one part of London to another, from London to Scotland and back, from one unstable form of accommodation to another, without being in school, leading a life largely revolving around his mother and brothers, with little integration into the community, where Spanish was still the principal language spoken by his mother and B all lead me to conclude that his habitual residence in England had shallow roots and the roots that did exist were largely linked to his family environment, namely his mother and brothers. I’m satisfied that when B, his mother and brothers travelled to Spain they did so on the basis that it was a move intended to be permanent, or at least indefinite. I’m not satisfied that the mother moved on a trial basis. I believe she hoped applying the short-term perspective that seems to dominate her thinking that this was where their future lay; whether or not objectively an outsider would have seen it as such. In any event all of her and the children’s possessions were packed up and shipped to Spain; W left his school with no arrangement that he might be back; the mother gave up her accommodation; she sold a car; she left her husband behind. B’s family unit moved to Spain with him - his mother and brothers, the essential components of his life were there with him. He joined his father. The family constituted itself in a house near to a school which the children would have joined. B resumed relations not only with his father but with his grandparents, aunt, uncles and cousins. Spain was a country that was familiar to him with a language that he spoke. He was involved in a social and family environment. The mother said that the initial period in Spain was at least okay and that they were making a life together as a family. For a period of three months or so family life was relatively stable. At this point in time B was four years old. In June or July the relationship between the mother and father deteriorated. The mother moved to another town. B did not then see his father or his extended family. I’m satisfied that having left England in the circumstances that he did that the relatively shallow roots were pulled up. The seesaw began quickly to tilt towards Spain as the practical consequences of the planned move, the reunification of the family and the establishment of a new way of life resulted in the putting down of new albeit shallow roots. The seesaw tilted beyond the tipping point within a matter of weeks such that by the time the relationship between the mother and father began to deteriorate B was already habitually resident in Spain. It may not have been a deep-rooted habitual residence but by that stage it significantly outweighed any residual roots that had been left in England. In the period between June and October, B remained with his mother and brothers in Spain. He clearly had not regained a habitual residence in England even if the roots he had put down whilst with his father had become somewhat shallower. Applying Lord Wilson’s guidance that the court should seek to establish a habitual residence I am quite satisfied that B’s habitual residence was established in Spain and remained in Spain up to the point of his abduction. It may have been marred by a degree of instability and may have been by objective standards of most other four-year-olds a shallow form of habitual residence. For B given the chaos and instability that have characterised his life in England it represented for him a significant degree of integration in a social and family environment which for him undoubtedly amounted to his habitual residence.
b. Is Article 3 of the 1980 Hague Convention engaged?
No party has taken any issue over the father’s rights of custody. He is named on the birth certificate and in any event his application for orders to prevent the removal of B from Spain mean that the requirements of Article 3 of the convention are fulfilled.
c. Is B now settled in his new environment?
In the same way that habitual residence does not require complete integration or permanence so settlement does not necessarily require that the child is fully settled or views their situation as permanent. Settlement must be viewed both holistically (incorporating physical, emotional and psychological aspects) to reach an overall assessment but must also be evaluated having regard to the underlying purpose of the exception. It is a welfare exception. It is designed to protect the child from the summary return that would be ordered under Article 12 in circumstances where a summary return might represent a further sudden uprooting of the child from an environment into which they have become settled. It is designed to protect them from the harm that might accompany sudden changes.
It falls to be assessed as at the date the father’s Hague application was made, namely 11 September 2017.
By September 2017, B had been living with the A’s for 21 months. W had been living elsewhere for some 16 months. B was attending and enjoying his school life. Mr Walker considered him to be settled in his physical environment. In the care proceedings the social worker and the Guardian considered that by the summer of 2016 he was settled with his foster carers. Mr Walker considered that he was emotionally settled in that in his day to day existence he was content, he was thriving, there were no issues with his behaviour. Mr Walker defined emotional settlement in terms of a more short-term or day-to-day perspective which I thought was helpful. He approached psychological settlement from a more deep-seated, or longer term perspective thinking about it insofar as it might impact on B’s psychological development. From that perspective he considered that B was not settled because he did not see his long-term future in care. He expected either to return to his mother or father. As at September 2017 his expectation was to return to his mother as his father was not then an option on the table. The importance which he placed on family rather than carers indicated that psychologically he was not settled with his foster carers because he was looking to move on. Ms Fottrell QC also emphasised that B clearly viewed his situation as a temporary one with an expectation that he would be moving on. To that extent it could be said that he was treading water.
Whilst I accept that the psychological component of B looking to his medium to long-term future undermines the depth of B’s settlement looked at holistically, adding the degree of physical settlement, emotional settlement and subtracting the psychological settlement seems to me to result in the conclusion that overall and for the purposes of Article 12 that B was settled in September 2017 in his new environment. I entirely accept that a child in care expecting to move on is likely to have a limited degree of settlement. For B given the entirely unsettled and unstable life he had experienced prior to December 2015 it seems to me that the 21 month period up to September 2017 must have been the most settled period in his life and thus I am driven to conclude that overall notwithstanding the psychological aspects that overall he was settled.
d. Is Article 12 of the 1980 Hague Convention engaged?
Yes
e. Have the respondents who oppose B’s return to Spain established on the balance of probabilities that:
i. the father consented to the removal or subsequently acquiesced to B’s retention in England?
No party has pursued this. It is in any event abundantly clear that the father did not consent and did not acquiesce. The mother’s earlier evidence that she had informed the father of her whereabouts and that this amounted to an acquiescence defence was rightly abandoned.
ii. There is a grave risk that B’s return to Spain would expose him to physical or psychological harm or otherwise place him in an intolerable situation?
On behalf of W Ms Chaudhry submits that it would be intolerable and create the risk of a grave risk of harm if B were to be summarily returned to Spain, She argues that in the circumstances of this case and with W‘s position also due to be determined in 5 weeks time that
i) He is particularly vulnerable and has been neglected and is emotionally vulnerable
ii) The detrimental impact if welfare issues aren’t finally resolved; upset, angry, hurt, might not understand, identity and development affected.
iii) Summary return would not enable a final determination of CD’s bid to have B returned to her care.
iv) It is complex legally and there should be available to the court the full range of orders that can be made in a domestic case where two other countries are concerned particularly where one is not a BIIa country and where the 1996 Hague Convention is not in force. Contact arrangements will be complex. How such orders can be made enforceable will need careful consideration
v) He won’t have a full welfare analysis from his Guardian
Given the very particular and narrow basis on which the case is put this is not a situation where the finding of the Art 13b defence would lead to an almost automatic non-return. In fact the protective measures which would ameliorate the risk to a very substantial degree and which applying Art 11(4) have to be taken into account would include the hearing of a welfare evidence and the completion of proceedings in relation to W. Thus in this case the Art 13b risk to B would be ameliorated largely in the hearing of the welfare evidence although I appreciate that does not deal with the ‘jurisdictional’’ elements Ms Chaudhry identifies, but those are not within my gift. The jurisdictional framework is as it is. If Spain retains jurisdiction over B – as I have concluded it does then unless AH prorogues jurisdiction to this court I cannot exercise a full domestic jurisdiction over B however much the OS would like me to.
What I can do and I believe it addresses most of the concerns raised is to hear much fuller welfare evidence in relation to the discretion. That, even if it is not strictly binding on the Spanish court will I am sure carry significant weight were the CD immediately to commence proceedings in Spain. That course would of course be open to her even if this court exercising a substantive jurisdiction were to permit B to relocate to Spain to live with AH. CD would be able to instigate litigation in Spain as soon as he became habitually resident there and that court would not be bound by my decision although it would accord it significant weight. The same I think will be true of any welfare conclusions I reach even if they are under the umbrella of welfare in discretion.
Given my conclusions on the settlement issues and the fact that I will hear welfare evidence I do not find the Art 13b exception is established as the process I am adopting will ameliorate most of those risks. Any that are left will not make it intolerable. I leave aside the issue of whether it is the return itself to Spain which would create the grave risk or intolerability as opposed to the legal consequences of that return. Life on the ground for B will not be intolerable or create a grave risk. The more nebulous but real psychological consequence of returning without finality may or may not fall within the definition. I am not determining the point as I do not consider I need to
On the limited basis that this is now pursued by Ms Chowdhury on behalf of W I conclude that it is not made out because I will be able to conduct a fuller assessment of B’s welfare alongside the application to discharge the care order in respect of W. That will ameliorate the majority of the factors which Ms Chowdhury relies upon.
iii. Does B object to being returned to Spain and has he attained an age and degree of maturity at which it is appropriate to take account of his views?
In assessing whether B objects to being returned to Spain I apply the approach set out by Lady Justice Black in re M. B is now eight years old. Mr Walker assesses him as being of a maturity somewhat in excess of his chronological age. Interestingly the father also in his description of B described him as being a mature boy. He is therefore of an age and a degree of maturity where it would be appropriate to take account of his views. The question is whether his views amount to an objection. Objects is not a term of art nor does it have any special meaning within Article 13 of the Hague Convention. I do not think expanding on what objects means will assist beyond that which Lady Justice Black has identified. In a sense you know it when you see it. A preference is probably not an objection although it is possible that a very strong preference could well amount to an objection on any particular set of facts. The reality here is that B has said his first choice is to live with his mother and his brothers. He cannot live with HG . It seems unlikely given W’s current views that he could live with W and his mother. He could live with his mother. So that would be his first choice. His islands exercise as well as that which he has said to Mr Walker and others makes it clear this is his first choice. That is hardly surprising given that his mother was his primary carer from birth through to December 2015. However, his second choice is that he live with his father. This is not a reluctant choice but a genuine preference over remaining in foster care. He has no objection to his father, no objection to Spain per se. He has some positive memories of Spain and his family and life there. It seems to me that this is a preference which does not amount to an objection.
I recognise that in evaluating an objection it is to a degree subjective. Another judge might reach an alternative conclusion. As it happens in this case even if I were wrong in respect of whether B’s views amount to an objection it would not alter significantly the ultimate outcome. If his views do amount to an objection then the court would need to go on to consider its discretion and to bring to bear an evaluation upon issues such as whether his views are rationally held, whether they are founded in fact, what his perspective is, whether he has been influenced, and ultimately determine what weight an objection should be given. If I’m undertaking a broad discretionary exercise in relation to any exception inevitably I will be considering B’s views and giving them appropriate weight within that discretionary exercise. Although the fact that an exception had been made out might add some weight within the discretionary process I’m not convinced, particularly on the fact of this case, that it would make much difference. I am however alive to the issue.
f. If the discretion arises as a consequence of Article 12 or Article 13 should the court refuse to order B’s summary return?
Having regard to my conclusion in respect of settlement a discretion does arise. As described by Baroness Hale in re M (Zimbabwe) the discretion is at large. I must take account of policy considerations, the circumstances of the exception established and general welfare issues. The nature of the enquiry into the discretion is a matter for me. One size does not fit all. On the unique facts of this case it seems to me that it cries out for a tailor-made approach. It may be like creating a pattern for a suit for Robert Pershing Wadlow. It may be used once and never again. The court system owes it to B and indeed to W to craft a solution to the conundrum created by the unique facts of this case. In the circumstances of this case and given the imminent hearing of the discharge application in relation to W and what had been planned to be a discharge application in respect of B himself the court is in a position to carry out a full welfare enquiry in respect of both W and B. The legal consequences of that welfare enquiry will be entirely different in respect of W and B because in respect of W the full range of domestic substantive orders will be in play in relation to discharge and any orders that might be made subsequently. However, in respect of B given that the courts of Spain retained substantive jurisdiction the outcome of the welfare enquiry can only sound in the exercise of the discretion, unless the father at some point prior to the final conclusion of the welfare enquiry prorogues jurisdiction to this court to enable this court to deploy a full range of substantive orders. There is much that weighs in the scales at present in favour of returning B. The policy considerations in terms of condemning child abduction and promoting the operation of the Hague Convention both points strongly in favour of a return. This was a flagrant abduction by the mother knowing full well that she was not permitted to leave Spain and leaving during a court process in which her own lawyers were seeking permission to leave Spain. She then hid B from his father and prevented them having any relationship for over three years. When care proceedings were instituted rather than informing Haringey that B had a father in Spain who was interested in his future she selfishly withheld this information hoping that she could regain care of B at the conclusion of the care proceedings. As a result of her actions her son has not only been prevented from having a relationship with his father and his paternal family but has also been removed from his mother and has been in the care system for some 3 ½ years. It is hard to imagine a more flagrant and serious abduction the consequences of which will undoubtedly have lifelong consequences for B. Her actions are also likely to have lifelong consequences for W. Had she informed Haringey about the father in December 2015 it might be that he could have offered a home then to W as well as B. All of this weighs heavily in favour of a summary return. However, B now has a degree of settlement which in my view requires a fuller exploration of the welfare consequences for him of ordering a summary return. Insofar as W’s best interests are concerned they are a primary consideration as well. I think I owe it to both B and W to look at the welfare issues for both of them at the same time albeit the legal remedies available to the court are fundamentally different. That is a consequence of the situation visited upon them by the mother’s actions and is unavoidable. This court must do the best that it can to promote the welfare of B, albeit within the context of Hague proceedings and having regard to the other factors which arise in relation to the exercise of the discretion. I will therefore carry out an investigation of the welfare aspects in relation to B’s future in tandem with consideration of the discharge application in respect of W. At this stage I decline to speculate on the range of possible outcomes of that process or the legal implications of my concluding either that B should return to Spain to live with his father or that his welfare would best be promoted by returning to the care of his mother and going to live with her in Brazil. This case is already complex and convoluted enough without me indulging in that exercise. Policy considerations are only one part of the equation. As Baroness Hale identified in Re M, in a settlement case they will usually weigh less heavily given the passage of time in the child’s situation are likely to create material welfare considerations which might well outweigh policy considerations. An individual child’s welfare is not to be sacrificed to deter child abduction generally or to condemn and abducting parent’s behaviour. Unusually although perhaps not unexpectedly in this particular case the welfare and settlement related factors are far more nuanced. B is in state care as a result of him suffering significant harm or being at risk of suffering significant harm by reason of his mother’s parenting not being that which it was reasonable to expect. He has been in state care for two and half years. Given the positive parenting assessment of the father there is a strong case for saying that B’s welfare will best be met by him returning to the care of his father in Spain. That being so there appear to be strong reasons pointing towards him not remaining in state care in England. The only other potentially realistic alternative is a return to his mother’s care. Given her track record within the care proceedings, subsequently and my conclusions in relation to her credibility there are clearly major obstacles confronting her application for the return of the children to her care. In addition to those obstacles the fact that W has to date said he does not wish to return to her care because of his own assessment of the deficiencies in her parenting creates another significant obstacle for the mother. However, the Brazilian assessments were positive. I directed a further independent social work assessment of the mother which regrettably has not yet been undertaken. In order to provide a full and balanced evidential foundation for welfare evaluations to be undertaken that further social work assessment of the mother court if possible to be available to the court before those evaluations are undertaken. In undertaking the welfare evaluation in respect of B the court also in my view should be in possession of the welfare evaluation for W. B and W are brothers and their welfare, their pasts and their futures are inevitably linked. In my view to reach a sound evaluation of B’s welfare the court ought if at all possible to undertake a joined up or holistic evaluation which includes considerations of W’s future and how W and B’s futures can be interwoven with each other either by conclusions or by orders. It is conceivable, albeit perhaps most unlikely on the evidence as it currently appears that an evaluation of B’s and W’s welfare individually and together with the assessment of the mother might result in a decision other than B returning to his father’s care. Even if return to AH is the outcome the court will be able to link that in some way with W’s future.
g. If the public law orders were made with jurisdiction what impact (if any) does this have on the summary return of B pursuant to Article 12 of the 1980 Hague Convention?
Already answered
h. Should the return pursuant to Article 12 occur after the conclusion of B’s current school term and/or the conclusion of the public law proceedings currently listed before the West London Family Court commencing 23 July 2018?
It is agreed by the father that if he succeeds in his return application that it will not take place until after the end of the school term. It will therefore not take place until after the conclusion of the part heard (in respect of B these proceedings) and the conclusion of the substantive application for the discharge of the care order in respect of W. That hearing will take place on the 17th 19th and 20th of July.
4. The application for summary return pursuant to the inherent jurisdiction
a. is it in B’s best interests to be returned to Spain forthwith?
This will be dealt with at the next stage of the hearing.
b. Should any return be delayed until after the conclusion of B’s current school term and/or the conclusion of the public law proceedings currently listed before the West London Family Court commencing 23 July 2018?
See above.
c. If the public law orders were made with jurisdiction what impact (if any) does this have on the summary return pursuant to the inherent jurisdiction?
See above.
5. The consequences arising from the determinations made within the applications currently before this court upon the proceedings currently listed before the West London Family Court?
See above.
CHRONOLOGY and FACTS
|
Date |
Event/Comments |
Reference |
|
June 1981 |
CD born, Ubatuba, Brazil; Brazilian National (‘Mother’) |
|
|
March 1988 |
AH born; Spanish National (‘Father’) |
|
|
August 1996 |
HG born in Brazil; Brazilian national (not subject to this application). Father unknown. He is currently living in Brazil and the mother sees him frequently (but is not living with him she indicated in evidence) and he is going to join the Brazilian army in August of this year. |
|
|
1997/8 |
CD travels to live in Portugal with older sister - CD aged 16. She said in oral evidence that she remained there only for a few months travelling onwards to Spain after her sister obtained work there. HG joins CD in Spain when he was 4. CD lived in Spain from about 1998 until 2011 (ages 16-29). She became a fluent Spanish speaker – to the extent she chose to give evidence in Spanish. |
C176 |
|
2005 |
CD becomes pregnant with W by MB who does not want the child [C177] CD meets JL (13.4.64 E3) a Spaniard born in Barcelona – who is subsequently recorded as father of W on W’s birth certificate. Parents meet in V, Spain. |
|
|
2006 |
||
|
January 2006 |
W born in Spain; Spanish national (not subject to this application) |
C177 |
|
2006-2009 |
There is some uncertainty as to the precise order of events over this period. |
|
|
Spring 2006 |
AH says it was in 2006 that he and CD commenced a relationship – he describes being besotted or mesmerised by CD who then was 25 and he was 17. CD’s case is relationship starts in 2008 after she returns from spending one year in Brazil with the children (C177) |
|
|
2007 |
||
|
16 February 2007 |
HG removed into residential care in Spain following reports of chronic school absenteeism, multiple changes of address and acts of vandalism, child abandonment (being left alone for a week) and inappropriate home conditions. Initially placed at LP Children’s Home. |
|
|
25 June 2007 |
HG transferred to a residential centre. |
|
|
2007/8 |
CD says in her statement she returns to live in Brazil at this time for a year. In evidence she initially denied having returned to Brazil at all until 2016 but under cross-examination she conceded she had returned although characterised it as a holiday – albeit an 8 month one. Given CD at this stage had HG (10) and W (1) and was without papers for Spain and had come to the attention of social services as not coping I think it probable that she returned to Brazil both to remove herself from a situation where her care of the children was being scrutinised and was under threat and in order to find some greater security which would accompany no longer being ‘paperless’. CD’s approach to her children in oral evidence was very much that as the mother she had control of the children and struggled to see that anyone else – a father and I conclude SS – had any rights to interfere with her decision making. In 2008 she returned to Spain leaving HG in Brazil. I do not know why she returned or why she left HG behind. |
C177 |
|
2009 |
||
|
2009 |
CD becomes pregnant with B and alleges that AH was verbally abusive and pushed her during an argument over the pregnancy. I am unable to determine whether this is so as no evidence was called on this. |
C177 |
|
3 November 2009 |
Social Work Unit of La Fe Hospital of V requested a hostel for an immigrant who is 6 months pregnant and her child, W. The report contained declarations by CD in which she stated she had no relatives in Spain, and was living on her own with W in a flat she had to leave due to rent arrears. |
|
|
6 November 2009 |
Application to be housed in a Women’s Centre. NB. CD accompanied at all times by the father of her unborn child. W’s Spanish Family Book describes CD as married. |
E5 |
|
2010 |
||
|
1 February 2010 |
CD makes a benefit application, 8 months pregnant, describes living in very difficult circumstances |
G6 |
|
March 2010 |
B born in V, Spain; Spanish National. AH named on birth certificate. CD’s case is that following his birth AH does not have much contact with B (C177) AH’s case is that following B’s birth they live together as a family (D18) |
|
|
2011 |
||
|
2011 |
AH’s case is that Mother indicates to the father that she has “legal problems” in Spain, and that she was considering leaving the country. CD’s case is she was struggling to pay the rent, did not have enough money and AH was not helping. She says she had a friend who said she could get a cleaning job in London. Having seen both give evidence and heard from them I conclude it is probable that AH’s account is more likely to be accurate. Apart from anything else the mother made clear in her oral evidence that she expected her partner to provide for her and I have no doubt given her difficulties with papers, housing and her approach to relationships and the obligations they bring for the man that she would have lived with AH for as long as she thought the relationship was meeting her needs. I accept AH’s account that he was still infatuated with CD both because of the physical relationship but also by this time because she had borne him a son and he was very proud of this and committed to B. I think it likely that AH and his family (who appear to be close to him) were very interested in and committed to B. Why CD decided to leave Spain is not clear, she was still without papers although was the mother of a Spanish national. She may have had some legal problems. I think it more likely that she had become unhappy with the relationship or her position in Spain where she was surrounded by AH’s family and perhaps could not cope with their presence in her life or AH’s interest in B and perhaps she felt neglected as many new mothers do when they are tied to the child meeting that child’s needs who is also the apple of the father’s eye. I do not accept that AH was running a cannabis farm or was disinterested in B. Both run contrary to his character, nor do I accept the suggestion she made in oral evidence that she was fleeing AH – insofar as that carried with it a suggestion he was abusive. How CD thought that going to another country where she had no immigration status, no accommodation, no job and no physical support from AH was a good idea is beyond me but CD is a determined woman who is both impulsive and determined to do what she believes is best. CD says she made it clear this was a permanent move and AH agreed. AH says she said she needed to leave for a while in order to avoid the problems she faced in Spain but would return when they were resolved. Given my conclusions on CD and AH’s general honesty, I find AH’s account is likely to be true. Apart from anything else I do not believe AH would have agreed to B being relocated permanently to England but I can believe he felt unable to withstand the force of CD’s personality and that she would have said what was necessary to get him on board – including maintaining a relationship with him. |
C2 |
|
24/25 February 2011 |
CD and children travel to England. CD’s account of AH’s involvement thereafter has changed. In her statements she says he visited only 3 times over the 3-year period – in November 2011, March 2013 and March 2014. In questioning of AH and in her evidence, she appeared to accept it was more than this. AH’s account is wholly different. He says he visited frequently in order to see CD, W and B bringing with him money for his 1-4 days trips. CD and AH agree that on one occasion he stayed an extended time in order to see if he could get a job here and he stayed 3-4 weeks, obtaining a NINO. But the job did not work out and he returned to Spain to work. It seems clear from this that CD and AH’s relationship continued from both their perspectives. I accept the fathers account. He described 3 or 4 homes CD and the children lived in in England and described what they did when he visited. He did not insist on B’s return accepting CD’s assurances that she would return when she could although there must have come a point when it became apparent she was not returning in the short term and he decided to live with that. Had it been relevant I think this would have amounted to acquiescence. |
C178 E68 G48 |
|
March 2011 |
CD and children become known to LB of Croydon, CD and HG arrested trying to break into a vacant flat in Southwark. W and B taken into police protection and placed in foster care. CD subsequently agrees to s20 accommodation. CD said she had rented a flat but it turned out this was done illegally and she was evicted. She said they were trying to get back into this flat. She denied living in an electrical cupboard. It seems probable that she had rented a property illegally – probably with funds provided by the father – she had no other access to funds at this time – and I accept her evidence that she had then been excluded from this property. She had probably then ended up occupying the electrical cupboard with her toddler and W whilst trying to regain entry, in any event she was homeless at this point in time with 2 young children. |
F132 |
|
June 2011 |
Children back in care of CD. Concerns raised by W’s primary school about aggressive behaviour and inappropriate sexualised language |
|
|
November 2011 |
AH attempts to move to London to obtain work. |
|
|
2012 |
||
|
January 2012 |
Referral to Southwark Children’s Services. CD lived in Tower Bridge. W’s behaviour in school (sexualised) becomes a concern. |
|
|
12 March 2012 |
CD applied (in the UK) for an EEA residence card as a family member of the children |
|
|
September 2012 |
CD had been asked at end of summer term by school to take W to hospital with a suspected broken arm. In September CD told school that W was visiting a new school in Scotland and family were moving to Scotland. - CD says she needed to move there as she was being offered more in terms of work and social housing. She says she moved to Glasgow and had a flat there. This seems to be another example of the mother’s impulsivity, lack of planning and lack of thought about the impact on the children. For W he had moved from Spain to London, moved addresses in London on at least 2 if not 3 occasions and was now to move to Scotland. CD said school attendance was poor sometimes as she had a lot to cope with, |
F133, # 5 |
|
20 November 2012 |
CD withdrew her application for an EEA residence card |
|
|
2013 |
||
|
19 March 2013 |
The move to Scotland appears to have failed as by this time the police called to address in Brent by Mr R, CD’s then partner as he alleged she had threatened him with a knife. CD said she was planning to return to Spain – CD rhetorically asked why would she be thinking of this? She said she had moved around London. At this point CD said she and the 3 boys were all living in one room. Her evidence on this gave rise to one of the more bizarre moments in her evidence when she indignantly refuted the suggestion she was in a relationship with Mr R telling me she had never had relationship with a black man. This may explain why W has been noted to make racially offensive comments. |
F133, #6 |
|
4 September 2013 |
W started at a new school in West Norwood so CD must have been living near to or with DH. CD says she stayed with DH and his mother for 1 or 2 weeks and then he applied for a council place for them to move out to and that is what happened. |
|
|
13 November 2013 |
CD married DH at Gretna Green. HO letter says CD has never applied on grounds of marriage. AH says CD told him the marriage was purely for immigration purposes. CD says that the marriage was more than this but that it did not work out. She says she came to realise DH had personal and emotional problems and they decided to separate. She said they were together for a year but this cannot be right given the Chronology. It may be that she lived with him again after she returned to England in October 2014 for a period before the children were taken into care. In any event it is another example of an impulsive, ill-thought out venture which led to further upheaval for the children. I am not clear whether after the separate she continued to live in the council flat he had secured or whether she then moved on to another property – I suspect the latter given what happened in Spring 2014. |
|
|
March 2014 |
Although B’s life in England had been chaotic and unstable with multiple moves, multiple adults present in his life, a mother often unavailable I have to concluded that B was habitually resident in England and Wales at this point. |
|
|
2014 |
||
|
13 March 2014 |
It is agreed that AH visits London to spend time with the child on his birthday. AH’s case is that Mother indicates that she wishes to return to Spain permanently as a result of “problems” she was having with authorities in the United Kingdom. CD’s case is that she agrees to move to Spain on a trial basis (C179). I conclude that this was in both the mother and the father’s mind and indefinite or permanent move. The following matters would indicate this is the more likely of the two: - CD was experiencing problems with housing and the lack of papers. She confirmed this in oral evidence. - She said in evidence I have always loved the father of my youngest child and always wanted to be with him and I decided to give it some more time to see if worked out - C79 – CD accepts she was illegally renting, her marriage to Mr H had broken down due to his emotional problems and she had moved out within 2-4 months of the marriage. - F133#9. W was not in school - She said her situation was always difficult because of her lack of documents and difficulties with housing - Her time in the UK was pretty disastrous – not surprisingly – characterised by instability and hardship involving multiple moves, other failed relationships. Social service intervention, financial hardship, lack of support leading to the older children caring for the younger. - Her attitude is to live by the moment and not to plan much ahead. It is highly improbable that she would have planned a trial in this way rather than jumped in. |
C178 C3 |
|
18 March 2014 |
W’s school filed a ‘Missing in Education Notice’. Children’s whereabouts unknown between 19 March 2014 and 13 January 2015, possibly living in Spain. |
|
|
April 2014 |
AH’s case is that the Mother and children permanently relocate to Spain. AH says he made arrangements for his family to collect CD and the children at the beginning of April and that thereafter they cohabited at 13-9 C V (C3). CD’s case is that AH and children travelled to Spain in her car without her as part of the trial period. The plan was for AH to collect CD from Portugal but CD alleges that there was an incidence of violence in Portugal and an attempt by AH to separate her from the children. CD says that she does later join AH and children in V but that her plan is to return to England following her surgery (C180) CD says she only lived with AH as she could not afford to do otherwise – she says they live together for 3 months AH’s third statement (§47) does describe a trip to Portugal and a disagreement. I accept the fathers account of the nature of the move to Spain in both its generality and the detail - Planning - Car and breakdown - 11 boxes - Trip to Portugal and argument there is consistent with the mothers self-centred nature and volatility. |
C3 C180 |
|
April – Jul 2014 |
In this period, I am satisfied the parties lived together as a family unit in the house that AH had rented for them. Registration at schools did not take place because of the timing of school registration in June and the children joined AH in his activities with the family. I am not sure of the dates when CD had the surgery but it obviously involved a number of visits to hospitals in preparation for and during the surgery that she underwent. She said At the beginning it was alright with AH and the intention was to form a family together and at the beginning it was better than afterwards |
|
|
Summer 2014 |
Mother undergoes plastic surgery [breast reduction surgery, rhinoplasty and liposuction - cost €18,000 paid by AH] in Spain. |
|
|
|
CD and AH relationship break down. CD told the SW [G26} the main problem was the Father’s extended family. AH says the mother became anxious and volatile after her surgery. CD says AH was abusive and was carrying on an affair with another woman. AH’s description of CD’s anxiety and mood swings has a ring of truth to it and having seen her give evidence it is not hard to envisage her losing her temper. It may well be CD felt that AH and his family were taking charge or were to present and were interfering with her care of the children. |
C250 |
|
18 July |
CD and AH attend office of lawyer Beteta re agreement for child. Discussion re enrolment at English speaking school. AH instruct a lawyer to draw up shared custody agreement. CD refuses to sign. CD says it was 6m in England and 6mn in Spain [C250] This seems to support the AH’s account of the relationship becoming difficult and them discussing a shared parenting arrangement, |
G63 |
|
20, 24 or 26 July 2014 |
CD states that AH is violent towards her in front of W & B and this is reported to the Spanish police. CD says AH strangled her. CD states that following this incident AH removes W from her care for 3 – 4 days without her consent. CD wishes to return to London but is unable to because AH holds the children’s travel documents. AH says that CD’s psychological state deteriorated after she had the surgery and that she became very anxious and volatile. He says she became very angry in the course of a panic attack, smashing plates. He says he hugged her hard – he demonstrated this – to calm her. It sounded more and looked more as if he restrained her. I do not have sufficient evidence to conclude definitively what happened. It may be he restrained her with more force than he described. He says CD then told W AH was not his father but W still wanted to go out with F. This was the last time they were together according to AH although the CD said they still saw each other and had sexual relationships after her report to the police. |
C180-C181 |
|
20 or 21 July 2017 |
CD’s application to Magistrate Court number 17 V the mother made a complaint that the father had assaulted her. A restraining order was made prohibiting the father from approaching within 300CDof the mother This appears to bear case number 511/2014 |
G19 |
|
24 July 2014 |
CD’s application to Magistrate Court number 17 V CD makes a complaint that she seeks the return of the children’s passports and family books from AH because she wishes to return to London where she resides and works. This appears to bear case number 150/2014. It is subsequently referred to as involving an application by the mother which requires the court to determine the legal residence of B and to deal with corresponding measures. |
C197/G21 |
|
31 July 2014 |
AH’s application to the Magistrates Court No.4 of V AH reports that CD that is threatening to remove B from Spain and that she has already abducted him on one occasion 3 years ago. Seeks urgent action to prevent B leaving Spain. This does not appear to be formally issued until 2 September. |
C41/G12 |
|
August 2014 |
CD states that she applies for Spanish IDs for W and B and a Brazilian ID for HG. She does not have sufficient funds to apply for her own travel document. |
C182 |
|
6 August 2014 |
AH’s report to Spanish police - claim at the Magistrates Court No.10 of V. AH complains that he has not seen B since 24.7.2014 |
C43 |
|
18 August 2014 |
There is a Home Office record of CD and children departing from Gatwick on a flight to Spain |
F182 |
|
30 August 2014 |
Notification issued by Child Helpline in Spain in response to call from boyfriend of child’s babysitter. CD is reported to travel to England for 15 days from time to time and leaves the children with unknown people and her current partner. The children are not in school. |
G1 |
|
September 2014 |
CD says that she applies for a Brazilian passport for herself |
C182 |
|
1 September 2014 |
There is reported to be a hearing in Spain in relation to the application for measures relating to the children. The duty solicitor confirmed to a social worker that the mother was waiting for a settlement agreement on the child and a social report. AH is reported to have given evidence at this hearing (G21) AH said he saw CD at a hearing at some point.
Social service contact the Mother as a result of the call on 30 August. CD states to local social services that she is moving to the town of EP in Spain (province of V) and is waiting the completion of court proceedings to be able to return (settlement agreement and DV complaint). When the visit was made H was in charge of W and B and they confirmed an imminent move to EP.
This clearly indicates CD was aware there were proceedings relating to children measures and not just her DV complaint. |
G21/ G26 |
|
2 September 2014 |
AH files a complaint with social services in relation to the mother’s care of the children |
G3 |
|
2 September 2014 |
Order appointing the mother a lawyer in proceeding in the violence against women court no. 3 of V Civil Matters |
G7 |
|
2 September 2014 |
The violence against women court no. 3 of V Civil Matters AH’s application to ct. No. 3 of V seeking the registration of B in the registry of inhabitants of the city of V at the father’s address. (proceedings no. 00167/2014) – [G8 – 11] - This appears to mean that B lives with AH (see G10 which deals with AH’s domestic arrangements being suitable for child) but is probably just for legal registration without necessarily meaning live with. - Asking for social report to ensure the safeguarding of the child. The application by AH seeking urgent measures to prevent the child abduction of the child dated 31 July is issued. These are given case number 00166/2014 |
G8
G12 |
|
2 September 2014 |
V authorities receive a document from AH reporting ‘a series of serious negligence indicators regarding the care of the underage children’ W and B, however AH stated he had no contact given that although he was renting the property at C V, he did not have access or the possibility of contacting the children because of a restraining order in relation to the children’s mother. He added that CD had left Spain with her 3 children without the knowledge or consent in 2011 and was living in London where she married a British citizen. |
E12 |
|
7 September 2014 |
Determination by Spanish Court in relation to assessment of the children confirming there is already a report on the file from psychosocial office. Direction of Senior Magistrate sitting in ct. No. 3 of V listing an examination of evidence on 20th October 2014 (proceedings no. 000511/2014) – [G16] |
G16 |
|
8 September 2014 |
CD informs V authorities over the phone that she has already moved to EP - no address given - and had enrolled the children in school but her intention was to return to London once the trial finished. CD told SW she was not legally allowed to return to London until the final hearing of the case. CD says she does not recall this but rather asserts her lawyer told her she could leave. She said in evidence My son lives with me all his life – why could I not take him away!! I can do with my child whatever I want to.
It is clear that CD was aware she was not permitted to leave Spain without a court order. |
E13/G26 |
|
9 September 2014 |
Violence against Women Court no. 3 of V, Civil Matters Ancillary family proceedings 000166/2014 LO Ancillary proceedings are commenced and the mother invited to make representations within 5 days about whether it is in B’s interests that an order be made prohibiting his removal from the jurisdiction of Spain. Direction of Senior Magistrate sitting in ct. No. 3 of V. Commencement of ancillary family proceedings with no. 000166/2014 in relation to the father’s application for measures to prevent the child being removed from Spain and for the removal of his passport – [G17] |
G17 G18 |
|
12 September 2014 |
Family registered themselves at the Municipal Register of Inhabitants in EP |
|
|
16 Sep 2014 |
B enrolled in school in EP. |
C56 |
|
18 Sep |
CD served with AH’s application Bonet statement [C272] |
|
|
19 September 2014 |
Violence against Women Court no. 3 of V, Civil Matters Ancillary family proceedings 000167/2014 LO CD invited to make representations within 5 days about whether it is in B’s interests that an order be made entering him in the register of inhabitants, |
G18 |
|
22 September 2014 |
CD states to local social services that she has enrolled the child in a school for the 2014/2015 academic year in the town of EP. |
G43 |
|
23 September 2014 |
V Child Department opens a child protection file in respect of B. |
|
|
29 September 2014 |
CD asked her neighbours for €400 to feed her children; CD asked questions by local police and provided identification details different to the ones given to be registered at the Municipal Register of Inhabitants. CD told the police that that evening she was travelling to Portugal and subsequently stated she would be travelling to France with a stopover in Barcelona. Another unrelated underage child was living at the same address. |
E6 |
|
29 September 2014 |
CD’s application to the Violence against Women Court No 3 of V Ancillary family proceedings 000166/2014 CD seeks that AH’s application for PSO and registration of the child’s address are dismissed. CD’s case is that AH bought her to Spain under false pretences and whilst being in relationship with someone else. The AH then prevented CD from retuning to London (described as her “habitual home address”) in order to avoid proceedings in the United Kingdom. CD seeks “leave of the court to return to London” (G21) where she has been living for 4 years and which is the “legal residence” of B. “In relation to the fact that my client is not allowed to leave the national territory, such issue is already sub iudice as my client has applied to the court to be allowed to settle her habitual residence and the child’s again in the city of London and must comply with what the Judge decides in the Preliminary Measures Proceedings No. 150/2014.” (G22) This again makes clear that CD was fully aware that she was not permitted to leave Spain with B without a court order. |
G19/C272 |
|
30 September 2014 |
CD says that she informs PGM of move to England This cannot be true – had she done so the subsequent train of events would not have occurred. |
C183 |
|
1 October 2014 |
CD says that she informs AH of the move to England. This also cannot be true. AH was specifically seeking to prevent this and there is no hint in the court documents that CD had said this. He would have no reason to withhold this. |
C183 |
|
1 October 2014 |
There is an incident concerning one of the children. Social Services in Spain state that it is difficult to prepare a report regarding the child due to lack of “territorial jurisdiction” |
G43 |
|
2 October 2014 |
CD and children travel to England by coach. CD says 2 days after receiving the travel docs. |
|
|
2 October 2014 |
W and HG summoned to be assessment by the court on 20 October 2014. This appears to be in the DV action 00511/2014 and may have been for the purposes of them giving evidence on the DV rather than to speak to them about custody. As they weren’t subject to custody applications this seems more likely. |
G24 |
|
3 October 2014 |
Social Services report containing details of the involvement of SS with CD and children from 1.9.14-1.10.14. This cannot be the way of ascertaining B’s views. It looks like it emanates from a request by the court in early October perhaps as a result of CD not attending a hearing. |
G25 |
|
4 October 2014 |
CD and children arrived at UK controlled zone in Coquelles and sought leave to enter the UK. CD granted leave to enter the UK as a visitor valid until 4 December 2014, children granted leave to enter under EEA regulations. CD says following arrival informs AH and PGM that in England. CD and children live with DH in West Norwood (AH has visited this property previously). I reject CD’s assertion that she told the father she had arrived. Had she done so AH would no doubt have taken action in response and this fact would have appeared in the documents. It would have prevented all the subsequent actions. In her evidence about being in contact with the father she swung from remaining in contact with him to having no contact at all because of her bad experiences. It is most probable that having left Spain knowing herself to be in breach of the law that she would have lain low. |
|
|
6 October 2014 |
AH applies (511/2014) for an order for a psychological assessment of B as the previous ruling only ordered reports re: W and H This appears to confirm that no assessment of B had been ordered at all but it is made in the DV proceedings not in the Children Measures action. It is not clear what the assessment was sought for and what would have been involved although is likely to have involved speaking to the three children and thus obtaining their views in some shape or form. |
G28 |
|
6 October 2014 |
Confirmed family no longer living in EP |
E13 |
|
October 2014 |
Allegations made by CD that she was assaulted by DH in Barnet; concerns about boys witnessing DV, lack of food and CD and children sleeping on a mattress on the floor. |
|
|
16 October 2014 |
2 weeks after arriving in the UK CD and children move to a flat in Finchley Central. CD states that she sends AH the address by Whatsapp. Again I reject this assertion. Had CD told AH it would probably have led to Hague Convention proceedings at that time. |
C184 |
|
22 October 2014 |
Order of Violence Against Women Court No.3 of V Ancillary family proceedings 000166/2014 Order made by XY. Order no. 94/14 made in proceedings no. 166/2014. Directed that the child, B, is not allowed to leave the national territory and CD is ordered through her procedural representation to hand over the child’s passport – [G32 – 33] |
G32 |
|
28 October 2014 |
Order ancillary family proceedings 000167/2014 LO Order made by XY. Order no. 102/14 made in proceedings no. 167/2014. Not appropriate to make an order to establish the registration of the child in one address or other in the registry of inhabitants whilst the attribution of the custody of the child is not solved ‘once the custody of the child is set out in the corresponding proceedings it will be possible to request the person who holds the custody to proceed. [G35]
It seems clear by this time that the issue of custody was on the table |
G34 |
|
5 November 2014 |
CD’s lawyer is required to disclose CD’s address and records CD’s address as V |
G37 |
|
10 & 12 November 2014 |
Decision re non-registration during the course of ancillary family proceedings 000167/2014 LO declared as final |
G38 G39 |
|
28 Nov 2014 |
Report of SS. (received 2.12.14) in case 150/2014 - It relates to B and W. - This is different to the earlier report. - It is probably a response to the father’s request for an assessment – although there is no form of order in response. - It is 150/2014 – which is the children’s measures. - The content at G44 deals with the Mothers allegations about how she came to be in Spain. It could not do more because CD could not be found. |
G40 |
|
29 December 2014 |
Submissions by the mother’s lawyer in support of her application for permission to leave Spain. The contents make clear that she had information from the mother. CD says From the first day I came to London I was in contact by phone and Facebook and that if something new she would inform me. She never informed me about anything else so she said to stay there. She said don’t come back – she said not to keep calling her. She said she would send me stuff.
Having regard to what the CD’s lawyer subsequently said to the court and general probabilities I have no hesitation in rejecting the mothers account that - Her lawyer advised her she could (and should) leave - That her lawyer said she would keep her informed and CD did not need to call her. - That she never heard any further from her lawyer. The totality of the evidence makes clear that far more likely upon her arrival in England the mother terminated all contact with her lawyers and the father and his family. Whether she made herself impossible to contact by changing numbers or social media contact details I do not know but I am satisfied she deliberately and knowingly took steps to cut off links with Spain thus depriving herself of any opportunity of knowing what was happening. |
G48 |
|
2015 |
||
|
January 2015 |
MARAC made aware of family and concerns about CD’s mental health and substance misuse. |
|
|
13 January 2015 |
Children start at primary school in Finchley |
|
|
16 January 2015 |
W seen at Royal Free Hospital and referred to GOSH |
|
|
21 January 2015 |
Further hearing in the Spanish Court; Prohibited Steps Orders continued by the Court. Mother fails to attend. |
|
|
29 January 2015 |
Violence Against Women Court No.3 of V: 150/2014 (children measures application) The judgment makes reference to the importance of ‘due process’ and the special importance of the child’s wishes. It is clear that the issue of the child’s voice was something the judge was alive to at this stage although in fact there was nothing about the child’s voice before the judge nor is there any reference to the report filed in November. However the judgment does refer to the fact that the parties were represented, they made please and that an evidentiary stage took place with the evidence being examined.
Order made by XY. Ordered that: 1) The child will be under the care and custody of his mother, with parental responsibility shared between both parents. 2) The child will have contact with the father on alternate weekends from Friday at the end of the school day until Monday when he will take the child back to school, and for two midweek visits on Tuesday and Thursday when he will collect the child at the end of the school day and return him to school the following day; 3) Holidays to be divided between both parents by half; 4) AH will pay €100 per month for the child; 5) For the issuance of the child’s passport the consent of both parents will be required; 6) The child will not be allowed to leave Spain without the consent of both parents or the leave of the court. – [G54 – 56] |
G54 |
|
9 February 2015 |
Case management direction Seeking disclosure of whereabouts of HG |
G57 |
|
11/12 February 2015 |
AH’s criminal complaint to the Magistrates Court No.20 in V Referring to the order prohibiting B’s removal from Spain made on 22 October 2014 and asserting that she has ignored the order and moved to another country with B and that he know this because CD doesn’t stop sending voice messages through WhatsApp and texts to the PGM, “has moved to another country, to London it seems, with the minor, depriving me from my relationship with the child”. It does appear by this stage that CD had re-initiated some contact with F. AH said in oral evidence said he thought it would be February when they had a message and when they contacted he Spanish consulate in London. I think the father is mistaken in respect of the date for this as the letter from the consulate suggests that it was three or four months later. |
C48 |
|
16 February 2015 |
Father’s application AH’s application to ct. No. 3 of V in proceedings with no. 150/2014.AHseeks a direction that CD states her current address and the whereabouts of B to the court – [G58 – 60] |
G58 |
|
17 February 2015 |
Case management decision Hugo has not been located |
G61 |
|
18 February 2015 |
Father makes a child abduction application in the Spanish Court and reports the matter to the police. |
C4 C54 |
|
19 February 2015 |
Case management direction Case management direction of IM. CD ordered to state within five days of service of the order upon her through her procedural representation the address of the child – [G77] |
G77 |
|
6 or 20 February 2015 |
AH’s application for custody CD’s lawyer on record still AH’s says that the circumstances that were considered for the indicated provisional measures order to be made have substantially changed in that the whereabouts respondent and B are not known. In this it is confirmed that the mother has contacted the paternal grandmother by WhatsApp indicating that she is living in London. The father therefore seeks an order for final measures granting custody to him. As there has been a substantial modification of the circumstances that originated the making of the provisional measures order. The application asks for a psychosocial report on the members of the paternal family. Curiously the application identifies non-compliance with The Hague Convention and asserts that the whereabouts of the child are unknown and thus request an urgent hearing. For reasons which are unclear although The Hague Convention was identified along with the probable presence of the mother in London no application to the Spanish central authority was made. |
G67 |
|
20 February 2015 |
AH’s application AH seeks discharge of the DV proceedings AH’s application to ct. No. 3 of V in proceedings with no. 511/2014 seeking dismissal of CD’s application on the basis that CD has not told the truth and has shown an absolute disregard towards the court – [G62 – 66] |
G62
|
|
25 February 2015 |
AH states his Spanish lawyer received a call from CD made from an English number. |
C37 |
|
26 February 2015 |
AH makes a statement to the Spanish court about the phone call from an English number (+44). AH says he does not know whereabouts of son. CD says she does not recall this call [C184] |
C66 |
|
5 March 2015 |
CD’s lawyer informs court that last known address is in EP and they do not have CD’s bank account details. CD’s response, through her representative in Spain, to the order dated 19/02/2015 in proceedings no. 150/2014. CD’s representative informs the court that the address held for CD is the one located in EP (V) – [G78] |
G78 |
|
10 March 2015 |
Order made by IM. AH’s application for measures in relation to B as applied for on 20/02/2015 to proceed with no. 033/2015. Documents in proceedings no. 150/2014 to be added to the file with no. 033/2015 - Court determines it has jurisdiction to issues the application and grants leave to proceed. - Provides for service of the application on the mother and to answer within 20 working days. - To summon CD through her procedural representative.
This is the case management order which was made in relation to the father’s application for custody based on a change in circumstances. Given that the court considered it necessary to determine whether it had jurisdiction and granted leave to proceed seems to me that this must constitute a fresh application albeit within existing proceedings. The case management order made provision for the filing of evidence but made no reference to whether and if so how B’s views might be obtained whether through seeking to locate him and obtaining views through the taking of evidence regulation or through a social services visit. The order itself together with the mother’s representative is responsible G 80 to make clear that the application itself was served via the mother’s procedural representative and received by her. Thus service, apparently in accordance with Spanish law took place. |
G79 |
|
16 March 2015 |
Case management direction Statement of CD’s advocate to be placed on the file |
G81 |
|
17 March 2015 |
Application made by Maria Del Milagro Romero Perez (counsel assigned to represent CD in proceedings no. 511/2014 and 150/2014 and 166/2014 and 167/2014). Counsel notifies the court that she no longer has any communication with CD by her mobile phone, and that she no longer has any other means to contact the CD. Counsel therefore requests to be replaced in the defence of CD and for the court to summon CD in person – [G82 – 84] |
G82 |
|
26 March 2015 |
Order: Mrs IM - the interpretation of this order has caused some difficulty. The most recent version prepared by the two interpreters a court suggests that the application for the advocate to be replaced was not granted but an order was made requiring the father to provide an address for service with an alternative being for service by edicts which I believe refers to publication of the application on a public notice board or something similar. |
G84 |
|
27 March 2015 |
Children moved again and changed school again. Further concerns about W’s health. |
|
|
7 April 2015 |
Pleading submitted by the mother’s lawyer stating CD’s whereabouts is unknown opposing dismissal of DV application (doesn’t appear to be on instructions) |
G85 |
|
10 April 2015 |
Public Prosecutor opposes dismissal of DV |
G89 |
|
21 April 2015 |
Hearing re DV app: IM - CD’s lawyer not mentioned |
G90 |
|
23 April 2015 |
Police called to family address in Sutton. Family appeared to move again to LBH. |
|
|
May 2015 |
CD and children move to Tottenham |
|
|
11 May 2015 |
Report of Jose Morena Segui, Head Inspector, Spanish National Police. The school inform the police that the children only attended school for 15 days. |
C68 |
|
21 May 2015 |
Violence Against Women Court No.3 of V: Judge suspends previous Protective Orders instigated by the mother, and awards custody of the child to the father. Order records CD currently has custody of B but her whereabouts are unknown. Order made by XY. Order no. 38/15 in proceedings no. 029/2015. Found that the mother of the child is in an unknown location which has impeded the father to have contact with his son in breach of the earlier order. Directed that the order in proceedings no. 150/2014 be modified so as to attribute custody of the child toAH– [G91 – 94]. Annex II certificate attached at [G95 – 96].
This judgment appears to be different in substance to that which was issued on 29 January. It does not refer to their having been an evidentiary stage or there being more evidence before the court. It is clearly identified as being a matter of urgency and is made on the basis that the mother has taken the child to an unknown location which has prevented the father having contact with his son and that she is in breach of the order preventing B removal from national territory. The order states because of the lack of localisation of her and by the motives alleged by the claimant and with no proof from her, about the circumstances not to be true and for the interests of the child it is proceeded to change custody of the child in favour of the father. There is no reference to the importance of the child’s wishes or to due process or to any consideration of whether B views could or should have been sought in any shape or form. |
|
|
25 May 2015 |
AH submits representations - CD is believed to be outside Spain with the child - Mention of Hague Convention - AH says that he continues to pay CD maintenance by Moneygram to London |
G96 |
|
3 June 2015 |
Social services referral |
|
|
4 June 2015 |
AH requested Spanish Consulate in London to locate B in the child; told not possible as B not registered with the Consulate. AH states he assumed B was not living in the UK as he was not registered with the consulate and that CD later told him on WhatsApp that she and the boys were in Brazil. [Letter from Consulate dated 9 Aug 2017 confirms this] |
C37 |
|
26 June 2015 |
W brought to Royal Free Hospital with a heart rate of 242. Hospital SW made referral. W still not been taken to GOSH for any of his appointments. |
|
|
16 July 2015 |
Initial Child Protection conference; children made subject to child protection plans, category neglect. |
|
|
4 October 2015 |
W admitted to North Middlesex Hospital with a very high heart rate. |
|
|
3 November 2015 |
Legal planning meeting. Decision to commence PLO process. |
|
|
4 [or 5] November 2015 |
CD agreed to s20 accommodation for a year |
F48 |
|
10 November 2015 |
CD informed SW she was moving to Brent |
|
|
11 November 2015 |
CD said she would be moving and would be removing the children from school |
|
|
13 November 2015 |
CD informs children’s school she intends to move to Portugal. |
|
|
16 [or 18] November 2015 |
Conversation M/SW, CD indicated that she and children in Ireland with no plan to return. |
|
|
18 November 2015 |
CD presented to social services in Glasgow (states she moved to Glasgow 17 November with the intention of staying there). CD states that she informs AH of the address in Glasgow by Whatsapp (C184) |
F48 |
|
19 November 2015 |
Further conversation M/SW, CD indicated that she and children in Ireland with no plan to return. |
|
|
20 November 2015 |
LBH obtain location order - Mr Justice Jackson. |
F48 |
|
21 November 2015 |
W and B located in Glasgow. CD says she gave AH this address by WhatsApp. |
|
|
24 November 2015 |
LBH’s application for a care/supervision order “There are also queries as to whether the younger child B is already the subject of a Child Abduction Order which has yet to be executed”. The LA state that CD and children have been living in England & Wales since 2011 in the application (G32). |
F1 |
|
30 November 2015 |
Directions on issue and allocation of proceedings. The Court identifies that there may be an issue in relation to jurisdiction. |
F22 |
|
3 December 2015 |
Initial hearing. |
|
|
7 December 2015 |
LBH contacted by Scottish police after W presented at school with bruising to his face and very unwell. Initially stated CD had hit him. Also disclosed pipes at home which CD smokes and that she uses a mask with it. W and B removed under police protection. |
|
|
7 December 2015 |
W examined in Emergency Department of Royal Hospital for Children, Glasgow - had started to vomit at school at 8.50am and the first aider had seen some blood streaks in the vomit. Taken to A&E by the head teacher and first aider. CD attended at the hospital. |
|
|
7 December 2015 |
Glasgow social services reported that W had presented at school (Oak Grove Primary School, Glasgow) with a black eye |
|
|
8 December 2015 |
Report, Dr Katherine McKay, consultant paediatrician, Royal Hospital for Children, Glasgow, in relation to W |
F110 |
|
8 December 2015 |
Scottish police protection order expires. |
|
|
8 December 2015 |
Application for an EPO. |
F25 |
|
9 December 2015 |
Contested hearing and decision of HHJ Mayer in relation to interim care order and jurisdiction. CD’s case was that the children’s HR had changed to Scotland and that the English Ct did not have jurisdiction in relation to the children. Court approves plan for children to return to England; finding that the children were HR in E&W – EPO made. |
F47 |
|
11 December 2015 |
W and B returned to England and placed with foster carers, Mr and Mrs A |
F68 |
|
13 December 2015 |
HG arrives in UK – some supervised contact between W and B and HG takes place. |
F68 |
|
16 December 2015 |
CMO No.2 HHJ Mayer Finding that children are HR in England & Wales. CD identifies W’s father but does have contact details for him – she provides partial contact details (G52). ‘P E, V ) the mother gave evidence that she had various other means by which the father could have been contacted. The spelling of the name provided to social services is of course wrong although given the mother’s issues with literacy there could be an innocent explanation. However, I have absolutely no doubt that the mother had many other ways in which she could contact the father or his family or friends which she did not provide to the social services. Nor did she inform them that there had been legal proceedings in Spain. Nor did she provide them with details of the two lawyers who she had been instructing in Spain. The only inference which I can draw from this is that she did not have any real intention to assist the local authority in locating the father. Regrettably the local authority and the court itself do not appear to have pressed the mother for more information for instance by requiring her to produce her phone and to either make calls to relevant numbers or to allow the phone to be examined for information. Nor regrettably did the local authority take any further steps to seek to locate the father. Though they contacted the Spanish consulate to notify them that B and W were subject to proceedings they did not take the other steps that they might have to locate the father. They do not appear to have approached the English central authority to use Article 55 of Brussels to seek information from Spain about the father. Nor did they approach the consulate itself to seek information about the father or to enquire whether they could obtain further information from Spain. However nor did the court itself initiate for instance judicial liaison with the Spanish Hague network charge or suggest enquiries were made by the central authority. The net result of the insufficiency of the enquiries made by the local authority and the court in England combined with a similar insufficiency of activity at the Spanish end combined with the mother’s obstructive attitude resulted in care proceedings taking place in respect of B without any involvement of his father. Given that at the same time his father was searching for B and keen to take custody of him and, the court now having the benefit of the report of Peter Horrocks, probably being in a position to have offered him a home, perhaps along with W it is a tragedy for B and W that they have ended up in foster care or residential care for over two and half years when they might have been living with their father/stepfather. |
F50 |
|
2016 |
||
|
5 January 2016 |
W and B started at WP School |
|
|
8 January 2016 |
LBH wrote to Spanish Embassy to notify them of the care proceedings enclosing the order of 16 December 2015. - The Spanish Consulate did not pick up this with the June letter. |
C34 |
|
15 Jan 2016 |
W’s heart surgery cancelled as CD fails to attend appointments. |
F10 |
|
14 January 2016 |
Email Gonzalo Hijazo, Social and Welfare Department, Spanish Embassy to LBH to say that the consulate has no records of the children ‘which may help in this proceeding’. |
C34 |
|
18 January 2016 |
Initial Cafcass Case Analysis |
|
|
28 January 2016 |
LBH informed by foster carers that W had alleged B’s father had assaulted CD |
F69 |
|
4 February 2016 |
CD told LBH that she was pregnant. |
|
|
5 February 2016 |
Parenting assessment of CD begun by LBH |
|
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6 February 2016 |
CD travelled to Brazil for 2 weeks on the basis that she had to help her mother following an accident (having previously informed the SW she had not seen her own CD for 18 yrs). When she tried to return to the UK she was held by the immigration authorities as her visa had expired and she had overstayed in the UK. She refused to allow her finger prints to be taken and was returned to Brazil by the immigration authorities. C30 The mother said in evidence ‘the social worker promised me a possibility or him to come to Brazil – that is why I went to prepare – I got tired of waiting and I decided to come here. This is the mother rewriting history. The mother did not go to Brazil to prepare the ground for B to return to her. Her facility to reinvent the past whether made up on the hoof or considered makes her a most unreliable witness. |
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24 February 2016 |
CD stopped by immigration officers on her return to the UK - she confirmed she was seeking entry to join her husband [ DH] and the children. The immigration officer said they had spoken to DH and he wanted nothing to do with her and she was informed she could not join the children under EEA regulations as at present she was not their primary carer. CD refused leave to enter. She then claimed asylum. She admitted during the asylum interview she had spent 1996-2011 in Spain. She refused to comply with finger prints and stated she wished to return to Brazil. She signed a disclaimer withdrawing her asylum claims and arrangements were made to remove her to Brazil. Thereafter intermittent telephone contact between CD, W and B. |
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March 2016 |
First Steps referral for W (MDT screening and assessment service to identify psychological, emotional and mental health needs of children and young people in care). |
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3 March 2016 |
W underwent an electrophysiology study with ablation at GOSH |
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10 March 2016 |
Network meeting with First Steps Screening and Assessment Service. |
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14 March 2016 |
Negative telephone viability assessment of MGF in Brazil. |
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15 March 2016 |
Positive telephone viability assessment of maternal uncle in Brazil. |
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24 March 2016 |
Further telephone viability assessment of maternal uncle, FR and his partner, JF - positive |
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30 March 2016 |
Report, Dr Juliet Butler, consultant child and adolescent psychiatrist: Both children presenting with:
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G128 |
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07 April 2016 |
Violence Against Women Court No.3 of V: Order made by Herminia Luisa Rangel Lortente. Order no. 22/16 in proceedings no. 033/2015. Held that CD’s whereabouts are unknown, that she has prevented communication between AH and B in breach of earlier court rulings and that it is therefore appropriate to order that B remains living and in the custody of F, though parental responsibility will continue to be shared – [G133 – 135].
It is clear that between May 2015 and April 2016 that no further active steps were taken to consider whether and if so how B’s voice was to be heard. By this time of course B was actually in care in Haringey and had liaison took place either at a judicial or central authority level it is possible that this fact would have been established that although given the failure of the Spanish Consulate in London to stitch together the father’s request in May 2015 with the local authorities request in January 2016 this is of course no guarantee. |
G133 |
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12 May 2016 |
LBH referral of W to Tavistock Fostering, Adoption and Kinship Care Team. |
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17 May 2016 |
Final W/S of social worker Androulla Kyriacou Final care plans |
F51 F86 |
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31 May 2016 |
W’s placement with As breaks down due to his behaviour. |
C185 |
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14 June 2016 |
Final Care Orders of Her Honour Judge Mayer sitting in the Family Court at Barnet, under Case Number ZW15C00494. The Court orders that the children are to be placed in the care of the London Borough of Haringey. CD not in attendance at court and not being represented. |
F86 |
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6 July 2016 |
Submission made by public prosecutor on CD’s behalf |
G139 |
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7 Oct 2916 |
Assessment of CD by Brazilian SW. - It cannot be described as an assessment but rather an interview. It contains no analysis - It includes that CD is aware of the need for monitoring W’s health - She is aware of law relating to attendance at school - She was dynamic and makes plans - Was aware of her responsibility to supervise It is wholly inadequate as an analysis of CD’s actual capability and risks. |
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7 October 2016 |
Initial social work assessment by Brazilian authorities - considered inadequate by LBH - further assessment requested together with a psychological assessment of CD and maternal uncle FJ |
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11 Oct 2016 |
W’s placement in jeopardy. W threatens to kill himself. Subsequently tries to strangle himself and is admitted to hospital. |
F186 |
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14 Nov 2016 |
W’s foster carers ask for him to be moved due to him assaulting male FC. Concern he was heading for some sort of breakdown. W taken into police protection after he runs away. |
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16 Nov 2016 |
W placed in emergency FC |
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22 Nov 2016 |
W placed in residential care. |
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2017 |
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17 January 2017 |
Brazilian psychological assessment of CD- generally positive but contains little analysis of what CD says compared to the evidence of her behaviour over many years. - She does not seem to understand there has been negligence or abuse on her part. She says she had practical difficulties. - She has rented a large home, she is organising work - She has tried to find information about schools - She understands the need to control W’s diet. - She appears open to guidance from professionals. - “it is considered the material, social cultural and educations resources presented by CD are compatible with Brazilian family structures not being identified this way impeditive for her to have her children under her custody. |
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20 Feb 2017 |
Care Planning - Positive assessments from Brazil. - both children want to return to CD - CAMHS concerned children will need input if returned to CD in Brazil I have to confess I’m surprised that Haringey’s initial response in the light of these reports was to consider a return. There was absolutely no indication in them that the mother had acquired any insight into the very serious deficiencies in her parenting which had led to the children being taken into care but it may be that in seeking to afford due respect to the social welfare approach of their Brazilian colleagues that they felt obliged to honour the conclusions reached by the assessments they had commissioned. |
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13 March 2017 |
Lambeth issue W’s proposed EHC plan |
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23 March 2017 |
AH acquitted of offence for injuries against CD– based on the fact that CD did not attend and he did and the presumption of innocence won out. |
G168 |
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3 April 2017 |
W’s allegation that he was assaulted by staff dismissed after CCTV shows it to be false |
F191 |
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12 Apr 2017 |
Residential unit give notice due to w’s violent and abusive behaviour |
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26 June 2017 |
The London Borough of Haringey writes to the Spanish Consulate in London seeking new passports to be issued for both children. The Local Authority states to the Consulate that the mother was residing in Brazil, and the Local Authority plan to place both children in the care of the mother following a positive assessment by Brazilian Social Services. The Spanish Consulate makes enquiries to learn that a “marker” had been placed against both the children’s names following the father’s reports of child abduction. The Spanish Consulate makes contact with the father. |
C16 |
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17 July 2017 |
Communication from the Spanish consulate to the V Court. |
G176 |
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28 July 2017 |
AH’s Spanish lawyer contacted by the V Court. |
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9 August 2017 |
Fax Spanish Consulate General to Barnet Family Court providing information about AH’s contact on 4 June 2015 and the Spanish court proceedings. |
C19 |
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August 2017 |
AH learns that B and W are in care in the UK. Father instructs solicitors in England. |
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23 August 2017 |
AH’s solicitors request LB Haringey take no steps to return children to Mother in Brazil |
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29 August 2017 |
Dawson Cornwell are instructed by ICACU to institute 1980 Hague Convention proceedings |
C8 |
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30 August 2017 |
Local Authority confirms that they only came to learn of the father’s existence through attempts to obtain a passport from the Spanish Consulate. |
C23 |
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1 September 2017 |
Brazilian birth certificates are issued for the children & CD confirms that she has applied for Brazilian nationality for the children as advised by social services (C188). Mr JL is named as W’s father on the birth certificate. |
CH/3 |
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4 September 2017 |
AH requests Annex II certificate of decision of 7 April 2016 Application made by AH’s lawyer to ct. No. 3 of V seeking that an Annex II certificate be attached to Order no. 22/16 in proceedings no. 033/2015 – [G178] |
G178 |
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7 September 2017 |
Annex II certificate - Does not say whether given in default of appearance - Does not say about service – although appears to contemplate it was service by publication? |
G95 |
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11 September 2017 |
Father issues an application in the High Court of Justice, Family Division Seeking the summary return of the child to Spain, as well as discharge of the existing Care Order. |
B1 |
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13 September 2017 |
AH’s application to the Violence Against Women Court No.3 of V for an Article 15 declaration, for summary return and for urgent measures |
D1 |
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25 September 2017 |
CD informed B on telephone that she would be arriving in UK on 30 September 2017. [M DNA and B is disappointed. LA has attempted to contact CD several times about AH; she has not responded. CD is unreliable in contact with children [C28, #16-21] |
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27 September 2017 |
WS of James Netto (AH’s solicitor) in support of return application |
C1 |
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28 September 2017 |
Local authority care plan reconsidered its care plan and the LA change’s its position in relation of placement of the children with the mother in Brazil. |
C27 |
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5 October 2017 |
Local Authority disclose papers from care proceedings |
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9 October 2017 |
Spanish Court admits the Father’s application for an Article 15 declaration, for summary return and for urgent measures |
D15 |
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11 October 2017 |
LA disclose Mother’s address and email address |
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12 October 2017 |
Order of Williams J - First hearing on AH’s application - On LA and AH attend/are represented - B joined as a party - Provision made for the filing of evidence and timetabling proceedings |
B23 |
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12 October 2017 |
Father’s Solicitors serve Mother by email (letter in English) |
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15 October 2017 |
Report from Spanish Social Services |
E5 |
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17 October 2017 |
W/S of SW |
C24 |
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17 October 2017 |
Father’s Solicitors serve Mother by email again (letter in Portuguese) |
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23 October 2017 |
W/S of LA lawyer |
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25 October 2017 |
Certificate: no criminal records in relation to AH |
E1 |
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27 October 2017 |
Father’s write to Mr Garcia Llanas by private Facebook Message (in Spanish) |
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27 October 2017 |
Father provides a letter in Spanish to the LA for the child. |
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4 November 2017 |
Hearing listed; adjourned by consent for want to disclosure from the Spanish authorities. |
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9 November 2017 |
CD travels to England & Wales in order to spend time with the children. CD is detained in an immigration centre for 3 weeks. CD is released and on immigration bail. CD moves in with DH (described as her husband) and his mother. CD gets pregnant by DH and decides to keep the baby [C175] |
C174
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14 November 2017 |
Spanish Court Order No. 134/2017; Spanish Court declares that the removal of the child was wrongful and orders the child’s return to Spain. |
G179/80 |
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14 November 2017 |
Order, Violence Against Women Court No.3 of V, Article 15 declaration Order made by Herminia Luisa Rangel Lortente. Order no. 134/2017 in proceedings no. 159/2017. Held that it is appropriate to issue a certificate to indicate that the child B was taken to LONDON illegally so the procedure can be for the child to be returned to his father, AH – [G180 – 182]. Annex II certificate attached at [G183 – 185] the judgment itself refers to the Article 15 criteria. It is implicit in the order that the Spanish court considered both that B was habitually resident in Spain prior to his removal and that his removal was in breach of the father’s rights of custody. |
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15 November 2017 |
V Social Services produce report relating to the family. Report obtained through Spanish Central Authority. |
E4 |
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17 November 2017 |
Father’s solicitors receive call from Mother’s immigration solicitor, who confirms that the Mother sought to enter the UK in November 2017 but was detained at Gatwick Airport upon entry. |
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22 November 2017 |
At the request of the UK Border Force, Father’s solicitors confirm that a hearing is listed in England on 7 December 2017 and that the Mother’s presence is required. |
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November 2017 |
Spanish Central Authority provide Father’s criminal records and are asked to provide the same for the Mother and Mr GL. No response received. |
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4 December 2017 |
Translation of Spanish records received. |
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4 December 2017 |
Father’s solicitors ask UK Border Force to confirm if the Mother was allowed entry; no response received. |
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5 December 2017 |
W/S of AH |
C35 |
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7 December 2017 |
Order of Holman J - CD not represented - W joined as a party to proceedings - LA agree to make B available for contact with CD and AH |
B34 |
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31 January 2018 |
Consent order - Providing for extension of time for statements |
B42 |
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13 February 2018 |
AH issues application for enforcement and recognition C69 AH also files a statement in support |
B44 C70 |
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13 February 2018 |
CD’s solicitors email to say that CD is pregnant by DH, and staying at his mother’s home, the baby being due in September 2018; CD intends to return to Brazil to give birth to the baby there. There is no intention for DH to move to Brazil with her. CD does intend to apply for discharge of the care order. I find it surprising that at a time when the mother was seeking the return of B and W to her care that she chose to get and continue with a pregnancy with DH. Given her experiences historically this appears to indicate a lack of focus on the needs of B and W. If she were to secure their return to her care how was she to manage with them and a new baby I ask rhetorically. This appears to indicate the mother putting her own needs before those of her children. |
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16 February 2018 |
LA inform CD that they are unable to provide her with suitable housing until the final hearing. |
C176 |
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22 February 2018 |
CD granted legal aid to make application for discharge of the care order |
C175 |
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26 February 2018 |
CD’s statement (distributed at court) |
C174 |
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26 February 2018 |
Order of Nathalie Lieven QC - In principle updating assessment of CD approved WW appointed to act as W and B’s GAL on issue on CD’s application for discharge of the care order |
B56 |
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1 March 2018 |
CD returns to Brazil. CD loses baby in ectopic pregnancy. |
C176 |
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5 March 2018 |
CD issues C2 application to discharge the care orders in relation to W & B |
B62 |
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9 March 2018 |
Statement of SW |
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13 March 2018 |
AH issues P 25 application for ISW |
B73 |
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14 March 2018 |
AH’s third statement |
C234 |
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15 March 2018 |
Order of Williams J |
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9 April 2018 |
Guardian’s report |
D1 |
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12 April 2018 |
Order of Williams J Instruction of ISW to carry out assessments of CD and AH approved |
B91 |
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27 April 2018 |
Notice of registration under Art 28(2) and order for registration (B98) of DJ Gibson in relation to: The order of 21 May 2015 Order dated 7 April 2016 |
B97 B98 |
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29 May 2018 |
Date of report of Peter Horrocks |
D11 |
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5 June 2018 |
W/S Nina Hansen |
C309 |
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11 June 2018 |
Final hearing due to commence |
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w/c 2 July 2018 |
CMO re: discharge of care order application before HHJ Rowe QC |
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23 July 2018 |
Applications for discharge of the care proceedings listed before HHJ Rowe QC t/e 5 days |
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