England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		12th July 2018

MR JUSTICE HOLMAN:

1. This is the same case which was last before me on 9 May 2018. I gave a judgment on that date which has been transcribed and is now publicly available on the Bailii website under neutral citation number [2018] EWHC 1213 (Fam). I will not repeat anything which I said in that judgment. The present short judgment should be read and considered as being in continuation of it. Since that hearing, there have been the following developments.
2. First, the mother has pleaded not guilty to various criminal charges in relation to alleged child abduction and an alleged passport fraud. She remains remanded in custody, but I understand a trial date has been fixed in the Isleworth Crown Court in September 2018.
3. In the light of those facts, I assume, for the purposes of today's hearing and this judgment, that the mother will remain in custody until, at any rate, the conclusion of that trial in the next two to two and a half months. Of course, I do not have the slightest idea what the outcome of that trial may be, nor of any sentence which might be imposed if the mother is convicted of any criminal offence. That is simply nothing to do with me at all.
4. The children remain living with the mother's husband, Mr Kenneth Ford, at their established address in Alaska. He has explained in his statement, however, that because of the juggling which he has to do between caring for the children and maintaining his employment as a US Coast Guard, he now needs to move from the place where they are currently living to another town in Alaska where he grew up.
5. I have been assured today that as soon as the precise address to which he and the children will be moving is known, that address will be communicated to the father of the children here in England.
6. The significant development since the last hearing is that I now have a detailed statement from Mr Ford, a detailed statement from the mother, and in fact two statements by the father.
7. Insofar as concerns the statements of the mother and father, the mother sets out at some length detailed allegations which she makes of violence and aggression towards her by the father during the course of their relationship. That is, substantially, completely denied by the father.
8. Insofar as Mr Ford is concerned, his statement gives a clear and detailed account of the circumstances in which these children are living with, and being cared for by, him in Alaska. He says that, save to the extent that I will shortly mention, the children are, in fact, well settled in Alaska, they are doing well in school and flourishing in a stable and loving environment, cared for by him.
9. The qualification upon that is that the elder child, now aged eight, has been seeing a therapist in Alaska for about one year. That child was, in fact, also seeing a therapist or counsellor here in England even before the removal to Alaska. In addition, the mother exhibits to her recent statement letters from that counsellor dating back to December 2014 and April 2015.
10. Even the material from the counsellor in England, although now very historic, reports the elder child making very negative observations and comments about her father, such as saying that he 'is a bad man who hurt mummy' and that he 'is not nice'.
11. The counsellor or therapist whom the elder child is currently seeing in Alaska, also reports how that child describes very vivid nightmares concerning her parents. The counsellor describes how in September 2017 the elder child drew a picture of an angry monster as taking up the whole page with big teeth, large mouth and body scribbled all over with red, brown and black. The child said she wanted to put the monster in a cage, but it was too big and angry, and it would not go in. The name she attached to the monster is the forename of her father. She said, 'it was the scariest name she could think of' and her whole body began to tremble and shake.
12. On other occasions, the child has referred to her father by name as 'trying to kill [the younger daughter] and mum'.
13. More recently, the elder child has said that her father wants to kill her mother and would also kill her and her sister.
14. After her mother had been extradited to England the child said, 'I will never see my mother again because he will kill us. He will kill us if we go back. I hope he [this is, her father] finds God and understands not to hurt people."
15. I stress that I, myself, do not attach any particular interpretation to any of these things which this child is reported to have said or done. The suggestion that her father might kill her, or her sister may be completely fanciful and misconceived. However, it is obviously concerning that a child at the age of eight is even harbouring these thoughts about her father.
16. The therapist concludes her report by saying:

'any contact with [her father] would likely trigger [the elder daughter] to a survival mode and halt all the progress she has made towards feeling safe. Unfortunately, many triggering events that began with her mother's arrest in April 2017 and the series of events that have unfolded have been enough for [the elder child] to revisit trauma and feelings of fear that she identifies as directly related to [her father]'.

17. I do not today make any finding of any kind whatsoever in relation to any of these matters. Specifically, I make no finding whatsoever in relation to whether or not there was any violence or aggression in the relationship between the parents and, if so, which or both of them was the perpetrator of it.
18. The father has said to me today that at no time in any of the several court hearings and proceedings before these children were removed to Alaska in October 2015 have any adverse findings been made against him. He finds it inexplicable that he cannot now obtain the return of his children back here to England.
19. However, in all proceedings concerning children one has to have in the forefront of one's mind that one is dealing with living human beings at vulnerable stages in their life. I must, of course, make the welfare of these children the paramount consideration.
20. The plain facts are that they have now lived continuously in Alaska for almost three years. There is evidence which, on the face of it, is credible from Mr Ford describing the extent to which they are now settled in Alaska. The father knew, almost from the moment when the children were removed, that he could take proceedings in Alaska under the Hague Convention, for he contacted the Child Abduction Unit here in London. I have already referred in my previous judgment to the reason why he says he never took his application further forward; namely, that he was told it would cost him £20,000.
21. In the order I made in May I requested, or directed, the Child Abduction Unit to make their whole file available for any light it might throw upon why the father did or did not proceed with his application.
22. In response to that order, the Child Abduction Unit wrote directly to me on 10 July 2018 enclosing a photocopy of their whole file. I have not counted the number of sheets of paper, but they run probably to about 200 sheets printed on both sides. In other words, there is very considerable material indeed on this file.
23. As I stated earlier during the hearing, I have read the covering letter from the Child Abduction Unit, but I have not, in fact, read any of the documents. The reason for that is that it seems to me that communications between an applicant in these circumstances and the Child Abduction Unit and, indeed, the contents of the Unit's file must be governed by the same legal professional privilege as any other communications between a client and his or her solicitor. The Child Abduction Unit is located within the office of the Official Solicitor, who is, of course, himself a solicitor.
24. Therefore, that file was produced, and I am grateful for that. It has been available during the course of this short hearing this morning for any light that it might throw on matters. But the father acts in person. He has not waived the privilege, and it does not seem to me, in the end, that it would be right for me, or counsel for the mother, now to delve into that file, which I will return to the Child Abduction Unit unread. If the father himself wishes to obtain all or any part of that file, it will be open to him to apply to the Child Abduction Unit, and I see no reason why they would not make available to him all parts of it to which he is entitled.
25. However, the fact is that he knew that he could make an application under the Hague Convention. He did not do so. These children have now lived continuously in Alaska for almost three years and appear to be settled there. It seems to me plain as a pikestaff that these children must now be habitually resident in Alaska and must have been so resident for an appreciable period of time.
26. It is, frankly, impossible for this court many thousands of miles away, and without the availability of forms of enquiry, such as Cafcass, to start embarking on decision-making here in relation to these children.
27. Accordingly, on the basis of the long passage of time, and of the fact that these children must now be habitually resident in Alaska, I will order that these proceedings and all orders within them of a continuing nature are today dismissed and discharged and come to a complete end.
28. I have made quite clear to the father, and indeed to the mother, that this is a decision which I reach without any finding or adjudication as to any of the disputed facts, and without any determination at all on the underlying merits.
29. The essence of the decision simply is that the only place where welfare decisions can now properly and reliably be made in relation to these children is Alaska, where they have already been living for so long and where they themselves remain.
30. It is open to either parent, or any other person, such as Mr Ford, to make any application they may wish to the courts of Alaska, and nothing that I have said in this judgment, and nothing in the order which I make today, is intended in any way whatsoever to influence or impact upon any decision by any court in Alaska where these children are habitually resident.
31. However, for the reasons I have given, these proceedings must, as they do, now come to a complete end.
End of Judgment Transcript from a recording by Ubiqus