FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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H |
Applicant |
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A |
Respondent |
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Ms Cliona Papazian (instructed by Watkins Solicitors) for the Respondent
Hearing date: 15 April 2024
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Crown Copyright ©
Mr Justice Cusworth :
57. From the evidence I have of the children's expressed views from Ms Baker, I am satisfied that there is a grave risk of their being placed into an intolerable situation if no positive answers are received to any of the above questions, and that the harm they may suffer includes a possible negative impact on the prospects of their being able to rebuild their relationship with the father, if the mother meets the full force of Swedish law immediately upon her return. I stress that I am very clear that the Swedish Court is the court that should be taking welfare decisions about these children, but their vulnerabilities, which have been exacerbated, if not created, by the mother's behaviour over the past 18 months, in removing them from Sweden, abandoning them in X, returning to collect them after her arguments were rejected in Sweden, and finally removing them once again to a new and unfamiliar environment in England, are there, and fall to be addressed.
58. I accept the father's case that prior to July 2022 there is no evidence that the time he spent with the children was anything other than positive and beneficial, notwithstanding the mother's allegations of abuse prior to the parties' separation in 2017. However, I have to consider the children's current state of mind and sense of allegiance to their mother, which Ms Baker notes. If arrangements could be put in place which would enable the mother and children now to return to Sweden, without risk of her arrest on entry, and to remain with her until the first hearing could be convened of the court in Sweden charged with dealing with welfare issues in relation to the children – I assume the District Court in Umea – then there may be no sufficient grounds on which the court could exercise its discretion to decline to make a return order.
My assessment of the children was indirect, due to their ages, linguistic ability and the likelihood that, in my experience of working in the context of parental conflict, children can be pulled into a situation where they feel a need to defend either parent rather than offer a factual account. As such, my assessment was based on observations of each one in their school environment, liaison with their schoolteachers and developmental reports from their mother. I noted that each of these provided a consistent picture of the children's current functioning.
Overall, the clear picture from Ms Baker's report, and from her oral evidence, was that the children's consistent expression was that they did not want to be separated from their mother, and that they were, if anything, as she put it, clinging to her. Their objections as expressed are not so much objections to Sweden, but objections to being separated from her. X's remark that he would go to Sweden if his parents reconciled was eloquent.
Ms A's presentation and responses to the Impact of Events questionnaire were consistent with a diagnosis of PTSD and I was of the opinion that she is likely to be suffering from this condition, which may be exacerbated due to the adverse early experiences of deprivation and parental separation that she described. Extended separation from her children, to whom she presents as strongly attached, is likely to have a severe impact on Ms A's mental health as a result of this pre-existing vulnerability.
a. It is highly likely that the Swedish authorities will pursue their prosecution of the mother, regardless of the father's position. On her return to the country she is likely to be detained, in the first instance for no more than 4 days before a custody hearing. There, she may be detained for a further period of 2 weeks, or if the court can be persuaded that there is no ongoing risk of criminal activity or other complication to the investigation, so that flight risk would be the principal concern, she may have a 50% chance of being released immediately subject to a reporting obligation and travel ban.
b. These prospects would grow if she could provide a fixed address at the time of the court's review or otherwise have positive information about her living situation. She could apply for accommodation via social services, but this will be more difficult in the event of her immediate arrest on arrival, as she would not be able to liaise directly in her home municipality. The fact that the children have need of her care will be a relevant consideration, but this will be tempered by the fact that there is a Swedish Court order which commits their care solely to the father.
c. If detained until trial, then the mother can expect incarceration for at least 3-4 weeks before that date, and then perhaps a further 8 weeks to any appeal hearing. The proceedings may be delayed by a few months if she is not in prison ahead of trial.
d. Mr Nystrom considers the likely tariff in the event of the mother's conviction to be between 8 months and 18 months, with aggravating and mitigating circumstances to be considered within that range. If the eventual penalty comes out at less than 12 months, then the assessment is that there would be a high likelihood of a non-custodial sentence – the expert says that there is 'clearly room' for a non-custodial sentence. If more than 12 months, then the assumption must be that the mother's sentence will require her to serve time in prison.
47. It is also well-established that Article 13(b) through the use of the words "grave", "real", "harm" and "intolerable" is of "restricted application": Re E (para 31). It is in this context that intolerable means something "which it is not reasonable to expect a child to tolerate": Re E (para 34). The focus is on the child and not the source of the risk. Whilst, of course, the court must be astute to avoid providing opportunities for a parent to seek to act manipulatively, the ultimate question remains the same.
"[39] Finally, it is well established that courts should accept that, unless the contrary is proved, the administrative, judicial and social service authorities of the requesting State are equally as adept in protecting children as they are in the requested State (see for example Re H (Abduction: Grave Risk) [2003] EWCA Civ 355, [2003] 2 FLR 141, Re M (Abduction: Intolerable Situation) [2000] 1 FLR 930 and Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433). In this context I note that Lowe et al observe in International Movement of Children: Law, Practice and Procedure (Family Law, 2nd edn), at para 24.55 that:
'Although, as has been said, it is generally assumed that the authorities of the requesting State can adequately protect the child, if it can be shown that they cannot, or are incapable of or, even unwilling to, offer that protection, then an Art 13(b) case may well succeed. It seems evident, however, that it is hard to establish a grave risk of harm based on speculation as opposed to proven inadequacies in the particular cases.'"
(2) The focus is on the child. The issue is the risk to the child in the event of his or her return.
(3) The separation of the child from the abducting parent can establish the required grave risk.
I will ask counsel to liaise over drawing up an order to reflect the above.