1. The
Applicant is the Respondent's husband, having been married to her on the 16th
November, 1984. This application concerns his claim for the return of their
son, B., born on the 21st July, 1993 pursuant to the above-entitled Act.
2. The
Applicant's initial application by way of Notice of Motion returnable to the
16th January, 1998 was grounded upon an Affidavit sworn by his Irish solicitor
which states that the Applicant and Respondent have lived separate and apart
from about the month of July 1997, that there is one other dependant child of
the marriage, namely, M.D., born on the 13th December, 1984 who is now residing
in England with the Applicant and a further dependant child, H.D., born to the
Respondent on the 10th October, 1982 and legally adopted by the Applicant.
3. The
Respondent came to Ireland with H., M. and B. on the 24th September, 1997 where
they live with S. a further daughter of the Respondent by an earlier marriage
who will be eighteen shortly. In October the Applicant came to visit and M.
returned with him to England where he has since attended school and lives with
his father.
4. After
the parties separated and began to live apart in England, which occurred in
July 1997, the Respondent brought the children for a 3½ week holiday to
Ireland in August 1997. Shortly after her return, according to the Applicant,
she told her husband that she wished to reconcile and informed him that the
best chance of effecting a reconciliation was if all parties came to live in
Ireland. This conversation took place between the parties on the evening of
the 22nd September, 1997 and on that occasion the Applicant gave his consent to
the removal from the English jurisdiction of B. and H. to go to live with their
mother in Co. Clare. The Applicant says that this consent was on condition
that he would follow and attempt a reconciliation with his wife and family. He
consented to her travelling to Ireland on the basis that she wished to sort out
matters in advance and needed some time. The Respondent takes fundamental
issue with this version of the arrangement: she says that the consent was
unconditional and that the Applicant came on the next day, that is the 23rd
September, to deliver the passports for B. and H.. On this occasion he also
asked his wife to agree to take M. with her notwithstanding the fact that M.
had been living with his father since the break up in July because he had been
proving aggressive to his mother and difficult for her to handle. She says she
promptly agreed to take M. as well as the other two children on condition that
there would be no violence from him.
5. A
major issue in this case, therefore, is whether the Applicant consented to the
removal of the three children from the English jurisdiction.
6. It
is clear that if the father did not consent to such removal, then the above
Convention requires this Court to make an Order forthwith directing the return
of B. to England unless the Applicant was not actually exercising custody
rights at the time of removal or retention or subsequently acquiesced in same
(neither of which has been suggested). Furthermore the Court is not bound
forthwith to make such an Order if it is established that
"there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an intolerable
situation"
.
7. The
Respondent makes the case in these proceedings that an Order directing the
return of B. to the English jurisdiction would indeed expose him to an
intolerable situation namely inevitable psychological harm due to the fact that
his mother is compelled to remain in Co. Clare with her elder daughter, H., who
is herself unwilling to return to England. The effect of this would be to
bring about the severance of B.'s relationship with his mother and with his
sister with both of whom he has lived all his life. Given his age (he will be
five on the 21st July, 1998), this amounts to a grave risk that psychological
harm will be caused by such an Order.
9. The
Applicant's evidence in relation to consent was that on the evening of the 22nd
September, 1997, he called around from his mother's house to where his wife was
living with B. and H. and waited for her in his car. She came and sat in the
car and told him that she was very unhappy. Solicitors had practically taken
over their lives. She felt isolated from her family in Ireland and she felt
that their relationship affected the children. The Applicant said his wife
wanted him to go to Ireland with her to live and this was their only chance of
getting back together. He said he consented on the basis of what she had
said. He said his wife had said she wanted to go over on her own as she needed
a little time with the children. He would follow on after her. She told him
she loved him and when she did
"I said the same to her"
.
He asked her why the divorce was taking place and she said she did not
understand and that the solicitors had taken over. It was not agreed on this
occasion that all three children would be taken to Ireland. At this time M.
was living with him and he was upset that the children would be split and he
asked her to take M. to Ireland with the other two. Next day he called around
and gave her the birth certificates for all three children. She gave him tea
and said she did not want to end 15 years' relationship. She mentioned a
one-way ticket that he could buy that would get him to Ireland for £33.
It was on this second day that it was decided that M. would go with her. When
she agreed, he sent M. around to the house. The word
"reconciliation"
was
not used on that occasion but definitely there was an agreement that they would
get together.
10. The
Respondent's evidence in relation to those meetings was as follows. She had
already applied to the Courts for an Order giving her permission to take H. and
B. out of the jurisdiction to Ireland. They were not happy in England. He
asked to meet her and said that he would consider giving his consent. She told
him that if he did not give his consent, she would go to the Courts and fight
him there and she had been advised that she would win. She said she told him
that if he made her stay in England she would end up hating him because of the
harassment he was giving her. She also told him that he would be free to see
the children whenever he came to Ireland. She says her husband said to her
"As
long as I can come and see the kids, I'll never stop you"
.
They discussed H.'s persistent refusal to speak to or see her father and
agreed that she should be given time to come round in her own time. The
Respondent said that they agreed that the children would be better off if there
was an agreement. She said she never indicated that she wanted a
reconciliation and never said that she loved her husband. There was no
discussion on the first evening about M.. The discussion was about B. and H..
Next day he came around to the house, started crying and asked her to take M.
to go to Ireland with her because if she didn't he said the Social Services
would take him. She said she agreed to take M. at once on condition that there
would be no violence and that he would go to school. She said they talked
about the children not about divorce and not about her loving him. She
repeated that he would never be stopped seeing the children in Ireland and said
that he was very happy with that. She said he did not indicate that this
arrangement was for a temporary period of time but was until they had grown up.
She said she told him B. could go and spend about four weeks of the summer
holidays with him and said that the Applicant was happy to give his consent to
her travelling with the children to Ireland.
11. I
was referred to the parties' English solicitors' letters written around this
time. The wife's solicitor's letter of the 23rd September, 1997, where
relevant, stated:-
12. The
Applicant's solicitor wrote on the 30th September, 1997. The first three
paragraphs of this letter deal with service of the English divorce petition.
The fourth paragraph reads as follows:-
13. I
was also furnished copies of the attendances from the respective solicitors.
The wife's solicitor's attendance (prepared apparently on the 24th September,
1997) is as follows:-
14. It
should be noted that this attendance was prepared apparently on the 24th
September before the Respondent had told her solicitor of the agreement that M.
was to travel with his mother to Ireland as well.
15. The
attendance of the Applicant's solicitors is dated the 25th September, 1997 and
provides as follows:-
16. It
will be noted that insofar as it goes, the attendance of the wife's solicitors
supports her version. It is not complete but because it was prepared on the
24th September, it is reasonable to conclude that at that stage their
instructions did not include the agreement in relation to M..
17. On
the other hand, the husband's solicitor's attendance does not support his
version. There is nothing about his agreement being dependant or conditional
upon a reconciliation. Furthermore, the attendance, dated the 25th, contains a
separate paragraph for events on the 23rd and events on the 24th. His
agreement is referred to without qualification as occurring on the 23rd. The
reference to the 24th records him calling around again and speaking this time
of the possibility of a reconciliation.
18. Whilst
the reference to the possibility of reconciliation and her loving her husband
supports his version insofar as his version alludes to these, the attendance,
crucially, does not support him in linking his consent (in relation to
"all
three kids")
to the reconciliation. On the contrary the reference to the consent is
assigned to the 23rd and no condition is referred to. The reference to the
talk of reconciliation and love is referred to as occurring on the 24th.
19. Furthermore,
the letter from the Applicant's Solicitors does not refer to a conditional
consent and the Applicant in evidence stressed that he had told his Solicitors
all the details of his meetings with the Respondent and commented that their
letter was a mistake on the part of his Solicitors.
20. Her
Counsel makes the point that the Respondent, in reliance on the Applicant's
consent, surrendered her tenancy in Stockport, returned her allowance books to
the Social Services office, withdrew both H. and B. from their schools and set
up in Ireland, which involved applying for a children's allowance, seeking
Council accommodation (which she got in a very short time) and enlisting both
children in schools where they still remain.
21. Counsel
for the Applicant, on the other hand, stresses the inherent unlikelihood of his
giving his consent having the implication that he was effectively abandoning
custody of B. until he was sixteen years old. She makes the point that the
onus is on the Respondent to establish that consent was given.
22. I
have seen both the Applicant and the Respondent in the witness box. I have
reservations about the accuracy and accordingly the reliability of each of
them. On balance, however, I consider that the Applicant did give his consent
to the removal of all three children to Ireland. The discrepancies between the
Applicant's account in evidence and the account given in his solicitors' letter
and in their attendance are difficult to explain unless the true situation is
that he did in fact give his consent and perhaps hoped that when the family
removed to Ireland, a reconciliation might be possible. Equally, it is fair to
say that the attendance of the Applicant's solicitors suggests to me that the
Respondent did not give the whole truth when she said there was no talk at all
of reconciliation or love between them at the time when they made their
arrangements on the 23rd and 24th September last.
24. The
Supreme Court decision in
B.B.
-v- J.B.
delivered the 28th July, 1997 was also a child abduction case where the issue
of consent arose. The trial Judge had decided that the applicant mother had
given her consent to the removal of the child to Ireland. Having done this, he
decided that the Convention did not apply and accordingly refused to make a
returning order. In dealing with this on appeal, Denham J. (page 17) having
referred to the fact that the trial Judge held that the father had consented to
the removal of the child proceeded:-
25. In
light of my foregoing conclusion and this authority, I must now exercise a
discretion to determine whether B. should be returned to England. The judgment
just cited proceeds to set out eight factors which should be included for
consideration. It is clear that this list is not exhaustive and equally that
not all of the matters would necessarily apply in every case. Nonetheless, it
provides a most helpful structure by reference to which my discretionary
jurisdiction should be exercised.
26. Before
proceeding to deal with this aspect of the case, I would point out that the
case law establishes that this discretion is quite different from the
discretion exercisable in an ordinary custody case. The discretion has to be
exercised in the context of the Convention. Denham J. at page 12 referred to
four factors indicating that the existence of a discretion, notwithstanding the
finding of consent, was in keeping with the Convention. These, briefly, were:-
27. Furthermore,
as was held by the Supreme Court in
B.B.
-v- J.B
.,
once it has been established that the applicant consented to the removal of the
child, it was not a wrongful removal. In those circumstances the existence of
a discretion in the Court would seem appropriate.
28. Furthermore,
under this heading I am satisfied that the Courts in England would be better
suited to determine the issues of custody, access and place of residence of B.
because such Courts would have available to them a welfare report which would
be prepared promptly and witnesses in relation to the history of B.'s family
and the relationship between his parents, none of which are compellable in this
jurisdiction. I am informed that proceedings in relation to B.'s custody stand
adjourned in the English Courts and could, presumably, be reactivated promptly
in the event that B. is returned there.
29. The
overall policy of the Convention is that there must be a mandatory return in
the event of abduction which is a wrongful removal. In the present case,
because of the father's consent, the removal was not wrongful. Nonetheless, my
discretion must be exercised bearing in mind the object of the Convention to
ensure that this country effectively respects the Applicant's legal right in
relation to custody and access in England. The Applicant has had very limited
means. On two occasions during the hearing before me, he was not able to
afford to stay overnight in Dublin, notwithstanding that he was afforded legal
aid. I am informed that the legal aid would not cover overnight accommodation
expenses in this circumstance. That being so, it is probable that if B. stays
in Clare, his father will see him on relatively rare occasions. On the one
occasion that he did come over to see him, the Applicant's access was not
particularly successful due, according to the Respondent, to the fact that he
gave inadequate notice.
30. It
may well be that at the time of giving his consent, the Applicant hoped for a
reconciliation and this may have precluded him from giving careful thought to
the effect of the consent. He gave evidence that he explained in detail the
contents of his conversation to his solicitors and their attendance and
correspondence give no hint of any condition attaching to the consent.
Nonetheless, shortly after giving the consent the Appellant repented of it and
has now brought these proceedings. In my judgment the consent, supported by
handing over the three relevant passports next day, was sufficient to justify
the Respondent in taking the significant steps in re-arranging the lives and
welfare of her children as she did. Nonetheless, the consent has now been
followed by this application and an avowal that the Applicant's consent was
procured by a ruse or trick, namely, the promise of a subsequent
reconciliation. I have rejected this argument but it is clear that the
Applicant now repents of his agreement that his wife and family should remove
to Ireland.
31. In
relation to the foregoing, my view is that most of the considerations indicate
that my discretion should be exercised by way of an Order directing the return
of B. to England. The most significant countervailing consideration arises
because of his mother's sworn evidence that if such an Order is made, she will
not travel to England with her son. This is a matter of deep concern to the
Court and I will return to it towards the conclusion of this judgment but first
I must deal with the quite separate defence raised by the Respondent relating
to the violence of her husband.
32. I
will summarise the evidence in relation to the Applicant's violence in a
moment. The Respondent says that any relationship that existed between H. and
her father by adoption has now broken down due to his racist and sexist verbal
violence against her and that H., who will be sixteen shortly, would never
travel to England. The Respondent further says that she would not travel to
England because she has to be in Ireland with H. and that if an Order is made
directing that B. be returned to England, she would not travel with him. She
says that such an order would amount to giving custody of B. to his father.
33. The
father admits several incidents of violence but claims that they were made in
self-defence in response to the violence of his wife. Furthermore, he accepts
that this violence was often witnessed by B. and sometimes by H. and M.. He
was never physically violent to any of his children but accepts that he was
verbally abusive in a racist way to H..
34. In
evidence he admitted that there were aggressive arguments between himself and
his wife. Some were violent. He denied kicking and punching her. He denied
saying
"I
have you where I want you"
after
H. was adopted and he denied saying that H. and her mother should be grateful
for him taking them on and giving them a roof over their heads.
He
accepted that H. once tried to stop a fight between himself and his wife and
she witnessed this fight in her bedroom. He claimed there was nothing broken
in her bedroom. He had followed her mother into the bedroom because they were
arguing and admitted that there was violence in the bedroom. (By this he
seemed to be accepting that he was violent to his wife). This scene was
witnessed by the children and by H. in her bedroom and he claimed that his wife
was not restraining herself at that particular time. On another occasion, his
son M. threw a car at his mother. His mother's complaint in this case was that
M. was allowed to be aggressive to her without the correction of his father.
On this occasion the Applicant admitted that he did not correct M. because he
said his mother was correcting him and getting the better of him. He denied he
encouraged M. to attack his mother. He accepted on another occasion that he
threw a cup of tea at his wife but claimed it was only half full and cold.
Moreover, he threw it because he had been hit in the back of his head by a tea
cup thrown by his wife. He denied that he threw hot tea into his wife's eyes.
35. When
challenged that he had called his adopted daughter, H., a black nigger, he
denied this but said that he did refer to her as a black. He accepted that
this was totally unreasonable on his part. He denied saying this kind of thing
to his daughter all the time. He accepted that on one occasion he attempted to
push his wife in the sittingroom during an argument but he said he missed. His
wife on another occasion was standing, he said like a mad woman, swinging the
handle of a brush around herself. He grabbed the brush handle, broke it in
half, took up one half and hit her on the arm and said
"How
do you like it?"
.
On another occasion, it was put to him that he had followed H. in his car in a
threatening manner as she was walking on the road. He denied this and said he
pulled up and asked her how she was. At that time she would not talk to him
and she stormed off down the road. He admitted that he did not write to H. and
claimed that she had not written to him since she went to Ireland. He had not
spoken to her ever on the 'phone since she came to Ireland. During the hearing
of this case, he tried to talk to H. outside the Court but she would not talk
to him.
36. The
Respondent said that the Applicant has called her an IRA bomber, his daughter
H. a nigger bastard and that her husband became very, very violent after B. was
born. He just hit her without reason and without explanation. On the occasion
of the physical row in H.'s bedroom, he referred to
"the
two Irish bitches"
.
Frequently at home the Applicant would play at his computer station in their
bedroom with the result that B. had nowhere to go at bedtime. On another
occasion, the Respondent says the Applicant referred to H. as looking like a
prostitute. They had a row when the Applicant was physically violent to the
Respondent, catching her hair, pushing her and holding her down. He referred
to H. as not his flesh and blood, and a dirty nigger bastard. To get back at
him the Respondent said she caught the handle of the broom and went up to the
Applicant's playstation and threatened to damage it where it hurt her husband.
He took the handle out of her hand and hit her on the back of her hand and
neck. Next day he said to her
"Now
see what I've done. You threaten me and I'll do the same again"
.
M. was allowed to be very aggressive to his mother and his father would not
correct him and in fact encouraged him, according to his mother. On one
occasion the father and son were together taunting H. and chanting
"Ya
mon"
at her because she was a nigger. Later H. felt very guilty and was crying and
it took a lot out of her. The Respondent said the father did not know the
effect that this was having on H..
37. At
the same time as giving all the foregoing evidence, the Respondent clearly
acknowledged that she would not say his father would hurt B.. By this she
meant that he would not do him physical violence. She thought his attitude and
the attitude of M. would cause B. psychological harm.
38. By
contrast, H. has had no difficulty in Ireland and B. has a regular routine.
The Respondent can handle him here and he has been doing well at school and at
home since he came to this country.
39. An
application was made on behalf of the Respondent that I would hear evidence
from H. or, alternatively, meet H. in chambers. The purpose of the evidence
was to establish that there had been violence towards her and her mother and to
give me an indication of the depth and strength of this violence.
40. Counsel
for the Applicant submitted that I should not hear H. in evidence or consult
her in chambers because this would be tantamount to requesting her to give
evidence
"against"
her father and could do irreparable harm to their relationship.
41. I
was impressed by this latter point and in light of the fact that there was
already abundant evidence in relation to the violence - regardless of who was
to blame - I declined to hear H. in evidence or to consult her in chambers.
42. I
have already indicated that I have reservations about the evidence of each of
the parties. I cannot accept that the whole truth is that the violence
admitted by the Applicant was always in self-defence. Equally, I consider,
having carefully watched her demeanour in the witness box, that the Respondent
would be quite capable of responding in kind to physical violence rather than
take it lying down. She described herself in evidence as a strong woman, and I
agree with her.
43. I
think the evidence establishes that violence occurred when the Applicant was in
the presence either of his wife or of H.. By
"violence"
I include verbal abuse.
44. This
application is for the return of B. to England. The evidence is that his
mother will not travel with him. There is no question of H. travelling or
being requested by Order so to do. If I make an Order and the Respondent does
not travel with B., the circumstance giving rise to violence will not apply.
Equally, the Applicant has undertaken that he is prepared to vacate his
two-bedroomed flat to accommodate B. and his mother in the event that she
wishes to travel. I consider that the evidence of violence shows that it
occurs as between the parties and as between the Applicant and his
step-daughter, H.. I do not think there is evidence of physical violence from
the father to B. and in her evidence the Respondent accepted this.
45. The
real relevance of the physical violence, so far as the Respondent's defence is
concerned, is that it has brought about a situation where there is no question
that H. would consent to travelling back to England. She is clearly of an age
where the Court would take her wishes into account and it is submitted that no
Order should be made separating B. from his sister, H. and also, if her own
evidence is to be believed, from his mother. This would amount to a grave
threat of psychological harm to a 4½ year old boy who has lived all his
life with these two, his mother and his sister, H.. His mother's reason for
not travelling with B. is that she has to be in Clare with H.. She has not
said she is afraid of her husband, nor has she criticised in principle the idea
that the two-bedroomed flat could be made available for her and B..
46. Any
Order I would make would have a relatively temporary effect. The existing
hearing of the father's application for judicial separation and custody of B.
at present stands adjourned to later this month. Counsel for the Applicant
submits that it is not credible that the wife must stay here in Ireland for the
sake of a daughter who is almost 16 years old and who needs her and yet at the
same time, refuse to travel with her 4½ year old son if he has to go to
England.
47. The
discretion I am exercising must be exercised in light of the Hague Convention.
It is emphatically not the discretion appropriate to a custody or access
application. Nor does it in any way affect or pre-empt what is to happen on
such an application. If an Order is made directing B. to be returned to
England, this Order in and of itself does not bring about the separation of B.
from his mother. If such a separation occurs, it is because of her decision.
48. I
cannot decide this case without also bearing in mind that M. is separated from
his mother since he returned with his father in mid-October of last year.
49. I
should also refer to a submission by Counsel for the Respondent to the effect
that the Applicant has been astute in the way he has brought this application
seeking the return of his 4½ year old son only and not his 15½ year
old adopted daughter. She says that it is the first time she has ever come
across a case where the application selects as between the children. If the
application were made for both H. and B., it is suggested that H. would be
consulted as to her wishes (I agree with this - I did not consult H. in this
case because she was a witness only and not an affected party), she would
clearly indicate a strong reluctance to be returned to England, the Court would
take this on board, and apply the principle that siblings should not be
separated so that the application would also be refused in respect of B.. His
astuteness in seeking only the return of B. should not be permitted by the
Court, it is submitted, to allow the Applicant to put himself into a better
position than if he had sought the return of both children. It is also
suggested that the Applicant is showing his true colours by selecting only one
of his two children now in Ireland and that he is really not the caring parent
that his application would suggest.
50. Equally,
it can be said that the Respondent has acquiesced in a situation where her 13
year old son, M. resides in England with his father in circumstances where she
has no access to him. In this context, I note that H. will be 16 in a few
months time and therefore beyond the scope and reach of the Convention itself.
51. Counsel
for the Applicant invites me to adopt the approach of the Court of Appeal in
Re:
C (a minor) (Abduction)
(1989): 1: FLR: 403 and particularly at page 410 where Butler-Sloss L.J. deals
with the weight to be attached to the refusal of a mother to return with a
young child in the context of the Convention. It seems to me that a Court
should be astute not to permit an abducting parent to set the Convention at
naught by refusing to travel with a returning child. In exercising my
discretion, I am also mindful of the following paragraph from the judgment of
Lord Donaldson M.R. in the same case, where he says at page 413:-
52.
I find it strange, and ill at ease with the principles of the Convention
itself, that the abducting mother in this case should favour a daughter soon to
be 16 and outside the direct contemplation of the Convention at the expense of
a 4½ year old son in the event that a returning order is made. In the
exercise of my discretion, I must balance the upholding of the Convention, on
the one hand, against this threat to the welfare of B. on the other. All the
authorities insist that the discretion which I am now exercising must be
exercised in the context of the Convention itself. I do not think that a
returning order would expose B. to a grave risk of psychological harm as
contemplated by Article 13(b) of the Convention. I am bearing in mind that the
question of his parents' custody of and access to B. and all matters relating
to his welfare can be dealt with in the near future and also the fact that the
Courts in England will have access to a range of evidence which is not
compellable in this jurisdiction and therefore will be the better equipped to
make a comprehensive decision in relation to his future. In the exercise of my
discretion, I consider that the balance favours the making of a returning order
and accordingly I make an Order under the 1991 Act directing that the child,
the subject matter of this application, should return to the UK in accordance
with the request from the Lord Chancellor's Department.
53. I
will discuss with Counsel details as to how this Order should be put into
effect and also specific undertakings to be given by the Applicant and
transmitted to the relevant authorities in the UK.