High Court of Justice in Northern Ireland Family Division Decisions

Neutral Citation No. [2011] NIFam 20	Ref:	GIL8374
n	Delivered:	07/12/11
(subject to editorial corrections)*


 


IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND ______ FAMILY DIVISION ______ RE A (A CHILD) (ABDUCTION) ________

GILLEN J

Background

[1] I have already given an ex tempore judgment in this case on the day of hearing due to the urgency of the matter. I undertook to set out in detail in a written judgment within days my reasons for so concluding and accordingly I now do so. The proceedings in this matter concern a child aged 12 (hereinafter referred to as A) who was born in Latvia to Latvian parents whom I shall describe as B and C for the purposes of affording anonymity to the family. B and C were divorced in November 2003. A remained with the mother B in Latvia. Both parties have remarried. C came to live in Northern Ireland in 2006. In 2010 contact between C and A was re-established. It is common case that an arrangement was made between B and C for A to visit C in Northern Ireland on 2 August 2011 and was due to return on 21 August 2011 to Latvia.

[2] Whilst in Northern Ireland, the child disclosed to his stepmother that physical abuse had occurred at the hands of his step-father in Latvia. The child was then taken to a general practitioner for examination in Northern Ireland. C informed B by e-mail that the child was not going to be returned to Latvia. B then came to Northern Ireland, met Social Services, made contact with A on 26 August 2011 and having failed to secure an agreement for the return of her son to Latvia, she returned there on 10 September 2011.

[3] B now brings an application pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 ("The Hague Convention") for an order for return of the child to Latvia.

The relevant legislation

[4] Article 12 of the Hague Convention requires a requested state to return a child forthwith to their country of habitual residence if he/she has been wrongly removed in breach of rights of custody. It is common case in this instance that A's country of habitual residence is Latvia and that A has been wrongfully retained in breach of B's rights of custody.

[5] Article 13 provides for three exceptions to the requirement for return in such circumstances. This court is concerned firstly with Article 13B which provides an exception where "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."

[6] Secondly the court is concerned with the exception under Article 13 whereby the judicial or administrative authority may refuse to order the return of the child if it finds 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 its views.

[7] In considering the circumstances referred to in Article 13, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the central authority or other competent authority of the child's habitual residence. That I have done in this case.

Principles governing the Hague Convention and the return of children

[8] I have been greatly assisted in this case by the skeleton arguments, augmented by oral submissions, of Ms McBride QC on behalf of the plaintiff, Ms Hughes on behalf of the defendant father and Ms Murphy on behalf of the Official Solicitor who had been requested to act on behalf of the child by order of Stephens J on 24 October 2011.

[9] In considering the principles upon which the court should act in this case, I have derived particular assistance from the decision of the Supreme Court in Re E (Children) (Wrongful Removal: Exceptions to Return) (2011) 4 All ER 5417, In the Matter of AN.U and AW.U, The Supreme Court of Ireland (Appeal No: 302/2011), Re R (A Child) (Abduction: Child's Objections to Return) (2009) EWHC 2074 and Child and Law Practice, Hershman and McFarlane at Section G. From these authorities I have distilled the following principles:

[10] The first object of the Convention is to deter either parent taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children.

[11] If an abduction takes place, the next object is to restore the child as soon as possible to their home country so that any dispute can be determined there.

[12] Factual disputes e.g. about domestic abuse are likely to be better able to be resolved in the country where the family had its home.

[13] The situation to be considered is that which arises if the child were to be returned to her home country. This is not necessarily the same as being returned to the person requesting the return.

[14] In interpreting and applying Article 13 of the Convention, the court should not lightly exercise a discretion to refuse to return a child to his or her country of habitual residence since that would risk undermining the effectiveness of the Convention in both remedying and deterring the wrongful removal of children from the jurisdiction of the courts in such a country which are normally in the best interests of the child.

[15] It will rarely be appropriate to hear oral evidence of allegations under Article 13B and neither those allegations nor their rebuttal are usually tested in cross-examination. Hence this case was determined purely on the statements, the documents and the submissions of counsel. Hague Convention cases do not normally require the need for a full blown examination of the child's future.

[16] In dealing with the exceptions under Article 13, the burden of proof – the balance of probabilities – lies on the person opposing the child's return. It is for them to produce evidence to substantiate one of the exceptions.

[17] However it is of cardinal importance to record that the Hague Convention is designed with the best interests of not only children generally but the individual child concerned as a primary consideration (see also Article 3(1) of the United Nations Convention on the Rights of the Child 1989 ("UNCRC") and Article 11 of the Council Regulation (EC) 2201/2003). The best interests of children have two aspects namely:

•    To be reunited with their parents as soon as possible so one does not gain an unfair advantage over the other through the passage of time.

•    To be brought up in a sound environment in which they are not at risk of harm.

[18] Article 11(2) of the Convention requires that the child be given an opportunity to be heard unless this appears inappropriate having regard to his or her age or maturity: this is now routinely invoked in this jurisdiction in all Hague Convention cases following Re D (2007) 1 AC 619.

[19] The positive obligation under Article 8 of the ECHR, to bring about the reunion of parents and child, must be interpreted and applied in light of both the Hague Convention and the UNCRC.

[20] Under Article 13B of the Hague Convention, the words "physical or psychological", whilst not qualified, gain colour from the alternative words "or otherwise placed in an intolerable situation". This simply amounts to a situation which a particular child should not be expected to tolerate. There is no need for the article to be narrowly construed. By its very terms it is of restricted application. It is now recognised that violence and abuse between parents may constitute a grave risk to the child. Where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is to be on the sufficiency of any protective measures which can be put into place to reduce the risk so that the child will not be called upon to face an intolerable situation when he gets home. The clearer the need for protection, the more effective the measures will have to be. If the risk is serious enough to fall within Article 13B, the court is concerned not only with the child's immediate future because the need for effective protection may persist.

[21] Finally, where the court holds one of the Article 13 defences is established, it then has a discretion whether or not to order the child's summary return to the jurisdiction of habitual residence. The House of Lords decision in Re M (Abduction; Zimbabwe) (2007) 3 WLR 975 is the authoritative statement of the law relating to the exercise of discretion in Convention cases when exceptions under Article 13 have been established. Baroness Hale described the approach to the exercise of discretion, which will vary from case to case, at paragraph 39 as follows:

"Thus is there is always a choice to be made between summary return and a further investigation. There is also a choice to be made as to the depth into which the judge will go in investigating the merits of the case before making that choice. One size does not fit all. The judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that factor and to all other relevant factors …. will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal system and principles of law of the two countries will be much less significant than they might be in cases that fall outside the Convention altogether."

[22] Thus in exercising the discretion, general policy considerations may be weighed against the interests of the child. Baroness Hale described these policy considerations as including:

"Not only the swift return of abducted children, but also comity between the contracting states and the 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."

[23] However Baroness Hale also made it clear that where a case was made out under Article 13B:

"It is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return should expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate."

[24] Baroness Hale also specifically addressed the exercise of discretion where a child's objection exception had been established in these terms:

"In child's objection cases, the range of considerations may be even wider than those in other exceptions. The exception itself is brought into play when only two conditions are met: first that the child herself objects to being returned and second, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in light of Article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once a discretion comes into play, the court may have to consider the nature or strength of the child's objections, the extent to which they are 'authentically her own' or the product of influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that a child's objections should only prevail in the most exceptional circumstances."

Applying the principles to the facts of this case

[25] Applying the principles set out above to this case, I have come to the conclusion that I should make an exception to the requirement that normally an order for the return of the child must be made. My reasons for so concluding are as follows.

[26] First because a defence under Article 13b has been made out to the extent that I am satisfied that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place him in an intolerable situation.

[27] This child has unequivocally alleged that he was subject to beatings in Latvia by his step-father. He claimed that he had sustained bruising to his arm and that his step father hit him almost every day. I am satisfied by the report to the court by the Official Solicitor that he is in fear of this man. He has also alleged that his step-father has visited domestic violence on his mother in his presence.

[28] I noted in the report of the Official Solicitor at paragraph 22 that the boy had instantly and without hesitation made an allegation that he had been obliged to kneel on screws which had made indents into his knee and which hurt him. He also alleged that his step-father took a knife, made a motion as if to stab him and struck him on his back and fingers. The boy further alleged that he had gone to five schools and had informed two of the schools that he had been beaten and bruised.

[29] Rosemary Carson, the solicitor for the Official Solicitor, in her report of 17 November 2011 formed the following views:

"At interview [A] gave detailed accounts of how he was physically and emotionally abused by his step-father …. I have no doubt that even if assurances were given to [A] that he would be safe in Latvia, he would be at risk of grave harm in any event."

[30] The Official Solicitor, Brenda Donnelly, in her report of 17 November 2011, refers to her discussions with the boy about a reference in the Social Service's report that he was considering harming himself with a knife. The following extract appears at paragraph 8 of her report:

"I asked him if he planned to stab himself, cut his arm etc? He replied that he was 'ready to die'. I asked him if he was considering killing himself. He replied 'Sometimes I was scared by the shouting and I had the knife in my hands. It was a very bad life and I was thinking a lot about killing myself'. …. I asked [A] if he ever thought of killing himself here in Northern Ireland. He said 'No' and I said I was glad. He said 'No one gets hit here'.

[31] At paragraph 10, when asked by the Official Solicitor what he would do if he was returned to Latvia he replied "I am afraid to go back, I think I would run away or harm myself with a knife".

[32] I have taken into account the fact that two highly experienced solicitors namely the Official Solicitor and a solicitor from her office "are in no doubt that [A] is telling the truth".

[33] The plaintiff's mother in this case has specifically asserted in her first affidavit at paragraph 22 that "there has never been any abuse or threatening behaviour by my husband to [A]". She retreated from that to some degree in her second affidavit at paragraph 11 where she said:

"I deny that my husband has ever beaten [A] as alleged. On one occasion [A] stole some keys and refused to tell us where they were. After my husband took a branch from a tree [A] told us where the keys were. At no stage did my husband strike [A] with a branch. I note that when I spoke to the social worker in Northern Ireland it is reported that I stated my husband smacked [A] with a branch. I did not say this and assume the error arises from a mistake in translation."

[34] However I consider that there is some independent evidence which belies what the plaintiff has said and supports the allegations made by the child. In the first place, a report from the Riga Orphans Court of 3 October 2011 records a statement from the Form Master of the Ukrainian Secondary School where the child attended. It asserts:

"… (the Form Master) was informed about what has happened to [A]. …. At the beginning of 2010 (the Form Master) found bruises on arms of [A]. He said that his step-father seized him strongly because he had eaten a box of candies without permission. (The Form Master) talked it over with the mother."

[35] A domestic circumstances inspection report from Riga Orphans Court of 4 October 2011 recorded:

"(The plaintiff) answers about possible physical violence of step-father to [A]: before Christmas 2010 for taking (somebody else's) keys – a rod was plucked in the garden, the boy was threatened with it, got a light slap on his butt".

[36] A report from a psychologist in Latvia, recording that one has to be cautious with the plaintiff's responses, raised the same question that has occurred to this court namely "However it is not clear how they could try to use a rod as a means of upbringing once". Hence the whole issue of using a rod against this child tends to support the allegations he has made.

[37] Whilst of course I recognise that the plaintiff and her husband have had no opportunity to contest allegations of violence against him, nonetheless I am conscious of the fact that exhibited to the papers before me from the State police in the Republic of Latvia, was a report in the following terms:

"On 17 October 2003 the police registered material stating that (the step-father) had a conflict with his wife (a former wife) who sought medical attention in …….. hospital because of bodily injuries. ….. She refused to initiate criminal proceedings.

(2) On 10 April 2004 the police registered material stating that (the step-father) had a conflict with his 'former wife'. She refused to write a report therefore no proceedings were initiated.

[38] The ex-wife also had recorded a conversation with the Aluksne Territory Orphans Court dated 26 October 2011 which recorded:

"I divorced (the step-father) in 2004. Before that I was physically influenced several times during quarrels – I was punched, my sacral bone was broken. I reported to the police several times. No criminal proceedings were initiated, because this was the sole condition why he agreed to divorce me. Sometimes he also physically maltreated our children."

[39] Such evidence is of limited value given the inability of challenge to it before me but nonetheless it carries a resonance of the thrust of the child's case.

[40] In all the circumstances I was satisfied therefore on the balance of probabilities that this child's return to Latvia to live with his mother and step-father would constitute a grave risk of exposing him to physical or psychological harm or otherwise place him in an intolerable situation.

[41] I am not satisfied that the undertakings given by the mother in this case that she would take all steps to ensure that her husband had no contact with [A] for four weeks commencing on the date of return or reside in the family home would be fulfilled given her denials of any violence to the boy. In any event I consider this is far too short term a measure given the concerns that have been raised. In saying this I do not wish to appear to usurp the functions of the distinguished court of habitual residence in Latvia. Whilst I have no doubt that such a court is well versed and thoroughly experienced – as would be the local social services in Latvia—in dealing with allegations of violence against children and spouses, I do not believe this child should be expected to tolerate the prospect even of being returned to live with this culture of violence in his home in circumstances where it will be known to the stepfather that he has confided the full details to people in authority and where in the past his mother has been unable to protect him. There are insufficient protective measures available to reduce this risk. In my view on the balance of probabilities the prospect of returning to this step-father given the violence that has been adumbrated before me in itself would be sufficient to cause this child grave psychological harm with a real risk of physical self-harm.

The child's objection

[42] Even if I am wrong in my conclusion that Article 13B defence is appropriate, I also refuse to order the return of this child because I have found 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 views. In other words I am satisfied of both gateway limbs. I am so satisfied for the following reasons.

•    I note that the Official Solicitor records "We are satisfied that [A] is a bright child for his age and in these circumstances I felt I could explain to him that ordinarily in these cases the judge orders the minor to be returned to his or her home country for the dispute to be dealt with there".

•    At 12 years of age, I consider that most if not all children have attained an age and degree of maturity at which it is appropriate to take account of their views.

•    I am satisfied that this child can be relied on to give an answer which does not depend on instinct alone but has been influenced by the discernment which a mature child brings to the implications of the issue for his or her own best interests in the long and short term. I am persuaded by virtue of the careful and searching contents of her report that the official solicitor has made a sufficiently detailed analysis of this child's level of maturity and capacity to judge what is in his medium and long term interests and that I can rely upon her judgment so made. All counsel submitted that they saw no need for me to interview the child myself in the circumstances of this case. I do not rule out other occasions where the court may deem this necessary before coming to a conclusion.

•    I have no doubt that this child is opposed to returning to Latvia because of the treatment he alleges was visited on him by his step-father. When asked by Ms Carson for the purposes of the report of 17 November 2011 as to how he would feel if the judge decided he should go back he said "I would hold on to my dad and I would not go back. I would run into the house and lock the door". Later in the interview he said "Those are my wishes. I believe in my heart if I go back I will be beaten again. I will be told not to tell Social Services or I will be dead". Later he added "I would miss my mum but I would rather stay here even if my step-father was not living in the house because I would still be afraid of him."

•    When Ms Carson told him that his mother missed him and would like him to come home he said "I know that. I don't want to go back. I will throw away the tickets and not go back. My mum told me I had to lie".

[43] I observed that the Official Solicitor Ms Donnelly recorded that the child looked grim faced and extremely worried when it was explained to him that he might be returned by the judge. Later when she raised the issue of self-harm with him, he told her that he was "ready to die" and in the past he had been "thinking a lot about killing himself". During that interview Ms Donnelly records him saying "I am afraid to go back, I think I will run away or harm myself with a knife."

[44] Views expressed by children cannot necessarily be determinative of issues under Hague Convention .But the voice of the child must be listened to with a discerning ear if the court is to do more than merely pay lip service to the best interest of the child. Experience as a family judge has long revealed to me that violence, whether directly applied, threatened or witnessed, can have the most profound effect on children both short term and long term particularly if those fears are not treated seriously. I am convinced that this child has genuine and justified fears which must be addressed. In light of this conclusion I have no doubt that it is appropriate that I should take them into account and refuse to return him in light of what he has said.

Discretion

[45] Where the court holds that one of the Article 13 defences is established, it then has a discretion whether or not to order the child's summary return to the jurisdiction of habitual residence. Given the circumstances that I have outlined above and the principles to which I have already adverted, I do not consider that it is appropriate to exercise my discretion in favour of return given:

•    the nature and strength of this child's objections.

•    the conviction I have that they are authentically his own and not the product of the influence of the retaining parent.

•    the risk of this child harming himself.

•    that I am satisfied that the views of the child coincide with the welfare and best interests of this child and are not at odds with the underlying principles of the Convention in the circumstances of this particular case.

[46] Therefore I have concluded that this child should not be returned to Latvia.

[47] I pause to observe that I consider it imperative that this child should continue to have contact with his birth mother and this contact should be as generous as the circumstances permit. I am unaware as to the operation of the law as it obtains in Latvia, but if sufficient protections or mirror orders can be put in place by way of a court order in Latvia, ensuring that the child would be returned to Northern Ireland if he were to return to Latvia to periodically visit his mother and enjoy the culture and language of his country of birth, that should be done. However it may be that a further court hearing will be necessary before the family judge to ensure that appropriate undertakings and legal constraints are put into being before this can take place. I also indicate that social services should, at least in the initial weeks after this order, consider visiting the home where he is now residing to ensure he is settling into this new environment. A copy of any such report should be furnished to his mother. Finally a copy of this judgment should be made available to the relevant Latvian authorities.