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ES v OS [2017] EWHC 2735 (Fam)

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Application by father for return of children to Lithuania. Application adjourned for father to attend, he having on a previous occasion failed to keep a promise not to take the children from the mother upon her return.

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    [2017] EWHC 2735 (fam)

    IN THE HIGH COURT OF JUSTICE No. FD17P00446

    FAMILY DIVISION

    Royal Courts of Justice

    Tuesday, 31st October 2017

    Before:

    MR JUSTICE HOLMAN

    (In Public)

    B E T W E E N :

    ES (Applicant)

    - and -

    OS (Respondent)

    __________

    MISS E. RAYNER (instructed by Best Solicitors) appeared on behalf of the Applicant.

    MR M. GRATION (instructed by Farnworth Shaw) appeared on behalf of the Respondent.

    MR M. HINCHLIFFE (instructed by Cafcass Legal Services) appeared on behalf of the Guardian.

    __________

    J U D G M E N T

    MR JUSTICE HOLMAN:

    1 What follows is not a judgment in the conventional sense, for I do not in the end decide or determine anything today except the giving of certain directions. The purpose of these words is to create a summary narrative record of the course of the hearing today and why it is now being adjourned.

    2 This is an application made under the Hague Convention for the return of two children to Lithuania. The children are aged almost ten and about five and a half. There is a considerable earlier history to this case. In December 2012 the mother wrongfully removed both children from Lithuania to England, and there were proceedings here at that time pursuant to the Hague Convention. On 22 March 2013 Parker J made an order for the return of the children to Lithuania forthwith pursuant to the Convention. That order was based on certain promises or undertakings given by the father, which included an undertaking that he would not take the children away from the mother's custody after their return to Lithuania, at any rate until the first hearing of the case in Lithuania in relation to the welfare of the children.

    3 The mother did fly back to Lithuania in obedience to that order. There was a terrible event at the airport on arrival, in which, as I understand it, the father, together with his parents and other people, forcibly removed both children from the care of the mother at the airport. I mention that at that time the younger child was aged just over one, and was still in a pushchair or buggy. Legal proceedings ensued in Lithuania. In November 2013 a court of first instance ordered, in summary, that custody of both children should be given to the mother. By then, the baby son had been returned to her, but, despite that order, the father did not return the daughter, then aged about six. There were further lengthy legal proceedings, and it seems clear that at the very latest by early May 2015 the father had exhausted all avenues of appeal and was under a legal liability to return the daughter to the mother. But he did not do so. It was, in the end, only on 15 July 2015 that the daughter finally returned to the mother. That was only after police had raided the father's house and found the daughter hidden away in the attic of that house. These events appear to have resulted in him being prosecuted in Lithuania for kidnapping. After that, matters do appear to have settled down somewhat, and indeed, as I understand it, the father has seen nothing of the daughter for an appreciable period of time, and only very little of the son.

    4 Then in mid-May 2017 the mother removed the children from Lithuania to England for a second time without the consent of the father. She has said in a statement that she had been advised by lawyers in Lithuania that she could lawfully do so because the father was not paying the child maintenance and had "of late played no part in the children's lives". But she goes on to say that she now appreciates that that advice was incorrect.

    5 So on the mother's side there is a history here of not once, but twice abducting these children from Lithuania to England. But on the father's side there is a, frankly appalling, history of flagrant breach or disregard by him of the undertakings or promises which he had given to Parker J on the last occasion, and indeed the further flagrant disregard by him of orders of the courts of Lithuania which ultimately resulted in his being prosecuted for kidnapping the elder child.

    6 The father promptly commenced the present proceedings after the removal of the children from Lithuania to England earlier this year. The mother has raised three defences. The first is that the father was not actually exercising his rights of custody prior to the removal. The second is that the elder child, now aged almost ten, objects to a return to Lithuania. The third is that the return of each of the children to Lithuania would expose them to a grave risk of physical or psychological harm or otherwise place them in an intolerable situation.

    7 So far today I have heard no submissions at all on the question of whether or not the father was actually exercising his rights of custody, and I say no more about that particular line of defence. So far as any objection by the elder child is concerned, there is already a report from the CAFCASS officer, Mrs Janet Sivills, who is now the guardian for these children. Her report is dated 13 October 2017. It gives an account of her meeting with the children in Birmingham when she communicated with them largely through an interpreter. That written report has been much elaborated by the oral evidence of Mrs Sivills given here today. On behalf of the father, Miss Emily Rayner submits that the views and statements of the elder child, as reported and described, do not objectively amount to an "objection" as that word is applied by the courts in cases under the Hague Convention. On behalf of the mother, Mr Michael Gration submits that the state of mind of the child does amount to an objection, as does Mr Michael Hinchliffe on behalf of the guardian. That is not an issue upon which I rule today. As this case must be adjourned, I will direct that a transcript is made very urgently of the oral evidence of Mrs Sivills today, at the expense of public funds.

    8 As to the third line of defence under Article 13(b), there is always a need to consider the primary facts and circumstances of the defence side by side with any protective measures which may be proffered or able to be put in place. That is the point at which, frankly, the present hearing has run into the buffers. Through Miss Rayner's position statement for today, the father has proposed certain undertakings: see paragraph 20. Those undertakings are in fact patently inadequate, since they do not include any provision whatsoever for the accommodation or support of the mother and children, even for a short period, in the event that they were to return to Lithuania. In fairness to the father, it should be recorded that until this afternoon the mother had not set out the undertakings and protective measures that she would, as a minimum, seek if she is ordered to return the children to Lithuania. During the lunch break today, at my request, Mr Michael Gration took instructions from the mother, and shortly before we resumed this afternoon he gave to Miss Rayner a typed-up list of proposed undertakings. The difficulty is that the father is not present today. Further, neither his solicitors nor the court have arranged for a Lithuanian-speaking interpreter to be available to enable Miss Rayner to speak to, and obtain instructions from, the father. So the situation has been reached this afternoon when the mother, through Mr Gration, proposes a range of undertakings upon which the instructions, or even the reaction, of the father are completely unknown.

    9 There is, however, a second and very important aspect to the difficulties which arise today. As I have said, on the face of it, there was blatant breach and disregard by the father of the promises which he gave to Parker J in March 2013. The subsequent history, as I have briefly summarised it, is, frankly, shocking. That being so, the mother, through Mr Gration, says that she simply could not trust the father to adhere to any undertakings which he may give this time round, and Mr Gration submits that the court cannot safely trust the father either.

    10 In those circumstances, it seems to me that, whatever may happen in other cases, it is essential that the father personally attends this court if any order is to be made in reliance upon any promise or undertaking by him. No one present today knows exactly what happened during the course of the hearing before Parker J. It is not even known with certainty whether the father was present or not. It is not known what sort of document, if any, he signed recording his promises or undertakings. It is not even known the precise language used in the original order. All that is available to us today is a translation back into English of the translation into Lithuanian of the original order of Parker J. I, for my part, would not in these particular circumstances countenance relying upon any promise or undertaking by the father if he had not personally appeared in front of me.

    11 So, for this combination of reasons, it is simply impossible to draw the present hearing to any conclusion. I specifically asked Mr Gration, who is immensely experienced in this field, whether he felt able to submit to me that in any event these children should not, and could not, be returned to Lithuania irrespective of any undertakings which the father might offer; but he has, very properly, referred to authority of the Supreme Court and said that in a case such as this, the court cannot properly compartmentalise issues in that way. It must ultimately consider the case on a holistic basis, including giving appropriate consideration to whatever undertakings are ultimately offered, and of course appropriate consideration to whether the court feels that it can properly rely on those undertakings.

    12 So, perforce, this case will have to be adjourned. There is in fact a range of further other steps which now require to be taken, to which I need not refer in this judgment because they will all be carefully set out in the order to be drafted by counsel. This is an application under the Hague Convention. The children have already been here since May. The application was issued around the middle or end of August 2017, now already two months ago. Accordingly, the further hearing must be listed with the least delay possible. I personally will not be sitting again at the Royal Courts of Justice for another five weeks. However, a clear one-day hearing is available in three weeks' time on Tuesday 21st November 2017. On the basis that the oral evidence of the guardian will be transcribed, no advocate suggests that I personally am so far into this case that it must now be regarded as part-heard. So it will now be heard afresh by another judge, albeit that the evidence which the guardian gave today will stand on the basis of the transcript of it.

    13 I wish, however, to make absolutely clear that I have not, by anything I have done or said today, resolved any of the fundamental issues in this case. I am clear that there could be no question, on the facts and in the circumstances of this particular case, of ordering a summary return of the children without, at the very least, the personal attendance of the father before this court. But the father must clearly understand that even if he does personally attend the next hearing, it will not necessarily follow that the return of the children will be ordered. There will still have to be intense consideration of whether or not the elder child does object to a summary return and, if so, what discretionary decision should follow. There will have to be intense consideration of whether there are risks to these children which are not even capable of being ameliorated or safeguarded by undertakings. But all of that will now be for another day.


Published: 06/11/2017

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