Family Law Hub

F (Abduction: Acquiescence: Child's Objections) [2015] EWHC 2045 (Fam)

Application by mother for return of the children to Australia. They has visited the father in England for an agreed holiday and then remained here. The father argued that the children objected and the mother had acquiesced. Application allowed.

  • This judgment was delivered in private. The judge has given leave for it to be reported on the strict understanding that (irrespective of what is contained in the judgment) in any report no person other than the advocates or the solicitors instructing them may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved. The names of the children and of the adult members of their family have been changed to protect their anonymity.

    CASE No: FD15PO183

    Neutral Citation Number: [2015] EWHC 2045 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Before

    His Honour Judge Clifford Bellamy

    sitting as a Deputy High Court Judge

    (Judgment handed down on 2 July 2015)

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    Re F (Abduction: Acquiescence: Child's Objections)

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    Miss Jacqueline Renton for the mother

    Miss Ashley Thain for the father

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    JUDGMENT JUDGE BELLAMY:

    1. These proceedings concern four children, Simon, Clare, Peter and Harry. The ages of the children range between 13 and 9. The children's parents are LF ('the mother') and JF ('the father'). Until December 2014 the children lived with their mother in Australia. With the mother's agreement the children came to England to spend their (Australian) summer school holidays with their father. They should have returned to Australia on 23rd January 2015. Before the date of travel the father indicated to the mother that the children wished to remain in England and that he would not, therefore, be returning them to Australia.

    2. The mother now seeks an order for the summary return of the children to Australia. The father admits that his retention of the children was wrongful. However, he asserts that the mother acquiesced in the children's retention in England and/or that the children object to returning to Australia and that in those circumstances the court should exercise its discretion to refuse to order their summary return.

    3. I have not heard oral evidence from the parents. In her opening skeleton argument on behalf of the mother, Miss Jacqueline Renton said that 'it may not be necessary to hear oral evidence from the parties in this case'. In the event, neither Miss Renton nor Miss Ashley Thain, who appeared for the father, sought permission to adduce oral evidence. Each parent has filed one witness statement. Much of the background history is not in dispute. In the narrative which follows I will identify those issues that are in dispute.

    Background history

    4. Both parents are aged 38. Both are English. They met in 1995. Although their home was in England they were married in Australia in November 2000. All four children were born in England. When Simon was born the mother gave up work to be a full-time mother.

    5. By 2007 the parents were exploring the possibility of relocating to Australia. In March 2007 they visited Australia to look for a property to buy. They were successful. In July 2007 the family moved to live in Australia.

    6. Soon after their relocation the parents' marriage broke down. They separated in October 2007. The father left the family home. By then he was in an adulterous relationship with AB. It is unclear when that relationship began.

    7. After the separation the father rented a property in Australia near to the family home. He maintained contact by visiting the children in Australia, by Skype and by telephone. The mother says that initially his visits were frequent, may be 3 or 4 times a year but after a while they became less frequent. Whenever he visited he stayed in his rented property. The mother says that he always travelled business class. The father is silent on that issue.

    8. In January 2014 the children made their first visit to England since their relocation to Australia in 2007. They spent three weeks staying with their father. The visit to England appears to have unsettled Clare. After their return to Australia, Clare began to say that she wanted to live in England.

    9. The parents agreed that the children should spend the whole of their 2014/15 two month Australian summer school holidays with their father in England. They arrived in England on 20th November. The mother travelled to England with the children in order to visit a terminally ill relative. She returned to Australia on 24th November. The father booked and paid for the flights including the mother's flights. In an e-mail sent on 28th October the father told the mother that if she 'wanted to stay longer over Christmas etc. etc. we can sort something out I'm sure.'

    10. Following her return to Australia, on 4th December the mother was served with an eviction notice as a result of substantial mortgage arrears relating to the family home. This was not the first time she had received an eviction notice. She had previously received notices in February 2013 and July 2014. The mother says that the father agreed to pay the arrears but said that he needed time to do so.

    11. The father says that he ceased paying the mortgage in February 2014 when he 'was advised that the Applicant had moved in a new partner but neither of them were willing to make any contribution at all towards any of the bills'. He appears to have convinced himself that the mother was cohabiting. There is no evidence to support that belief.

    12. In his statement the father goes on to say that he had

    'repeatedly told the Applicant that having struggled to support her lifestyle there for nearly 7 years after we had separated, unless she could find a way of supporting herself, all be it with a contribution from me, she would have to return to the UK with the children. I did resume the payments in September and October 2014. The payment was AU$8,000 per month.'

    That statement conflicts with an e-mail the father sent to the mother on 5th December in which he says,

    'I have never let you down before and I won't this time. I am waiting for a deal to pay out and then I will pay it. If it's not paid in the next couple of weeks I will borrow it from mum.'

    13. On 26th December the father took the children on a skiing holiday. They returned to England on 11th January. Text messages between the parents show that the mother was becoming increasingly worried about losing her home. The father reassured her. For example, on 5th January he sent a text to her saying, 'I have emailed the bank my next commission payments and confirmation of when and I have also requested they extend the eviction for two weeks'.

    14. The father says that over the Christmas period the children 'became absolutely insistent that they would not return to Australia'. He says that there were 'numerous daily discussions between the children and the Applicant via Skype'. He goes on to say that,

    'When the Applicant finally realised how determined the children were, she agreed that she would pack the house up and return to live in the UK. She told them that wherever they were, she would wish to be.'

    15. The mother says that it was on 11th January 2015, the day the father and the children returned from the skiing holiday, that he informed her that the children would not be returning to Australia and that they wished to stay with him. She says,

    'I was very upset and told him he should return them to their home in Australia. He refused to listen to me and his mind seemed to be made up. He also told me that he was no longer going to pay the mortgage arrears and that I would be evicted'.

    16. The father seeks to create a picture of the mother acknowledging her children's wish to live in England and agreeing that they should do so. That is not the picture that emerges from a series of text messages which the parties have produced. The clear picture emerging from the text messages is of a mother who wants her children returned to her in Australia. On 6th January she wrote, 'I am asking you to give us time back here so we can do things properly'. On 15th January she wrote, 'The kids need to be back here…' In another text she says, 'Pls bring them back'. And in another, 'This has been their life…and they need to say goodbye to it…to see friends and places one last time and to get their citizenship'. In another she says, 'Please bring them back, I need to be with them…' On 19th January she wrote, 'I want my children here, like you said you would. Please be true to your word. I need them with me and I'm sure they must miss me'.

    17. There are also some texts in which the mother appears to agree to return to live in England. In one message she says, 'I can understand they want to be near you. We will all move, that's a given…' In another message she says, 'I agree that they need both of us that's why we are moving'. Such comments need to be read in the context of the totality of the text message exchanges. The totality of the text messages suggest that the father was putting the mother under intense pressure to bend to his will. He had total financial control. He also had the children in his care. Some of his texts were highly abusive.

    18. An earlier series of text messages exchanged in April 2014 reveal the extent to which the father may be prepared to go to get his children back to England. He says, 'I hate you so much…The truly fair outcome in this is that you get on a plane and come back to the UK and allow me to be a dad'. In a later message he wrote, 'I am sorry for everything, if you knew how much I wanted my family you would understand, if I took the kids away from you, you would say and do anything to get them back…'

    19. Prior to her eviction from the family home the mother sold some of the furniture and put other items into containers for shipping. She also placed the family's two dogs with an animal transport company in anticipation of them being sent to England. The parents' accounts relating to these issues are contentious. She says that the father insisted that the furniture be sent to England. He says that it was the mother's decision to send the furniture to England. The mother says that until 23rd January (the date when the children were due to return to Australia) she still harboured hopes that they would be returned.

    20. Payment of the costs of removal, storage and kennel fees remain outstanding. I was told by Miss Thain that the father has negotiated an agreement with the storage company to pay off the debt at the rate of AU$1,000 per month and that he has recently made the first payment. No evidence has been produced to confirm this.

    21. On 13th February 2015 the mother was evicted from the family home and the property was repossessed. She was homeless and penniless. She managed to obtain sufficient funds to purchase an airline ticket back to England. She returned to England on 14th February. She went to live with her parents. She continues to live with them. She says that her plans to stay in England were temporary and that she had returned to England to enable her 'to have the children returned to my care and to try and sort out financial matters with the respondent who had completely left me without funds or a home, and then to return to Australia…'

    22. There is evidence of the mother's view of her return to England in a letter she wrote to the Australian authorities shortly after her return to England and in a letter written to her by the Director of Enrolments at the children's school in Australia. In the former, the mother wrote,

    'I am writing to advise you that as of February 2015 I have left Australia. I have had to return to the UK to attend court to get my children returned to me, as after a holiday to the UK the children's father refused to return them to our home in Australia. I hope to return to Australia in the future with my children.'

    In the latter, the Director of Enrolments began her letter to the mother by saying,

    'I am so sorry that this situation has forced you to move to the UK and wish you all the very best for a positive outcome…'

    23. Since making the decision to retain the children the father has taken steps to arrange for their schooling. He has done so without any consultation with the mother, an issue which the text messages show to have been a cause of distress to her. In his written evidence the father says that,

    'Having made it absolutely clear that they wish to remain here in the UK, I made application for the children to attend an independent school but sadly they all failed the entrance exams due to the very poor educational standard that they have reached in Australia….I then arranged for Clare, Peter and Harry to attend our local village primary…where they are extremely happy and thriving and for Simon to have weekly home tutoring. I also tutor him myself. Since living with me in the UK all of the children have increased their reading age substantially. Harry has improved by three years, Peter and Clare by two years and Simon by one year as a result of the substantial improvements Simon has now been accepted to start at the independent school in September…'

    24. The parents are still married. Neither has ever issued a divorce petition. Both have been in a position to do so for a significant period of time. Neither has taken the initiative in trying to resolve the financial consequences of the breakdown of their marriage.

    Steps taken by the mother to recover the children

    25. The mother says that she

    'didn't know whether the respondent would follow through with his plan. A friend of mine knew a retired High Court Judge in Australia and I asked him what I could do if the respondent failed to return the children to me. He mentioned the Hague Convention; he told me that if the respondent refused to return the children it was a criminal offence and that the federal police would get involved. He told me that he could get arrested for abduction. I was worried as I did not want the respondent to be arrested. He seemed troubled by the fact that I was on the verge of losing the family home as the respondent had told me he would not pay the arrears and that I had been served with an eviction notice. I had told him about the eviction date later in the month. I was very confused and did not know what to do. I was very upset. The retired judge seemed to suggest that I would need to go back to England because of the difficult circumstances my husband had put me in. He did not explain to me the mechanics of the Hague Convention but he did mention it as a way of getting the children back to Australia. I had no access to funds to get proper legal advice.'

    The mother took no other steps before leaving Australia.

    26. Immediately upon her return to England the mother arranged for the parties to attend mediation 'to discuss the issues between us'. The meeting was arranged for 18th February. The father did not attend.

    27. Soon after that meeting the mother saw a solicitor. Her father paid for her to have a one hour consultation. She says that she asked the solicitor for advice about 'how I could get the children back to my care and myself back to Australia'. She was given inadequate advice. She issued an application in the Family Court by which she sought 'A child arrangement order to include provision for residence and/or contact' in respect of each child'.

    28. Having issued her application the mother subsequently discovered that the father planned to take the children on holiday to the Middle East. She applied to the court for a prohibited steps order. Both of her applications were listed for hearing before a Circuit Judge on 26th March. The father was given permission to take the children on holiday. The application for a child arrangement order was adjourned to 21st April for further directions.

    29. The mother's application form contained the following paragraphs:

    'I accompanied the children to the UK in November 2014 as the respondent wanted to have them in the Uk for Christmas and he was due to return them to Australia on January 23rd so as they could return to school on the 27th January 2015. The children were not returned to my care. Our property in Australia has since been repossessed as the respondent hasn't paid the mortgage since February 2014. I would like to live back in Australia with the children but have returned temporarily to the UK in order to regularise my domestic/financial affairs. It is my view that the children should be returned to my care as soon as possible.'

    A little later in her application she said,

    'I am contemplating making an immediate application for the return of the children to Australia through the Central Authority'

    30. At the hearing on 26th March the mother appeared as a litigant in person. The mother's application form clearly put the court on notice that, on her account, there had been a wrongful retention of the children in England. For the mother, Miss Renton submits that the judge should have transferred the proceedings to the High Court and notified the Central Authority. In support of that proposition she relies upon the decision of Bodey J in C v D (Abduction: Grave Risk of Harm) [2014] 2 FLR 724. He made the point that,

    '[9] …It is worth repeating Art 16 of the Hague Convention which says:

    'After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice.'

    In Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 Holman J spoke in trenchant terms about the duty of the court to be alert to this provision and to transfer the case to the High Court of Justice if in any doubt. He spoke of 'alarm bells ringing'. This and other authorities cited by him in that case have led to a note in the Family Court Practice (Jordan Publishing, 2013), at p 448 as follows:

    'Where the court becomes seised of a matter relating to a child and it becomes apparent that there has been wrongful removal or retention within the meaning of the Convention, the court has a duty to take steps to secure that the parent in the other state is informed of his rights under the Convention. The English central authority should be requested to inform the central authority of the state from which the child has been removed of the circumstances of the case. The court should also communicate with the parent in that state by means of directions to the effect that he should seek legal advice expeditiously as to his rights and communicate with the central authority of his state of which he should be given the name and address.''

    It would appear that all of that was overlooked by the judge.

    31. On 14th April the mother made contact with the International Child Abduction and Contact Unit ('ICACU') in London. She completed an application form. ICACU instructed solicitors on 16th April. These proceedings were issued on 21st April 2015. The first hearing took place before Newton J on 23rd April. The proceedings in the Family Court were stayed.

    32. Since the mother returned to England the father has allowed her to have some contact with the children. For a while this included alternate weekend staying with the mother at her parents' home. Shortly before this hearing began that arrangement broke down, the children having apparently indicated that they do not wish to see their mother or have any form of contact with her.

    Financial matters

    33. As I noted earlier, it is the mother's case that the father has engineered the present situation by forcing her out of her home (by not paying the mortgage leading to her eviction and the property being repossessed) and by abusing the power imbalance that exists between them.

    34. The father is a financial consultant. At the time of their move to Australia he had his own business in England. Following the move to Australia he tried to maintain his business by spending six out of every twelve weeks in England. He says that he struggled to cope and that his business eventually went into voluntary liquidation. He has since been able to build up a new business. The mother says that she believes the father earns in excess of £250,000 - £300,000pa. The father is silent concerning his financial position.

    35. The evidence about the father's financial position is very limited. The mother believes the 17-day skiing holiday in January 2015 cost the father in excess of £15,000. He provides no details. He says that the holiday to the Middle East cost in excess of £28,000 for flights and hotel accommodation though he says that the cost was shared with his sister as she and her husband and family joined them on this holiday. In his statement he concedes that he has 'taken the children on a couple of expensive holidays which I have been able to do as a result of my substantially lower monthly expenditure' – an oblique reference to the fact that he was no longer paying the mortgage and school fees in Australia.

    36. It is not disputed that throughout almost the whole of the time the family lived in Australia the mother was completely dependent upon the father for the financial support of herself and the children. That support included the payment of the mortgage on the family home and the children's school fees. The mother also had unrestricted access to the parties' joint bank account.

    37. In 2013 the mother obtained part-time work. She was paid AU$300 per week. She also received AU$300 per week in child benefit. Apart from that she continued to be financially dependent upon the father. Since her arrival in England the father has made some financial provision for her. Until recently, when he began to put money directly into her bank account, he would send cash with the children when the mother had contact with them. It is not difficult to see that this would have been demeaning for the mother. By passing the money on via the children it will also have reinforced in their minds the fact that their mother was completely financially dependent upon their father.

    38. The mother now works part-time in a supermarket.

    Children's objections

    39. The mother's application came before the court on 23rd April. Newton J made an order that the Cafcass High Court Team prepare a report as to the children's objections, if any, to a return to Australia and as to their wishes and feelings. Cafcass allocated the case to Angela Adams. Ms Adams has only recently become part of the Cafcass High Court Team.

    40. Ms Adams saw each child separately. She spent around an hour with each of them. I set out her evidence in the order in which she spoke to the children.

    Harry

    41. At some point prior to the issuing of these proceedings (and it is not clear precisely when) Harry wrote a letter to his mother. In it, he says,

    'I am writing this letter because you won't listen when I try to talk. I don't want to go back to Australia because I have friends and family here. I have a baby sister called Molly and I want to grow up with her…I have some lovely friends at my new school…If we go back to Australia we will never see our family again. If we go back we will never see our daddy again. We love it here and we don't want to go back…'

    42. Harry wishes to stay in England. The primary reason for this is because they have extended family members living in England whereas they have no family in Australia. He had thought that they were coming to England for a holiday "but when we were here we decided we wanted to be with our family. It's having family". Ms Adams reports that Harry told her 'that if he lived with his dad he would be much happier because they could live in England, and his mum would make them live in Australia'. She also reports that Harry 'said he was scared for his dogs being lonely in kennels in Australia, and that he wants them to be with him' and that 'He misses his old friends in Australia, as well as the spiders and the snakes. He misses his swimming pool and the quad bikes.'

    Peter

    43. Peter told Ms Adams that he decided he wanted to live in England 'as he feels like a part of a big family in England. In Australia it was just them and his mum'. She goes on to report that 'He said Molly was the main reason they wanted to come here.'

    44. Peter told Ms Adams that he had one good friend in Australia and that he was finding friends a bit of a struggle at his new school 'but it was getting better'. Peter's ideal scenario was to live in England with his dad, but have mum here and see her too.

    Clare

    45. Like Harry, Clare had written a letter to her mother before these proceedings began. In it she says that,

    'One of the reasons why I don't want to go back to Australia is because we have got Family and Friends here in England…Another of the reasons is that I have a cute baby sister that has just begun to crawl, named Molly. I would "LOVE" to see her grow up…I want to live in England with my dad. My dad tells me the truth and tells me what is going on. That is why I love him and trust him. If you love us as much as you say you do, why are you trying to move us back to a country where we do not want to live. '

    46. Ms Adams reports that the most important relationship for Clare appeared to be with her baby sister, Molly. Clare told her "I was actually quite lonely in Australia cos it was just me and my mum – the only two girls in the house…Since I have a baby sister I am SO HAPPY – I am not the only girl anymore!" Like her siblings, Clare reported that she 'wants to be in England living with her dad and all her siblings, amongst extended family, and also to see her mum.'

    47. The children are all aware of the fact that their mother is almost totally dependent upon their father, financially. They are also aware that their home in Australia has gone. Ms Adams reports that,

    'Clare thinks that her mum has lied to them as she said going to court was nothing about going back to Australia but now it turns out it is. She feels that if they returned to Australia she will be angry with her mum. Clare was also worried about how life would be if they did return as she knew her mum had no money and her dad had paid for everything since they split up. She said she knew this because her mum was always calling him to ask for money when she had none.'

    48. Clare told Ms Adams that she is now playing netball after school; 'She was in the team in Australia so this has made her really happy'.

    49. Ms Adams asked Clare if she would like to write a letter to the judge. She did not give that opportunity to the other three children. Having heard Ms Adams give evidence I am still unclear why she did not give them the same opportunity.

    50. Clare's letter to the judge should have been attached to Ms Adam's report. It wasn't. It was not handed in until the day after she had given evidence. In her letter, Clare says,

    'I would like to stay in England because all are (sic) family is here and I love them very much. Also we have a 10 month baby sister that we also love to bits. So, people might say we are very young to make this big effort in staying in England but, I know what is right for me and I want to stay in England. Please!!!...P.S And I would like to live with Dad.'

    Simon

    51. Finally, Ms Adams spoke to Simon. He told Ms Adams that Clare had wanted to live in England for the last two years. She had always missed her dad – 'sometimes they would just be watching the television and she would start crying and she would say she was missing dad.'

    52. Ms Adams asked how it came about that he and his brothers and sisters got to make the decision about staying in England. He told her that they were in contact with the mother by telephone and Skype and they started to tell her that they wanted to stay in England. According to Simon the mother was "pretty much agreeing, but saying we should come back to say good bye to everyone".

    53. Simon said that as he is being home tutored he has not had many opportunities to make new friends. He does not miss his old friends in Australia. Indeed, he feels a bit upset that no one has contacted him.

    54. Simon told Ms Adams that he would feel "awful" if they returned to Australia. She says that 'He said he did not want to sound mean, but being around his dad had a sense of everything "better" and somehow easier'. He spoke of a sense of life being 'easier' with his father. Ms Adams goes on to say that,

    'If his mum was not in England, Simon thought he would still want to stay as he feels at home here. He said he has always identified with being English, and his friends in Australia used to comment that he had an English accent (which he has). However, his ideal scenario was for them all to be here, but living with dad and mum being nearby.'

    Cafcass' overall assessment

    55. Ms Adams ends her report by setting out her 'professional judgement'. She says that,

    'it was my view that all four children were highly articulate about their current complex situation, and that they demonstrated a great deal of insight and nuanced explanation regarding their needs. There was no sense of a "script" being rehearsed, that you might find with children who have been overtly influenced by a resident parent.

    I found Clare to be more mature than the average ten year old. In my view, Simon was particularly mature and articulate for a thirteen year old. It may be that the court considers attaching particular weight to their views given this assessment of their maturity…

    Clare and Simon appeared to identify more closely with being English than being Australian…

    However, their wish to remain in England appears to go beyond a preference to live with their father in England. The striking feature of all four discussions I had with the children was that it was important to their sense of identity to live within their wider family, to grow up knowing them and having the opportunity to spend time with them…

    A return to Australia in the circumstances proposed by the mother would not only result in the children feeling angry about their express wishes being disregarded, but would place them back within a situation that was likely to result in further parental conflict about money…

    Should the court decide that the children must return to Australia, the parties must make it clear to the children that this is not a "forever decision". Assuming that the father issues proceedings there, the children should be helped to understand that the court in Australia will make a full assessment and then decide where the children should live long term, as perhaps should have happened in the first place.' [emphasis supplied]

    56. In her oral evidence Ms Adams confirmed that the children don't say anything negative about their mother's care of them whilst living in Australia. She felt that what was important for them was living in England around their family. That was their 'bottom line'. The children also want to live with their father. Their views are very clear; the positives of living in England cannot be replicated in Australia. In her opinion the children gave cogent reasons for saying that life in England is preferable to life in Australia.

    57. Miss Adams reports that the children told her that they want to have their mother living nearby so that they can see her regularly. They did not reject the idea of seeing their mother. Simon said that if his parents were living closer to each other then he could come and go as he pleased. Harry and Peter said that they enjoyed spending time with their mother as much as with their father. They would prefer to spend time with both parents.

    58. Following their arrival in England the children had contact with their mother by Skype. There is, of course, no record of those conversations. Ms Adams said that all four children thought their mother had agreed to them staying in England. They are confused because they had understood that their mother was returning to live in England yet now they find themselves the subjects of court proceedings. Ms Adams notes that,

    'Simon and Clare have directly expressed the view that they will hold their mum responsible for their unhappiness if they must return to Australia, as she has applied to the court for their return. They feel this would be detrimental to a positive relationship with them.'

    59. One of the difficulties in this case relates to the approach Ms Adams took in her discussions with the children. Although at the beginning of her report she notes that she had been tasked by the court to report as to 'the children's objections, if any, to a return to Australia', thereafter the word 'objection' does not appear either directly or by inference. There is no doubt that Ms Adams ascertained the children's wishes and feelings. There is equally no doubt that she ascertained their preference. She did not directly consider with the children whether they objected to returning to their place of habitual residence, Australia.

    Meeting with the children

    60. I completed this hearing on 26th June and indicated that I would hand judgment down on 2nd July. In the course of writing this judgment I became concerned about the extent of the children's involvement in the proceedings. As I noted earlier, Ms Adams gave Clare the opportunity to write a letter to the Judge (an opportunity which she took) but did not give the same opportunity to the boys. Nowhere in her written report does she address the issue of whether the children should meet with the judge. That was not an issue raised with her during her oral evidence. Indeed, it was not an issue raised by counsel save to the limited extent that at the end of her skeleton argument, Miss Renton submitted that

    'it may well be appropriate for the children to be spoken to by the court so that the decision as regards their return can be explained to them in a neutral and objective way, and so facilitate a smooth return with their primary carer M back to Australia, their home.'

    61. On 28th June I sent an e-mail to counsel setting out my concerns and proposing that I should meet with the children before completing my judgment. After consulting with the parents, Miss Thain agreed that I should see the children before completing my judgment but Miss Renton maintained her position that the children should not be seen until after judgment had been handed down. Having considered their responses I decided that in all the circumstances it was appropriate for me to see the children before completing my judgment. Arrangements were made for me to meet with them by video link on 30th June. The children were at their local County Court and were accompanied by a local Cafcass officer. I was in Leicester, accompanied by my clerk.

    62. I spent around 20 minutes with the children. I explained to them that we could have no secrets and that I would be letting their parents know what they said to me. I told them that I could not make any promises about what my decision would be. I endeavoured to explain to the children in simple terms the purpose of the hearing I have been conducting. I made it clear that it was not the purpose of this hearing for me to decide whether they should live with their mum or with their dad. I repeatedly checked with the children to make sure they understood what I had said to them.

    63. I told the children that I had read the letters which Clare and Harry had written to their mum. I confirmed to Clare that I had read the letter she wrote to me. I reassured the children that Ms Adams had prepared a detailed report setting out what they had told her and that I had read the report. I expressed concern that Ms Adams had given Clare the opportunity to write to me but that the boys had not been given the same opportunity. I invited the boys to tell me what they would have written to me if they had been given the chance.

    64. Their responses were identical. Simon said that he wanted to stay in England with dad, AB and Molly. If he went back to Australia he wouldn't be able to see his family and Molly. Peter and Harry made very similar points. Peter asked if I had received the letter from his school friend who wants him to stay in England. I told him I hadn't. Although I have received a letter from Clare, so that she would not feel left out I asked her if that letter said everything she wanted to say to me. She said that if she went back to Australia she would miss AB and Molly too much. She said that, 'everyone that knows us likes and loves us. I would miss all of those people.'

    65. The children are delightful children. They all engaged with me well. They did not appear to be overawed or reticent. It was a very hot day. I asked them what they were going to do when they got home. Clare said she hoped her dad had finished fitting a hot tub in the garden.

    The law

    66. Article 12 of the Hague Convention provides that

    'Where a child has been wrongfully removed or retained in terms of Art 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.'

    67. In Re E (Children) (FC) [2011] UKSC 27 Baroness Hale and Lord Wilson make it clear that the first objective of the Hague Convention

    '8. …is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there.'

    68. It follows, therefore, that normally a parental dispute should be resolved in the country in which the child was habitually resident until her wrongful removal or retention. However, that is not an absolute rule. There are exceptions. The Hague Convention provides 'defences' which may be raised by a parent who has wrongfully removed a child from the country in which she is habitually resident or who has wrongfully retained her in another country. Those defences are to be found in Article 13. Article 13 provides that

    'Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return established that:

    a The person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of the removal or retention or had consented to or subsequently acquiesced in the removal or retention..

    b 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.

    The judicial or administrative authority may also 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…'

    Acquiescence

    69. The decision of the House of Lords in In Re H and Others (Minors)(Abduction: Acquiescence) [1997] 1 FLR 872 continues to be the leading authority on the issue of acquiescence. After undertaking a detailed review of the law in this area, Lord Browne-Wilkinson set out the following summary of the relevant principles:

    'To bring these strands together, in my view the applicable principles are as follows. (1) For the purposes of article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) (Abduction: Acquiescence) [1994] 1 F.L.R. 819, 838: "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact." (2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. (3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. (4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.'

    70. With respect to principle (4) it is necessary in this case to set out the explanation of that principle in rather more detail. Lord Browne-Wilkinson said that,

    '…there may be cases in which the wronged parent has so conducted himself as to lead the abducting parent to believe that the wronged parent is not going to insist on the summary return of the child. Thus the wronged parent may sign a formal agreement that the child is to remain in the country to which he has been abducted. Again, he may take an active part in proceedings in the country to which the child has been abducted to determine the long-term future of the child. No developed system of justice would permit the wronged parent in such circumstances to go back on the stance which he has, to the knowledge of the other parent, unequivocally adopted: to do so would be unjust…

    …in my judgment these exceptional circumstances can only arise where words or actions of the wronged party show clearly and unequivocally that the wronged parent is not insisting-on the summary return of the child: they must be wholly inconsistent with a request for summary return of the child. Such clear and unequivocal conduct is not normally to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children. Still less is it to be found in a request for access showing the wronged parent's desire to preserve contact with the child, in negotiations for the voluntary return of the child…'

    71. I have been referred to a number of subsequent authorities dealing with the issue of acquiescence. They are illustrations of the application of the principles outlined in Re H to a particular set of facts and as such demonstrate that all of these cases are highly fact-specific. Nonetheless, it is helpful, if only for comparison purposes, to refer to some of them.

    72. In Re S (Abduction: Acquiescence) [1998] 2 FLR 113 in December 1996 a mother abducted a young child from Australia. In January 1997 she informed the father that she was in Wales. The father's first solicitor appeared not to know about the Convention. He consulted new solicitors in April. They advised him about the Convention but discouraged its use as being a waste of time. Only after consulting a third solicitor in September 1997 did the father issue Convention proceedings. The Court of Appeal found that the delay from April to September amounted to acquiescence. Butler-Sloss LJ said that,

    'It is significant, in my view, on the issue of acquiescence, that the judge found that the father did not ask for M to be returned even after April 1997 until he issued the Convention application. Further, it has never been suggested in any of the documents before us that the father has asked or will ask to take over the care of M himself. The emphasis in this case has been throughout on arrangements for contact.'

    73. In Re B (Abduction: Acquiescence) [1999] 2 FLR, 818 in October 1997 an English mother wrongfully removed her child from the USA. The father consulted an American lawyer but was not advised about the Hague Convention. He did not issue any kind of proceedings but instead entered into negotiations with the mother suggesting to her that he would not oppose the mother's move to England if the reconciliation he was proposing were to fail. In February 1998 he came to England and consulted English solicitors. They failed to mention the Convention. The father issued an application for contact. In his written evidence in those proceedings he said that he was planning to settle in England. It was not until July 1998 that the father issued his Convention application. Dismissing the father's application, Kirkwood J, having identified eight facts which he held amounted to acquiescence, said that,

    'Taking all that together, I find myself compelled to a clear picture of the father taking no steps to procure a summary return, whether by demands made to his wife by himself, nor in any solicitor's correspondence, nor in any form of proceedings, nor in what he said to the court with the court welfare officer. He allowed the state of affairs to run on and decided for himself to settle in England.'

    74. In B-G v B-G (Abduction: Acquiescence) [2008] 2 FLR 965, an English couple moved to France shortly after their twins were born. Four years later the mother wrongfully removed the children and brought them to England. The father consulted three different French lawyers, none of whom suggested that Convention proceedings were appropriate. The mother issued divorce proceedings in England and applied for residence orders. Only when an English judge identified abduction as a possible issue and transferred the proceedings to the High Court did the father apply for the summary return of the children. The application was made 11 months after the removal. Dismissing the father's application, Coleridge J said (§[21]),

    'I take into account and accept the fact that he did not have correct advice about or a detailed knowledge of his rights under the Hague Convention. But those are not a pre-requisite for the establishing of defence of acquiescence. What is important is that he knew he could bring proceedings for their return to France but he chose instead, by April 2007, to accept the situation of the children having returned to their home country. From then on it seems to me he acted in accordance with that decision and the mother cannot but have believed that he had accepted the situation which by then had arisen.'

    Child's objections

    75. The law relating to child's objections has recently been reviewed by the Court of Appeal in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26. In giving the leading judgment, Black LJ set out, firstly, what she considered to be established by the authorities :

    '34. Where does the law stand in relation to the gateway requirements? Certain features can perhaps be treated as tolerably well established.

    (1) Factual matters

    35. It is established that whether a child objects to being returned is a matter of fact, as is his or her age, see for example Re S [1993] at 782 and Re T at 202. It seems to me that the degree of maturity that the child has is also a question of fact.

    (2) No chronological threshold

    37. A second established feature is that there is no fixed age below which a child's objections will not be taken into account. However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account, Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at 729/730.

    (3) Objections and not anything less

    38. A further feature about which I think there is, in fact, no real difficulty is that the child's views have to amount to objections before they can give rise to an Article 13 exception. This is what the plain words of the Convention say. Anything less than an objection will therefore not do. This idea has sometimes been expressed by contrasting "objections" with "preferences".

    (4) Objection to return to country of habitual residence

    42. It is said that the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country, although it has been clear from early on that there may be difficulty in separating out the two sorts of objection.

    (5) Objections are not determinative

    46. I referred earlier to the House of Lords decision in Re D. One of the things which it and Re M together made quite clear was that the fact that a child objects to being returned does not determine the application. I will set out in full §§57 and 58 of Baroness Hale's speech in Re D but the message is summed up in the final sentence of the latter paragraph:- hearing the child is not to be confused with giving effect to his views.'

    76. Having then moved on to discuss, by reference to the authorities, what she regarded as an 'inconsistency of approach at the gateway stage', Black LJ set out her view of the correct approach. She said (§69) that,

    '…the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in 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 or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach [Re T (Abduction: Children's Objections to Return) [2000] 2 FLR 192] to the gateway stage should be abandoned.'

    Black LJ agreed with the observation made by Wilson LJ (as he then was) in Re W (Minors) [2010] EWCA Civ 520) that this 'straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied' represents 'a fairly low threshold requirement'.

    Meeting with the children

    77. I explained earlier the circumstances in which, somewhat belatedly, arrangements were made for me to meet with the children. Before approaching counsel I considered the Guidelines for Judges meeting children who are subject to family proceedings [2010] 2 FLR 1872. The purpose of the guidelines is stated to be,

    'to encourage judges to enable children to feel more involved and connected with proceedings in which important decisions are made in their lives and to give them an opportunity to satisfy themselves that the judge has understood their wishes and feelings and to understand the nature of the judge's task.'

    78. The guidelines do not give a steer on the circumstances in which it may be appropriate for a judge to consider seeing a child who has not asked to meet with her. The preamble to the Guidelines state that,

    'It is Cafcass practice to discuss with a child in a manner appropriate to their developmental understanding whether their participation in the process includes a wish to meet the judge. If the child does not wish to meet the judge discussions can centre on other ways of enabling the child to feel a part of the process. If the child wishes to meet the judge, that wish should be conveyed to the judge where appropriate.'

    79. The guidelines begin by making it clear that,

    '[1] The judge is entitled to expect the lawyer for the child and/or the Cafcass officer:

    (i) to advise whether the child wishes to meet the judge;

    (ii) if so, to explain from the child's perspective, the purpose of the meeting;

    (iii) to advise whether it accords with the welfare interests of the child for such a meeting take place; and

    (iv) to identify the purpose of the proposed meeting as perceived by the child's professional representative/s.'

    80. Although the guidelines do not expressly state that the judge may take the initiative in asking to see the children, that is a point that has now been considered by the Court of Appeal in Re KP (Abduction: Child's Objections) [2014] 2 FLR 660. Giving the judgment of the court, Moore-Bick LJ said (§53) that,

    '…it is possible to draw together a number of themes which are common to each of the authorities to which we have made reference:

    (a) there is a presumption that a child will be heard during Hague Convention proceedings, unless this appears inappropriate…

    (b) in this context, 'hearing' the child involves listening to the child's point of view and hearing what they have to say…

    (c) the means of conveying a child's views to the court must be independent of the abducting parent…

    (d) there are three possible channels through which a child may be heard..

    (i) report by a Cafcass officer or other professional;

    (ii) face-to-face interview with the judge;

    (iii) child being afforded full party status with legal representation;

    (e) in most cases an interview with the child by a specialist Cafcass officer will suffice, but in other cases, especially where the child has asked to see the judge, it may also be necessary for the judge to meet the child. In only a few cases will legal representation be necessary…

    (f) where a meeting takes place it is an opportunity…

    (i) for the judge to hear what the child may wish to say; and

    (ii) for the child to hear the judge explain the nature of the process and, in particular, why, despite hearing what the child may say, the court's order may direct a different outcome;

    (g) a meeting between judge and child may be appropriate when the child is asking to meet the judge, but there will also be cases where the judge of his or her own motion should attempt to engage the child in the process…'

    81. Given Simon's age it is also appropriate to remind myself of the observations made by Thorpe LJ in Re J (Abduction: Children's Objections) [2012] 1 FLR 457, a case which concerned three Polish children aged 15,13 and 10. The trial judge had not seen the children. Thorpe LJ said this:

    '[40] Return orders in respect of a boy on the threshold of escape from the court's Convention jurisdiction and determined to fight enforcement need to be very carefully thought through by any trial judge. There are enough incidents in the report of the distress and general mayhem caused by the making of return orders that were foreseeably bound to provoke dramatic scenes. In these cases an option open to the judge is a meeting at which practicalities, consequences and reassurances can be ventilated. The judge sits above the family turmoil. The judge's authority can be an influence for acceptance. Importantly a meeting gives the judge an opportunity directly to assess where the return order will lead if enforcement will be resisted. Dramatic (and by no means unknown) scenes such as the pilot refusing to take off without the children disembarking or children barricading themselves and threatening suicide cause profound damage to the principal actors and a great deal of disturbance to others in the cast or in the wings.'

    Discretion

    82. If the court is satisfied that a parent has acquiesced in the removal of her child or that the child objects to returning to the country from which she was abducted or in which she was wrongly retained, the court must then decide, in the exercise of its discretion, whether it is appropriate to order summary return. How should that discretion be exercised? In Re M (Abduction: Zimbabwe) [2008] 1 FLR 251, under a section headed Discretion under the ordinary law and under the Convention, Baroness Hale said that

    '[32] The difference between the two was summed up thus by Thorpe LJ in Cannon v Cannon at para [38]:

    'For the exercise of a discretion under the Hague convention requires the court to have regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the child is paramount if the discretion is exercised in the context of our domestic law'

    There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thus exaggerating the differences between them…

    [43] My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para [32] above, save for the word 'overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

    [44] That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention…

    [46] In child's objections cases, the range of considerations may be even wider than those in the 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 secondly, 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 the light of Art 12 of the United Nations Convention on the Rights of the Child 1989, 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 the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are 'authentically her own' or the product of the 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 referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.

    83. For the mother, Miss Renton submits that the court should also have regard to a passage from the judgment of Thorpe LJ in Re K (Abduction: Case Management) [2010] EWCA Civ 1546, [2011] 1 FLR 128 in which he made the point that,

    'The Hague Convention is clear in its terminology. There must be a very clear distinction between the child's objections and the child's wishes and feelings. The child who has suffered an abduction will very often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, however fragile the bubble may be, but the expression of those wishes and feelings cannot be said to amount to an objection unless there is a strength a conviction and a rationality that satisfies the proper interpretation of the Article.'

    84. Although that approach to considering whether a child 'objects', in Convention terms, was disapproved by Black LJ in Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) Miss Renton submits that the point made by Thorpe LJ concerning a 'bubble of respite' remains relevant in the context of the exercise of discretion.

    Discussion

    85. It is the father who seeks to rely on the Article 13 'defences' of acquiescence and child's objections. The burden of proof therefore rests on him. The standard of proof is the simple balance of probability.

    86. Neither acquiescence nor child's objections, even if proved, are determinative of the mother's application. They are the gateway to the exercise of the court's discretion. They are, therefore, the starting place for the court's analysis.

    Acquiescence

    87. For the father, Miss Thain submits that the evidence does not establish that the mother was manipulated by the father or that he exercised financial control over her. The pressure to relocate to England came directly from the children. They thought the mother had given her consent. The fact that she told them she intended to return to England reinforced them in that view. As for the planning for the mother's return, it was she who decided that the furniture be put in containers for shipping to England, not the father. It was she who decided to place the dogs with an animal transport company with a view to them being transported to England, not the father. Everything about her behaviour suggested an intention to relocate back to England.

    88. Furthermore, it is clear that even whilst in Australia the mother had received informal advice about the Hague Convention. In the light of that advice she could have contacted the Australian Central Authority. She didn't. Following her arrival in England, in a telephone conversation with the father's solicitor the mother is said to have confirmed that she intended to remain in England (although there is no witness statement from the solicitor). She issued an application for a child arrangements order with a view to increasing the amount of time the children spent with her. In her written statement in support of that application she had said that she was seeking to secure rented accommodation for herself and the children rather than continue to live with her parents. She also said that she was looking for work. It is clear from all of this that the mother had acquiesced in the father's decision to retain the children in England. Having acquiesced, the mother was not then entitled to change her mind. And yet the mother did subsequently change her mind; that is why the children are so angry with her. She has not listened to them.

    89. For the mother, Miss Renton submits that by exercising financial pressure upon the mother and by abusing the power imbalance between them, the father left her with no option other than to return to England. The mother did not receive any formal legal advice before leaving Australia. Upon her return to England she received inadequate legal advice as a result of which she issued an application for child arrangement orders rather than Hague proceedings. Despite that, she made it very clear in her application that she wanted the children to be returned to Australia and that she intended to make an application through the Central Authority. Approaching the issue from a subjective perspective, it is clear that the mother had not acquiesced.

    90. I am in no doubt that there was – and still is – a very significant power imbalance in the relationship between these parents. Although there is no detailed evidence before the court concerning the father's financial position there is evidence which suggests that he is, financially, in a very comfortable position. He maintained the mother, four children and two dogs in their home in Australia for over seven years. For much of that time he also rented another property nearby which he used as a base for having contact with the children. He paid for the children to attend fee-paying schools. He was able to afford to travel to Australia three or four times a year. He paid for the children to visit England in January 2014 and again in November 2014. On the second occasion he also paid for the mother to travel to England to visit her terminally ill grandmother. Since the children have been living in England he has taken them on holidays which he himself accepts were 'expensive' holidays. He has arranged for the children to take the entrance exam for a public school in England and has secured a place there for Simon beginning in September. On the very day I met with the children the father was installing a hot tub in his garden. The clear picture which emerges from this is that the father is a man of financial substance.

    91. In contrast, throughout the seven years following their separation the mother was almost wholly financially dependent on the father. Whilst I do not doubt that that was a cause of increasing irritation for the father (and was something about which he failed to take any appropriate steps to resolve) it was also a means by which he could exercise control over the mother, demonstrated most eloquently by the events surrounding his decision not to return the children to Australia in January. He promised the he would pay the mortgage arrears. He did not do so, choosing instead to spend his money on taking the children on an expensive 17-day skiing holiday.

    92. I am satisfied that by abusing the financial power imbalance in the way that he did the father effectively deprived the mother of the capacity to make a free and deliberate choice to return to England. On the contrary, his actions made such a return inevitable. The text message exchanges to which I referred earlier, when taken in the round, do not paint a picture of a mother who has acquiesced in the retention of her children in England or of a free and considered choice by her to return to live in England. They demonstrate that, in reality, she had little, if any, choice.

    93. It is clear from the authorities to which I have referred that it is not necessary that a parent should have received detailed legal advice concerning the right to bring proceedings for the summary return of a child under the Hague Convention, nor even advice that is accurate. It could be said, therefore, that the informal advice from a retired Australian High Court Judge was sufficient to fix her with knowledge that there were possible legal remedies available to her and therefore to start the clock ticking in terms of delay amounting to acquiescence. Once again, however, that knowledge, rudimentary as it was, needs to be seen in the overall context of the mother's situation. She was being put under intense financial pressure by the father. The text messages clearly demonstrate the pressure she was under. That must have been obvious to the father. Whilst still clinging to the hope that he would pay off the mortgage arrears, she single-handedly had to take steps to empty her home before eviction. She was engaged in regular text message exchanges with the father in which she sought his cooperation and assistance in dealing with the property (which was not forthcoming), in which she repeatedly pleaded with the father to return the children (which he refused) and in which, on occasions, the father resorted to the use of abusive and hostile language thereby adding to the mother's stress and distress.

    94. There were occasions when the language used by the mother in her text messages suggests that she consented to the children remaining in England. However, those messages, too, must be seen in the context set out in the previous paragraphs. It is notable that on each such occasion the mother also begged the father to return the children to Australia.

    95. I acknowledge the evidence of Ms Adams that the children appear to have believed that the mother consented to them remaining in England. There is no record of those conversations, only the record of the children's recollections of those conversations as reported to Ms Adams. A complaint made by these children is that the mother did not listen to them. By 'listen' it is clear they really meant 'do as we want'. Given the children's desire to stay in England it is at least possible that the children heard what they wanted to hear and not what the mother actually said to them.

    96. Upon returning to England the mother tried to persuade the father to engage in mediation. He refused. That she should have attempted to resolve the impasse between herself and the father by mediation rather than by litigation does not, in my judgment, amount to acquiescence.

    97. On 12th March the mother issued an application for child arrangement orders in respect of the children. I accept that in principle that act could be interpreted as an abandonment of her right to seek the children's summary return to Australia and an acceptance that the children should remain in England. It could amount to conduct which, in principle, could have led the father to believe that the mother was not asserting and/or not going to assert her right to the summary return of the children. However, in the particular circumstances of this case I am not satisfied that that interpretation of the mother's actions would be appropriate. As I indicated earlier, the mother issued those proceedings as a litigant in person having paid for an hour's advice from a solicitor. There is good reason to believe that the advice given was inappropriate and wrong. However, in my judgment the way in which the mother completed her application form saves her from what might otherwise be considered as acquiescence. In her application form she makes it plain that she seeks not only the return of the children to her care but also to be able to return them to Australia. Indeed, she makes it plain that she is not abandoning her right to issue Hague proceedings, saying in terms, 'I am contemplating making an immediate application for the return of the children to Australia through the Central Authority.' It is clear that the Family Court did not respond appropriately to that indication in the mother's application form. The mother's application should have been transferred to the High Court. It wasn't. It is also the case that within four weeks of issuing those proceedings the mother had completed an application form to enable ICACU to commence these proceedings.

    98. With respect to the principles identified by the House of Lords in In Re H and Others (Minors)(Abduction: Acquiescence) I am in no doubt that, from a subjective perspective, this mother did not intend to acquiesce in the father's wrongful retention of the children in England. Indeed, it is clear that she wanted the children back in Australia and that the father knew that. That leaves only the question of whether the exception applies. For the reasons I have already given, in my judgment, it does not. The totality of the history of events and communications over the period from November 2014 to April 2015 cannot be said to have led the father genuinely to believe that the mother was not asserting or going to assert her right to the summary return of the children such that justice requires that the mother be held to have acquiesced.

    99. I find that the mother has not acquiesced in the father's wrongful retention of the children in England.

    Children's objections

    100. On behalf of the father, Miss Thain submits that it is clear that all four children object to returning to Australia. They object because of their family ties here in England. If they go back to Australia they will be denied the opportunity to have a relationship with their wider family. The children's views amount to more than wishes, feelings and preferences; they amount to objections.

    101. On behalf of the mother, Miss Renton submits that what are presented as the children's objections amount, in reality, to no more than preferences. There is a qualitative difference between a preference and an objection. In this context an 'objection' means a wholesale objection to returning to the country of habitual residence. Invariably such a child cannot think of anything positive to say about that other country. That is not the case here. When speaking to the children Ms Adams approached her task using the wrong test.

    102. Miss Renton goes on to submit that the children's views must be seen in context and that context is that they are in a 'bubble of respite'. Within that bubble of respite the father has taken the children on two expensive foreign holidays. They have been able to spend more time with the wider family (in particular with Molly) than had been possible under the previous ad hoc arrangements for international contact. The father has deliberately marginalised the mother. He has made contact difficult. To all of this must be added the fact that Harry appears to be labouring under the mistaken belief that a return to Australia would mean that he would not be able to see his father again. That mistaken belief could conceivably have been fostered by the father. Miss Renton points to the comments made by Clare in her letter to her mother that 'My dad tells me the truth and tells me what is going on. That is why I love him and trust him.'

    103. The issue of establishing whether these children object to returning to Australia must be determined in respect of each child individually and not of the children collectively as a sibling group. That said, some aspects of this assessment are common to each of these four children. They range in age from 9 to 13 years. Ms Adams, said that she felt strongly that all four children expressed themselves so well, 'so beautifully'; they are very mature and very articulate. I accept that evidence. If any of these children does object to being returned to Australia then I am satisfied that they are 'of an age and degree of maturity at which it is appropriate to take account of [their] views.'

    104. I also accept that the children's wishes, feelings and preferences are clear. With varying degrees of strength each of them has made it plain that they wish to remain in England and that they wish to remain in the care of their father. They are enjoying having contact with their wider family, most of whom they did not see during the years they were in Australia, and in particular they are enjoying living with Molly. Ms Adams' interpretation of what the children told her is that in this respect their circumstances in England cannot be replicated in Australia. She considered this to be more than a preference to remain in England.

    105. Ms Adams was clear that the children did not say anything negative about their mother's care. None of the children was rejecting the mother. Each of them made it clear that they wished to see her regularly. I noted earlier that the children have recently refused to see their mother or have any contact with her. That turn of events has occurred since Ms Adams saw the children and is at odds with the views the children expressed to her. It is neither possible nor appropriate for me to speculate on what may have caused that change in their position.

    106. Another common feature is the children's complaint that their mother doesn't listen to them. That is particularly important so far as Clare is concerned. Ms Adams said in terms that Clare was the most upset about not being listened to. There is, of course, a difference between not listening to a child's wishes and not acceding to a child's wishes.

    107. The key issue in this case is whether each or any of these children objects to returning to Australia. It is at that point that it is necessary to consider the position of each child separately. I begin with the youngest.

    Harry

    108. I referred earlier to a letter written by Harry to his mother. In it he sets out reasons for staying in England, not least because he wants 'to grow up with' Molly. He has nothing negative to say about Australia or about his mother's care of him whilst living in Australia. His primary concern appears to be that if he goes back to Australia 'we will never see our family again…we will never see our daddy again'. Against that, he told Ms Adams that he misses his old friends in Australia, 'as well as the spiders and the snakes'. He misses his swimming pool and the quad bikes. He misses, in particular, the family's two dogs and 'wants to be with them'. In her oral evidence Ms Adams said that Harry 'misses his dogs terribly'.

    109. So far as this last point is concerned, I observe, in passing, that it would be surprising to the point of being highly improbable for the father to be unaware of the extent of Harry's distress. He clearly has the financial resources to arrange for the dogs to be brought to England. He has had more than sufficient time to do so. I find it distinctly odd that the father has not gone out of his way to resolve this issue.

    110. Acknowledging, as I do, that in determining whether a child objects to being returned there is a 'fairly low threshold requirement', I am nonetheless not satisfied that it can properly be said that Harry objects to returning to Australia. He has a wish and a preference to remain in England but in my judgment he does not object to returning to Australia.

    Peter

    111. Peter clearly wishes to remain in England. He has made that clear to Ms Adams and to me. He told Ms Adams that his ideal scenario 'was to live in England with his dad, but have mum here and see her too'. He said that he 'was finding it a bit of a struggle at his new school'. He had had one good friend in Australia. Like Harry, Peter did not express any objections that related to Australia or to life in Australia. He has nothing negative to say about his mother's care of him whilst living in Australia.

    112. As with Harry, notwithstanding the fairly low threshold requirement I am not satisfied that it can properly be said that Peter objects to returning to Australia,

    Clare

    113. In her letter to her mother and during her meeting with me, Clare emphasised the importance for her of living amongst her wider family and friends. It is clear that she has a particularly strong wish to live with Molly. She makes the same points in the letter she wrote to the Judge. In my judgment these are an expression of wishes, feelings and preferences and not of an objection to returning to her country of habitual residence. I accept that in her discussions with Ms Adams Clare's views were expressed with greater force than those of her brothers. I acknowledge that unlike her brothers Clare did make one negative comment about Australia saying that she 'was actually quite lonely in Australia cos it was just me and my mum – the only two girls in the house'. However, other concerns she expressed are to do with financial issues which are more to do with the relationship between her parents than with living in Australia. For example, Clare is the one who has the most vivid memories of telephone arguments between her parents concerning money; she is the one who expresses concern about how they would survive financially if they returned to Australia. Clare is also the one who harbours the greatest degree of anger towards her mother for not listening to her. After careful thought and reflection I have come to the conclusion that notwithstanding the fairly low threshold requirement to establish a child's objections, I am not satisfied that, in Convention terms, Clare does object to returning to Australia.

    Simon

    114. Simon, too, wishes to remain living in England with his father. He was only 5 years old when he moved to live in Australia. Until they came to England in 2014, 'Australia was home and they knew no different'. However, he says that he has always identified with being English. Like his younger siblings, Simon does not express objection to Australia, or to his life in Australia or to his mother's care of him whilst living in Australia.

    115. I am in no doubt that this does not amount to an objection to being returned to Australia

    Discretion

    116. Although I am satisfied that the children are of an age and maturity at which the court should take account of their views, I am not satisfied that their wishes, feelings and preferences amount to objections to returning to live in their country of habitual residence. In my judgment, the gateway to the exercise of discretion is not open. My findings on acquiescence and children's objections have the inevitable consequence that there must be an order for the summary return of the children to Australia. However, for the sake of completeness and in deference to the careful submissions of counsel, I propose to set out the conclusions I would have reached on the exercise of discretion had the gateway to the exercise of discretion been open.

    117. For the father, Miss Thain submits that in exercising its discretion it is appropriate for the court to have regard to the fact that if the children were to return to Australia there are, at present, no arrangements in place for accommodation or for education. The children would be returning to uncertainty. Furthermore, if the children return to Australia then unlike the present position in England there will be no family support available to them other than the support of their mother. In terms of Article 13, these submissions could conceivably have been advanced in support of a contention that there is a grave risk that returning the children to Australia would place the children in an intolerable situation. Miss Thain conceded that in the circumstances of this case that would have been a deeply unattractive submission. She assured me that if, contrary to her submissions, I should come to the conclusion that there should be an order for the summary return of the children to Australia then the father will provide appropriate financial support.

    118. For the mother, Miss Renton submits that this is a 'hot pursuit' case, the mother having issued these proceedings within three months of the father's wrongful retention of the children in England. Prior to the father's wrongful retention the children were happy and settled in Australia. The children came to England for an agreed holiday. To be allowed wrongfully to retain the children in England after an agreed holiday would risk significantly undermining the purpose and philosophy of the Convention. The father has engineered the present situation by his financial control of the mother. His actions are wholly reprehensible and should be condemned by the court. Had the father wished to challenge the status quo he should (as Ms Adams acknowledged) have issued proceedings in Australia seeking an order permitting him to relocate the children to England.

    119. In notionally exercising my discretion I remind myself of the policy of the Convention, set out clearly in Article 12: 'Where a child has been wrongfully removed or retained in terms of Art 3 …the authority concerned shall order the return of the child forthwith.' That is the starting point and, in many cases, the end point. Only if a parent is able to establish one of the 'defences' in Article 13 does the court have a discretion not to order summary return.

    120. All four children express a preference to remain in England. For Clare, in particular, that can properly be described as a strong preference. At the heart of the children's position is the desire to be amongst their wider family and in particular to live with Molly. They also wish to remain in the primary care of their father. All of that is clear. There is, however, in my judgment, a serious issue about the extent to which the children's views are authentically their own. Although Ms Adams was clear that the children did not appear to be expressing their views according to a pre-prepared script or to have been influenced by the father taking them on expensive holidays, there are factors which suggest that the children's views have been coloured by their father. In her letter to her mother, Clare says that 'My dad tells me the truth and tells me what is going on'. In discussion with Ms Adams she said that she was worried about how life would be if they returned to Australia 'as she knew her mum had no money and her dad had paid for everything since they split up'. In his letter to his mother, Harry expressed the belief that 'if we go back to Australia we will never see our family again, if we go back we will never see our daddy.' Simon told Ms Adams that being around his dad 'had a sense of everything being "better" and somehow easier', an observation which could be an indication that he, too, is aware of the greater financial security when living with his father compared to the financial uncertainty and unpredictability of life with his mother.

    121. Miss Renton submits that since their wrongful retention by the father the children have been living in 'a bubble of respite'. I accept that submission. As a result of living in that bubble of respite there is a degree of artificiality about the way in which the children have arrived at their views. Their views have been coloured not by unhappy memories of living in Australia (either as a country or as a result of the care provided for them there by their mother) but by their comfortable existence living with their father and, as I find, by the climate he has created which is a climate based on negativity towards the mother and the subtle use of his wealth.

    122. Although the exercise of discretion is not a decision-making process in which the welfare of the child is paramount, it is clear from the authorities that welfare is an issue to which the court may have regard when exercising its discretion. In this case these children had lived with her mother continuously for more than seven years from the date of separation until their wrongful retention in England in January 2015. It is clear that the mother had been the children's primary carer throughout their lives until January 2015. I have noted Ms Adams' acknowledgment that none of the children expressed criticism of their mother's care. In those circumstances an abrupt change of primary carer brought about by the wrongful act of the other parent is unlikely to have been compatible with their welfare. Even if I had concluded that the children do in fact object to returning to Australia, I do not regard it as self-evident that their objections, even if rational and cogent, are necessarily compatible with their welfare interests.

    123. It follows from the above analysis that even if I had found that one or more of the children objected to returning to Australia, I would not have exercised my discretion in favour of them remaining in England.

    Conclusion

    124. The father should have applied to the Australian court for permission to relocate the children to England. I have no doubt that he could easily have afforded the cost of such litigation. Instead of taking the honourable approach he has chosen to take the dishonourable approach. He has retained the children in England at the end of an agreed holiday. He has abused the power imbalance in his relationship with the mother, in particular by putting her under intense financial pressure. He has stood idly by as she has been evicted from her home. What he has been unable to do is to persuade this court that the mother has acquiesced in his wrongful retention of the children in England or that the expressed views of his children amount to 'objections' in Convention terms. It follows, therefore, that there should be an order for the summary return of the children to Australia.

    125. I have noted Miss Thain's indication that should the court conclude that the children should return to Australia then he will make appropriate financial provision for her and the children. I hope that assurance will be made good. For the mother, Miss Renton has indicated that if the court orders the children to return then divorce proceedings and an application for a financial remedy will be issued immediately and an urgent hearing sought to enable the mother to apply for maintenance pending suit. It may be that both of those routes will have to be pursued – negotiation alongside an application to the court. During argument there was mention of the court allowing a period of 4 weeks for the return to take place. However, I will hear further submissions before coming to a final view on that issue.

    126. Finally, and for the sake of completeness, I refer again to the passage I set out earlier (see §82 above) from the decision of Thorpe LJ in Re J (Abduction: Children's Objections) [2012] 1 FLR 457. Neither from the written or oral evidence of Ms Adams or from my own meeting with the children did I get any sense that an extreme reaction to an order for summary return, such as that described by Thorpe LJ, is likely in this case.

Judgment, published: 17/07/2015

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Published: 17/07/2015

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