Family Law Hub

TP (A Child) [2015] EWHC 2551 (Fam)

Proceedings brought by mother under the Hague Child Abduction Convention 1980 seeking the return of her son, who had lived most of his life in France, to the jurisdiction of France. The judge exercised his discretion by refusing to order the return on the grounds of the child's objections.

  • Case No.FD14P01070

    Neutral Citation Number: [2015] EWHC 2551 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Date: Tuesday, 21st April 2015

    Before:

    MR. JUSTICE BAKER

    (In Private)

    IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985

    AND IN THE MATTER OF COUNCIL REGULATION (EC) 2201.2003

    AND IN THE MATTER OF TP (A CHILD)

    __________

    B E T W E E N :

    NP (Applicant)

    - and -

    JP (1) 

    TP (2) (Respondents)

    __________

    __________

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    __________

    MR. M. JARMAN appeared on behalf of the Applicant.

    THE FIRST RESPONDENT appeared in person.

    MR. M. HINCHLIFFE appeared on behalf of the Guardian.

    __________

    J U D G M E N T (For revision) MR. JUSTICE BAKER:

    BACKGROUND

    1 These proceedings are brought by a mother under the Hague Child Abduction Convention 1980 seeking the return of her son, T (born 8th June 2003 and therefore now aged 11 years 10 months) to the jurisdiction of France. The application is opposed by T's father. The mother is represented by Mr. Mark Jarman of counsel. The father appears in person. T, who has been joined as a respondent pursuant to an earlier court order, is represented by his children's Guardian, Mr. John Power of Cafcass High Court team, and by Mr. Michael Hinchliffe of Cafcass Legal.

    2 This case has a sad history, which can be summarised as follows. The parties were married in 1998 in England. The mother had two older children by a previous relationship. After the marriage, the mother gave birth to two daughters, E and P, now aged 16 and 15 respectively. In 2001 the family relocated to France, living in the Dordogne area. On 8th June 2003 the mother gave birth to T.

    3 Over the years the marriage ran in difficulties. Although many factual matters remain in dispute between the parties, there is a considerable amount of evidence, including statements by these children and from one of the mother's two older children by a previous relationship, that the mother has had a long-term drink problem. The mother denies that she was ever an alcoholic. She states that in a time of extreme stress she has turned to alcohol but has never developed a dependency. Her assertion is that it was the father's behaviour that gave rise to difficulties in the marriage, including his gambling.

    4 In 2009 the father left France and came back to England. Since then the parties have not lived together, although I understand they are not yet formally divorced. Thereafter, there was limited contact between the father and the children for some time. In the summer of 2012 and 2013, however, the children spent one month each year with the father in England. In the summer of 2014, T told his mother that he would not be returning to school in France for the following September. As a result, the mother refused to allow T to come to England that summer, fearing that he would not be returned. At that point, the father reported the mother to the NSPCC in England, who in due course alerted social services in France. Shortly afterwards, E travelled to England without the mother's knowledge or consent. After her arrival, the mother learned what had happened and then gave her consent to P following her. T, as I understand it, did not come to see his father last summer. Subsequently both girls returned to France at the conclusion of the summer visit, although the police were apparently involved in that process in some way. E returned to the school where she had been a weekly boarder, some hour or so away from the mother's home in Dordogne, and P in September 2010 also started boarding at that school as a weekly boarder.

    5 In October 2014 the father went to France to have contact with the children. The mother permitted contact to take place but retained T's passport. However, the father had apparently acquired a replacement passport for T, and on 22nd October the father and T travelled back to England. Realising the father had abducted T, the mother informed the police the following day. On 4th November the mother applied to the International Child Abduction and Contact Unit, who subsequently instructed solicitors who in turn started these proceedings under the Hague Convention by an application filed on 2nd December. At a without-notice hearing the following day, Hogg J made a location order, and a further order in the usual terms giving directions for a hearing the following week, including a direction for the father to attend that hearing and a direction that he should file an answer specifying the Articles under the Hague Convention on which he intended to rely, together with all evidence in support. The learned judge further directed the father to make T available for interview by a Cafcass officer.

    6 The location order was duly executed and, pursuant to the order, the father attended the next hearing before Newton J on 10th December, bringing T with him. T was duly seen by Mr. John Power of the Cafcass High Court team, who indicated to the judge that he wished to file a written report in respect of this meeting. The father indicated that the defences on which he intended to rely were those under Article 13b of the Convention, i.e. grave risk of harm, etc, and Article 13(2), the child's objections. The learned judge thereupon listed the matter for a final hearing on 28th January 2015 and gave various further directions. He ordered the father to make T available for indirect contact with the mother not less than three times a week by Skype and/or telephone.

    7 Mr. Power duly filed the report ordered, on 15th January. I shall consider it in a little more detail below but at this stage I record that it included details of his conversation with T at court on 10th December, and details of a meeting he had had with E and P on 29th December, at the public house run by the father, during their visit over the Christmas period in which they gave a detailed account of the difficulties they said they had experienced living with the mother; and also Mr. Power's conclusion that T objected to a return to France and that T had sufficient maturity for his views to be taken into account, and that he should be joined as a party, thereby facilitating further enquiries to establish the extent to which the child protection and judicial authorities were engaged with the family in France, the Cafcass officer having learned that there had been some involvement to which I shall refer below. Subsequently further statements were duly filed by both the mother and the father.

    8 The hearing on 28th January was listed before HHJ Clifford Bellamy, sitting as a deputy judge of the High Court. At that hearing, having considered Mr. Power's report, and heard oral evidence from him, the learned judge expressed concern as to the limited objective information available to the court concerning the mother's circumstances in France, and on the investigation which, it had emerged, was being carried out by French social agencies and the French court, noting that proceedings had been issued in the Bergerac Juvenile Court in respect of all three children. The learned judge therefore adjourned the hearing to 6th March, joined T as a party, as suggested by Mr. Power, and appointed Mr. Power as Guardian under r.16.4, giving further directions as to evidence and in particular, pursuant to Articles 54 and 55 of Council Regulation (EC) No.2201/2003 (i.e. Brussels II Revised), requesting the Central Authority of France to provide the following information by 20th February to the English Central Authority and to this court, namely: (1) the details of proceedings issued in the Bergerac Juvenile Court; (2) the details of all and any future court hearings listed before the Bergerac Juvenile Court; (3) the details of all information presented to the Juvenile Court by social services in France in respect of the child, T; (4) the name and contact details of French social services in Bergerac, and the name and any contact detail of a social worker allocated to the family in France, and (5) the details of any current investigation into the mother's circumstances. Subsequently the French authorities indicated through ICACU that they were unable to comply with that direction within the timescale specified by the court, and at a further hearing before HHJ Isabel Parry, sitting as a deputy judge of this Division, the hearing was adjourned until 20th April when it was duly listed before me.

    9 On 19th March documentation was supplied by the French authorities in accordance with the court's directions. Those documents disclosed that French social services had become involved following the referral by the father to the NSPCC in 2014, and then an email from the mother's older daughter in July 2014, in which she gave details of her concerns, including the mother's alleged long-term alcoholism, her destructive personality and erratic and occasional violent behaviour, and the impact of these matters on the children, including allegations that the mother had threatened suicide, had kicked the children out, had thrown things, and psychologically abused the children. As her daughter stated: "She is just getting worse and the children are really suffering". At that stage P was still living at home, and it was alleged that much of the day-to-day care of T fell on her shoulders. On other occasions it was alleged that T had been left alone overnight while the mother had been out seeing her boyfriend. There was also an allegation that P had been sexually abused by a friend of the mother but that the mother had refused to believe the allegation.

    10 The French social services carried out an investigation and concluded that a number of questions remain unanswered, including the degree of the mother's alcohol dependence, her psychological pathology, the impact of the father's wish to have custody, the protective role of the sister, P, over T, and what was described as "inter-family pressures". Those enquiries were referred to the prosecutor, and she in due course concluded that the children were the victims of conflict between their parents and of what was described as the mother's dysfunctionalities, and were seen as unhappy, insecure and suffering psychologically and had therefore suffered abuse and neglect in the care of the mother. As a result, the prosecutor asked the court to authorise a formal investigation.

    11 On 18th December 2014, the Bergerac Juvenile Court conducted a hearing at which they spoke to E and P, who described, as recorded in the note of the hearing produced to me, how the mother was sick and an alcoholic. They said that the situation was better since T had gone to England. The mother told the court that she was bipolar and was having treatment and, further, that she was not drinking any more. Having heard those accounts, the court granted the request and ordered what was called une measure judicaire d'investigation educative (a judicial measure for educational investigation) to be carried out by the responsible agency and completed within five months, i.e. by mid-May 2015. That investigation is continuing and the outcome is awaited.

    12 Since that order was made, only further limited information is available from France. It should be noted, importantly, however, that in January and February 2015 grave concerns were expressed about the conduct of P, who had been observed at school to be depressed, was said to be smoking cannabis and on one occasion found to be intoxicated. I also note that the mother has undertaken regular blood tests which appear to show that she is abstaining from alcohol, although the father (relying on statements made by E and P, and on what he says T has observed during Skype contact) does not accept this is. I also note that the documents produced from France show that at an earlier stage T's school reports were, to quote Mr. Power's words, "really very good and give no indication that his home life was impacting on his studies".

    THE LAW

    13 The twin objectives of the Hague Child Abduction Convention as set out at Article 1 are:

    "(a) to secure the proper return of children wrongfully removed to or retained in any Contracting State; and

    (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States."

    14 In Re D (A child) (Abduction: Rights of Custody) [2006] UKHL 51 Baroness Hale of Richmond observed at para.48:

    "The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."

    15 Article 12 of the Convention provides:

    "Where a child has been wrongfully removed or retained in terms of Article 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.

    The judicial or administrative authority, even where proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of a child, unless it is demonstrated that the child is now settled in its new environment."

    16 Article 13 provides:

    "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 establishes 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; or

    (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 position.

    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 obtained an age and degree of maturity at which it is appropriate to take account of its views."

    17 The provisions of the Hague Convention have been supplemented by further provisions in Brussels II Revised, and in particular Articles 10 and 11. Article 10 is headed "Jurisdiction in cases of child abduction" and reads as follows:

    "In case of wrongful removal or retention of the child, the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention shall retain their jurisdiction until the child has acquired a habitual residence in another Member State and:

    (a) each person, institution or other body having rights of custody has acquiesced to the removal or retention;

    or

    (b) the child has resided in that other Member State for a period of at least one year after the person, institution or other body having rights of custody has had or should have had knowledge of the whereabouts of the child and the child is settled in his or her new environment and at least one of the following conditions is met:

    (i) within one year after the holder of rights of custody has had or should have had knowledge of the whereabouts of the child, no request for return has been lodged before the competent authorities of the Member State where the child has been removed or is being retained;

    (ii) a request for return lodged by the holder of rights of custody has been withdrawn and no new request has been lodged within the time limits set in paragraph (i);

    (iii) a case before the court in the Member State where the child was habitually resident immediately before the wrongful removal or retention has been closed pursuant to Article 11(7);

    (iv) a judgment on custody that does not entail the return of the child has been issued by the courts of the Member State where the child was habitually resident immediately before the wrongful removal or retention."

    18 Article 11 is headed "Return of the child" and reads as follows:

    "1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the basis of the Hague Convention of 25 October 1980 ... in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

    2. When applying Articles 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.

    3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

    Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

    4. The court cannot refuse to return a child on the basis of Article 13b of the 1988 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

    5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

    6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

    7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seised by one of the parties, the court or central authority that receives the information mentioned in paragraph 6 must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the question of custody of the child.

    Without prejudice to the rules on jurisdiction contained in this Regulation, the court shall close the case if no submissions have been received by the court within the time limit.

    8. Notwithstanding a judgment of non-return pursuant to Article 13 of the 1980 Hague Convention, any subsequent judgment which requires the return of the child issued by a court having jurisdiction under this Regulation shall be enforceable in accordance with Section 4 of Chapter III below in order to secure the return of the child."

    19 When considering the defences raised on an application for summary return, the court must first consider whether the relevant grounds are established - in this case whether the father has proved the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his views and/or whether there is a real risk that a return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Then, if the court finds either or both of these grounds proved by the respondent, the gateway is open to the exercise of the court's discretion.

    20 The case law on these issues is well known. On child's objections, the leading authority is now the decision of the Court of Appeal in Re M (Republic of Ireland) (Child's objections) [2015] EWCA (Civ) 26, in particular, in the judgment of Black LJ at para.69:

    "... 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."

    At para.76 she continued:

    "In making his or her findings and evaluation, the judge will be able to draw upon the entirety of the material that has been assembled in relation to the child's objections exception and to pick from it those features which are relevant to his or her determination. The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances."

    Black LJ added at para.77 that she would:

    "... discourage an over-prescriptive or over-intellectualised approach to what, if it is to work with proper despatch, has got to be a straightforward and robust process."

    21 On the Article 13b gateway, I have in mind the observations of Ward LJ in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145:

    "There is therefore an established line of authority that the court should require clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

    22 I further bear in mind the observations of Baroness Hale of Richmond in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, at para.32 to 35:

    "32. First, it is clear that the burden of proof lies with the 'person, institution or other body' which opposes the child's return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13b and so neither those allegations their nor rebuttal are usually tested in cross-examination.

    33. Second, the risk to the child must be 'grave'. It is not enough, as it is in other contexts such as asylum, that the risk be 'real'. It must have reached such a level of seriousness as to be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as 'grave' while a higher level of risk might be required for the other less serious forms of harm.

    34. Third, the words 'physical or psychological harm' are not qualified. However, they do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation' (emphasis added). As was said in Re D, at para.52, '"Intolerable" is a strong word, but when applied to a child must mean "a situation which this particular child in these particular circumstances should not be expected to tolerate"'. Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among those, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr. Turner accepts that if, if there is such a risk, the source of it is irrelevant: eg, where a mother's subjective perception of events leads to a mental illness which could have intolerable consequences for the child.

    35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home."

    23 Article 13b is, as already explained, buttressed by Article 11(4) of Brussels II Revised, providing that the court cannot refuse to return the child on the basis of Article 13b of the Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return. I accept the submission made by Mr. Jarman that the burden of proof remains on the person opposing the return of the child to prove that the arrangements proposed are inadequate. If the respondent establishes that his case passes through one or other of the gateways for refusing a summary return, the court, as described already, then has a discretion as to whether or not the child should be returned.

    24 As to the exercise of that discretion, the leading authority remains the decision of the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55, and in particular the observations of Baroness Hale at paras.43 to 48, which have been referred to me by Mr. Jarman in this case. I will not lengthen this already long judgment still further by setting out those paragraphs at this stage. I stress that I have them firmly in mind.

    ARTICLE 13B

    25 The father's case is that to return T to France would be to expose him again to the risk of psychological and emotional harm and neglect from which he suffered while in the care of the mother prior to October 2014. It is the father's case that that risk is grave. In his written evidence he describes how, as is his case, his relationship with the mother was initially very good and close until her drink problem became more serious; how she had received treatment that had been unsuccessful; how she had attempted suicide; how, after the separation, the children had told him she was continuing to drink excessively and that they were being left to fend for themselves; how the mother had become involved with a Frenchman who had been abusive towards T; and how the situation had deteriorated to such an extent that he felt compelled to notify the NSPCC. He also relies on the information disclosed from the French authorities (summarised above).

    26 On behalf of T, Mr. Power contends that the circumstances as described in the father's evidence and by the children in his discussions with them, and in documents produced by the French authorities (as summarised above) all amount to evidence sufficient to establish the defence of grave risk of harm and intolerable situation under Article 13b in this case.

    27 In her statement the mother asserts that the father has made false allegations against her; that T has been coached to say the things that he has said; that the father has made continued attempts to alienate T from her; that E and P have lied to social services in France and to Cafcass and have told her that they will continue to lie in order to ensure that T remains in England; that there has been no suggestion of the children being received into care in France, and that she will continue to cooperate with the ongoing French investigation. The mother also asserts that she is now abstinent, and relies on the blood tests to which I have already referred.

    28 On her behalf, Mr. Jarman submits that that high threshold in respect of the grave risk of harm as explained by the Supreme Court in the Re E decision is not met in this case. He points out that the two girls were happy to return to the mother's care after Christmas in England and remain with her, although it should be noted that in P's case she is only living there at weekends and in school holidays, and in the case of E possibly even less frequently. Importantly, Mr. Jarman submits that the French social services and French courts are now seised with proceedings concerning the welfare issues and are in a position to assess the need for protection and implement whatever measures may be necessary to ensure that any risk is avoided or minimised.

    29 In addition, the mother has now offered undertakings to this court to address this question. She is prepared to offer the following undertakings: (1) not to prosecute the father in relation to the wrongful removal of T from France in October 2014; (2) to continue to engage with the French court and French social services; (3) not to consume alcohol whilst the children are in her care; (4) not to allow her friend Philippe into the home (he apparently now resides elsewhere); (5) to enroll T at his previous school where a place is being held open for him; (6) not to leave T alone at home.

    30 Mr. Jarman points out that a return to France for T would be well telegraphed to the French authorities by the Guardian and Cafcass Legal so that full protective measures can be put in place. In those circumstances, he submits that adequate arrangements have been or could be made to secure protection for T if he returns to France, and in those circumstances, under Article 11(4) of Brussels II Revised, this court cannot refuse to return the child.

    31 Finally, and in the alternative, Mr. Jarman submits that there is no good reason why the father himself could not return to France with T and care for him there pending resolution of the French social agency's investigation and determination by the French court of the proceedings currently before it. Mr. Jarman submits that there was no good reason why T should not return to his mother under the protection of the undertakings proffered by her but, if that is not acceptable, there is, he says, no good reason why the father should not return to France and care for T in the short term.

    32 On this latter point, I heard evidence from the father, which I accept. He is now working and is running three public houses, one of which includes a restaurant. It is his case that his work requires him to be present on most days, if not every day. I accept that it would be very difficult for him to return to France in those circumstances. Although the agency report is due to be completed by the middle of May, it is unclear how long it will then take for the French court to complete the process. Latterly, the focus of the French enquiries has been directed at the girls who are still in France, rather than at T who is in this country. It is therefore possible that T's return to France may prolong the enquiry.

    33 If the father does not return to France - and I find that it is not realistic for him to do so - I do not think that it is realistically possible for T to return to France to live with his mother under the undertakings as proffered or indeed under any or undertakings that suggest themselves to this court. I acknowledge that, as France is a signatory to the 1996 Hague Convention, any undertakings proffered by the mother can be enforced. Having heard the evidence of the father and Mr. Power, however, I think it extremely unlikely that T will agree to go willingly, whether or not any undertakings were in place.

    34 Furthermore, while I am in no position to make any definitive findings on the factual issues, the papers in the form of the enquiries made by Mr. Power, the father's evidence and the documents produced from France gives rise to a strong prima facie case that the mother has indeed had a long-term drink problem and that this has had a serious impact on her behaviour and on the children. If that is correct, the mother's written evidence shows a worrying lack of insight into the seriousness of her problems and their impact on the children. I do not consider it realistic, given the history as it appears on the papers, and the serious allegations against the mother concerning her behaviour, to expect T to return to her care whether under the undertakings proffered or otherwise. This court is not, I stress, in a position to make any definitive findings on allegations about the mother's behaviour, but it seems to be accepted by the mother that she has at least to some extent resorted to alcohol in the past and also that she has had some mental health issues. There is, as I say, strong prima facie evidence that she is minimising those issues and that her difficulties are very much more serious than she accepts, and that they have had a very deleterious effect upon all the children, including T. The mother's statement does not, to my mind, show that she has any real insight into these difficulties. In particular, I note her worrying assertion that the girls have lied and will continue to lie to keep T in England.

    35 The fact that the French court and social agencies have not removed either E or P from the mother's care is, to my mind, of little relevance to the decision I have to take. It is one thing to permit girls aged 16 and 15 to return to the mother's home every weekend whilst spending most of their time in boarding school; it is quite another thing to return T to the full-time care of the mother in the circumstances that appear to exist in this case.

    36 It is widely recognised, for example in Re D [2006] UKHL 51, that it will be inconceivable that a court which reached a conclusion that there was a grave risk that a child's return would expose him or her to psychological or physical harm or would place him in an intolerable situation, would nevertheless return the child to face that fate. Thus, once the court has made the finding that a return would so expose him to a grave risk of harm or place him in an intolerable position, it is almost inevitable that it would exercise its discretion by refusing to return the child. That is my decision under Article 13b. But, in the alternative, of course the father raises the defence of T's objections and it is to that matter that I now turn.

    CHILD'S OBJECTIONS

    37 The first aspect can be taken quickly because on behalf of the mother Mr. Jarman - influenced, I anticipate, by the observations Black LJ in Re M (Republic of Ireland) summarised above - concedes that T's views amount to objections within the meaning of Article 13(2). Prior to his first report in January 2015, Mr. Power interviewed T, and later E and P. They all painted a bleak picture of life in the mother's care. T was clear in expressing a wish not to be returned to France. Mr. Power observed as follows at para.57:

    "[T] does not want to return to his mother's care in France for reasons that are self-evident from his testimony, which is corroborated and fleshed out by what his sisters told me. He wishes to remain in the UK with his father, and that is what his sisters want for him.

    58. There is a cogency and rationality to [T's] wishes and feelings, expressed with conviction and strength. He is very black and white about where and with whom he wishes to live, which is developmentally predictable, and goes to his comparative immaturity, whereas his sisters are able to say they love their mother but are clear that she is not able to meet [T's] needs.

    59. I have no reason to doubt what these children say about living with their mother. The father undoubtedly exercised an influence which I find more palliative than pernicious. He does provide [T] with a bubble of respite but the allure of that bubble is as much a function of the chaotic life he and his sisters say they were exposed to in France as it is to the more ordered and secure childhood offered by his father."

    Later, at paras.62 to 63, Mr. Power added:

    "62. On the basis of my enquiries, I believe that [T] objects to a return to France and though he rejects his mother with all the binary callousness of a 11-year-old boy, I believe he has sufficient maturity for his views to be taken into account.

    63. [T's] objection to returning to France is entwined with his assumption that he will be returning to the care of his mother. For him this is synonymous."

    38 This was confirmed by Mr. Power's second report, following the production of the French information. In para.32 of that report, Mr. Power observed:

    "The court will need to assess [T's] wishes, feelings and objections to a return to France in the light of his age and maturity. He is 12 years old in two months or so. I take the view that [T's] age and level of maturity are such that his views should be treated as objections. They are rooted in his experience of family life with his mother and sisters in France, which objectively, from the French evidence, has exposed him to a grave risk of harm. That he continued to fare so well in school speaks both to his resilience and the protective measures afforded to him by his sisters."

    39 I find Mr. Powers' analysis of T's objections to be persuasive, and I accept that they amount to objections within the meaning of Article 13(2).

    40 As I pointed out, in the case of WF v. RJ & Ors. [2010] EWHC 2909 at para.71, when considering the exercise of discretion in respect of a child objections defence:

    "... Baroness Hale [in Re M (Abduction: Zimbabwe)] emphasised that the range of considerations arising in the exercise of the discretion may be wider than in the other exceptions. Pointing out that 'taking account' does not mean that the objections are always or presumptively determinative, she listed a number of factors that may arise once the court's discretion is engaged. There is identified in the judgment are:

    (1) the nature and strength of the child's objections;

    (2) the extent to which they are authentically his or her own;

    (3) whether on the other hand they are a product of influence of the abducting parent;

    (4) the extent to which they coincide or are at odds with other relevant welfare considerations;

    (5) the general considerations under the Convention, including important policy considerations underpinning it."

    41 I accept the evidence of Mr. Power as to the nature of T's objections. I find that they are strongly held. I find that they are authentically his own. I acknowledge the careful and perceptive observation of Mr. Power that T is very black and white about where and with whom he wishes to live, and that is developmentally predictable for a child of his age. Nonetheless, I find, importantly, that his objections are rooted in his experience in life. There is strong evidence that his life with his mother has been very distressing for him and difficult. The mother's case is that he has said what he has said under the influence of the father, and perhaps his sisters. I find no evidence at all that his views were in fact the product of his father's influence.

    42 The main thrust of Mr. Jarman's arguments on discretion have been directed at the latter two factors identify by Baroness Hale, as summarised by me in WF v. RJ, namely the extent to which they coincide with or are at odds with the other welfare considerations, and the general Hague considerations, including those policy considerations underpinning the Convention.

    43 First, Mr. Jarman rightly emphasised that T was born in France, has lived his whole life in France and speaks French fluently - he is bilingual - and that he has been educated throughout at French schools until he was brought to this country last October. His two sisters, who are plainly of great importance to him and with whom he has a close attachment, are still in France, living at least part of the time with the mother, although the precise extent is unclear. In those circumstances, Mr. Jarman submits that there are strong welfare considerations in favour of T returning to France. Secondly, Mr. Jarman submits that this was a blatant abduction, despite the mother's attempts to stop it, and the court must be vigilant to ensure that the general policy considerations of the Convention are respected and upheld. Thirdly, Mr. Jarman submits that as French proceedings are under way and a French agency about to report, the court should be slow, both for practical reasons and as a matter of policy, to interfere with measures started in a Member State. Fourth, Mr. Jarman submits that T's real objection is to returning to his mother and that those difficulties can be overcome by the undertakings which the mother has proffered, as already discussed, or, alternatively, as already indicated, in Mr. Jarman's submission, there is no good reason why the father should not accompany T to France and look after him there until such time as the French court makes its decision as to his future.

    44 On these latter points, as already indicated, I do not accept that it is realistic to expect the father to move back to France for an uncertain period. Equally, as indicated above, I do not consider that the regime of undertakings proffered by the mother or the fact that the French court is seised of the matter and an agency investigation is under way, provide the sort of protective measures which can carry decisive weight in the exercise of my discretion.

    45 I give serious weight to the policy underpinning the Convention, and I acknowledge that this was indeed, as Mr. Jarman describes, a blatant abduction, and that the father removed T from the life he has always known except for periods of staying contact. But, in my view, the strength of T's objections, the fact that, as I find, they are authentically his own, and that they are rooted in his own experience are ultimately the decisive factors in the exercise of discretion. On balance, I therefore exercise my discretion, by refusing to return T to France on the grounds of his objections. It follows that the father succeeds on both limbs of his defence, and the mother's application for summary return is refused.

    46 That is not of course the end of the matter. Under Article 10 of Brussels II Revised, as set out above, the French court will retain jurisdiction for the time being, and it is possible that the French court will exercise its jurisdiction by ordering T to be returned to live with his mother. In passing, I make it clear, as I indicated in the course of argument, that I have not taken the fact that the French court retains jurisdiction under Article 10 into account when making my decision to refuse this application for summary return.

    47 Further, under Article 11(6) to (8) of Brussels II Revised, it is open to the French court, notwithstanding my order of non-return, to make an order for T's return, which this court will then be obliged to enforce. It is therefore incumbent on the father to engage with the French court process and to ensure that his case in respect of T is heard by the court that will, at least for the time being, retain jurisdiction to make decisions concerning T's future welfare. As already stated, it is possible that the French court, having looked at all matters relevant to his welfare, may ultimately decide that T should be returned to the care of his mother. My decision today is merely that T should not be returned summarily under the Hague Child Abduction Convention.


Published: 11/09/2015

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