Family Law Hub

KW v RM [2017] EWHC 3814 (Fam)

Father's application under the 1980 Hague Convention seeking summary return of his son to the USA succeeded.

  • Neutral Citation Number: [2017] EWHC 3814 (Fam)

    Case No: FD17P00385

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 25/10/2017

    Before:

    NIGEL POOLE QC

    Sitting as a Deputy Judge of the High Court

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    Between:

    KW (Applicant)

    - and –

    RM (Respondent)

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    Miss Amiraftabi (instructed by Messrs TV Edwards) for the Applicant Father

    Miss Chokowry (instructed by Miles and Partners) for the Respondent Mother

    Hearing dates: 23, 24 and 25 October 2017

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    Judgment Approved

    This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

    Nigel Poole QC:

    1. This is an application dated 26 July 2017 under the Child Abduction and Custody Act 1985 incorporating the Convention on the Civil Aspects of International Child Abduction 1980 ("the 1980 Hague Convention"), by the applicant father, KW ("F"), who seeks the summary return of his son ("Z") to the USA. The respondent RM ("M") is Z's mother. She opposes the application.

    2. The hearing of this application in private began on 23 October 2017. On that day I refused F's preliminary application to hear oral evidence. I have been greatly assisted by detailed written and oral submissions from Counsel: Miss Amiraftabi for F and Miss Chokowry for M. The parties rely on witness statements from F and M, from M's sister, MM, from CA, an acquaintance of M and F who provided advice and informal counselling to M and F prior to Z's birth, and from three social workers from relevant Local Authority, LB, JL and YA. I have also been provided with an expert report from Dr Charles Muster, Psychiatrist, provided on joint instructions but led by solicitors for M, and healthcare records relating in particular to M's stays at an NHS Mother and Baby Unit and the Jamma Umoja Unit. F exhibits to his statement lengthy text message exchanges as well as emails and confirmation of airline bookings. I also have copies of orders made in the courts in New York State.

    3. Both M and F have been present in Court throughout and have conducted themselves with dignity. They have heard both their Counsel quite correctly remind the Court that this is not a hearing at which long term welfare or family arrangement decisions are being taken. It is a hearing to determine the correct jurisdiction in which those decisions will be made.

    4. In submissions Counsel have assisted in identifying the issues for the Court to determine. It is not disputed that at all relevant times F and M each had custody rights. It is agreed that F consented to Z's removal from the jurisdiction of the USA on 31 March 2017 when F brought him with him to England. It is not necessarily easy to compartmentalise all of the issues that remain in dispute. For example, the determination of the date of retention and of habitual residence are inter-linked. However, the issues which fall to be determined can be expressed as follows:

    i) Was Z wrongfully retained outside the jurisdiction after 31 March 2017 and if so when?

    ii) Was Z habitually resident in the USA immediately prior to any wrongful retention?

    iii) If he was, has F subsequently acquiesced in Z's retention? (The Article 13(a) defence)?

    iv) If not, would there be a grave risk that Z's return to the USA would expose him to physical or psychological harm or otherwise place him in an intolerable situation? (The Article 13(b) defence)?

    v) If the Article 13(a) and/or the Article 13(b) defence is established should the Court exercise its discretion to order the summary return of Z to the USA?

    5. On the same day that F made his application for summary return of Z, the relevant Local Authority applied to the Court pursuant to the inherent jurisdiction for a determination as to Z's nationality and the jurisdiction of the Court. That application was dismissed by consent by MacDonald J on 31 August 2017. Nevertheless the Local Authority was permitted to remain involved and has liaised with relevant agencies in the USA and has provided the witness evidence to which I have already referred. Ms Gilliatt, has represented the Local Authority at this hearing. She has not made submissions for or against the application but has assisted the court with evidence of the Local Authority's involvement and enquiries.

    Preliminary Application

    6. On behalf of F, Miss Amiraftabi applied at the outset of the hearing for permission to adduce oral evidence. I refused the application having heard submissions from both parties. My reasons for refusing the application were as follows:

    i) It is well established that these are summary proceedings and that the admission of oral evidence is the exception rather than the rule.

    ii) I had particular regard to the following dicta of Thorpe LJ in Re K (A child) [2011] 1 FLR 1268,

    "…. oral evidence in Hague cases is very seldom ordered. We have been told by Mr. Scott-Manderson that there is an increasing tendency for applications for oral evidence to be advanced at the case management stage. There should be no departure from the well-recognised proposition that Hague applications are for peremptory orders to be decided on written evidence amplified by oral submissions.

    "There are, of course, rare cases which demand the opportunity for the judge to hear from the parties on a narrow issue that is in contention. Classically oral evidence will be limited to those cases where the issue for the court is whether or not an agreement was reached between the parents sufficient to establish the defence of consent. I would accept Mr. Scott-Manderson's submission that there is not the same requirement for oral evidence in a case in which the defence asserted is not consent but acquiescence. Although those two defences have much in common, in the sense that they are divided by the time line of the removal, as Mr. Scott-Manderson correctly submits, the concept of acquiescence is altogether more nebulous and there will seldom be one distinct conflict of evidence for the determination of which the judge would be dependent upon hearing from the parties orally."

    iii) In the present case consent is not an issue to be determined. Acquiescence is, but there is plentiful written evidence on which that issue can properly be determined.

    iv) The date of wrongful retention, if any, was not likely to be an easy one to determine, but the written evidence did not disclose a direct conflict of evidence on that or any other relevant issue that required amplification or clarification by oral evidence, or that required to be tested by cross-examination.

    v) Having now heard full submissions, I remain satisfied that this is not a case where, exceptionally, oral evidence has been required to enable the Court to make a proper determination of the application.

    History of Events

    7. F is an American national, born in the USA. He is aged 43 and works as an automotive technician. M is a British national, born in England, of Syrian and Egyptian descent. She is aged 40. The parties first "met" online. They married in London in August 2006 and in February 2008 M moved to live with F in New York State. She has a Green Card and she has worked in the USA over the years, although not since Z's birth.

    8. Z was born in the USA on 10 September 2016 and is now 13 months old. He is the parties' only child but M is pregnant with their second child, due to be born in January 2018.

    9. M has suffered depression in adulthood and unfortunately developed post-natal depression after Z's birth. Dr Muster describes M as having suffered recurrent depressive disorder with a postnatal episode that was severe with psychotic symptoms. She has also been diagnosed as suffering from Obsessive Compulsive Disorder ("OCD") manifesting itself with rumination and rituals which have prevented her, at times, from adequately attending to Z's needs when he has been in her care.

    10. M's condition and behaviour in Z's early weeks of life caused concern not only to F, but to her own family in England, such that her elder sister MM decided to travel to New York State from England to spend time with her, arriving on 19 January 2017. The following day M, F and MM attended on M's Obstetrician and Gynaecologist, Dr Rajamani, who noted her poor psychological condition – [pg D 103 of the Core Bundle]. Plans were made for M to join her family in England. After incidents leading to her hospitalisation in late January, including a 4 day period of in-patient care beginning on 30 January 2017, F would not agree to Z joining M during her stay in England, even though Dr Rajamani had advised that Z should be with M who was still breastfeeding. So it was that on 8 February 2017, M left the USA with her sister MM, but without F or Z.

    11. M stayed with her family in London and was treated in the community by the Home Treatment Team. F arranged to come to England with Z, flying out on 31 March 2017, arriving on 1 April 2017 and with return flights booked for himself, Z and M on 19 April 2017. Those arrangements had been communicated fully to M's family. I am quite satisfied from evidence of flight bookings, text messages and emails, that F came to England with Z with a view to returning to the USA as a family on 19 April and that he was, at the time of his travel, unaware of the prospect that M would not return with him or that any period of in-patient care was planned.

    12. In fact, M had had a meeting with Dr Miele, Consultant Perinatal Psychiatrist, on 21 March 2017 - a consultation which MM joined towards its end. The plan, set out in a letter to M's GP in a letter of the same date [Supplementary Bundle page A1] was to "work towards admission to the Mother and Baby Unit when her baby will be reunited with her in two weeks' time."

    13. On 11 April 2017 M and F had a consultation with Dr Miele at which F complained that M's family had not been open with him about M's "current predicament". Dr Miele recorded in a letter to M's GP dated 11 April [A6] that "he flew from the States with the impression that he would be able to bring his wife back home and he had not realised the extent of the severity of his wife's current episode."

    14. Dr Miele reports in the letter that M was much improved and she records that there was general agreement that it would be helpful once M was "ready to be repatriated to the United States, that a member of the family … travel with her and help her settle at home…" She records that F "was looking forward to enjoy the summer with his family" However Dr Miele did not feel that M was yet "at the stage where she can travel back to the United States and she would benefit from a further period of treatment possibly in an inpatient unit." A management plan was agreed that included referral to the Mother and Baby Unit but without any commitment by M and F to an admission. If there were to be an admission it would be on an informal basis. i.e. not under any compulsion under the Mental Health Act. If a bed were not available or M decided against admission she could continue under the Home Treatment Team "for at least 3-4 weeks and her mental state needs to be found very stable before she can travel back to the States."

    15. A bed did become available and M was admitted to the Mother and Baby Unit on 18 April 2017. This is an NHS facility. F returned to the USA without Z and M, on 19 April. Before he left, he and M had sexual intercourse, the circumstances of which are disputed but which has resulted in M becoming pregnant, as already stated.

    16. At this point, F had consented to Z being removed from the USA and to being retained in England. Z was 7 months old and had lived all his life in the USA with one or both parents, until 17 days earlier when he had come to England.

    17. I have had careful regard to all the evidence, including the written witness evidence and the text exchanges, in order to determine subsequent events between the admission to the Mother and Baby Unit on 18 April and M's discharge from that unit on 31 July 2017. The texts written by F are lengthy. I treat them with some caution. They appear at times to comprise a stream of consciousness rather than expressions of considered, settled views. F sometimes becomes irate and then later apologises and shows affection. The use of grammar particular to texting can hinder interpretation and the texts do not represent the whole of the communications between F and M. There were telephone exchanges as well. Nevertheless the texts are a useful source and, together with the other evidence, they establish that:

    i) On leaving Z with M at the Unit and flying back to the USA on 19 April 2017, both F and M expected that M would be treated at the Unit and would then return to the USA with Z. That was the plan articulated at the meeting with Dr Miele on 11 April 2017 at which both F and M were present.

    ii) No date for such a return was expressly agreed but I am satisfied that F, M and M's sister MM reasonably expected that M and Z would return within a few weeks. In a later exchange of texts between F and M's sister MM on 18 May 2017 at C206. F says that "From my understanding M should be discharged with 3 weeks or so. I'm going to need u all to please start preparing to look adjust her travel arrangements for her and Z. I don't approve them or Z staying any later. I would like them back no later than the middle or end of June." MM responds, "Your arrangements was what we all confirmed would happen before her pregnancy but situation is little complicated now…" This helps to establish that it had been agreed that Z would stay with M in England on the basis that they would be at the Unit for a few weeks, perhaps until as late as mid to late June rather than the end of May as F now recalls. Dr Miele's reference to at least 3-4 weeks of further home treatment should an in-patient bed not become available indicated an overall timetable ending in May or June – a matter of a few weeks not a few months.

    iii) As MM's text of 18 May 2017 indicates, in early to mid-May 2017 there was a marked change in circumstances. M discovered that she was pregnant. She alleges that this was as a result of non-consensual intercourse with F. F avers that intercourse was consensual. However, after communications between F and M about her pregnancy became fraught: M felt unsupported by F and formed an intention to remain in England for the birth of the child. That intention hardened into a decision. As she says in her first witness statement at paragraphs 31 to 33 at pg C50-51:

    "England is my home and since May 2017 when I have concluded that my marriage to the father is at an end I have decided that I do not wish to return to the USA … My mental health has significantly improved, particularly since Z has returned to be with me and that we have very good bonds and attachment." [para. 33].

    iv) As is implicit in that statement, from May 2017 M decided to keep Z with her in England.

    v) Attached to the statement of LN, at C30 is a note of a referral from the Mother and Baby Unit to Children's Services dated 19 May 2017 stating that there were concerns that M would be staying with her parents when she is discharged, together with a note of concerns regarding M's decision to remain with the baby in the UK. I am satisfied that that was the understanding of M's thinking by the team at the Mother and Baby Unit and of the Local Authority on referral on 19 May 2017. It was their understanding because she had communicated her intention to them.

    vi) This intention to remain was confirmed on 6 June 2017 when M told the social worker at the hospital where Z was being observed that she would like to remain in the UK to give birth to her second child [C26].

    vii) Whilst M had made the decision to stay and not to return Z as planned, she might well have changed her mind, in particular if both her relations with F and her mental health had improved. It was a recent decision made whilst M was unwell and when she had only just become aware of her pregnancy.

    viii) F's texts from mid-May 2017 show quite clearly that he was anxious to start making definite arrangements for the return to the USA of both M and Z – as well as C 206, see C 250, 253 and 258. On 17 May for example he wrote "I need more answers and potential discharge dates cause ur flight arrangements need to be made by ur family as agreed" [258] and "I need u to return to the United States as soon as u are discharged … I never agreed to anything more …if u do anything other than return with him I will assume that u are trying to keep my son against my will." [259].

    ix) M did not give substantive replies to F's many texts and requests for clarification. He spoke to her treating clinician on 22 May and then wrote a text the following day that begins at C264:

    "Having the baby there splits us up as a family … I wouldn't be content with that option at all…" He wrote about arrangements for return to the USA saying, "He understood what I was saying and mentioned that he has to speak with u and that he's not stopping u." [265]. And he wrote "Overall my sweet darling I love u, miss u and need u to hurry up and come back here. You and I will be fine, raising our kids together. Trust me, we will have my family's support … but most importantly u have my support love."

    x) Again F did not receive any substantive responses and he became increasingly concerned as the texts demonstrate. On 31 May 2017 he wrote: "legal consultation is needed when I feel that one party is going against me and my rights as a husband and placing financial burdens on me, and creating strife in my marriage by distancing me from my child. By keeping u there oppose to allowing u to continue treatment as originally agreed in … NY where u reside."

    xi) F sent exasperated texts in early June including on 4 June 2017 when he wrote about not knowing Z's whereabouts and stated, "I'm going to have to "order" that the baby is brought back to [New York State] NOW".

    xii) On 15 June [C299] he wrote that if M wanted to continue at the Mother and Baby Unit "then I will have to inform you that it's okay if YOU stay there but I don't approve that our son stay any longer that he has stayed. Z needs to be returned to … NY".

    xiii) At no point in May or June did M expressly state her intentions to keep Z in England to F. She simply did not engage with F on that issue. However, she had told staff at the Mother and Baby Unit of her intention prior to or on the day of their referral to the Local Authority on 19 May 2017. I accept what F says at paragraph 47 of his first statement at C90 that in June he was informed by the allocated social worker that M did not want to return to the USA.

    18. On 27th June 2017 F issued a petition for custody in the Court of New York State, County of Munroe [D 30]. On 18 July 2017 that court ordered M to produce Z to a Judge of the Family Court in New York State on 31 July 2017. On 31 July 2017 (but date-stamped 2 August 2017) a Family Court Judge in Munroe County granted temporary custody and residency of Z to F and ordered Z's return to the US immediately pursuant to the writ of Habeas Corpus signed by the Court on 18 July 2017. The Court further ordered that it would retain jurisdiction over the child as he is a US citizen and it had been determined that New York State was his home state [D3-4].

    19. On 24 July the clinicians at the Mother and Baby Unit determined that M was well enough to be discharged but that she could not safely care for Z alone.

    20. On 26 July 2017 F made the application under the Hague Convention 1980 which I am determining.

    21. On the same date LB from the Local Authority signed a Social Work Evidence Template in which at internal page 16 [C35] she wrote:

    "Z came to the UK from the US on 1 April 2017. He was admitted to … mother and baby unit with his mother. At the time of admission he presented as a healthy, nourished and happy child with a good temperament. Since his admission in April there has been deterioration in his presentation and Dr Lewin reported on 24 July 2017 that they are now seeing signs of institutionalisation caused by Z having many carers throughout his stay. M's interactions with Z have been limited and she has been preoccupied by other tasks such as being on the phone …. Z's needs continue to be mostly met by nursing staff. M disputes this … Z continues to be at risk of harm in the sole care of M and his development is being impaired as a result of being in a hospital and having several nurses looking after him."

    She also reported that some staff at the Mother and Baby Unit had refused to work with M.

    22. On 31 July 2017 M was discharged to the Jamma Umoja Family Centre. She and Z remain there, F having agreed at a hearing on 3 August 2017 to that placement without prejudice to his application for summary return.

    23. On 2 October 2017, at a Follow Up Midway Review Meeting at Jamma Umoja [Supp. Bundle A 127] M accepted that she cannot parent on her own without additional support and wanted to reside at her own mother's home with Z. The Director of Jamma Umoja questioned what the actual arrangements would be and how this could be assessed. The Local Authority stated through YA at the meeting that 1:1 monitoring should continue. I have been informed that although there has been some improvement in M's condition and it might be possible to allow Z into the care of his maternal grandmother, it would still be unsafe, in the Local Authority's view, to allow M sole care of Z, and she continues to require 1:1 monitoring whether that is provided by a member of staff or her own mother.

    24. It is necessary to explain the involvement of the Local Authority a little further:

    i) A referral was made to the Local Authority by the Mother and Baby Unit on 19 May due to concern that M was neglecting Z's needs. A further referral was made by paediatrician Dr Howarth after Z was found to have suffered a fractured skull, M reporting that he had fallen from her bed. This was assessed as an accident. Z was monitored in hospital as an in-patient. Fortunately he has suffered no long term harm as a result of that potentially serious injury.

    ii) This head injury was one of five accidents suffered by Z during his stay at the Mother and Baby Unit.

    iii) From 6 June 2017 the Local Authority arranged with the Mother and Baby Unit staff and M that Z would be supervised 24 hours a day by a member of the Unit's staff. When the staff could not guarantee this arrangement resources from the Local Authority were provided.

    25. M makes allegations of a history of domestic violence and an event of non-consensual intercourse on the night of the 18th to 19th April 2017, F's last night in England before returning to the USA, and her first night at the Mother and Baby Unit. This is night she says the child she is now carrying was conceived.

    26. On behalf of M, Miss Chowkory has referred me to various aspects of F's conduct that she contends should be interpreted as controlling, even bullying. She refers to the tone and content of a number of text messages written by F. She refers to one incident in January 2017 where Mona saw bruising to M's arm after an altercation between M and F when F wanted to remove Z to take him to his mother's. This was in the context of worrying conduct by M due to her illness. She also refers to the statement of CA who provided informal advice and counselling to M and F in or about 2012 and who states that M reported F's controlling behaviour.

    27. I am quite satisfied however that there is insufficient evidence, even taken at its highest, for me to conclude that F has been physically or psychologically violent to M during their relationship. I accept that he is argumentative, verbose, and eager to persuade others, including M, to accept his point of view. He may use religion or other means to persuade and cajole. He may lose his temper when he does not get his own way, but there is insufficient evidence on which I could conclude that there was a history of violent control or bullying within the marriage. It might be that another court might be provided with different or additional evidence.

    28. I note in particular that notwithstanding the tone of some of his text messages, many of his actions have been conciliatory: he did not prevent M leaving him to care for Z in the USA when she came to England in February 2017. He made arrangements to bring Z over to England and to bring M back to the USA in April 2017. He agreed, for what he perceived was the benefit of the family, to Z remaining in England with M.

    29. In relation to the alleged non-consensual intercourse – which Miss Amiraftabi says is actually an allegation of rape – there is no evidence to corroborate M's allegation. What M alleges in her first statement at paragraph 29, is that on her first night at the Mother and Baby Unit she did not feel like sex but F "placed pressure upon me quoting religion". She does not say that she did not consent to intercourse. In any event, she made the allegation only after these proceedings were begun, and not before, even when she was upset with F's response to her becoming pregnant and even though she had daily contact with healthcare professionals to whom she could have complained. She wrote a very affectionate text to F on the day after the alleged event including a string of hearts and kisses emojis. I accept that M was suffering mental ill-health at this time. That might account for her failure to disclose the allegation earlier. However, there is insufficient evidence for me to make a finding that F forced M to have sex against her will or without her consent.

    The Hague Convention 1980

    30. The objective of the Convention, as stated in its preamble, is "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence".

    31. Article 3 of the Hague Convention provides that:

    "The removal or the retention of a child is to be considered wrongful where -

    (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

    (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

    32. The issue of habitual residence is discussed more fully below. Article 12 provides that:

    "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".

    33. If this position is reached, then it is necessary to go on to consider whether the case falls within one of the recognised exceptions under Article 13 , those being relevant to the present case being 13(a) and (b)

    13. 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 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 situation.

    34. If either of these exceptions are made out, this allows me to exercise discretion whether or not to order return.

    35. The burden of proof of unlawful retention and habitual residence continuing in the USA is on the applicant father. The burden of proof in relation to the Article 13 defences is on the respondent mother. In each case the civil standard of proof, the balance of probabilities, applies.

    Wrongful Retention

    36. It is not disputed that at all relevant times F had rights of custody. It is agreed that F consented to Z being removed from the USA on 31 March 2017, to arrive in England on 1 April 2017. He travelled with Z. He also agreed to leave Z in England on 19 April 2017 whilst he flew back to the USA. This is not a case of wrongful removal, but of alleged wrongful retention.

    37. I have found that when F brought Z to England on 1 April 2017, he did so intending to fly back to the USA with Z and M on 19 April. He had booked their return airline tickets. Due to the medical advice of Dr Miele he agreed instead to leave Z with M in the Mother and Baby Unit from 18 April 2017.

    38. I am satisfied that he did not agree to leave Z in England on an open-ended basis but rather to extend his temporary stay by a few weeks. The evidence does not indicate that F agreed that Z could remain for as long as M was being treated for her psychiatric condition, however long that might take. The expectation shared by F, M and M's sister, MM, was that M would be well enough to return to the USA within a few weeks and that Z would return with her. It was on that basis that F agreed that Z could stay.

    39. F says that he thought that at the outside M would have been discharged by the end of May 2017. No specific date was agreed or discussed. However I am sure that it was understood by all that the agreement was that Z would stay with M in England for no longer than mid to late June 2017. That is what the text exchange with MM on 18 May 2017 [C206] helps to establish.

    40. Over a two to three week period from about 13th May 2017 it became apparent to F and others that M had decided that she did not wish to return Z to the USA at least until she had given birth to the parties' second child. As I have found M reached this view after learning in early May 2017 that she was pregnant and after altercations with F about his response to the news of that pregnancy. She communicated this view to staff at the Mother and Baby Unit on or before 19 May 2017 when the Unit made a referral to the Local Authority, as noted by LB in the social work evidence template. F says, and I accept, that he learned of that decision in June when he was told by a social worker. Clearly, as the evidence shows, he had begun in mid-May strongly to suspect that M no longer intended to return Z to the USA as had been planned.

    41. Lord Brandon of Oakbrook in Re H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, at 78 – 79 held that:

    "…. once it is accepted that retention is not a continuing state of affairs, but an event occurring on a specific occasion, it necessarily follows that removal and retention are mutually exclusive concepts. For the purposes of the Convention, removal occurs when a child, which has previously been in the State of its habitual residence, is taken away across the frontier of that State; whereas retention occurs where a child, which has previously been for a limited period of time outside the State of its habitual residence, is not returned to that State on the expiry of such limited period. That being so, it seems to me that removal and retention are basically different concepts, so that it is impossible either for them to overlap each other or for either to follow upon the other. This interpretation of the Convention is strongly supported by the fact that, throughout the Convention, removal and retention are linked by the word 'or', rather than by the word 'and', which indicates that each is intended to be a real alternative to the other."

    42. It is possible for wrongful retention to be anticipatory. In the recent case of Re C (Children) [2017] EWCA Civ 980 (currently under appeal to the Supreme Court), their Ladyships agreed that wrongful retention can occur prior to a previously agreed date of return. There was a difference of view as to whether communication of an intention to retain to the other parent was a necessary component of anticipatory retention.

    43. Black LJ held at [131] that she could not accept that it would be wrongful retention where a parent "simply resolves in his or her own mind not to return the children". She was anxious to avoid prolonged hearings as to the private intention of the retaining parent. She was also mindful of the possibility that a parent might change their mind. However, LJs Thirlwall and Sharp stated as follows:

    "176. We have had the advantage of reading in draft, the judgment of Lady Justice Black. We respectfully agree with her conclusion that wrongful retention can occur before the previously agreed date of return and we adopt her description of anticipatory retention. We also agree with her analysis of the law, save that we consider it is not necessary to a finding of anticipatory retention that the retaining parent should have communicated to the other parent either an intention to retain or any acts he or she has taken in furtherance of that intention. Very often that will be the case, but in our view, it is not essential. We agree with Lady Justice Black's view expressed at paragraph 133 of her judgment that there may be cases at either end of the spectrum. Ultimately however, whether anticipatory retention has occurred is a question of fact to be resolved by reference to the evidence of the circumstances. We regard this as a practical question, not a theoretical one, to be judged by reference to the facts of the individual case.

    44. There had been an agreement that Z could stay for a few weeks, at the latest until mid to late June. Following the discovery that M had become pregnant and following interchanges with M it became increasingly clear to F that M did not intend to return Z to the USA as planned or at all even after her discharge from the Unit.

    45. Whilst M did not expressly tell F that she had changed her mind and no longer agreed to Z's return to the USA within a few weeks, she made that position clear by her failure to respond to his entreaties for reassurance that she was soon to return with Z, and her communications to healthcare professionals, such that by early June it was plain to F that M no longer agreed to return Z by, at the latest, later than month. If, as the majority in Re C considered, anticipatory breach can occur without communication to the wronged party, then the anticipatory breach occurred, in my judgment, by on or about 18 May 2017. If anticipatory breach requires communication then arguably the date when he knew, as a result of a combination of M's words, unresponsiveness and actions, that Z was not going to be returned as agreed was late May or early June. On 4 June F discovered that Z had fallen and hurt his head and he had not been told. He wrote "I'm going to have to "order" that the baby is brought back to [New York State] NOW." Certainly there can be no dispute that he knew by 15 June when he wrote "Darling I'm all for you getting ur treatment u need. even though I'd rather you get ur treatment here where ur husband is because we are married; but if ur going to be strong will about having ur treatment there in London within the Mother Baby Unit then I will have to inform you that it's okay if YOU stay there but I don't approve that our son (Z) stay any longer that he has stayed. Z needs to be returned to … NY while you continue ur treatment there in London [C 299].

    46. This could be analysed as a case of an anticipatory breach by M when she decided not to return Z as had been agreed. Alternatively, there was simply a material change of circumstances which meant that the earlier agreement to leave Z in England for a few weeks until mid to late June no longer applied, and both parties knew that everything had changed. There is danger in interpreting agreements between the parents in the present case as though they were commercial contracts. They were not. When, in May 2017, M informed F that she was pregnant and thereafter stopped responding to his requests for reassurances and clarification; and when on 4 June F found out that Z had suffered a head injury, he was entitled to withdraw his previous agreement to Z staying in England. He did so unequivocally by 15 June. By 15 June the local authority had become involved but there were no ongoing restrictions on M's ability to return Z to the USA. I find that from 15 June 2017 at the latest, Z was wrongfully retained in England, provided of course that at that date he was still habitually resident in the USA.

    Habitual Residence

    47. At the date of M's admission to the Mother and Baby Unit Z was 7 months old. He had been born in the USA where both his parents had lived together, other than during some visits by M to England, since 2008. He spent his first six and half months in the USA. He had been in England since 1 April 2017, staying with both parents in accommodation provided by M's family. It had been anticipated that he would be return with M and F to the USA on 19th but in the interests of the welfare of the whole family F agreed to his remaining for a few weeks longer whilst M received in-patient care.

    48. From 18 April to 15 June, a period of approximately two months, Z's stay in England had been within the Mother and Baby Unit.

    49. I have carefully considered the guidance of the Supreme Court in A v A and another (Children: Habitual Residence) (Reunite International Child Abduction Centre and others intervening) [2013] UKSC 60, [2014] AC 1, sub nom Re A (Children) (Jurisdiction: Return of Child) [2014] 1 FLR 111 ("A v A"), and the summary of principles set out by Hayden J in Re B (A Minor: Habitual Residence) [2016] EWHC 2174 (Fam). The habitual residence of a child corresponds to the place which reflects some degree of integration by the child in a social and family environment.

    50. I bear in mind all the factors set out in those judgments without needing to set them out in full in this judgment. Habitual residence is a question of fact. What is required is a child-centred approach. I recognise Z's young age and that the younger the child the more likely it is that it will share the place of habitual residence with the parent who is caring for him. It is necessary to assess the integration of M in the social and family environment of England as at 15 June 2017. I also bear in mind that it is possible for a parent unilaterally to cause a child to change habitual residence by removing the child from another jurisdiction without consent. I take into account all of the matters set out in the judgments to which I have referred.

    51. Duration of stay is relevant but not at all determinative. The stability of residence is important – Lord Reed in AR v RN (Habitual Residence) [2015] 2 FLR 503 at [16].

    52. It is helpful also to keep in mind the dicta of Baroness Hale in In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1 at paragraph 63:

    "The quality of a child's stay in a new environment, in which he has only recently arrived, cannot be assessed without reference to the past. Some habitual residences may be harder to lose than others and others may be harder to gain. If a person leaves his home country with the intention of emigrating and having made all the necessary plans to do so, he may lose one habitual residence immediately and acquire a new one very quickly. If a person leaves his home country for a temporary purpose or in ambiguous circumstances he may not lose his habitual residence there for some time, if at all and correspondingly he will not acquire a new habitual residence until then or even later…"

    53. Although he was only 7 months old when he came to England, Z had strong ties in the USA. He had been born there, both parents lived there, living together from 2008. They had a family home in which he lived. He was a USA citizen and in regular contact with medical services there. His paternal family were there and he was integrated with them. He had a settled family home. His parents had work and social connections there.

    54. When Z came to England on 1 April 2017 it was, I find, for a temporary visit. Although it was extended by agreement I have found that the agreement was only that he should stay for a few weeks, to no later than mid to late June 2017. He would then return to the USA.

    55. I have found that M formed an intention not to return Z to the USA in about mid-May 2017 and that hardened into a decision over the next two weeks or so. However she was liable to change that decision depending on circumstances. By 15 June 2017 she was still in an uncertain position, under clinical care and under supervision. If her mental health and relations with F were to have improved she might well have decided to return to the USA with Z.

    56. M and Z were living in an NHS facility. Z was being cared for by NHS staff as well as his mother. The evidence shows that as at 15 June 2017 the care was predominantly provided by staff, not by M – that is certainly what they reported to the Local Authority in July 2017. From 6 June 2017 there was always someone supervising his mother, 24 hours a day. He was visited by the maternal family on a frequent basis and he enjoyed weekend stays at the maternal grandmother's home, but most of his day to day care was not provided by M or M's family.

    57. Z suffered injuries on various occasions during his stay at the Mother and Baby Unit and in early June required hospital treatment. Although determined to be accidental they were of considerable concern, as was M's inability to care for him more generally. Concerns about M's neglect of Z had caused the clinical staff at the Unit to refer to the Local Authority. It is clear from those records that I do have, that M was unable to care for Z without help. This was due to her psychiatric condition and the distracting nature of her OCD in particular.

    58. The quality of M's care for him during that period is not my primary concern in relation to the question of habitual residence, but it is relevant that Z was in England from 18 April 2017 because M needed admission to the Unit, and she needed admission to the Unit to improve her condition so that she could function properly in the family and in society. She was not able to do either as at 15 June 2017. M's illness hindered her ability to integrate into the social and family environment, and it hindered Z's integration too.

    59. Even after M formed an intention to remain in England, Z's day to day circumstances did not change. As an inpatient the usual routes to integration into a social and family environment in England were not fully open to M.

    60. M had no home of her own. She had no independent means of support.

    61. There was no stability of residence. As at 15 June 2017 it was unknown for how long M and Z would remain at the Unit, or where they would go after being discharged. If M's condition had improved significantly she might have been discharged and been able to live on her own with Z but there was no settled plan as to where they would live. If she had deteriorated significantly Z might have been removed from her altogether. There was great uncertainty about future living and care arrangements for Z as at 15 June. There was no plan save to keep treating M at the Unit for the next few weeks. There was no established discharge plan.

    62. For about one month prior to 15 June 2017 F had been pressing for Z's return to the USA. Clearly Z maintained a strong link to the USA.

    63. When set alongside the degree of integration Z had enjoyed in the USA, the lack of integration into family and social life in England emphasizes that there are insufficient indicia of habitual residence in England.

    64. In my judgment, as at 15 June 2017 Z remained habitually resident in the USA and was not habitually resident in England.

    Article 13 Defences

    65. Miss Chowkory did not spend much time in her submissions on the defence under Article 13(a) namely that F had subsequently acquiesced in Z's retention. I am satisfied that such an argument has no merit. It is plain that F had by 15 June 2017 asserted his custodial rights and wanted Z to be returned. He had expressed that clearly and he followed it by petitioning the court in New York State later in June, and then making this application in July. I can find no evidence of express or tacit acquiescence.

    66. The defence under Article 13(b) is more problematic to resolve. M puts her case on three bases:

    i) The allegations of violence and conduct against F;

    ii) The lack of accommodation or source of income to support the return;

    iii) The effect on Z of M's own health if return is ordered.

    67. In relation to (i) I have already found that there is insufficient evidence before me to establish that F has been violent, physically or psychologically to M. However, even if taken at their highest in my judgment they would not give rise to a grave risk of harm to Z. In my judgement there is no evidence that F's conduct even taken at its highest on the evidence provided, has or would be likely or liable to harm Z if his return were ordered.

    68. In relation to (ii) I would have expected more concrete evidence to support the contention than has been provided. F is in work. There is a family home in New York State. There is extended family there. He has paid for flights and treatment for M.

    69. I have been assisted in this regard by the Local Authority. The Local Authority's Position Statement of 20 October 2017 states that if jurisdiction lies with the US there is no evidence to suggest that father is not capable of looking after Z and indeed he did so from the beginning of February to the beginning of April 2017. I would add that he also did so when M was ill prior to February 2017. The Local Authority continues, "He has suitable accommodation and considerable family support. The local authority does not consider that there would be any risk to Z if the parents are not living together." The local authority also comments on the lack of evidence to support findings of abuse or rape, and adds, "The mother does not allege that this had any direct impact on Z." The Local Authority has made investigations, including in New York State, before making this Position Statement.

    70. I am grateful for the evidence of the social workers provided by the Local Authority. They very helpfully inform the Court about discussions with the paternal family and with Munroe County Social services. Their information provides reassurance that resources would be likely to be available, through the paternal family, F himself and social and health services in New York State that would provide a protection against the risk of harm to Z as a result of lack of accommodation or financial support.

    71. In addition, as protective measures, F is prepared to undertake not to attend the airport when M returns to America, not to use or threaten violence against her or instruct any other person to do so, not to support proceedings in the USA for M's punishment in respect of Z's wrongful retention; to follow professional advice from services in England and the USA with regards to with whom Z should live until the first inter partes hearing in the USA; to allow M to live in the family home upon her return which he will vacate to reside at his mother's, at least until the first inter partes hearing; to pay child maintenance of $240 a month until the first inter partes hearing; not to apply to enforce the temporary custody order until the first inter partes hearing and to pay for Z's return ticket.

    72. The principles to be applied in relation to grave risk are well established and were set out in In re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, in particular at [31] to [36]. The applicable principles were helpfully summarised by Mr Justice MacDonald recently in H v K and others [2017] EWHC 1141 (Fam) as follows:

    "42.The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144. The applicable principles may be summarised as follows:

    i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss.

    ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.

    iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two.

    iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. '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'.

    v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.

    vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b)."

    73. In Re D (Abduction: Rights of Custody) [2006] UKHL 51, Baroness Hale held as follows:

    ""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". It is, as article 13(b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns and by relying on the courts of the requesting State to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so."

    74. For the reasons given I do not find that concerns about F's conduct and about accommodation or financial support alone make out a defence under Article 13(b). Of more concern is the combined effect on the risk to Z of those factors together with M's own health.

    75. Dr Musters is a Psychiatrist specialising in perinatal mental health. He has reported to the court on joint instructions. He saw M on the same day as his report: 18 September 2017. He also spoke TW, Case Worker at Jamma Umoja, and to Dr Miele. He had not seen notes from the Mother and Baby Unit. He reports that M meets the diagnostic criteria for OCD and recurrent depressive disorder but that she currently has no significant depressive symptoms and her depressive disorder is currently in remission. In the post-natal period she had a severe episode of depression with psychotic symptoms. Her OCD is long standing but had had a minimal impact on her life prior to giving birth to Z. Her OCD has become very problematic and is associated with obsessional self-doubt, intrusive thoughts and ritualistic hand washing.

    76. Dr Musters reports at paragraph 6.30 that M is "at high risk of perinatal relapse wherever she lives." He puts the chance of recurrence at over 50%. This risk could be reduced by a comprehensive package of prophylactic mental healthcare, which he outlines in his report. He says, "with good care it should be possible to prevent the occurrence of a relapse of her psychotic illness; the OCD is likely to be harder to prevent …." Dr Musters considers the impact of Z returning to the USA with or without M and the consequences for her mental health of her remaining in England with Z. He says at 6.42:

    "So, essentially there are risks in all these potential scenarios. the possible outcome with the lowest risk of precipitating a relapse … is that in which she remains in the UK with her son, receiving expert mental healthcare and the support of her family, although I recognise that that outcome still relies on a favourable conclusion on to social services' current involvement. The other two scenarios … would both pose higher risks of relapse to M. I cannot know which of the two would have the greater negative impact."

    77. Having regard to the evidence adduced by social workers for the Local Authority and F's own evidence I am satisfied that M could be afforded adequate healthcare in New York State. Whilst applauding the work done in England to help M it is fair to observe that her condition has proved difficult to treat and that, I have been told, certain therapeutic input has only recently been provided even though she has been in state care of one kind or another for over 6 months. It is not clear that she would be bound to be provided with all of Dr Musters' recommendations for mental healthcare here in England or in New York State. However I am not prepared to find, on the evidence provided to me, that the healthcare provision in the USA would be materially worse than that which M will be likely to receive in England.

    78. I accept Dr Musters' evidence that Z's return to the USA would increase the risk of M suffering a relapse in her mental health at the time of her delivery of her second child in January 2018. It will be a stressful event for her and she is psychiatrically vulnerable. However, the risk of relapse is high even without Z's return. His return would not create the whole of the risk of relapse, it would increase the risk over that which will exist even if Z is not returned.

    79. Clearly the risk of a relapse in M's mental health is an important consideration. Whilst treatment and prophylactic measures can mitigate the risk of relapse they cannot be guaranteed to prevent it.

    80. In relation to the Z's position. If he were returned to the USA there is no evidence to establish that he would be exposed to any risk of physical harm as a result. The impact on his mother's mental health must be taken into account in relation to the question of whether there is a grave risk that his return would expose him to psychological harm or otherwise place him in an intolerable situation. In relation to that question I bear in mind all the circumstances including the following matters:

    i) Z has a close bond with M. However for some months she has been incapable of looking after him by herself and there is no evidence that that position is likely to change in the near future whether Z returns to the USA or remains in England.

    ii) If, as she has indicated, M would not join Z in the USA if he were returned, Z would be deprived of day to day contact with M and he would have much less contact with M's family.

    iii) He would have the benefit of the day to day support of and contact with F and the support of F's family upon his return.

    iv) He would no longer be living in an institutional setting or living full time with a parent who requires 24 hour supervision to protect him.

    v) F is able to look after Z and would have the support of his family. They had a close bond in the past which has been weakened by Z's wrongful retention in England but which can be rebuilt.

    vi) F has offered undertakings which offer some protection against the potentially harmful effects on M of her returning to the USA if that is what she chose to do.

    vii) There are healthcare and social security provisions in the area where Z would live which would offer some protection against potential for harmful effects on z of his return, whether or not M also returns.

    viii) The courts in New York State are already seized of Z's case and are highly likely to make orders as to family arrangements designed to further Z's best interests and to protect Z generally and specifically in the event of any relapse in M's condition or any geographical separation from her.

    ix) M is at risk of relapse on giving birth to her second child wherever she is and wherever Z is at the time. That risk would not be created by Z's return but it would be increased by Z's return to the USA. It is a substantial risk whether he is returned or whether he stays in England.

    x) Whilst M has indicated that she would not return to the USA if Z is returned, and whilst she has her own health to consider, it would be open to her to return. Unless there were a change in circumstances there would be no legal bar to her doing so or to having a significant amount of suitable contact with Z. I accept that she has genuine cause to be anxious about returning to the USA and being away from her sister and mother, in particular. However, proper support could well facilitate her return. Whilst he does refer to risk of relapse, Dr Musters does not advise that M's return to the USA should be excluded on health grounds.

    xi) The Local Authority has agreed to assist in the arrangements for Z's return to the USA in order to minimise the risk of harm to him.

    81. In my judgment there would not be a grave risk that Z's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. I am sure that his return will cause him some discomfort and distress. However, in relation to the test under Article 13(b), including intolerability, it is not for this court to weigh up all the welfare considerations for and against return, but to consider whether M has established the criteria set out in the article. She has not done so to my satisfaction.

    Conclusion

    82. Z was wrongfully retained in England from, at the latest, 15 June 2017 and was habitually resident in the USA, but not in England, up to and including that date. The defences under Article 13(a) and (b) are not established and so the exercise of a discretion does not arise. I must order Z's return.

    83. The longer term family arrangements will be for another court. The determination which I have had to make is in relation to jurisdiction. I have great sympathy for M's plight and for Z's position. M has been affected by mental ill health after giving birth to Z and she has to manage to deal with another birth in a few months from now. There are no easy solutions for this family. However, for the reasons given the father's application is allowed and I shall order the summary return of Z to the jurisdiction of the USA.


Judgment, published: 20/07/2018

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Published: 20/07/2018

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