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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D (children), Re  EWCA Civ 146 (25 January 2006)
Cite as:  EWCA Civ 146
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MRS JUSTICE MACUR)
B e f o r e :
LORD JUSTICE WALL
MR JUSTICE COLERIDGE
|IN THE MATTER OF D (CHILDREN)|
(DAR Transcript of
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MR SETRIGHT QC (instructed by Messrs Dawson Cornwall, LONDON WC1R 4QT ) appeared on behalf of the Respondent
Crown Copyright ©
"The children were resident with their mother with liberal contact to their father. The children were apparently well settled albeit displaying some disruptive/challenging behaviour described by a child psychologist as 'emotional problems'. The mother was in fragile emotional health. The parties are engaged in prolonged and acrimonious court proceedings relating to the breakdown of their marriage which include cross applications for custody of the children, the mother's application to leave the jurisdiction and ancillary relief disputes."
"On 28 June 2005 at about 3.30pm at her home address in Venezuela the mother was victim of an apparently pre-meditated, targeted and serious firearm assault. She was shot at close range and received wounds to the face (a bullet entering and emerging from her right lower eyelid and splintering the bone of her zygomatic arch) and right shoulder. She was identified before she was shot. She attempted to escape. I consider that she was fortunate not to have suffered permanent physical disability or death. I consider it to be a matter of luck rather than design, given the time of day and location of the shooting, that the children were not present. Her assailant is a young Venezuelan national, arrested as he left the scene and charged with 'frustrated homicide', who has alleged that he was hired to shoot the mother in order to frighten her. Another person has been arrested and charged as an accomplice. Neither is known to the mother. The person who 'contracted' the shooting is unknown and still at large. The motive behind the shooting is unclear".
"It was her intention to utilise the unused portion of the American Airlines ticket as per the attached copies."
"[The mother's] 'excuses' appear lame and realistically draw critical comment. However, I note that she had not been advised upon or treated for the inevitable emotional impact of the attack upon her at this time. I accept, of course, that it may be consistent with a woman exaggerating her symptoms to suit her own ends, but as I indicate below, whilst bearing in mind the criticisms levelled against the medical reports in these proceedings made by Mr Scott QC, I am satisfied that the mother is suffering from post traumatic stress disorder and was likely to have been so suffering in July 2005."
"Cases in which the court of the requested state then by order validates such conduct must be exceptional indeed",
the conduct in question being the unlawful removal pending the determination of an outstanding application for permission to relocate. The obvious reason for that stricture is that the abducting parent achieves the desired goal by unlawful, rather than lawful, means.
"My finding as to the mother's mental state also goes to my assessment of the circumstances surrounding the air tickets and the interpretation I am invited to place upon it … Mr Scott QC asks me to take notice of the fact that an 'e-ticket' will only be valid for return flight if outward journey is completed. I was not aware of the same and do not hold it as a matter going to the mother's detriment".
"Nevertheless, where I perceive that Dr Turner has strayed into the arena I disregard his views. I take account only of the medical diagnosis and prognosis made upon facts as I find there is sufficient evidence to support and not their determination of the facts".
"As to [that], I agree, but do not find the diagnosis and prognosis diminished thereby."
"I accept the majority of the submissions made by Mr Setright QC as to the value of the medical reports. I summarise, Dr Turner's curriculum vitae shows he is patently expert in the field of PTSD. The nature of the shooting gives rise to the logical conclusion that there will be some emotional impact. Dr Turner's diagnosis is hardly surprising. The previous depressed disposition of the mother will not have assisted her resilience in the face of such an attack".
"There is already ongoing and extensive litigation being conducted in a competent jurisdiction in which the mother has been able to participate in the past. In the absence of evidence to the contrary and assuming the application of similar legal principles to the United Kingdom I deem it likely that her application to remove the children from the jurisdiction would be viewed favourably in the light of Dr Salcedo's report. Whilst there is an application for sole custody by the father, unless the mother's actions are deemed so unreasonable, I assume for the purposes of my exercise of discretion that it is unlikely to succeed."
"There is a real risk of physical danger to the children. The mother was victim of a pre-meditated, targeted, terrifying and life threatening attack. The father claims to have been victim of similar and more ferocious attacks. The children are known to be associated with their parents by the past action of the father. The children have not been subject to any attack and are less likely to be targeted victims than their parents but are in danger of physical injury if present with either of their parents at the time of such attacks. The attacks upon each parent were indiscriminate in choice of timing and location – that is in the daytime and outside the home address of each – to avoid any suggestion that the assailant had relied upon the absence of the children. The use of firearms and other weapons carries the inevitable risk of serious injury. The risk to the children maybe classified as grave not only in terms of its likelihood, as indicated by past multiple events, but also in terms of its potential outcome, namely serious disability or death. Security measures could be enforced which contemplated 24 hour constant supervision by armed guards. This in itself would not provide complete protection but would diminish the risk somewhat. But for the other conclusions I draw below, it may have been sufficient to undermine the mother's defence".
"On the basis of reported conversations between [the mother] and her children, the children are aware that she would prefer to stay in this country because she feels unsafe in Venezuela. In this way, we consider that the children are likely to be fearful and anxious about the safety of both their mother and themselves if required to return to Venezuela. This is not a comment on the relative safety of Venezuela as a country for children, but only that for [these children] their sense of safety will be mediated through the experience of their parent and, in this case, the parent has good cause to feel highly anxious in that country … We would, in general, be highly concerned about whether a return to Venezuela would be in the children's best interests".
"If increased stability, both psychological and practical, is not achieved then clearly there will be a risk that these anxiety problems will become a more enduring component of both children's psychological development".
"The children are anxious for their own safety and their mother's safety and have heightened emotional problems as a result of the shooting, which are unlikely to abate and may well increase if they were to be returned to Venezuela. Their psychological welfare is therefore put at grave risk beyond the normal disruption of an enforced return to their habitual residence and beyond the problems identified by Dr Salcedo in her July 2005 report. There is no measure which can diminish this risk to an acceptable level".
Order: Application refused.