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Cite as: [2015] EWHC 2735 (Fam)

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Neutral Citation Number: [2015] EWHC 2735 (Fam)
Case No: FD 14 P 00405

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
24th July 2015

B e f o r e :

MR. JUSTICE PETER JACKSON
____________________

Between:
In the matter of Re: B

____________________

Digital Transcription of Marten Walsh Cherer Ltd.,
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP
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____________________

MR. PETER NEWMAN (instructed by Messrs. Dawson Cornwell) for the Applicant Father
MS. BARBARA MILLS (instructed by Bar Pro Bono Unit) for the Respondent Mother
MS. GILL HONEYMAN (instructed by CAFCASS Legal) for the Children's Guardian

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Re B: Child recovered from China

    MR. JUSTICE PETER JACKSON:

  1. These proceedings concern B who was born on 9th December 2010. B spent the first six months of his life in Hertfordshire. Then, between the age of six months and a little over three years old, he lived in Surrey, mainly with his father. For the following year, until he was just over four years of age, he lived with his mother and grandparents in China. Since February of this year he has been sharing his time between his father in Surrey and his mother in Central London.
  2. The issues before the court are these: where should B go to school should it be in London, as his mother would like, or in Surrey as his father proposes? Consequent on that, what time should he spend with each parent? Lastly should he be permitted to travel abroad, particularly to China, in the foreseeable future?
  3. There are a number of basic matters which I might describe as being "givens". The first is that, happily, B now has a strong relationship with both of his parents and it is common ground that he should spend a lot of time in both of their homes, possibly even sharing his time between them equally. The order that will be made as a child arrangements order will accordingly provide for B to live with both of his parents. Next, self-evidently, B can only attend one school. For term time care to be shared, both parents need to be in proximity to that school. Currently that is not the case. Thirdly, it is essential for B's future development that any risk of him being abducted is extinguished.
  4. B's father is 52 years of age. He has been married four times. By his first marriage he has two children at or approaching the age of 30, neither of whom he sees. His second marriage, some time in the late 1980s, ended in 2008. From this, he has a 15 year old son, E, with whom he has had a relationship but who in current circumstances he is not seeing. The third marriage was to B's mother. That marriage itself lasted from October 2009 to March 2012 but the cohabitation ended earlier than that. In June 2012 the father married again. His wife is a Filipino national, 31 years of age. They have two children, aged two and five months. The wife and children have no right to enter this country and the process of them coming here, if ever they do, may be a slow one. The father is unable to maintain his latest family and relies upon his pensioner mother to send them monthly cheques.
  5. The father suffers from a medical condition that is controlled. He has a colostomy fitted. He is not currently working and receives benefits, including the benefit of Legal Aid. He hopes to get back to work at some point. He was a man of some means but fell into dispute with his brother, who was his business partner, and apparently lost all his money. His second wife became involved in that dispute. Earlier this year, the father launched litigation against her. The only perceptible consequence of that so far has been to cause his 15 year old son to stop seeing him. The father has lived in Surrey all his adult life except when working away.
  6. The mother is 32 years of age. She is Chinese. In the early 2000s she and the father were co-employees of a Chinese company and they subsequently met up and started a relationship in 2008. At that time the mother was working in Germany. In 2009 she came to the United Kingdom to study at university and, as I have said, the marriage took place in October of that year, B being born in December of the following year. The mother has no relations in the United Kingdom. She is living in a shared flat in Central London and, as at other times when she has been in England, has managed to obtain employment.
  7. The marriage between the parents must have become unhappy at a very early stage. Whether or not the father introduced himself to the mother as a single man, he says he cannot remember, it is unlikely that the marriage met the mother's expectations. I do not suppose that she came to this country and married a British citizen with a life-long work record with the expectation that she would become the sole breadwinner, but that is what happened. The father says that soon after B's birth the mother opted out of the marriage in favour of a single life. There is reference in the papers to some post-natal depression.
  8. At all events, by the time B was five months old in April 2011, matters had become bad enough for the father to get in touch with Surrey County Council social services. In the same month, he began his relationship with his current wife.
  9. In May 2011, the mother was convicted of failure to provide a specimen of breath after an incident when driving. In November 2011, the mother went out and left B alone, or as she says with an unreliable babysitter. But at all events, she was arrested in what they described as "a highly intoxicated state" and the following April 2012 was convicted of cruelty/neglect. This led to the involvement of Children's Services on a more formal footing and led to the main burden of care falling on the father. The mother was working and had contact with B on a regular basis. In the meantime, in September of that year the father began the divorce proceedings to which I have already referred.
  10. The social services' involvement continued until a case conference on 24th January 2014. In the previous month, specifically between 30th November and 31st December 2013, the mother and B travelled back to see her family in China; at that time her father had an operation and had been unwell. It is clear that that December 2013 trip received a lot of thought by all concerned. To provide reassurance that B would be brought back, written agreements were formed and the documentation at the time is full of references to concerns that B might be kept in China. However, the mother complied with her commitment and B returned to England, but only briefly as it transpired.
  11. There is a hint that while social services were involved the parents were, to a degree, making common cause, but that did not last. On 4th February 2014, the mother was collecting B for a period of time to be spent with her. She says that on that date and before then, she had explained to the father that she had lost her job, that things were not good here for her, that she wanted to go to China with B and, further, that they discussed the whole family relocating with the father perhaps being joined there by his new wife.
  12. Something certainly happened on that date in that the mother and B ran out of petrol on the A3 and had to be rescued by the police, and by the father and a friend. The mother, understandably, blamed him for not filling up the car as he had been asked to do. She says, in effect, that at that point she said she could not cope any more and that she was going.
  13. As to all of that, I do not discount the possibility, particularly after the mother lost her job, that there may have been remarks on mother's part about her situation in England, but I am quite clear that there was never any discussion about B going to China, still less going to China to live, or about the father moving there himself. The level of caution that surrounded the December trip might have been somewhat reduced after a return at the end of that trip, but there is absolutely nothing either in the record or in the probabilities of the situation to suggest that the mother's account of informing the father that she was going to China, or the father agreeing to it, or the father agreeing to go himself has any truth in it at all. I think that much the likelier situation is that the mother felt at the end of her tether and decided to do what she decided to do.
  14. What she decided to do was cruel. Without any notice to the father, she bought one-way tickets for herself and B, went to the airport on the 21st February 2014, parked the car in the short term car park and left for China. The first that the father learned of his was a message which I find was sent after the mother's departure asking him to pick up the car, which was on finance, and return it to the dealership. The text messages which appear at page C57 include the statement, "We are on holiday in China." This led over the following days and weeks to a frantic series of communications by the father, trying to find out what was going on and trying to keep in touch with the mother and B. The mother's response to that can only be described as callous. For example, when the father wrote, "I am his father. No idea why you have disappeared with him to the other side of the world. You need to bring him home", the mother replied, "You tell me why." These messages are at C58 and 59. To compound the situation the mother went on to say of B, "He says he doesn't want to see you as you hurt his bottom and he is scared of you."
  15. The mother's case now, in July 2015, is still that the father knew and agreed with what she was doing. I absolutely reject that. There is not a single piece of information that I have come across that supports her account. The fact of the matter is that B was only returned to this jurisdiction by chance and I am confident that had the mother not been stopped, he would still be there now. It took a year for B to be recovered. During that year the father faced every possible obstacle to stay in touch with his child. The mother placed the child first with the grandparents while she was living there, and after she got a job some four hours away, halfway through the year, the child divided his time between the grandparents' home and the mother's address.
  16. During that time the father saw B for no more than a total of two or three hours. He faced considerable hostility from the mother's family, including, as I find, being assaulted by the mother's father and local people on one occasion. This is one feature that tells me that this was no agreed arrangement. Had the family been migrating by agreement, then there would have been regular contact. The mother's behaviour at that time was designed to cut the father out of B's life altogether.
  17. In December 2014, after the father had been living in China and working there to sustain himself since the spring, a development occurred. The mother, no doubt thinking it was safe, came back to England for a three-day business trip. She was picked up by the border controls and, as a result of an order of this court, her passport was seized. That, of course, made her plans unsustainable because she was here and B was there. But it still took from December until the 7th February and a lot of litigation in the meantime for B to be returned to this country.
  18. Criminal proceedings against the mother had been started for child abduction. From the perspective of this court it is as plain a case as one could imagine. However, the father has informed the Crown Prosecution Service that he does not wish to sponsor or support the prosecution of the mother because that would not be in B's best interests. I agree that the prosecution of the mother is not likely to be in B's best interests but the decision is not a matter for me. The Crown Prosecution Service has to consider the public interest and the deterrence of child abduction generally. But in so far as it is of any relevance, I confirm that the prosecution of the mother is unlikely to promote the interests of this particular child and I give leave to the parties to disclose those observations to the Crown Prosecution Service.
  19. Since 7th February, B has essentially returned to the sort of arrangements that were existing before the abduction. By order of the court he divides his time nine days and five days in each fortnight between the parents with the longer period being spent with the father. He attends a playgroup local to his father and also a playgroup local to his mother's current place of work. He has re-established his relationship with his father, something described by the Children's Guardian, Mr Power, as a considerable achievement.
  20. Mr Power was appointed as B's Guardian in this difficult case. For his pains, he has been the subject of a complaint against him by the mother. On the basis of what I have heard during these proceedings, which covers the same ground, I could not identify any foundation for criticism or complaint. I have had prior involvement of this matter, having conducted a hearing on the 15th February, and I well remember how extremely distressed and stressed the mother was on that occasion. The situation was even worse, as I understand it, before Hogg J on the 9th February, when there was a fracas at court involving the mother, the grandmother and B. There was a lot of emotion around at that time. It would have taxed any CAFCASS officer and, so far as I am concerned, Mr Power's carrying out of his task has not in any way justified complaint. This part of my judgment can be disclosed to those investigating.
  21. The situation of the mother in the early part of this year was extremely difficult. She had expected to return to China to continue her previous plans but she had now been detained in England. She had been made, with the utmost reluctance, to return B. I consider that the mother was ill equipped to deal with this reversal in her fortunes. She was here alone. Unlike the father, she was not legally represented and she is, of course, in a familiar but none the less foreign country. Her behaviour and statements at the time, bad as they were, have to be seen in that light.
  22. There is one particular allegation that the mother, it will be recalled, first made after she took B to China which was to do with the father hurting B's bottom. The mother has, in various different ways, conveyed to anyone who speaks to her that arising from something that B said (it is referred to at page D40) she has worries that the father may be sexually abusing B. This seems to form part of a wider concern about the father's standards of hygiene in the home and in relation to his medical condition. As to that, there is no doubt that the mother may be a more house-proud cleaner than the father, but the father's conditions of living are perfectly adequate.
  23. But in so far as the mother told me in this hearing that she still has worries that the father may have abused B sexually, I find that those concerns are groundless. There is no information at any stage in these proceedings to justify this allegation against the father. I dismiss it, not just for his benefit and B's, but also for the benefit of the mother. She has worried about this and she has worried about it for long enough.
  24. A further development since May has been that the mother managed to obtain legal representation through the Bar Pro Bono Unit from Ms. Barbara Mills. That led to her being represented at a short hearing in May when the matter was adjourned to this week's hearing. I cannot call to mind a case which better demonstrates the value of experienced legal advice for a parent in distress than this one. Having seen the mother in February and again in July, I have noted significant changes in the way that she functions and the way that she expresses herself. No doubt she has begun to come to terms with the shock of being kept in England. Indeed, despite being given the opportunity to make an application to take B to live in China lawfully, she has now chosen not to do that; she has decided to live in England.
  25. As time has gone on, the mother has begun to find ways of expressing herself more moderately, more constructively, more sensibly. Of course it has been suggested that some of this change may have been more than skin deep. But in my view it is to be welcomed and it is a start. The mother still has troubling thoughts about some aspects of the matter but she is, in my view, becoming better able to control them and to see things as they really are. I am sure that some of the mother's answers were helped by her perception of what is likely to go well in court and what is not, but that is advice that every litigant gets and I do not blame the mother for trying to put her best foot forward if she can do it without telling untruths.
  26. For his own part, letting himself down in a comparatively small way, the father was happy to represent his 15 year old son as a regular part of his home life when at the moment, sadly, he is not.
  27. But I would like to place on record and this may be passed back to the Bar Pro Bono Unit that the contribution of Ms. Mills to ensuring this hearing has been as balanced and effective as it could be has been of real benefit not only to her client, the mother, but ultimately, and more importantly, to B. So I do place some weight on the mother's assertions that life is teaching her. It is a long way from the completely uncontrolled presentation that was all she was capable of earlier this year.
  28. At this hearing I have heard evidence from the parents and from Mr. Power. In addressing the issues, B's welfare is my paramount consideration. On the question of removal from the jurisdiction, I agree with Mr Power that the risks of allowing B to travel abroad with his mother are far too high. The mother may, at the moment, be at least in part committed to remaining in this country, but it would not, in my view, take much to persuade her that it would be better all round for B to be returned to China whatever was ordered or whatever anybody else thought. I am afraid, and it is very disappointing from B's point of view and difficult for the parents, that for the foreseeable future it is not going to be in his interests to travel to China. I doubt that it will be in his interests to do so before he is old enough to make his own mind up, probably during his teenage years.
  29. Similarly, because onward travel from other destinations cannot be controlled, it will not be possible for the mother to travel abroad with B to other destinations. It is possible and I hope it will happen that the mother's parents, or at least her mother, will be able to make visits to this jurisdiction as happened in the grandmother's case last spring. But, with a heavy heart, my view is that this child is not going to be able to experience that part of his heritage. In so far as the burden of that falls mainly on the mother, I am afraid that she has only herself to blame.
  30. I next come to the question of how B's time should be divided. It clearly, as I have already said, will be a substantial if not an equal amount of time with each parent. This would reflect B's wishes and feelings which are of closeness to both parents. So far as B's background is concerned, I have said enough to show that he has a rich and varied heritage, something which, as the mother has said, is likely to be an asset to him as he grows older. What B needs is protection from conflict. He, at the moment, is growing up knowing that there are difficulties between his parents. It is essential that they find better ways of communicating. B also needs the experience of his Chinese and English inheritances. So far as harm is concerned, he has been harmed already by parental conflict and by abduction.
  31. The powers of the court, which I intend to exercise in this case, include the power to direct both parents to attend a Separated Parents Information Programme and I will direct Mr Power to identify them and to confirm when the courses have been taken.
  32. I turn to the question of parental capacity. These parents are both, in their different ways, capable people but they are very different. The father is a man who is capable of forbearance. Despite his fairly chaotic personal life he has shown the ability to provide stability for B. The mother is more mercurial. She has obvious ability. She has a strong work ethic, determination, and, given the situations that she has entered into, experienced, and caused herself, a considerable amount of resilience. She is also capable of much less attractive behaviour. Of course there is the abduction, but also the willingness to indulge in hostility towards the father in a way that B picks up on. She can turn, in my observation, from being a capable business woman to being a pleading child within moments. But, overall, I recognise the progress that the mother has made in understanding other points of view in the course of the past few months.
  33. A central issue for me has been the mother's ability to cope in the long term away from her own native country. As I observed in the course of the hearing after all he has been through, and it has been a tremendous struggle for him, the father has after all achieved what he set out to achieve, which is B's future lying in the country of his birth. But it is also, in my view, essential for B's future that the mother is reasonably settled in this country and that the arrangements here allow for that.
  34. What would be the effect of a change in circumstances? B's circumstances will shortly change because he will be becoming a schoolboy in the reception class. That means that the current arrangement cannot continue. He will be at school in under six weeks' time. Should that school be in London or in Surrey?
  35. The current arrangements, which will be changing, are working pretty well for him. The best arrangement and I agree with Mr Power would be that could divide his time equally between his parents. I rarely come to that conclusion in a case where parents are not in easy agreement with each other but in this case both the father and the mother have so much to offer B that I would like him to have it all. But I am also in agreement with Mr Power that it would not be in B's interests to spend less than half his time with his father against the background in this case. This is not to diminish the mother, evidently, to say that she should not have more than half of B's time; it is to reflect the history of his short life and the need to prevent matters slipping back.
  36. An arrangement where both parents lived in London has its attractions. These were explored by me in the course of the hearing. An arrangement where B went to school locally to the mother's home would be much easier for her to cope with around work. It would allow her to keep the current accommodation that she and B share with a close Chinese friend and her child. This offers, I think, a lot of psychological support to the mother because there is a risk of isolation and a risk that she will come under stress and that the events of 2011 and 2012 may return.
  37. I have carefully considered whether the benefits to B and his mother and the move by the father to London, if it could be achieved, outweigh the disadvantages to B and his father of such a move. Mr Power did not think so, finding the question a finely balanced one. After careful thought, I agree. I acknowledge the importance of bolstering the mother's situation as she now finds it and the attractions of a more cosmopolitan environment for a child with B's background, but against that, this would be yet another change for B. A life lived with both parents in London would be a new venture and I have reached the conclusion that there are too many uncertainties in pursuing that outcome. Had it been the best outcome, I would not have hesitated to ask for further information about benefits, accommodations and the like, but the most that would have been achieved would have been general information and I doubt it would be resolved by anything other than experience; it would take time. I am satisfied that although the father would in normal circumstances have been expected to have the resources to manage such a move, in practice he does not. In short, had it been the preferred option, I would have wanted to know more about it.
  38. But against the troubled background of this case and with, I hope, a real understanding of the mother's situation, I have reached the conclusion that it would be better for B's life to continue in the Surrey area. That is not an end to the matter, of course, because I would not have reached that conclusion if I felt that the mother could not manage it. She is every bit as important to B as the father even if she privately thinks she is more important.
  39. I assess the mother to be somebody who will be very disappointed by my conclusion but who is capable of working with it and making the best of it for her son's sake. Whatever happens, because of the amount of time he will spend with his mother, B will experience his Chinese heritage in full measure. I think it likely that if the mother lived in Surrey she would get every aspect of the Chinese community in Surrey into focus and in any event the distance between Surrey and London will not prevent B from experiencing the Chinese community here.
  40. The order that I will, accordingly, make is: that B will live with both parents; that if the mother decides that she wants to move to Surrey within a reasonable time and that she moves to somewhere that is within a reasonable distance of the school I have in mind no more than half an hour travel then there will be an exactly equal entitlement as between one parent and the other both as to term time and as to holiday time. If, on the other hand, the mother does not choose to move to Surrey, then the arrangements will provide for B to live with her for most of his non-school time. It was suggested that that should be, for example, two weekends out of three. I would say that it should be three weekends out of four and that it should be the preponderance of the holidays, so, for example, the first and last weeks will be spent with father in summer and the rest with the mother and that she should have at least half of half terms and holidays.
  41. I think the parents will, once they have absorbed this decision, be able to agree a calendar along the lines of their ability in the past few months, so I am not going to engage at this point in a diary exercise. I will give the parents a few days to put forward their proposals for time spent with each of them and I would expect to be able to approve, as indeed the Guardian will need to, their proposals when they are known.
  42. Subject to any matters that any of the parties want me to refer to, that is my decision.
  43. (Discussion followed re Order and costs)


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