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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> K (A child : Hague Child Abduction Convention) [2018] EWHC 2406 (Fam) (27 July 2018) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2018/2406.html Cite as: [2018] EWHC 2406 (Fam) |
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FAMILY
DIVISION
![]() |
B e f o r e :
(sitting as a Deputy Judge of the High Court)
(In Private)
____________________
![]() | Applicant | |
- and - | ||
![]() | Respondent |
____________________
MISS G LINDFIELD (by Direct Access)
appeared on behalf of the Respondent.
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR DARREN HOWE QC:
THE PARTIES
THE ISSUES
1 That the mother consented to oracquiesced
with the father's retention of the child in England. It was pleaded that consent had been included within an agreement reached between the parents when they were negotiating the terms of a divorce in 2016; a divorce that did not proceed due to their reconciliation. The father also relies upon an email sent by the mother, following K's retention in England, as further evidence of her consent, and
2 That K objects to a return to Turkey and has attained an age and degree of maturity at which it is appropriate to takeaccount
of his
views.
THE LAW
"(a) to secure the prompt return of children wrongfully removed to or retained in any contracting State; and
(b) to ensure that rights of custody and ofaccess
under the law of one contracting State are effectively respected in the other contracting States".
"(a) it is in breach of rights of custody attributed to a person (…) either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal (…); and
(b) at the time of removal (…) those rights wereactually
exercised, either jointly or alone, or would have been so exercised but for the removal …"
"The whole [objective] of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country,according
to the laws of their home country and in
accordance
with the evidence which will mostly be there rather than in the country which they have been removed."
"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."
"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 notactually
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."
"The judicial (…) authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to takeaccount
of its
views.
In considering the circumstances referred to in this Article, the judicial (…) authorities shall take intoaccount
the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence."
"To bring these strands together, in myview
the applicable principles are as follows:
1 For the purposes of Article 13 of the Convention, the question whether the wronged parent has 'acquiesced'
in the removal or retention of the child depends upon his
actual
state of mind. (…) the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant
acquiesced
in fact.
2 The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
3 The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words andactions
of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.
4 There is only one exception. Where the words oractions
of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have
acquiesced."
"… could not be inferred simply from the wronged parent having concurred in a temporary arrangement with aview
to arriving at an amicable solution."
"This case has all the hallmarks of what no doubt frequently occurs in these cases, of parents seeking to compromise a situation, allowing the abducting parent to remain in the country to which he or she has gone provided the wronged parent is satisfied as to the other matters which are in issue between them. Only if there were such a concluded agreement could it be said that there was clear and unequivocal conduct such as to fall within the exception….it would be most unfortunate if parents in this situation were deterred from seeking to make sensible arrangements, in consequence of what is usually anacknowledged
breakdown in the relationship between them, for fear that the mere fact that they are able to contemplate that the child should remain where he has been taken will count against them in these proceedings. Such negotiations are, if anything, to be encouraged. They should not therefore necessarily fall within the exception or necessarily lead to the conclusion as a matter of fact that there was a subjective state of mind that was wholly content for the child to remain here."
"… in my judgment there are cases (…) in which the wronged parent, knowing of his rights, has so conducted himselfvis-à-vis
the other parent and the children that he cannot be heard to go back on what he has done and seek to persuade the judge that, all along, he has secretly intended to claim the summary return of the [child]."
1 The approach of the court is first to determine whether the threshold has been crossed, namely, that the child both objects to a return and has reached an age and degree of maturity where it is appropriate to takeaccount
of his or her
views.
2 This 'threshold' stage should be confined to a straightforward and fairly robust examination of whether the simple terms of the Hague Convention are satisfied, in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take intoaccount
his or her
views.
3 However, the child'sviews
must still amount to an 'objection' and not anything less, such as a mere preference. The child's
views
have to amount to objections before they can give rise to an Article 13 exception. Anything less than an objection will therefore not do. This has sometimes been expressed by contrasting 'objections' with 'preferences'".
4 The objection must be to returning to the country of habitual residence as opposed to returning to a particular person or particular circumstances in that country, although there may sometimes be difficulty in separating out the two.
5 Even if the 'threshold' stage is satisfied, this is in no way determinative of the outcome. The court's discretion at the second stage is 'at large' and there may be many other factors to be weighed in the balance when deciding whether or not to order return - see for example, para.63 of Re M in which Black LJ quotes Baroness Hale at para.46 of her judgment in Re M (Children) (Abduction: Rights of Custody) [2008] 1AC
1288.
6 At the 'discretion' stage, any number of factors may be relevant. Each case will turn on its own circumstances, but features that are likely to point towards a return of the child, despite objections, may include the child's maturity, the nature and strength of the objections, whether there has been influence of the child by the abducting parent, and whether the children'sviews
are authentically their own.
"The court has to have regard to other welfare considerations, insofar as it is possible to take aview
about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the 1980 Convention considerations. It must at all times be borne in mind that the 1980 Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said in Re M, at para.42, the 'message should go out to potential abductors that there are no safe havens among Contracting States.'"
THE BACKGROUND
"I don't see what your issue is. You are already gonna move him away. You have a new partner. You're filing for divorce. You signed K over once before and there are government signed papers so why sign him over to his dad and then say it's kidnapping? The education system here is amazing. He can do what he wants to. It's safer for him here and you know what I'm saying is true. I can bring him to Turkey. You canvisit
him here. He would talk to you every day."
"Who says I have a boyfriend? I have no-one. I don't live with anyone either. It is [the father] that has moved on.. The papers were signed last year so it's past. And the father didn't want a divorce and made up with me two days before court. I cannot live without K. He is my baby. I love him to death. I will never give up on him".
"I can't live without him. He is the only one in my life to hold on for."
"He is still like a baby to me. I can't even imagine life without him. Trust me. I don't even want to go home now, because when I go home I start crying. He is not here."
"Anything you have to say to me I would rather you said over email."
"To be honest I'mvery
happy for you that you have moved on and are doing well. I wanted to talk to K first, but I will tell you that if he really wants to stay there he can. But I didn't even get to say goodbye to him. I will ask one thing from you only. Come to Turkey and divorce me and so I can move on with my life. We can make the arrangements like we did last year and I will allow you to take K."
"K's doing really well here. He loves school. He loves England. At the moment, at this moment in time, K really doesn't want to talk with you. You really scared him when you told him you were getting me arrested. Believe me, I ask K every day does he want to talk to you, and he just says, 'Not right now'. We're going to have to give him time. He wants you to be happy with him and happy that he wants to be here. You know in yourself that K would have a much better life and a much better education here in England. In future he will have so many job opportunities. When K is ready to talk to you, he will."
I note that in father's message he is referring to education and employment.
"I'm not coming back to Turkey. If you want to divorce me then get the paperwork sorted out and post it to me. I have no problems signing and sending it back."
"I will send you the paperwork but it will take a long time to end this marriage and I need to see K for one last time and say goodbye to him properly. I thought you would come here with K. I don't mind paying for his flight. Just want to spend some quality time with him, then I will be out of both of your lives. Please don't object my last wish."
"Iaccept
that on 21 September I stated to the father that, 'If he really wants to stay there, he can'. However, this was followed by my saying, 'I didn't even get to say goodbye to him. I will ask one thing from you only. Come to Turkey and divorce me and so I can move on with my life. We can make the same arrangements we did last year, and I will allow you to take K'.
This was not me giving clear consent for K to remain in England. As stated I wanted the father to travel to Turkey with K so that we can make arrangements in respect of K. This was no way meant that I had indicated that I was happy for K to remain in England, as I would not have spoken about making arrangements in respect of K in Turkey. I just wanted the father to think that I was open to the possibility of K being in England in the future. I said this out of desperation in an attempt to get the father to bring K back to Turkey. I did not know what else to do as I was put in avery
awkward position as if I didn't appear to agree then I would not be allowed to speak to K."
"I continued to try to see, try and seek K's return, as can be seen from messages I sent on 23 September where I stated I would pay for his flight. I was desperate for K to return and thought, out of desperation, the only way that the father might allow K to return is if he also came to Turkey. This is why on 24 September I continued to ask the father to send K to Turkey. My intention was …. that once K returned to Turkey, his home and place of habitual residence, that he would stay there."
"You haven't once asked about school or how he's getting on. You haven't asked if he needs anything. You've
made no effort towards him at all. As a mother myself this worries me. I would move heaven and earth for my kids. You won't even pick up the phone for yours. You're a poor excuse for a mother."
"Do not dare to speak to me again, you whore. You are with someone who is married. Who are you to judge me? ….Ask K what sort of mother I am. He will give you the answer. God knows me and what I have been going through. I said to K you can stay and go to school there. Even then you all do not let me speak, let him speak to me. Last time I am telling you, do not dare to write to me again, as you are not entitled to speak to me, especially about K."
THE PROCEEDINGS
(a) K'sviews,
wishes and feelings in respect of a return to Turkey; and
(b) K's maturity.
THE ORAL EVIDENCE
"I like my friends, and if I hurt them I will feel sorry. My school is going great. I am making loads of friends really quickly. I'm getting better at my education. My maths is getting better each time, but I am bad at times tables. I am quite happy that I am living with my wholefamily
in England and everyone lives here, so I would rather be here if I'm being honest."
"I don't know. She's not myfamily
any more. I don't feel like, if I count my Mum she will not be my
family,
and there's also another grandfather – dada – and nanna."
"My Mum used to always work hard in a hotel. She used to come back really late".
His father used to be there to look after him. He said his father:
"… shows me more love than my Mum."
"My dad has a new girlfriend. I think they will get married."
"My life in Turkey was adventurous. Me and my friend used to go to the forest and look for animals, and climb trees, and used to have a house and had a book with animals, and we used to take them off the book as we found them in the forest."
"Sort of. I would speak to them on the phone, but I don't have their numbers."
"I thought I was here for a week or two, but then I ended up staying here. My Mum went to see a judge in Turkey then contacted an English judge."
Ms Ionescu asked K how he knew that and he said, "My Dad told me".
"Quite nice – better as it's not as hot as Turkey."
"I don't know, I was shocked. My Dad's girlfriend phoned my Mum and told her I was staying here."
The messages I have referred to demonstrate that it was indeed the father's girlfriend who gave that information to the mother.
"We are getting bombed there. This new president is quite mean. He started to kill Muslim countries."
"I feel more protected by myfamily
in England. They did a good job to keep me healthy."
"She tells me to come to Turkey. It's not my fault. I want to stay in England and she should want me to stay here as it's a lot safer here. Plus I'll get a better paid job here and the schools are much better. We have more lessons here. There we used to have only maths, English and science."
"When I first spoke to her she said, 'whatever's best for you' but she wants me to go back because she misses me, but I don't miss her."
"My dad wants same as my mum. If I was being sent back to Turkey he wouldn't like it but he wouldn't mind."
"There are not many good things about Turkey."
"K'sviews
were probably influenced by what his father would want for him, to live permanently in the UK with him and he was unable to detach from those
views.
K is still young emotionally to be able to form a totally independent mature
view
from one of his parents, so such influence is also age appropriate."
"K was clear in hisviews
in relation to potential return to Turkey, although there was little force attached to his objections. He wished to meet the judge and appeared to question the court's authority to decide against his wishes, although he was willing to comply with this."
"I didn't get the clear picture from K about how much contact he'd had with his mother. He was not happy about the pressure."
"talking about jobs is not an average statement from an 11 year old",
She repeated her previous answers, that he had difficulty progressing with his conversation about the political situation. She maintained her view
that that is most likely to have arisen by way of adult influence.
"His message to me was not an objection to return. It was not an objection to going back to Turkey. It was an objection to Mum working long hours."
She said the way K put things was very
mild,
accepting
the outcome and respecting authority. She said this was an indication that he'd previously had good parenting.
"My impression is that he did not have a bad experience living in Turkey. He was easily led into sharing positiveviews
of Turkey."
"All we did was argue, so there was not much point having a conversation when we couldn't agree with each other."
DISCUSSION AND DECISION
"I am quite happy that I am living with my wholefamily
in England and everyone lives here, so I would rather be here, if I'm being honest."
"I will allow you to take K."
"I said to K, 'You can stay and go to school there'. Even then you all do not let me speak to him."
K had not been returned. The mother had been repeatedly sending messages requesting to speak to her son on the telephone. Those messages were all responded to by negativity and a refusal to ensure that she had telephone contact with her child. She then faced, bizarrely in my judgment, criticism for not making contact with K when that contact had been blocked by the father and the father's girlfriend. Does that one sentence then amount to an expression of the mother's consent to the child remaining in the United Kingdom? I remind myself of the words of Hale J (as she then was) in P v
P. Only if there were a concluded agreement could it be said that there was a clear and unequivocal conduct such as to fall within the exception as described by Lord Browne-Wilkinson.
CERTIFICATE Opus 2 International Ltd. Hereby certifies that the above is an ![]() Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 civil@opus2.digital This transcript has been approved by the Judge |