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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A (Hague Convention: Wrongful Retention) [2021] EWHC 1204 (Fam) (11 May 2021) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1204.html Cite as: [2021] EWHC 1204 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Re A (Hague Convention: Wrongful Retention) |
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Mr Hepher (instructed by Dawson Cornwell) for the First Respondent Mother
Maria Stanley (Cafcass Legal) for the Second Respondent Child by her Children's
Guardian
Hearing dates: 19th to 22nd April 2021
____________________
Crown Copyright ©
This judgment was delivered at a hearing conducted on a video conferencing platform 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 child A and members of her 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.
Mr Justice Poole:
Introduction
a. The father consented to A's removal from Moldova to the jurisdiction of England and Wales (amongst other jurisdictions).
b. The mother communicated her firm intention not to return A by her letter of 20 January 2019. At that date, she accepts, there was a repudiatory breach of the agreement of 12 June 2018.
c. As of 20 January 2019, the child was habitually resident in England and Wales and therefore the case falls out of the scope of the 1980 Convention.
d. Alternatively, since the father's application was made on 14 October 2020 and therefore more than 12 months after the wrongful retention on 20 January 2019, Art 12 applies, the child was settled in this jurisdiction at the date of the application and the court should exercise its discretion not to order return.
e. Alternatively, return of the child to the Russian Federation would expose her to a grave risk of harm or otherwise place her in an intolerable situation, and the court should exercise its discretion not to order return.
Background
"[The father] had full control over absolutely everything throughout the course of our relationship. He held mine and A's documents. My phone number was registered to his name so he had access to my call logs. Our home was in his name. He had access to my hard drive, and as a result, access to all my photos. He knew all my passwords. He monitored my conversations, my searches and essentially, my entire life. It transpired that [the father] was watching my every step from the very beginning. [The father] would fall out and have disagreements with my family and with my friends, which meant that I was slowly becoming isolated from everyone. I always tried to avoid conflict, which came at great personal cost.
We argued frequently. Every time I tried to disagree with [the father], or stand up for myself, he would show me the door. There were many occasions where he would pack my things and leave them outside the front door." [C44]
"All contacts were very good until today. Today, A told me everything I read in your report. She told me all this for the first time! A never talked to me about it before. And today she cried.
It was obvious that A was forced to say it all. A doesn't remember anything from childhood. But by some miracle, today for the first time decided to talk to me about this. I am glad that the Russian psychologist was present at each of our contacts, and today too. She'll prepare her report."
Obviously [the mother] uses A to make her say a lie. My audio recordings prove this and the report of a Russian psychologist, I hope, will also contain this.
I didn't know how to reassure A and told her that I loved her and that she wasn't guilty of anything and that I knew the truth…"
The Law
The Convention
(a) to secure the prompt return ofchildren
wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and access under the law of one Contracting State are effectively respected in other Contracting States.
"The whole object of the Convention is to secure the swift return ofchildren
wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed."
"(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."
"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding para., shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment."
"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.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views."
Removal and Retention
"…. 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."
42. …If there is no breach of the rights of custody of the left-behind parent, then it is clear that the Convention cannot bite; such a breach is essential to activating it, via articles 3 and 12. It is clearly true that if the two parents agree that the child is to travel abroad for a period, or for that matter if the court of the home State permits such travel by order, the travelling parent first removes, and then retains the child abroad. It is equally true that both removal and retention are, at that stage, sanctioned and not wrongful. But to say that there is sanctioned retention is to ask, rather than to answer, the question when such retention may become unsanctioned and wrongful.
43. When the left-behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the child's movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left-behind parent's rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left-behind parent and becomes wrongful.
44. The plain purpose of the Abduction Convention is to prevent the travelling parent from pre-empting the left-behind parent. The travelling parent who repudiates the temporary nature of the stay and sets about making it indefinite, often putting down the child's roots in the destination State with a view to making it impossible to move him home, is engaging in precisely such an act of pre-emption.
45. It is possible that there might also be other cases of pre-emptive denial of the rights of custody of the left-behind parent, outside simple refusal to recognise the duty to return on the due date. It is not, however, necessary in the present case to attempt to foresee such eventualities, or to consider whether fundamental failures to observe conditions as to the care or upbringing of the child might amount to such pre-emptive denial. It is enough to say that if there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left-behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement.
Habitual Residence
a. Habitual residence is an issue of fact. Lady Hale observed in A v A [2014] AC 1 at [54] that it is an issue which "should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce."
b. The correct approach to the issue of habitual residence is the same as adopted by the Court of Justice of the European Union. In A v A at [48] Lady Hale quoted from the operative part of the CJEU's judgment in Proceedings brought by A [2010] Fam 42 at page 69, para. 2:
"The concept of habitual residence …. must be interpreted as meaning that it corresponds to the place which reflects some degree of integration by the child in a social and family environment. To that end, in particular the duration, regularity, conditions and reasons for the stay on the territory of a member state and the family's move to that state, the child's nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state must be taken into consideration."
c. The factors listed were taken from para. [39] of the judgment in Proceedings brought by A, it being held that they were relevant to the objective and purpose set out in para. [38] of that judgment:
"In addition to the physical presence of the child in a member state, other factors must be chosen which are capable of showing that that presence in not in any way temporary or intermittent and that the residence of the child reflects some degree of integration in a social and family environment."
d. Hence, as summarised by Lord Wilson in In re LC, (Children)
(Reunite International Child Abduction Centre intervening) [2014] AC 1038 at [1],
"it is clear that the test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment".
e. Integration does not have to be full; it may occur quickly – per Lord Wilson in In re B (A Child) (Reunite International Child Abduction centre and others intervening) [2016] Ac 606. The essential question is whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for their residence to be termed habitual – Lady Hale in In re LC at [60].
f. Lord Justice Moylan noted at [49] to [53] that another relevant factor when analysing the nature and quality of the residence is its "stability" as can be seen from In re R (Children)
(Reunite International intervening) [2016] AC 76 where at [16] Lord Reed held that it was,
"the stability of the residence that is important, not whether it is of a permanent character … there was no requirement that the child should have been resident in the country for a particular period of time" nor was there any requirement "that there should be an intention on the part of one or both parents to reside there permanently or indefinitely.".
Indeed, Lord Reed held at [23] that following thechildren's
move with their mother, in that case to Scotland,
"that was where they lived albeit for what was intended to be a period of 12 months. Their life there had the necessary quality of stability. For the time being their home was in Scotland. Their social life was there. Their family life was predominantly there. The longer time went on the more deeply integrated they had become into their environment in Scotland…"
g. Lord Justice Moylan referred to Lord Wilson's see-saw analogy from para. [45] of In re B, where he said:
"I conclude that the modern concept of a child's habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be in the limbo in which the courts below have placed B. The concept operates in the expectation that, when a child gains a new habitual residence, he loses his old one. Simple analogies are best: consider a see-saw. As, probably quite quickly, he puts down those first roots which represent the requisite degree of integration in the environment of the new state, up will probably come the child's roots in that of the old state to the point at which he achieves the requisite de-integration (or, better, disengagement) from it.".
Moylan LJ warned at [61] and [62]:
"While Lord Wilson's see-saw analogy can assist the court when deciding the question of habitual residence, it does not replace the core guidance given in A v A and other cases to the approach which should be taken to the determination of the habitual residence. This requires an analysis of the child's situation in and connections with the state or states in which he or she is said to be habitually resident for the purpose of determining in which state he or she has the requisite degree of integration to mean that their residence there is habitual.
"Further, the analogy needs to be used with caution because if it is applied as though it is the test for habitual residence it can, as in my view is demonstrated by the present case, result in the court's focus being disproportionately on the extent of a child's continuing roots or connections with and/or on an historical analysis of their previous roots or connections rather than focusing, as is required, on the child's current situation (at the relevant date). This is not to say continuing or historical connections are not relevant but they are part of, not the primary focus of, the court's analysis when deciding the critical question which is where is the child habitually resident and not, simply, when was a previous habitual residence lost."
Consent and Acquiescence
33. If the giving of consent prior to the removal had the effect that the removal could never be classified as wrongful or in breach of the right of custody, then there would be no need for Article 13 at all. Whereas acquiescence is expressly recognised to be acquiescence subsequent to the removal, consent is not so limited in Article 13 and must, therefore, include permission which is given before the removal. If clear unequivocal and informed consent is given to the removal of a child, then it is difficult to see why the court should not exercise the discretion conferred by Article 13 to permit the child to remain in the country to which it was agreed he or she should go. The policy of the Convention is to protectchildren
internationally from the harmful effects of their wrongful removal or retention. If a child is removed in prima facie breach of a right of custody, then it makes better sense to require the removing parent to justify the removal and establish that the removal was with consent rather than require the claimant, asserting the wrongfulness of the removal, to prove that he or she did not consent. Article 3 should govern the whole Convention and Article 13 should take its place as the exception to the general duty to secure the return of the child which is, after all, the basic principle of the Convention.
Settlement
"42.
1. Under the Convention at Article 12, "The court shall return the child, unless settlement is established". It therefore follows that the burden on establishing settlement is clearly on the abducting parent.
2. Second, in deciding whether the child is now settled, the relevant date is the date of commencement of proceedings in England and Wales. (See F & M at paragraph 65)
3. The court should not take an overly technical approach (see paragraph 66 of F & M).
4. Each case is fact-sensitive. What I take that to mean in practice, is that there are no absolute legal rules that lead to one definitive result. What is necessary is to look closely at the facts of a particular case and then apply the relevant law to them.
5. The court should take a broad and purposive approach. (See Cannon, paragraphs 53 and 57). It is relevant at this point to have close regard to both the purposes of the Convention, which are summarised by Baroness Hale at paragraph 11 of Re M, but also what Baroness Hale said at paragraph 54 of Re M. It is generally the case that it is in the best interests of the child for them to be returned to the country from which they were abducted, so that that country and the judicial system of that country can determine where and with whom they should live, and what contact they should have. However, it is important also to bear in mind what Baroness Hale said at paragraph 54, that in a case where there has been a lengthy delay, the purposes of the Convention may no longer be possible to meet in the same way as would be the case in a "hot pursuit" case.
6. The question of whether a child is settled involves consideration of three elements. Physical, emotional and psychological settlement. (See Cannon, paragraph 71). However, it is, in my view, important to have in mind the reality of the situation, which is that those three factors may well inter-relate, particularly between the emotional and psychological factors. It is necessary to take a holistic view of settlement, rather than try to apply three separate legal tests, or three separate issues. Each must be taken into account, but how they are then assessed and what weight is given to evidence between the three factors, must be one for the judge on the facts before him or her.
7. The court must take a child-centred approach. The issue is what is the child's perspective on whether they are settled or not.
8. Related to that, the emotional and psychological state of a principal carer will be highly important as to whether the child is settled, particularly when one is talking about a young child. (See F & M paragraph 70, and Cannon paragraph 57). That leads me to expand on the point that it may, for a young child, be very difficult to separate the emotional and psychological elements of settlement, to the degree that they are settled at all.
9. I come to the issue of concealment. In cases of concealment, the burden on the abducting parent is increased. It is important to understand why this is the case and refer back to Cannon at paragraph 53. As I understand the position, there are really two reasons why the burden has increased on the abducting parent. If the child has been actively concealed, then the court should be slow to give great weight to the delay by the left behind parent in taking any action. Because otherwise the abducting parent gains a benefit by their misconduct. The second factor is that where the abducting parent has created a (I use Black J's words) "web of deceit and subterfuge", then it may be more difficult and often will be more difficult to show that a child is emotionally and psychologically settled.
[42] In my view, it must be the case that there is a sliding scale of concealment, and also a sliding scale of burden on the abducting parent. The sliding scale of concealment goes from the parent who is on the run, the true fugitive who changes names and hides the child, to the parent at the other end of the spectrum, who simply does not tell the left behind parent that they are leaving. Therefore, as a generality, the greater the level of the concealment, the more difficult for the abducting parent to show that the child is truly settled.
43 Finally in respect of the law on settlement, even if a child is settled in England and Wales, there remains a discretion not to return. This is dealt with in Re M, in particular Baroness Hale at paragraphs 43 and 47. It is important to have regard to the fact that Baroness Hale had started with setting out at paragraphs 11 and 12 the objectives of the Convention.
44 Mr Khan argued that it would be unusual to return a child who is settled. I am not sure the caselaw establishes that there is any presumption, but it must be the case that if the child is settled in England and Wales then normally when exercising discretion, the rights and welfare interests of the child will militate in favour of not returning. Each case necessarily involves looking at its own facts."
Grave Risk of Harm or Intolerability
"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).
[32] The Supreme Court made clear that the approach to be adopted in respect of the harm defence is not one that demands the court engage in a fact-finding exercise to determine the veracity of the matters alleged as ground the defence under Art 13(b). Rather, the court should assume the risk of harm at its highest on the evidence available to the court and then, if that risk meets the test in Art 13(b), go on to consider whether protective measures sufficient to mitigate harm are identified. It follows that if, having considered the risk of harm at its highest on the available evidence, the court considers that it does not meet the imperatives of Art 13(b), the court is not obliged to go on to consider the question of protective measures."
"The methodology endorsed by the Supreme Court in Re E by which the court assumes the risk relied upon at its highest is not an exercise that is undertaken in the abstract. It must be based on an evaluation of the relevant admissible evidence that is before the court, albeit an evaluation that is undertaken in a manner consistent with the summary nature of proceedings under the 1980 Hague Convention. The court does not simply assume, without more, the maximum level of risk contended for by the abducting parent. Rather, the court examines the information available to it and, having considered that information, arrives at a reasoned and reasonable assumption as to the maximum level of risk having regard to the available evidence.
""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."
Discretion
"… in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare."
The Guardian's Evidence
I asked about her life in Russia. A told me "I lived with my dad. That was very bad". I prompted A to expand on her comment and she replied, "he was hitting my mum you know but I was saying 'do not do that, do not do that' as he was doing this every day…all the day long" and she had repeated her comments to him "all the day long." A said she would stop her father hitting her mother by standing in front of him and mimicked how she did this, standing up with her arms to her side and moving from side to side and at this time her mother "was running away".
[16] A then asked me if I knew that her paternal grandmother had died because of her father and explained that [the mother] had told her this. A had also been told that her maternal grandparents used to send money to her mother but "they didn't go to my mum, they go to my dad".
"As a result of a conversation she had had with [the mother] and her grandmother the night before our meeting when they were talking about her father, A understood he told her he loved her because he wants to remove her from her mother's care."
"... A has achieved the maximum degree of physical and emotional settlement here within an environment in which her developmental needs are largely met within the context in which she finds herself. However, give that her relationship with her father recently resumed after a sizeable gap in contact, and given that contact remains an issue, I consider the issue of contact to be the area in which her full psychological settlement remains an issue."
The Parties' Submissions
Evaluation of the Evidence
a. In his statement of 30 March 2021 (three weeks before the hearing) he set out with care his proposals for protective measures upon A's return to the Russian Federation. They included reference to accommodation for the mother and A in the area of Y where he lived and where he has lived since these proceedings began. The mother has had to prepare for the hearing by considering her position about returning to Y. The father then told the court, on the second day of the hearing, that on the first day of the hearing he had moved to Moscow where he intended to remain "as long as I live". He said that he had decided to move to Moscow four days earlier. He had an office in Moscow and wished to work there. He had no proposals for where the mother and A should now live upon return. He appeared content for the mother to choose where she should live in the Russian Federation. He seemed to regard it as of no consequence that he had so recently and swiftly decided to change location.
b. The father revealed in his first witness statement that he had made recordings of contact sessions with A that he wished the Guardian to hear. That revelation led Ms Justice Russell to forbid recording of contact sessions. In his second statement, dated 30 March 2021, the father told the court he had ceased recording as ordered and stated (in translation, "I recorded the calls as a personal memento of our conversations in the same way as I would have wanted to take photos of her had we been able to spend time together." However, in oral evidence he told the court that he had engaged a child psychologist, for remuneration, to sit beside him during contact (off camera once contact was by video call) and the psychologist had made the recordings for professional purposes. She had attended every contact session (about forty in total) since contact had resumed in November 2020. She had later passed the recordings she had made on to the father so he could listen to them also. The father had not referred to the psychologist in his written evidence. The father dismissed suggestions that his evidence about who had made the recordings and why, had been inconsistent but his efforts to reconcile his recent statement that he had made the recordings as mementos, with his oral evidence that the psychologist had made them for professional purposes, were wholly unconvincing.
c. Even when making disclosure about the psychologist, the father gave inconsistent evidence. The father told the court that the psychologist had attended every single contact session (about forty to date), paid for by him. He said that her role was to assist him to relate positively with his daughter. However, he had urged Ms Baker to listen to the recordings at her discussion with him on 22 January 2021, he applied to me on 25 March 2021for permission to rely on the recordings as evidence, he told Ms Baker on 12 April that he would be filing documents (apparently related to the involvement of the psychologist) in Russia, he told Ms Baker on 13 April 2021 that the psychologist would be producing a report, and he asked the court during his cross-examination at this hearing whether permission would be given to rely on evidence from the psychologist. The father told the court that he found the psychologist through contacting Russian Social Services. It is highly likely therefore that he would use her evidence in dealings with Social Services in the future. It is conceivable that the father wanted assistance from a professional when contact was re-instigated in November 2020, but I cannot accept his evidence that he needed the continuing support of a child psychologist to help him to manage contact with A who, on the father's own account, was confident and at ease with him during contact sessions. I am quite satisfied that he has used the psychologist and the recordings to gather evidence to use in this and future proceedings against the mother.
d. The father gave oral evidence that the mother had agreed to return A to Russia before 1 September 2018 when she was due to start at a nursery school. If true, this would be very important evidence in this application. It would indicate that the failure to return A by 1 September 2018 was a breach of the agreement between the parties and that A was wrongfully retained after that date. The father repeated this assertion several times during his oral evidence but it appears nowhere in his written evidence and was not part of the case put forward on his behalf in advance of the hearing. He told the court that when A was not returned by 1 September he took various steps including contacting the nursery and the Russian police. None of that is in his written evidence. Ms Chokowry, appearing for the father, stated in her skeleton argument for this hearing that "The parties agreed that A would remain in England until 12 June 2019." So, the father's assertion that in fact the parties agreed that A would return from England to Russia before 1 September 2018 was something of a surprise.
a. Firstly, he says that he was lied to about the maternal grandmother being seriously unwell and "expected her to die soon" [para 59 C138]. He called that "emotional blackmail". The mother said that her mother was ill and had suspected cancer and that she is still unwell but the diagnosis has even now not been confirmed. At the time of the negotiations with the father, the paternal grandfather had been in Moldova with the mother's brother, visiting other relatives, and they remained in Moldova with the mother until 8 July 2018. The father cannot truly have been under the impression that there was an urgent need to travel to England because the maternal grandmother had a terminal illness and would "die soon".
b. Secondly, the father says that at the end of the prolonged negotiations he took on trust what he had been told was in the agreement because the paternal grandfather was "family" but it is very clear that the father had a very low level of trust in the maternal grandfather and the mother. His case is that the mother had "kidnapped" A from Russia only a few weeks earlier. He had refused to allow her to remove A from Moldova and it had taken a week of negotiations with her and her father to reach the point when the father would give his consent. The father is an immigration lawyer and demonstrated in his evidence that he enjoys attention to detail. It is inconceivable that he would have signed a formal document in front of a notary on trust, without knowing what was in the document.
c. The father says that the formal agreement did not reflect verbal agreements that had been reached which included an agreement that A would be returned to Russia, not Moldova, before 1 September 2018 when she was due to start at nursery school. When I asked him whether the agreement was explained to him, he said that the maternal grandfather had done so. I asked if that was in front of the notary. He said it was. I asked him what the maternal grandfather had said in front of the notary that was not reflected in the agreement. The father could not identify anything. Therefore, if the description of the agreement in front of the notary was accurate, there was no trickery. Furthermore, the florid account of discussion with the notary some months later, given by the friend of the father, in which it is alleged that the notary accepted that the father had been the victim of fraud, makes no sense at all.
d. The father said that he did not understand the formal consent document because it was written in Moldovan. Although he is Moldovan he is a Russian Moldovan. However, the document, signed by him and the notary, says "I [GA], the notary, certified the signature of citizen [the father], which was signed in my presence on a document, whose meaning was not known to him but not until after I translated orally into Russian language." I conclude that the document was translated orally into Russian before the father signed it.
a. His allegation that there was a verbal agreement between himself and the mother to return A to Russia before 1 September 2018. I am sure that neither the mother, nor her father on her behalf, agreed to that. The father deliberately lied in his oral evidence when he alleged, for the first time, that such an agreement had been reached. The father is an immigration lawyer who signed a formal consent document in front of a notary in his native country of Moldova. The document was read to him in Russian before he signed it, as the notary certified on the face of the document. The document bears no relation to the verbal agreement he alleges was reached to return A to Russia before 1 September 2018. He fabricated that verbal agreement at the hearing in order to mislead the court and to make out a case that the mother was guilty of wrongful retention as early as the end of August 2018.
b. The father's alleged ignorance about the contents of the formal written consent document he signed on 12 June 2018. I am sure that the father, a qualified and practising lawyer who had completed negotiations with the mother and her father before reaching an agreement, and who was signing the document before a notary who certified that he translated it into Russian for the father, knew the contents of the document he was signing. He deliberately lied to the court when he said that he did not know what was in it when he signed it. He lied in order to avoid being bound by the agreement he had signed.
c. The father's engagement of a child psychologist and the recordings of contact sessions with A. I am sure that the father arranged for the psychologist to be present and for recordings to be made in order to gather evidence to use against the mother in this and any future applications. He has repeatedly asked for the recordings, and for a report from the psychologist, to be treated as evidence in these proceedings, and has told Ms Baker on 12 April 2021 that he would provide evidence from the psychologist to the court in Russia. By his own account A has been entirely relaxed with him during contact sessions (until 13 April 2021) and there has been no apparent need for the father to be assisted by a psychologist. His evidence to this court that the psychologist was only present on contact sessions to help him deal with A, was a deliberate lie. He lied to cover up the fact that he had been covertly gathering evidence from contact sessions from November 2020.
"Sadly, after a few months of our stay in the UK, Victor changed his position and informed me, that the Consent letter is not valid, because it was not written in his first language, thus demanding me to return the child back to Moldova immediately." [C118]
The mother explained to the court that the father had changed his position many times, and that this position – that the formal consent was not valid and that A should return to Moldova – was not something he had said to her directly but was communicated to her parents. I note that her recollection was that it was a demand to return to Moldova not Russia, so, even if it was a demand made before 1 September 2018, it would not corroborate the father's case that there was an agreement for return to Russia. Furthermore, the mother's recollection of when contact with the father ceased is unclear, whereas the father has told the court it ended in October. After the termination of contact, I am satisfied on the evidence, the father communicated by correspondence with the mother's parents. Hence, it is far from clear that he was demanding that the mother should return A to Russia before 1 September 2018. By the time the mother wrote her letter of 20 January 2019, and when she made her witness statement to the police in February 2019, the father had, I accept, resiled from his formal consent document and made it known that he wanted A returned from England. After considering all the evidence I find that the father demanded the return of A and sought to resile from the agreement the parties had reached that A could stay in England for a year, in or about October 2018. The mother was aware of his position at that time.
Conclusions
Removal, Repudiatory Retention, and Consent
The consent required must be to more than the child's temporary removal or retention, but it does not have to be consent to the child's permanent removal…. The consent must be operative at the time of the removal or retention. In Re K (Abduction: Consent) [1997] 2 FLR 212 at 218 Hale J (as she then was) made clear that once consent has been acted upon it cannot subsequently be withdrawn. In that case, Hale J was clear that where the mother had acted on the father's consent, that consent could not be taken away "by the father thinking better of it".
Ms Chokowry also directs the court's attention to C v M (Case C0376/14 PPU) [2015] Fam 116 in which the CJEU confirmed that in circumstances where the removal of a child has taken place in accordance with a court judgment which was provisionally enforceable and which was thereafter overturned by a court judgment fixing the child's residence at the home of the parent living in the Member State of origin, the failure to return the child to that member State following the latter judgment is wrongful.
I am not entirely sure that the framers of the Convention intended it to apply to cases where the parties and thechildren
took themselves, by mutual agreement, to a country other than their 'habitual residence' then one of the parties decided to go 'home'. Whose right of custody should then prevail? That of the parent who wants to go 'home' or that of the parent who wants to stay? A wrongful removal entails taking the child from a country in breach of a custodial right. A wrongful retention entails retaining the child in a country in clear breach of such right. When does this right arise where there parties are in the new State by agreement?
A similar question arises in the present case. The father did not travel to England with the mother and A, but he had agreed to their staying here and then changed his mind.
Is the mother's action in retaining thechildren
in England in breach of the father's rights of custody, given the agreement that the
children
will remain in England, in any event, for one year?
I have found this the most difficult aspect of the case. I was initially attracted to the proposition that where parents agree thatchildren
shall remain in England for a specified period there cannot be a wrongful retention until that period has elapsed. The mere fact that the relationship between the parents has come to an end cannot entitle one parent unilaterally to resile from the which has been agreed between them. The example which springs to mind is an agreement that the
children
should visit a foreign country for a specific time, such as a school holiday. Clearly, a parent in such circumstances could not unilaterally change his mind and demand the return of the
children
before the term of the contact had expired.
Thus, if the mother's case before me were that she intended at the expiry of one year to return thechildren
to Israel or were she to establish for the purpose of this argument that the agreement between them was that the
children
should be returned after 2 years and that she intended to return the
children
at the expiry of that term then it seems to me she would have a complete defence to the originating summons, either because her retention of the
children
was not wrongful, or, under Art 13(a), because the father had consented not merely to the removal of the
children
but, by necessary implication, had consented to their retention in England for a fixed term.
a. The wrongfulness of a retention is found in the fact that it breaches the rights of custody a parent. By Art 5 of the Convention,
For the purposes of this Convention:
'Rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence.
There is no dispute that the father had rights of custody and was exercising them at the relevant time. The relevant time would include the period when A was in England subsequent to the formal consent document of 12 June 2018. Just because the father was not physically caring for A after her removal to England it does not mean that he was not exercising his rights of custody – W v W (Child Abduction: Acquiescence) [1993] 2 FLR 211. Art 3 defines the wrongfulness of a removal or retention by reference to whether it is in breach of rights of custody. The focus is on whether the retaining parent has acted in a manner that breaches the left behind parent's rights of custody. Thus, the question is whether, if the father sought to resile from the agreement for A to stay in England for an identifiable period by demanding return within that period, the mother's response constituted a retention in breach of those rights.
b. Lord Hughes in Re C (Children)
(above) at [43] characterised the agreement by a parent to the child travelling and staying abroad as an exercise of their rights of custody, and a breach of those rights as an act of pre-emption. In exercising his rights of custody to agree to a stay abroad, the father agreed to restrict the exercise of his rights of custody during the agreed period of the stay. He agreed that the child would not be returned from abroad during that period. His commitment was for an identifiable period. Thus, unless the mother pre-empted the temporary nature of the stay, her failure to return the child from abroad during that agreed period honoured the father's rights of custody, it did not breach them. That is so even if the father demanded return during that period.
c. There is some assistance in the Explanatory Report of Elisa Perez-Vera, 1981:
"Article 3 as a whole constitutes one of the key provisions of the Convention, since the setting in motion of the Convention's machinery for the return of the child depends upon its application. In fact, the duty to return a child arises only if its removal or retention is considered wrongful in terms of the Convention. Now, in laying down the conditions which have to be met for any unilateral change in the status quo to be regarded as wrongful, this article indirectly brings into clear focus those relationships which the Convention seeks to protect. [64]
"Joint custody is, moreover, not always custody ex lege, in as much as courts are increasingly showing themselves to be in favour, where circumstances permit, of dividing the responsibilities inherent in custody rights between both parents. Now, from the Convention's standpoint, the removal of a child by one of the joint holders
without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise. The Convention's true nature is revealed most clearly in these situations: it is not concerned with establishing the person to whom custody of the child will belong at some point in the future, nor with the situations in which it may prove necessary to modify a decision awarding
joint custody on the basis of facts which have subsequently
changed. It seeks, more simply, to prevent a later decision on
the matter being influenced by a change of circumstances
brought about through unilateral action by one of the parties." [71]
If the Convention seeks to prevent a later decision on custody being pre-empted by a change in circumstances brought about through unilateral action by one of the parties, then that should apply equally to the left behind parent unilaterally resiling from an agreement that the child can travel and stay abroad, as it does to an abduction abroad by the travelling parent. Unless the travelling parent's response to the left behind parent unilaterally resiling from the agreement amounts to a pre-emption of their rights of custody, there is no wrongful retention which the Conventions seeks to prevent.
d. The unilateral decision by one parent to resile from an agreement for a child to live abroad for a period of time, on which another parent has acted, cannot, without more, be regarded as rendering the original agreement null and void. The reality is that the earlier agreement existed and formed the basis of the child arrangements. The travelling parent is not obliged to disregard the earlier agreement and bow to the new demand of the left behind parent. Similarly, if a mother with a lives with order agrees that a child should spend Monday to Friday with their father, and on Tuesday demands the return of the child because they have changed their mind, the father is not obliged to return the child.
e. The focus being on the travelling parent, the question becomes whether the response of the travelling parent to the unilateral demand of the left behind parent for return of the child during the period of agreed stay abroad, amounts to a breach of the left behind parent's rights of custody. It may do so, as was the case in Re S (Minors) (Child Abduction: Wrongful Retention) (above). Whether it does will depend on the circumstances of the particular case and whether the travelling parent acts in repudiatory breach (as explained in Re C (Children)).
The mere fact that the child is not returned on demand does not mean that the travelling parent has pre-empted the temporary nature of the stay.
f. If the response of the travelling parent to the left behind parent's change of position is to seek to abide by the original agreement then provided they do nothing to repudiate the temporary nature of that agreement, the retention is not wrongful. This was the view expressed by Wall J in Re S. He said that the travelling parent would have a "complete defence" but left open the question of whether the defence would arise because her retention of thechildren
was not wrongful or whether it would arise by under Art 13a. Given the subsequent Court of Appeal decision in Re P (abduction Consent) (above) I would prefer to say that it is because there has been no breach of custody rights under Art 3 and therefore no wrongful retention. The question of the defence of consent under Art 13a does not therefore require consideration.
g. The preamble to the 1980 Convention recognises that the interests ofchildren are of paramount importance. To hold that a retention becomes wrongful merely because the left behind parent resiles from an agreement that the child can stay abroad for an identifiable period, unilaterally, would generally be contrary to the interests of the child. It would lead to uncertainty, instability, and friction within the family.
Habitual Residence
Defences
a. A and her mother have strong ties in England and none in the Russian Federation. The mother is not even a citizen of the Russian Federation and would have little to no security or stability there upon return.
b. A would have no other family than her mother and father, in Russia, no experience of school there, and no friends there.
c. On my evaluation of the evidence, taking the evidence at its highest on that evaluation, there would be a grave risk that the father would seek to coerce and control the mother with harmful consequences for A. That risk of harm would include harm from the mother suffering psychological trauma sufficient to render her incapable of looking after A.
d. It would be intolerable for A to have to live in what is now for her an alien environment in Russia, with her mother at grave risk of being manipulated and psychologically and possibly physically damaged by the father.
e. The father has made covert recordings of contact and has been in communication with social services in Russia and engaged a psychologist through their recommendation. He has threatened during these proceedings that he has information about the mother that would cause serious problems for her with the authorities upon her return if should choose to disclose it. He has told Ms Baker that he will use the evidence of the psychologist to send a file to the Russian social services with the help of the psychologist. It is likely, I find, that upon the mother and A returning to the Russian Federation, the father would find a pretext to report the mother to the authorities there. There is a serious risk of the mother's self-confidence and ability to care for A would be eroded by actions of the father were they to be compelled to live in the Russian Federation.
Conclusion