Mr Justice
Poole:
Introduction
- Even the most caring and able
parents
may struggle to
protect
the welfare of their children during a
family
breakdown. If that breakdown is then complicated by a
parent
wishing to move abroad, with the
result
that the children will live in a different country from one of their
parents,
the struggle can become overwhelming. International
relocation
almost inevitably comes at a cost and often involves a significant sacrifice for at least one of the
parents.
In this case two
responsible,
intelligent, and caring
parents
have had to confront both the breakdown of their
relationship
and
relocation
of the mother abroad. The children travelled with her and the father was left behind. The
parents
sought to
resolve
matters between themselves, but ultimately one of them has turned to the court for
resolution.
- This is the father's application for the summary
return
to the United States of America under the
Hague
Convention
1980 or under the inherent jurisdiction, of his daughters
P,
age 12, and Q, age 11. The
respondent
is their mother and she opposes the application. The father is a 51 year old US citizen who lives and works in the USA for the US Government. The mother is a 39 year old US citizen who also works for the US Government and currently lives in England with the
parties'
daughters. They came to England on 16 August 2020. The father contends that they were wrongfully
removed
from the USA because his ostensible
consent
was acquired by duplicitous means or when he was not fully informed. Alternatively, he argues, the children were wrongfully
retained
in England on or around 7 October 2020, or at the latest, 5 January
2021.
They were at all
relevant
times habitually
resident
in the USA. If the
Hague
Convention
does not apply the father seeks an order for
return
under the inherent jurisdiction. The mother's case is that the children were
removed
from the USA to England by
consent,
that there was no wrongful
retention,
that they were habitually
resident
in England at the time of any
retention,
that the defences of child's objections and grave risk of harm or intolerability apply to both children, and that they should not be
returned
under the inherent jurisdiction, it being in their best interests to
remain
with her in England until the end of her
posting
here.
- At the final hearing I heard oral evidence from Ms Huntington, of the Cafcass High Court Team, the mother, and the father. Ms Huntington had
reported
on the children's wishes and feelings and whether they objected to
return
to the USA. Oral evidence from the
parents
was confined to the issues of
consent
and whether the mother would
return
to the USA with the children if
return
were ordered. A bundle of documents was
provided
which included witness statements, email and message exchanges, some
photographs,
and written agreements between the
parties.
- The issues for the court to decide are as follows:
a. Did the father give his
consent
to the children being
removed
from the USA to England on 16 August 2020? Was his
consent
unequivocal and informed or was it obtained by duplicitous means or misinformation, and therefore vitiated? If the father
consented
to the
removal
of the children should I nevertheless exercise my judgement so as to order their
return
to the USA.
b. Alternatively, did the mother wrongfully
retain
the children in England on 7 October 2020, alternatively on 5 January
2021?
c. In the alternative case that there was wrongful
retention,
where were the children habitually
resident
as at the date of any
retention?
There is no dispute that the children were habitually
resident
in the USA when they travelled to England on 16 August 2020.
If the children have been wrongfully
removed
without the father's
consent,
or wrongfully
retained
in a jurisdiction other than that of their habitual
residence:
d. Do the children, or either of them, object to
return
to the USA and have they attained an age and degree of maturity at which it is appropriate to take account of their views?
e. Is there a grave risk that the children's
return
would expose either or both of them to
physical
or
psychological
harm or otherwise
place
them in an intolerable situation?
If either of those defences at d) and e) is made out, should the court nevertheless exercise its judgement to order
return
of the children to the USA?
If the
Hague
Convention
1980 does not apply:
f. Should the court order
return
of the children to the USA under the inherent jurisdiction?
The burden of
proof
is on the mother in
relation
to issues a), d), and e), and on the father in
relation
to b), c) and f). The civil standard of
proof,
on the balance of
probabilities,
applies.
Although applications under the
Hague
Convention
are intended to be dealt with summarily, this case, as with many other similar cases, involves consideration of a number of issues and the application of legal
principles
that have often been considered at appellate level.
Regrettably,
therefore, this is a long judgment.
Background
- The
parties
married on 22 November 2008. The children were born in 2008 and 2010
respectively.
The
parties
and the children lived in the USA until the events of 2020. The mother works as an IT manager. The father is a computer scientist. The marriage broke down and the
parties
separated in November 2019.
Prior
to then, the mother had applied for a temporary detail in England. The
proposed
relocation
to England was initially due to begin in June 2020 but this was delayed to August 2020 due to the Covid-19
pandemic.
It was to be for a
period
of two years with an optional extension of one further year, but by the time the mother left for England in August 2020, she, the children, and the father knew that her station here would be likely to be for three years.
- Following their separation, the
parties
discussed a draft formal Separation Agreement [C164] which included financial
provisions
but the father disagreed with the children
relocating
temporarily to England with the mother. The father arranged for a counsellor to see the children in early 2020 because he was concerned that their expressed wish to go with the mother to England was not authentic or was being influenced by the mother. The counsellor
reported
that the children were fully aware of the implications of a move to England and were content. A
family
meeting, which included the children, took
place
on 16 July 2020. The
parties
discussed the
possibility
of the father being named as a "dependant" on the mother's "orders". The significance of this would have been that the father would be afforded certain entitlements to which the dependent children would enjoy. He would be well
placed
to obtain work, housing, travel allowances, and other benefits.
- Following the
family
meeting, the mother wrote to the father by email on 17 July 2020 [C181],
"I am unable to
put
you on my orders as a dependent. To mitigate this, before you obtain a full-time
position,
I am open to discussing options to fund your visits to the UK during school breaks, holiday, and other times throughout the year. Also open to exercising the TQ option to allow you to see the area, and
potentially
their school although we will be stuck in the house, not
really
able to do any sightseeing.
Per
your
request,
I've updated the draft agreement to
reflect
you
receiving
100% of the
proceedings
of the house … if you agree to allow the girls to
reside
overseas. We will continue to work options for you to be in the UK while we are there."
- The father
replied
later that evening
"Not
really
sure what's going on … it appears you don't want me in England on your orders. So why would I send our daughters with you alone …? Explain to me why you don't want me on your orders? Why do you HATE me so much?"
The mother
replied
the following afternoon [C183]:
"Let's be civil and stay focused on the facts:
1. I will be travelling to the UK to fulfil a work assignment that I committed to…
2. Our children have expressed their desire to be in the UK.
3. You are the only one that is making it a mandate that in order for the girls to be in the UK it has to be a
package
deal that includes you.
4. As a
result
of #3 I have come to terms with the unfortunate circumstance that you will not allow the girls to accompany me in the UK.
5. … we need to develop a transition
plan
for the girls being with you full-time. A custody agreement will be needed to incorporate into the final divorce decree …
Regarding
the orders, you are on the orders as a separated spouse, which means you are eligible for a
passport
and that we live apart (different countries). I cannot change it to you being listed as
residing
with me if the divorce isn't final and so many other things are unresolved. That jeopardises my career as I can get sent home immediately, charged for fraud, and discharged from my employer."
- On 27 July 2020 the mother messaged the father [C36]
"If you are insistent on being on my orders, and me supporting you while I'm England, sign the separation agreement, list the house immediately, give me 100% of the
proceeds
less any taxes of yours. I will initiate the
request
when I
return
to the office on Tuesday."
- The father
responded
later on 28 July 2020 [C37]
"I suppose you can
put
me on your orders as "delayed". I
remember
G doing that for AN with the idea I will be there
permanently
in January. Could use my Use/Lose leave between September-December to visit while still looking for my own orders if nothing comes up by December 31st hopefully you can find in your heart to house me and we figure it out all while still filing for divorce and selling the house over the next 5 months. Still split the
proceeds
and do a lot of
praying
that I can find my own orders. This is the best I can do.. you have to meet me halfway on this for the girls."
- The mother
replied
that she thought this was a viable option. The father said he was glad and asked the mother to "add me to your orders today as mentioned above and
please
have my
Passport
processed."
12. The mother
replied
that "I will see what I can get from my
processor
today in terms of documentation, other than an email. I do not know how formal it will be…" The text exchange ended at 3.59 (
pm)
on 28 July 2020, or so it appears on the screen shot. The mother told me that this was her last full day at work. She was anxious to finish as many tasks as
possible.
Her due departure date for England was 16 August 2020.
- There was then an email from the mother to the father dated 28 July 2020 at 4.56
pm
GMT from the mother [C40]:
"Busy working on tying up loose ends and items we discussed over text.
- You are already counted as a dependent on my orders. I just got off the
phone
with the center and they confirmed that there are three (3) dependents – spouse and two children on my orders from an internal component (my bureau)
perspective.
I will
print
the screen that
reflects
this and show you this evening.
- Since you are not officially
relocating
at this time, my
processer
recommended
waiting until I get to Station to have the official
paperwork
updated. You have up to one year to
relocate
with us.
3. You will need to
provide
a copy of your latest
physical,
to get medically cleared before the orders will be further updated. I will
provide
a new copy of the documents you need to fill out …
4. …. For now you will be able to travel to the UK on your tourist
passport
since you are only
planning
to stay for a short while.
5. …
- I think your approach might be the best option. If the girls decide they do not like the UK and your orders are not finalised, it would be easier for them to come back to the US with you at that time."
- The mother told me that she
produced
the
printed
screen shot
referred
to in
paragraph
1 of her email and showed it to the father. He told me that he saw it and saw his name included on it, but the mother would not give it to him. It has not been
produced
in the
proceedings.
- The
parties
then entered into an agreement which they both signed before a notary on 28 July 2020 which
reads:
"[The father]
consents
to both minors [
P
and Q]
residing
and traveling abroad with their mother … for employment and/or leisure
purposes.
As such, [the mother] will assume
primary
physical
custody on 01 August 2020 of both minor children…" [C196]
- On 3 August 2020 they signed a Separation and Custody Agreement [C108] by which they agreed to joint legal custody of the children, that the children will live
primarily
with the mother and that in the event that she should
reside
outside the US for employment
purposes,
the father allowed the children to accompany the mother and attend school where the mother was stationed on a full time basis. A schedule of contact was agreed, including for as and when the mother and children were to
reside
overseas. This agreement was entered into when both
parties
knew that the mother was imminently to travel to England with the children.
17. On 16 August 2020 the mother and children moved to England. Text exchanges between the
parties
after the move show that the father set about trying to sell the
family
home in the USA. The father wrote [C51], "So again things will start ramping up here with this house, trying to find somewhere to stay for the next month… NO clue what the outcome will be with any of this, but your
participation
concerning temp quarters, forwarding address & whatever else I need to get me there by Nov 20 would be appreciated."
- The father had already visited England from 20 August 2020 to 7 September 2020. He stayed in accommodation with the
rest
of the
family
separated by a lockable door. He then
returned
to the USA. He managed to find a buyer for the house there and the sale
proceeded.
19. On 7 October 2020 the father emailed the mother to say "It's been two months now since you sent me the email below concerning my Medical
Records
and Orders. What's the latest b/c I'm excited about moving to England next month with the
family,
plus
I have a
really
good chance to get a new federal government job in England, just need my orders.,, Hopefully you are working
really
hard at finding out what's the hold up on my orders…"
- The mother
responded
on the same day that she was "baffled and concerned". She continued,
"As
previously
discussed, given our separation that started on 9/29/2019, I am not able to
place
you on my orders and as such you cannot leverage any benefits that would normally be afforded a spouse (
residing
in government housing, using government funds to cover travel expenses, applying for EFM jobs etc.). Furthermore, after HR and Security inquired about all that's been going on with inquiries from the team in London, they indicated that it is not legally
possible
to add you to my orders as we have had separate
residences
for over 90 days and have been separated over 12 months, confirmed by my work
records
which indicate my change of address months ago. I did initially think it would be
possible
to include you as a caretaker for
P
and Q but have since been counselled by the aforementioned
parties
that is not feasible… It would be beneficial for you to secure your own orders to facilitate your
relocation
to the UK if that's your intention. I am happy to work with HR here to
put
in a favourable
recommendation
along with the sense of need and urgency to assist in obtaining the
position
you
referenced
in a separate email."
- There followed a series of email exchanges dealing with
practicalities.
The father's emails at that time did not express surprise or
protest
at her email of 7 October 2020. The father went on to finalise the sale of the house on or about 9 October 2020. He continued to try to find work in England.
- The father then travelled to the UK, as
planned,
on 19 November 2020. The
parties
exchanged emails in advance about transport,
restaurants
and other arrangements. After the father's arrival there are further email exchanges about the father seeing the children, including over Christmas. The exchanges
reveal
tensions between the
parties.
The father made
plans
to leave his job and to move to England, writing on 18 December 2020, "
Regardless
of what employment
path
I take, I will be moving into an apartment in the town on February 1st."
- On or around 5 January
2021
the father flew back to the USA but he
returned
to England later that month.
- Whilst in the USA the father wrote to his managers on 11 January
2021,
"Unfortunately, with my kids school being closed in England because of Covid-19 it looks like I'm going to have to
return
to England to help with their online learning. My wife has to go into the office 3-4 days a week which makes it tough for her to monitor the girls. Obviously I am not allowed to telework
permanently
or adhoc from there, so I will be
resigning
effective January 28th
2021."
The father told me that soon afterwards he was told that he could in fact work
remotely
and did not
resign.
- After he had flown back to England the father texted the mother on 28 January
2021
[C83]
"We'
re
both living in the town now, so things will change. Not to mention the
PM
is saying schools maybe close until March. A homeschool
plan
thought or idea is not about just next week, it's a new normal. It's time to start working with me concerning the well being of the girls not against… Since our separation hasn't been legally
recorded
in the State we are technically still married until 2022 or 2023 (whichever you choose) so let's try to make the best of this for the girls sake."
- On 5 February the mother told the father that
"Also, note that since we are now separated, the Department will not
put
you on my orders, so as I mentioned before, you can leverage my information to justify our daughters being in the UK and your desire to assist in their care, therefore necessitating your need for the telework agreement."
On 10 February
2021
the mother wrote a formal email to the Department to assist the father in his attempt to be
provided
with Orders allowing him to stay in England. [C94]
- The father made his application to the Central Authority in the USA on 5 March
2021
with information
provided
by him on 22 February
2021.
He was then still in England. When the matter came before the High Court for the first time on 30 March
2021
it was as a without notice application for a Location Order. In fact, the father was even then still in England, living in the same town as the mother and children, who were living at their same address. If he did not know they were still there, he could easily have confirmed that they were. The first the mother and children knew of his application for a
return
order was when
police
officers entered their house to seize their
passports.
The Law
The
Convention
- Article 1 of the
Hague
Convention
states that its objects are:
(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 access under the law of one Contracting State are effectively
respected
in other Contracting States.
- Baroness Hale, in
Re
D (A Child: Abduction Rights and Custody) [2006] UKHL 51, at
para.48,
said:
"The whole object 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 to which they have been
removed."
- By Article 3 of the
Convention
the
removal
or
retention
of a child is considered to be wrongful if,
"(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."
- Article 12 of the
Hague
Convention
provides
that:
"Where a child has been wrongfully
removed
or
retained
in terms of Article 3 and, at the date of the commencement of the
proceedings
before the judicial or administrative authority of the Contracting State where the child is, a
period
of less than one year has elapsed from the date of the wrongful
removal
or
retention,
the authority concerned shall order the
return
of the child forthwith. 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."
- If the children were habitually
resident
in England and Wales at time of their
removal
or
retention,
then the
Convention
has no further application, and the father's application for
return
under the
Convention
would fall to be dismissed. The father does however contend for a
return
order under the inherent jurisdiction, see
Re
KL (A Child) [2014] 1 FLR 772. If, on the other hand, the children were habitually
resident
in the USA at the material time then it is necessary to go on to consider whether the case falls within one of the
recognised
exceptions under Article 13 which
provides
so far as is
relevant
to the
present
case that:
"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."
- If one or more of the Article 13 exceptions is made out, the court does not have to order
return
of the child and may exercise its judgement not to do so. This is commonly
referred
to as the exercise of the court's discretion. When considering the
principles
under the
Hague
Convention,
it is not the role of this court to determine the longer-term arrangements for these children or to make a detailed welfare assessment. However, welfare considerations will apply to the exercise of the court's discretion if that arises, and to the exercise of the inherent jurisdiction.
Removal and
Retention
-
Removal
and
retention
are mutually exclusive concepts.
Retention
is a specific event. Lord Brandon of Oakbrook in
Re
H (Minors) (Abduction: Custody Rights) [1991] 2 AC 476, at 78 – 79 held that:
"…. Once it is accepted that
retention
is not a continuing state of affairs, but an event occurring on a specific occasion, it necessarily follows that
removal
and
retention
are mutually exclusive concepts. For the
purposes
of the
Convention,
removal
occurs when a child, which has
previously
been in the State of its habitual
residence,
is taken away across the frontier of that State; whereas
retention
occurs where a child, which has
previously
been for a limited
period
of time outside the State of its habitual
residence,
is not
returned
to that State on the expiry of such limited
period."
- In In the matter of C (Children) [2018] UKSC 8 Lord Hughes explained the concept of wrongful
retention
and how it might arise before an agreed
return
date: [42] to [45]
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.
Habitual
Residence
- The Court of Appeal has most
recently
considered the concept of habitual
residence
in M (Children) (Habitual
residence:
1980
Hague
Child Abduction
Convention)
[2020] EWCA Civ 1105 and I have
regard
in
particular
to
paras.
[42] to [64] of the judgment of Lord Justice Moylan in which the significant authorities on the issue are
reviewed,
and the following
principles
are extracted:
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. 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.
d. 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 the children'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…"
e. Lord Justice Moylan
referred
to Lord Wilson's see-saw analogy from
para.
[45] of In
re
B, where he said:
"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.
"Further, the analogy needs to be used with caution because … it can …
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
- These are mutually exclusive concepts, the difference between them having been described as "one of timing",
Re
A (Minors) (Abduction: Custody Rights) [1992]
Fam
106 at 123. The main
principles
concerning the defence of
consent
are set out at
para.
[48] of the judgment of Ward LJ in
Re
P-J
(Children) (Abduction:
Consent)
[2009] EWCA Civ 588. One of those
principles
is that
consent,
or the lack of it, must be viewed in the context of the
realities
of
family
life, it is not governed by the law of contract. In
Re
H (Abduction: Acquiescence) [1998] AC 72, [1997] 1FLR 872 the House of Lords laid out
principles
applying to the issue of whether the left behind
parent
had subsequently acquiesced in the
removal
or
retention
of the child.
- It might be contended that if the left behind
parent
consented
to the
removal
of the children from the jurisdiction of their habitual
residence,
then the children were not wrongfully
removed,
and so the
Convention
does not "bite". However, it is established that
consent
falls to be considered under Art 13a not under Art 3,
P
(A Child) [2004] EWCA Civ 971; under the name
Re
P
(Abduction
Consent)
[2004] 2 FLR 1057, in which Ward LJ said at [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
protect
children 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.
- As Ward LJ noted, for
consent
to be valid it must be unequivocal and informed, and it must have been given
prior
to the
removal.
Consent
obtained by fraud will not be considered valid,
Re
B (A Minor) (Abduction) [1994] 2 FLR 249.
Grave Risk of Harm
- The mother raises the defence under Art 13(b). The
principles
to be applied in
relation
to grave risk are well established and were set out in In
re
E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, in
particular
at [31] to [36]. MacDonald J helpfully summarised the applicable
principles
in MB v TB [2019]
EWHC
1019 (
Fam)
at [31] and [32]. So far as
relevant
they are:
"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. …
[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."
- In
Re
D (Abduction: Rights of Custody) [2006] UKHL 51, Baroness Hale held as follows at [52]:
""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."
Child's Objections
- In
relation
to children's objections, I follow the guidance of Black LJ in
re
M (
Republic
of Ireland) (Child's Objections) (Joinder of Children as
parties
to appeal) [2015] EWCA Civ 26 at [69] to [71]:
"69. … the
position
should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the
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 account of his or her views. Sub-tests and technicality of all sorts should be avoided. In
particular,
the
Re
T approach to the gateway stage should be abandoned.
70. I see this as being in line with what Baroness Hale said in
Re
M[1]at §46. She treated as
relevant
the sort of factors that featured in
Re
T but, as she described the
process,
they came into the equation at the discretion stage. It also fits in with Wilson LJ's view in
Re
W that the gateway stage
represents
a fairly low threshold.
In
relation
to the discretion stage Black LJ said this:
71. …. The court has to have
regard
to other welfare considerations, in so far as it is
possible
to take a view about them on the limited evidence that will be available as
part
of the summary
proceedings.
And importantly, it must give weight to the
Hague
Convention
considerations. It must at all times be borne in mind that the
Hague
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 at §42 of
Re
M, "[t]he message must go out to
potential
abductors that there are no safe havens among contracting states".
- In
Re
F (Child's Objections) [2015] EWCA Civ 1022, the Court of Appeal confirmed that no gloss should be applied to the word 'objects' in the
Convention:
"35. In her definition of an objection, (counsel) had, in my view, introduced an unwarranted gloss on the simple words of Article 13. It is not necessary to establish that the child has "a wholesale objection" to
returning
to the country of habitual
residence
and "cannot think of anything
positive
to say about that other country". The exception is established if the judge concludes, simply, that the child objects to
returning
to the country of habitual
residence
…. Whether a child objects is a question of fact, and the word "objects" is sufficient on its own to convey to a judge hearing a
Hague
Convention
case what has to be established; further definition may be more likely to mislead or to generate debate than to assist."
Discretion
-
Re
M (above), Baroness Hale gave guidance on the exercise of the discretion which applies however the discretion arises under the
Convention
at [43]:
"… 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."
Inherent Jurisdiction
- In
Re
NY (A Child) [2019] UKSC 49 Lord Wilson considered eight questions the court should consider on an application to exercise the inherent jurisdiction in
relation
to a child who cannot be
returned
under Article 3 of the 1980
Convention
– see
paragraphs
[55] to [64]. In short, is the evidence sufficient to make a summary order; are the findings sufficient to justify a summary order; should an enquiry be made in order sufficiently to identify what the children's welfare
requires
for the
purposes
of a summary order; should an inquiry be made into any allegations of domestic abuse; if there is no identification of arrangements for the children on
return
would it be appropriate to conclude that their welfare
required
them to
return
there; is any oral evidence
required;
should Cafcass be
required
to
provide
a
report;
and does the court need to consider the comparative abilities of the courts in the
relevant
jurisdictions to
resolve
issues between the
parents.
Ms Huntington
- Ms Huntington of Cafcass saw the children in
person
on 11 June
2021.
She spoke very briefly to the mother on the same date. She has not spoken to the father. The two girls are clearly mature, intelligent, articulate, and considerate. They are a credit to both their
parents.
The conflict that has arisen between the
parents
since the marriage breakdown, and
particularly
in
relation
to the events giving rise to the applications now before the court, have not gone unnoticed by the children.
P
had understood from her father and conversations she had overheard that the father believes he was tricked by the mother's lies into agreeing to her brining the children to England. Both children sought to be diplomatic, so as not to offend their father, when speaking to Ms Huntington. Unfortunately, after Ms Huntington's
report
was disclosed to the
parties
the father chose to message his daughters to tell them he felt disrespected and hurt by what they had said and written. He denied that this was a
reference
to what the
report,
but in any event his messaging only goes to show that his daughters had some insight into their father's conduct towards them.
- The children had
participated
in
plans
to move to England, being actively involved in decisions about schools, housing and so forth. They were happy to come to England, although they enjoyed life in the USA. They both want to stay until the end of the mother's stationing here in 2023. They do not want to
return
to the USA. They each spoke of the
possibility
of staying with a female
relative
rather than the father if they were ordered to
return.
They enjoy life here, except for the food, but they also look forward to
returning
to the USA in due course. Ms Huntington stressed the importance to each of the girls of feeling that their voice has been heard. It would be upsetting to them to feel that they were being forced to leave England and
return
to the USA against their wishes.
- Ms Huntington advised in her
report,
"I consider that the children's expressed wishes and feelings amount to an objection. Whilst it is clear that they feel
positively
about their home and lives in the USA and so is not an objection to the
place
itself, I consider that
P
and Q clearly object to the circumstances under which a
return
would take
place
and have been clear about the level of upset they would experience were this to be the decision of the court." They do not wish to be separated from their mother. They were both aware that their mother would not
return
to the USA with them. Ms Huntington agreed that both children were mature beyond their ages.
P's
school considered her to be "very mature" and Q's school
reported
her to be "fairly mature". She was more
reserved
in
personality
and a little less able to articulate the rationale for her objections. Nevertheless, Ms Huntington's evidence about the maturity of both children was quite clear.: "it is my view that
P
and Q have
reached
ages and levels of maturity where their views should be taken into account."
The Mother
- The mother was a highly articulate and intelligent witness. She answered questions directly and fully. She was not at all evasive or argumentative. I found her to be a wholly impressive witness. She explained the bureaucratic
process
of obtaining "orders" with as much clarity as is
possible
in
relation
to a system that few
people,
including those who operate it,
probably
fully understand. As an employee of the US Government being stationed abroad, she is entitled to consideration for a
package
of benefits, including support for shipping, travel, her children's education, and, if appropriate, her spouse or
partner
as a dependant. She would have to
provide
information to her employer and it would determine what orders were appropriate. The substance of the orders is not in her gift. At the time that she applied for the
posting
to England she was living with the father and he and the children were noted to be dependants. Later, and before her departure, the
parties
separated and the mother informed her employer of her change of address and that she no longer lived with the father. She was advised that the father was not a dependant for the
purposes
of her orders. As is often the way with bureaucracies, the mother would sometimes
receive
different advice depending on to whom she spoke when making enquiries about her orders. On 7 July 2020 she was sent a copy of her orders on which the father did not appear as a dependant [C210]. On 28 July 2020 she made further enquiries and was told that the father was still noted to be a dependant. She showed the father a
printed
screenshot of that information. I do not have the screenshot but I have the email from the mother in which she
refers
to it [C40] and the father accepted that he was shown the
printout
of it and that it had his name on it.
- Despite these inconsistencies in information
provided
to her, the mother says that she was always consistent with the father that she could not mislead her employer and claim for benefits, through her orders, to which she was not entitled. Thus, she had always maintained that he would not be living with her and the children together on
relocating
to England. Further, the agreed
position
was that if the children did leave for England with the children, the father would not be travelling over to England with them at that time. The mother told the court that what she did
promise
the father was that she would use her best endeavours to help him obtain his own orders, and a
passport
(which she and the children had acquired, the father assisting with the applications on behalf of the children). She would be content to describe the father as a carer for her children in the hope that he could be included on her orders in that capacity, and in order to encourage his employer to grant him
permission
to work
remotely
from England. However, it was not in her gift to grant him that
permission
or to guarantee what would be included on her orders by her employer.
- The mother accepted that in July 2020, when the father was
refusing
to
consent
to the children leaving the USA, she effectively called his bluff. Hence, her messages to him about making arrangements for the children to
remain
with him in the USA. She said that she knew in her heart that he would not
prevent
the children from leaving with her. She did not say this with malice, but rather that she trusted him to do what was right for the children, who had clearly expressed a wish to live for a
period
of time in England, and that she suspected that he did not
really
want to have to look after the children 100% of the time on his own in the USA.
- The mother said that the father did
relent
and an agreement was
reached
in late July 2020 that the mother would leave for England with the children but if the children did not like England and wished to
return,
they would do so with the father. As for her orders, she maintained that she had told the father she could not say to her employer that he was to live with her and the children because that was not true. As such, as she advised the father, he could not be
regarded
as a dependant, albeit he had appeared on her draft orders as such. However, she would support him to find a way to be able to stay in England during her stationing here.
The Father
- The father was an affable witness. He too struck me as an intelligent and thoughtful man, but there were aspects of his evidence that were difficult to
reconcile
with other evidence, and there were other key
parts
of his evidence that lacked clarity and consistency.
a. He sent messages to the children shortly after he had
received
Ms Huntington's
report
which accuse them of crushing him and disrespecting him with everything they had said and written. He suggested to the Court that this was a
reference
to what they had said over the
previous
few months, and to letters written 18 months beforehand. That is difficult to believe. He said that he was
referring
to being crushed by the
process
(including this application) but that is not he wrote at the time when he told the children that what they had said and written were what had crushed him. His answers to questioning about that messaging were not credible.
b. In the information the father gave in his application to the Central Authority in the USA, the father wrote on 22 February
2021
[E12], "On July 16 2020 I agreed to sending the girls but under one condition, that I'd be allowed to be on [the mothers'] Orders as well." In his first statement dated 22 March
2021,
only one month later, the father states at
paragraphs
19 to 20 that there was a
family
meeting on 16 July 2020. "I told the
Respondent
from the outset that the children and I would only travel to England on the condition that if the girls did not like it in England or if I was not named as a dependent on the Order, the girls and I would
return
to the United States of America by January
2021
at the latest." [C5]. These are not consistent statements:
i. The father introduces a new condition in his statement that was not mentioned in his application.
ii. The stated condition about the mother's orders changes from a condition that had to be met for him the agree to sending the girls, to a condition that had to be met by January
2021
otherwise they should be
returned.
In oral evidence the father said that the latter was the true
position.
Further, the evidence clearly shows that no agreement was
reached
on 16 July 2020, or at least it was no longer an agreement by 17 July 2020. For some time after 16 July 2020 the father was
refusing
to agree to the children going to England. Hence his application and statement were misleading in that
regard.
c. In his statement to the court dated 23 March
2021
the father said, "The
Respondent
confirmed that she would add me to her Order" as if this was in her gift. It was not a matter for her as he, also a government employee, surely knew. Moreover, as was very apparent when the mother gave her oral evidence, she is not someone who would lie to her employer. She is committed to her work and would not jeopardise her
position
in that way. Thus, I am satisfied, the father knew that mother could not simply "add" him to her orders, and his evidence that she agreed to do so is not credible.
d. The father told the court in his written and oral evidence that the mother's email of 7 October 2020 sent him "
reeling".
This was because the mother told him in that email that "I am not able to
place
you on my orders and as such you cannot leverage any benefits that would normally be afforded a spouse." His evidence that this shocking news was a devastating blow to him is not credible. Not only was that something she had said to him
previously
(indeed she begins that
paragraph
of her email "As
previously
discussed"), but the subsequent emails from the father show no signs whatsoever of his being shocked or of his
reeling
from this news. He went on to sell the house, travel to England on 19 November and stay from nearly two months, to seek work, and to make arrangements with the mother about seeing the children. At no
point
in the days or weeks after 7 October 2020 does he accuse the mother in writing of tricking him, falsehood, or duplicity. Yet the father's case is that the email of 7 October 2020 was crucially important because it
revealed
that the mother had tricked him, had been dishonest, and was duplicitous.
e. I am also troubled by the father's without notice application to this court for a Location Order in March
2021.
Whatever findings I make in this case, it is quite clear that the mother had kept up communication with the father, she had not withheld contact with the children from the father, she had not hidden away. The father knew where the children's home was and if he was concerned that they might have moved without telling him where, he could have checked by visiting (he too lived in the town) or by a simple telephone call or email. The mother has confirmed, and I accept, that in fact she and the children were still living in the same house. Furthermore, the father knew that the mother was highly unlikely to abscond with the children on being given notice of his
return
order application. She was a US government employee stationed in England having made very open arrangements to do so,
placing
the children in school here. The father had been involved in all those arrangements. The mother was not in hiding, she was not on the run, and she was not avoiding communication with the father. Instead of giving the mother notice, the father sought and obtained, without notice, a Tipstaff Location Order from the court that
resulted
in the mother and children being visited by
police
officers to seize their
passports.
I am satisfied that the father was not wholly frank with the court when he sought and obtained a without notice Location Order.
- When considering all the evidence in this case I
remind
myself that emails and written messaging have to be considered in the context of a marriage breakdown, heightened feelings, changing information, and many oral conversations that are not
recorded.
It would be wrong to approach the communications between the
parties
as if analysing the terms of a commercial contract. This is a
family
case. I have
regard
to the whole of the evidence and the circumstances of the time. Some statements are made in the heat of the moment, when in a rush or when tempers are raised, others are more considered. Not all emails or messages should be given equal weight. Nor should the court approach the statements and agreements as though this were a contract law case.
Submissions
- I
received
helpful submissions from Ms Watts for the father and Ms
Papazian
for the mother. The mother does not contend that the written Travel
Consent
and Separation Agreement documents, signed before a Notary,
represent
the entire agreement between the
parties.
She accepts that it was also agreed that if the children wished to
return
to the USA after a trial
period
in England then they ought to
return.
For the sake of economy, not out of disrespect for the quality of the submissions, I shall not
repeat
them in my judgment. It is evidence from my discussion of the issues in the case, to which I now turn, what the
parties'
respective
positions
are.
Discussion and Conclusions
- Having
read
the documentary evidence and heard the oral evidence in this case I
reach
the following conclusions on the issues for determination.
Consent
- There is no dispute that when the children travelled from the USA to England with their mother on 16 August 2020 they were habitually
resident
in the USA. Accepting that the
removal
on that date was
prima
facie in breach of the father's custody rights, did he give his
prior,
unequivocal, and informed
consent
to the
removal?
The burden of so
proving
is on the mother.
- The mother
points
to a formal "Travel
Consent
Form", signed by the
parties
before a Notary on 28 July 2020 [C196]. I set out the terms of the
consent
earlier in this judgment. The terms of the father's
consent
on the face of the document are unequivocal and unconditional.
- The
parties
also entered into a Separation Agreement on 3 August 2020, again signed in the
presence
of a Notary [C108]. Amongst the terms of the agreement is the following at
paragraph
4:
"The
Parties
agree that the children will
primarily
reside
with [the mother]. In the event that [the mother]
resides
outside of the continental United States for employment
purposes,
[the father] agrees to allow minor children [named] to accompany [the mother] and attend school where [the mother] is stationed on a full time basis."
Again, the agreement is not qualified.
Read
in conjunction with the travel
consent
agreement, it
records
the father's unequivocal agreement to the children going to live with the mother in England when she left for employment
purposes
later that month. He accepted to the court that he knew this would be for a
period
of three years from August 2020.
- However, the father contends that the written documents do not
record
the full agreement
reached
between the
parties.
In her written skeleton argument on behalf of the father, Ms Watts says that "The father signed the travel
consent
form on 28 July 2020 in good faith based on the mother's confirmation that he was on her Order as a dependent and his understanding that they would all be moving to England." However, in oral evidence the father confirmed that this was not a condition of his agreeing to the children leaving for England. Rather, it was a condition that he be included as a dependant on the mother's orders by early January
2021.
As such, I do not accept that the father was tricked into signing the unequivocal travel
consent
document or the separation agreement by the mother falsely
representing
that he was and would
remain
as a dependant on her orders.
- By the time of the
family
meeting the mother had
received
a copy of her orders showing that the father was not a named dependant (7 July 2020 – C210]. The mother had made it clear in communications with the father that he could not be included as a dependant on her orders and that she could not ask for him to be included on her orders as someone with whom she and the children would be living. She would, on the other hand, be happy to say that he was a carer for the children in the hope that that would support his own applications for a
passport
and his own orders.
- The email on which the father
relies
in support of his case that the mother misrepresented to him that he was named as a dependant on her orders is dated 28 July 2020 [C40]. The mother wrote that she had
received
information that the father was named on her orders as a dependant and she sent the father a screen shot. The father does not deny that he saw that screenshot. The mother was merely
passing
on the information she had
received
that day. He confirms that he saw his name on it. Of course, it contradicted the
previous
copy of her orders that she had been sent three weeks earlier on 7 July 2020 in which he was not named. It contradicted several other emails from the mother to the father in which she made it clear that he could not be named as a dependant living with the
family
in England, because he would not be living with them. It would have been foolish for the father, who is clearly no fool, to
rely
on this single communication as
proof
that he was on the mother's orders. In any event he now makes clear that it was not a condition of his
consent
that he was on the orders, only that he would be by early January
2021.
- The father does not assert that there was any agreement that he would live with the
family,
indeed he had signed a Separation Agreement that the children would live with their mother, including when she was stationed abroad. The mother also wrote in her email of 28 July 2020 that the father was not
relocating
at "this time", had up to a year to
relocate,
and that the
recommendation
was that the other should wait until she was at the station in England before having the
paperwork
updated. If everything was settled, then there would be nothing to update.
- Considering the evidence as a whole it seems to me to be clear that,
a. The father had been named as a dependant initially because when the mother had applied to be stationed in England the
parties
were still together.
b. The mother informed the father
repeatedly
prior
to him signing the Travel
Consent
and the Separation Agreement documents that she had informed her employer of the change in her status – they were now separated – and as such he could not be included as a dependant on her orders.
c. The only exception was her email on 28 July 2020 when she
referred
to him already having been named as a dependant but in the same email she told him that there would be updating once she had arrived in England.
d. The father knew that even if he was still named as a dependant due to bureaucratic delay, that would not continue: the orders either had been updated so that he was not named as a dependant (as appeared from the version of 7 July 2020) or would be updated once the mother was in England.
e. It was not within the mother's gift to guarantee that the father would be, or would
remain
on, her orders as a dependant. That was a matter for her employer. The father knew this as a federal government employee himself.
f. The father knew that the mother would tell the truth to her employer about the
family
arrangements. The truth was that the father was not a dependant on the mother and they would not be living together.
g. The father signed the Travel
Consent
and Separation Agreement documents knowing that they were solemn agreements which he was willing to be bound by. They clearly
record
his unconditional agreement to the children living with the mother when abroad, with agreed contact with him.
h. I accept the mother's evidence that there was no agreed
pre-condition
to the children travelling to England that the father was named as a dependant on the mother's Order. Indeed, the father conceded as much during his oral evidence.
i. I further accept the mother's evidence that it was not an agreed condition, nor did the father seek unilaterally to impose a condition of his
consent
to the children
remaining
in England, that his name should be entered as a dependant on the mother's orders either by 5 January
2021
or at all.
j. It was agreed between the
parties
that if the children wished to
return
to the USA, they should not then be
retained
in England but should
return.
k. The mother did agree, I find, to use her best endeavours to help the father to be able to come to and work in England. The
parties
did speculate as to whether it would be
possible
for the father to be included on the mother's orders in some capacity, for example as a care-giver to the children so as to give him leverage with his own employer to optimise his own orders.
- As it happens the mother did help the father secure a
passport.
She did write to his employer in honest but supportive terms in February
2021.
The mother accommodated the father in a room attached to the
family
home on his first visit to England. She co-operated with arrangements for him to spend time with the children on subsequent, lengthy visits to England. I am satisfied that she did what she could to help the father to be able to come to and work in England. However, I also accept her evidence that it
proved
not to be
possible
to include the father on her orders in any capacity.
- The children were content to
remain
in England. The father accepts that. Indeed, the evidence of Ms Huntington demonstrates that they strongly wish to
remain
here. However, the wishes of the children to stay in England were a condition for their
remaining
here – as a matter of logic they could not have been a
pre-condition
for their travelling here in August 2020.
- In short, I am satisfied that the mother did not mislead the father. She was honest with him and her employer throughout. He was kept fully informed by her of what she knew
prior
to him signing the Travel
Consent
and Separation Agreement, but he knew that his long term
position
was uncertain. He signed those documents knowing that he could not guarantee being allowed to come to live and work in England in the same manner as the mother had such
permission.
He hoped that he might be included on the mother's orders in some capacity and that that might help him with his own orders, but he knew that was only a
possibility.
As he told me, he decided to trust in God. He did not impose any condition on the children leaving from England in August 2020. His agreement to the children leaving for England was not given due to misunderstanding, misrepresentation, fraud, or mistake. He unequivocally gave his informed
consent
to their leaving the USA on 16 August 2020 to live in England as set out in the formal written Travel
Consent
and Separation Agreement documents.
- The children were habitually
resident
in the USA at the time of their
removal
to England on 16 August 2020. However, the defence of
consent
having been established the Court must exercise its judgement whether, nevertheless, to order
return.
In doing so I take into account the objects of the
Convention,
the circumstances giving rise to the need to consider the exercise of judgement or discretion, as well as the welfare of the children. The objects of the
Convention
would not be supported by ordering
return
when there has been unequivocal
consent
by the father for the children to move to England. The children cannot, in any meaningful sense, be said to have been abducted. There is no "hot
pursuit"
urgently to
return
the children to the jurisdiction where their future should be determined. As
regards
the welfare of the children, I take into account all the evidence including the
report
of Ms Huntington. The children strongly wish to
remain
in England. Were their wishes overridden they would feel that their voices had not been listened to and that would undermine and distress them.
- The mother's evidence was very clear – she would not
return
to the USA if the court ordered the children to
return.
She has made the children aware of that. I do not criticise her for doing so. It is her approach to
parenting
to be honest with her children when they ask questions of her. They have asked her about this issue, and she has
responded
honestly. The mother told the court that she
regarded
it as important for herself but also as a mother to these two obviously intelligent and caring daughters, to demonstrate the importance of keeping
promises
and commitments – here her commitment to her employer – and to stand firm when someone else – here the father – is trying to
push
her to do something that she believes is wrong both for her and for others she loves. I accept therefore that the children would be
returning
to the USA without their mother, and they know that. They even told Ms Huntington that they may
prefer
to live with someone other than their father upon
return
to the USA. No doubt that sentiment has been aroused by the children's sense that their father has continued to
pursue
this application knowing that it is against the wishes and feelings of his daughters. They will struggle to understand why he has done that, and they will struggle to cope with the court ordering their
return
against their wishes. They are mature children who are emotionally intelligent.
- Weighing all the evidence I would unhesitatingly decline to exercise my judgement to order the
return
of the children upon the defence of
consent
being made out.
Wrongful
Retention
- Did the mother wrongfully
retain
the children in England on 7 October 2020 or on 5 January
2021?
The burden of so
proving
is on the father. 7 October 2020 was the date of the mother's email to him when she said that he could not be included as a dependant on her orders. 5 January
2021was
the date on which the father
returned,
without the children, to the USA, albeit that he flew back to England later the same month. The father's case, as already discussed, is that it was a condition of his agreement to the children
remaining
in England that he would be named as a dependant on the mother's orders by early January
2021.
The email of 7 October, it is submitted, manifested an intention by the mother not to be bound by that agreement. It was a unilateral attempt to
pre-empt
the father's custody rights. Alternatively, the condition for
return
was met by 5 January
2021
but the children were not
returned
with the father to the USA.
- The father's case in this
regard
is
problematic.
I have already found that the only condition on the children
remaining
in England was that they wished to
remain,
and that that condition was met. The father does not dispute that it was met. I have
rejected
his contention that it was agreed by the
parties
that if his name was not on the mother's orders as a dependant by early January the children were to
return
with him to the USA. No such condition was imposed by the father or agreed by the mother. I can find no contemporaneous evidence
referring
to early January as a key time, to the
requirement
that the father be named as a dependant on the mother's orders by then, nor of the father
reacting
to the date having
passed
as a key moment or stage. Rather, I find, the father gave his unconditional
consent
to the children travelling to England and, for so long as they wanted to
remain
in England,
remaining
here until the end of the mother's stationing here in 2023.
- In any event, the father's conduct after the children came to England in August 2020 is wholly at odds with his case that the mother had agreed that they should
return
to the USA should his name not be on her orders as a dependant by early January
2021.
Contrary to his evidence that he was sent
reeling
by the mother's email on 7 October 2020 in which she said that it was not
possible
to include him on her orders, all the contemporaneous evidence is that their
relationship
and
plans
continued as before. I can find no messages from the father condemning the mother for her trickery or dishonesty. There are no messages where he expresses shock at the news she had given him. I accept that the written communications do not constitute the whole of their interactions, but there is no hint of the father believing he had been hoodwinked by the mother. The father carried on as before. He continued to sell the
family
home in the USA, he continued to try to obtain clearance to live and work in England, he continued to agree arrangements to see the children when he visited in November 2020 through to early January
2021.
He even wrote to the mother in late January
2021
[C86] saying that both
parties
now lived in the town, that schools were closed and may be for some time and urging the mother to work together with him to make arrangements in England, in the best interests of their children.
- I have no doubt that the father began to
regret
having agreed to the children living with the mother in England during her stationing here until 2023. The father did write an irate email on 18 December 2020 as
part
of a tense exchange of emails about future arrangements. However, I can find no contemporaneous evidence that he
regarded
the mother as having manifested an intention to breach any agreement between them. I find no evidence that he accused the mother of foul
play.
I find no contemporaneous evidence that the father
regarded
5 January
2021
as a key date or that it marked a breach of the
parents'
agreement that the children did not
return
to the USA on that date.
- I am not
persuaded
that the mother
pre-empted
the father's custody rights or unilaterally decided that the children should
remain
in England beyond an agreed
return
date, by her email on 7 October 2020 or otherwise. I am quite satisfied that she
remained
willing and able to
return
the children to the USA if they wished to
return.
Her email of 7 October 2020 did not say anything new, it merely
reiterated
the
position
she had
previously
taken. At the time he
received
the email, the father did not treat it as a unilateral change in the agreement by the mother.
- Messages exchanged after the father's
return
to England later in January
2021
show that he was still looking forward, even then, to being in England whilst his daughters
remained
living here. There is no contemporaneous evidence from the
period
before he made his application to the Central Authority in the USA that the father
regarded
5 January
2021
as a date beyond which the children were being wrongly
retained
in England.
- I find that the father did not impose, and the mother did not agree to a condition that the children should be
returned
to the USA by 5 January
2021
if the father was not named as a dependant on the mother's orders by that date. There was no expectation on the
part
of either
parent
that the children would
return
to the USA in January
2021.
The father's later application for
return
was a sudden and very marked change in the understanding between the
parties
and the agreements they had
reached.
- Although acquiescence was not raised as a defence
prior
to the hearing, Ms
Papazian
touched on it in her closing submissions. Such was the father's conduct after 7 October
2021
and 5 January
2021
that, had it been
relevant,
I would have had to consider carefully whether he had acquiesced. Given that the issue was not raised in advance of the hearing, and evidence was not directed towards it, I shall not draw any conclusions about whether the father acquiesced in the
retention
of the children after the dates when he says they were wrongfully
retained.
- Accordingly, I find that there was no wrongful
retention
of the children in England on 7 October 2020, or on 5 January
2021
or thereafter.
Habitual
Residence
- The children were habitually
resident
in the USA when they travelled to England in August 2020. Were they still habitually
resident
in the USA on 7 October 2020 or in early January
2021?
The children had been involved in the
planning
for the move to England, including the selection of schools. The
planning
had taken many months. It was a new stage in their lives that they had looked forward to and
prepared
for. By January
2021
they had had a term in school in England. They were living with their mother in England. I do not have very much information about their social lives. There is some evidence that they had begun to make friends. The impression I had from the mother's evidence was that they formed a tight-knit
family.
They are very close to their mother. They had decided that they wished to
remain
in England. Although they knew that they would
return
to the USA eventually, they fully expected to
remain
here until 2023. Their father was
present
here for about half of the time they had been here by early January
2021.
They saw a lot of him. They did not want to
return
to the USA.
- Such was the degree of
preparedness
of the children for the move to England in August 2020, including counselling sessions, discussions about schools and accommodation, a
family
meeting, letters written by the children to the father giving
reasons
why he should allow them to live in England, that from their
perspective,
they were liable to become habitually
resident
here soon after their arrival
provided
that they liked it here and wished to stay. From their
perspective
there were no conditions attached other than that if they did not like it, they could
return.
In fact, they did like it (other than the food). They liked their schools, they like living in England with their mother, they enjoyed time with their father whilst here too.
- I am satisfied that in the circumstances of this case, in
particular
given the children's level of involvement in the
preparation
for the move to England, they were habitually
resident
in England by the end of 2020 and therefore by 5 January
2021.
They had been in England for four and a half months. They were settled into school and home life. They spoke the language because it was their own. They had a sufficient degree of integration in their
family
and social environment here and, importantly, a level of stability in their lives here to be
regarded
as habitually
resident
here by the material time.
- I am less convinced that they were habitually
resident
in England as early as 7 October 2020. That would still have been, from their
perspective,
part
of the trial
period.
They might change their minds about living in England. By the end of the year, it was clear that they were settled here. By 7 October 2020, only about seven weeks after their arrival, I do not believe that they had sufficient stability here, given the option of them saying they wanted to go back to the USA if they did not settle in England, to find that they were habitually
resident
in England.
- Having found that the father
consented
to the children being
removed
from the USA in August 2020, and that the children were not wrongfully
retained
in England thereafter, the father's application under the
Hague
Convention
1980 fails. Accordingly, I shall deal only briefly with the other issues under the
Convention
which would fall to be considered if my findings thus far are in error.
Children's Objections
- Having
regard
to the helpful evidence of Ms Huntington it is clear that the children do not wish to
return
to the USA, their feelings about that are strong, and they are at an age and degree of maturity that the court should take into account their views. I have considered whether their wishes and views amount, in
respect
of each child, to an objection, and if so whether it is an objection to
return
to the jurisdiction of the USA or objection to no longer living with their mother.
- The evidence is that the children do not object to
returning
to the USA at the end of the mother's stationing in England in 2023. They have happy memories of living in the USA. They are going to visit the USA this summer for a number of weeks. Once the mother's work in England is over they would be content to
return.
If they
returned
now, however, they would
return
without their mother. It would not be for a holiday but would be a
permanent
return.
I am quite satisfied that the children's views about
returning
now, or at any time
prior
to the end of the mother's stationing in England, amount to objections. They are not merely expressions of
preferences.
They wrote letters to their father during the
planning
for the stay in England in which they set out the
reasons
why they wished to live in England whilst their mother worked here. They were involved in the
family
meeting to discuss the arrangements. They helped identify and choose suitable schools. They consider that the move to England was a
planned
event, for a certain
period.
They have adjusted to life in England in the expectation that they would stay here until 2023. They object to that
plan
being disrupted, to their lives being de-stabilised, to their voices being ignored. Ms Huntington's evidence
persuades
me that the objections expressed were authentic, consistent,
reasoned
and balanced.
- Not all objections are
relevant
to the defence under Art 13 of the
Convention.
The objection must be to being
returned
to the country of the child's habitual
residence
(assuming that I am wrong and that the country of habitual
residence
is the USA) not to living with a
particular
parent.
However, there may be cases where the two factors are so inevitably linked that they cannot be separated –
Re
R (Child Abduction: Acquiescence) [1995] 1 FLR 716 at 730, and
Re
M (Children) (Abduction: Child's Objection) [2015] EWCA Civ 26 at [42]. Here, the children have expressed a tentative
preference
to living with female
relatives
rather than the father should they be
returned
to the USA. However, I am satisfied that they object to
return
to the USA itself. The timing of the
proposed
return
is highly
relevant
to their objections. It is a matter of
principle
that their considered, thoroughly discussed, decisions to move with their mother to England for the duration of her stationing here should be
respected.
This is true for both children. Ms Huntington
recognised
that the children objected to
return
to the USA and I agree.
- Hence the so-called gateway stage of the children's objections is met. The discretion stage involves a balance of considerations of welfare and upholding the
purposes
of the
Convention
as discussed earlier in this judgment. The exercise of discretion would only arise if the children had been wrongfully
removed
without
consent,
or wrongfully
retained,
and the USA was their country of habitual
residence
at the material time. Nevertheless, even on those assumptions, this would not have been a case of a clandestine abduction, hiding the children away from the left behind
parent.
This would not be a so-called hot
pursuit.
To overrule the children's objections would, I am sure, undermine their confidence in their
parents
and in figures of authority. Their welfare will be best
promoted
by their
remaining
in England until their mother completes her work here. I would not exercise my judgment so as to order their
return.
Grave Risk of Harm
- Whilst I believe that the children's welfare is best served by their
remaining
in England, I do not accept that the evidence establishes that there would be a grave risk that
return
to the USA now would cause them
physical
or
psychological
harm, or otherwise
place
them in an intolerable situation. I accept that the evidence is that the mother would not
return
with them, and so I do not lightly dismiss the Art 13b defence of grave risk of harm or intolerability. Ms
Papazian
contends that the father's
recent
message to the children about them crushing and disrespecting him [F15] suggests that life with him in the USA would be intolerable. However, although his messaging is
regrettable,
and I hope that he will make amends for it with his children, it has to be
put
into
perspective.
The children would
probably
live with their father upon
return.
He is, I am satisfied,
perfectly
capable of looking after them. The mother trusts the father to look after the children
properly.
She knows that he loves the children. The children would be well cared for and well educated in the USA. The children's emotional wellbeing is better
protected
and
promoted
by
remaining
with their mother, but that is not to say that there would be a grave risk of
psychological
harm caused by
return
to the USA. The mother has no safeguarding concerns and the fact is that however committed she is to her employment here in England, I am sure that she would give it up and
return
with her daughters to the USA if she thought there was a grave risk that they would suffer harm on be
placed
in an intolerable situation. She knows that there is no such risk and that is one of the
reasons
why she would choose to
remain
in England.
- It is not sufficient for the mother to show that the children would be upset to be
returned,
nor even that their welfare would be best served or
promoted
by their
remaining
in England. The question is one of risk to the child in the event of their
return.
I do not accept that the mother has
proved
the degree of risk (in
relation
to the extent of chance or the severity of outcome) necessary to establish this defence. The children would still have
plenty
of contact with the mother. There would be no grave risk of harm or intolerability upon
return.
Had I considered that there was a
possibility
of this defence being established then consideration of
protective
measures would have been
required
to determine whether, nevertheless, the risk could be adequately mitigated. As it is I need not consider the question of
protective
measures because I do not believe that
return
to the father's care in the USA until 2023 would give rise to a risk of harm or intolerability to be mitigated.
Inherent Jurisdiction
- If the 1980
Hague
Convention
does not apply because the children were habitually
resident
in England at the material time of an otherwise wrongful
retention,
the father maintains that the court should exercise its inherent jurisdiction to order
return.
I have considered the matters to which the court is enjoined to have
regard
–
Re
NY (above). On
return
the children would be likely to live with their father and to attend
public
schools. They have extended
family
in the USA with whom they would spend time. The mother would visit them in the USA and the father would, I am sure, bring them to England to see the mother. Such travel would be subject to any
restrictions
on travel due to the Covid-19
pandemic.
Applications could be made in the USA for child arrangement orders (subject to the courts there accepting jurisdiction). However, the
parents
are capable of
resolving
issues about children arrangements between themselves. I do not
regard
it as necessary for the
resolution
of the application under the inherent jurisdiction to
require
further inquiry by Cafcass, or the
parties,
or to hear further oral evidence. There are no allegations of domestic abuse in this case.
- I am wholly unpersuaded that the court should exercise its inherent jurisdiction to order the
return
of the children to the USA. I have considered the welfare checklist under s 1(3) of the Children Act 1989 as a useful guide to my consideration of this
particular
application. The wishes and feelings of the children are clear – they wish to
remain
in England and object to
returning
to the USA. The change would be destabilising to them and would cause them distress. I do not think that they would be at grave risk of harm, but I do not doubt that they would undergo a difficult
period
of
re-adjustment.
Their
physical
and educational needs would be met in the USA, but they are also well met in England. Indeed, the children believe that their educational needs are better met here at
present.
Their emotional needs would be less well met in the USA than were they to
remain
here with their mother. Their
relationship
with their mother is of
particular
importance to them. Given their ages and sex, it will be especially valuable to them to be close to their mother over the next two years or so as they undergo
physical
and emotional changes. Their
relationship
with the father is more strained, no doubt exacerbated by his
pursuit
of this application. They find him over-bearing and have to be diplomatic when saying things about him. His messaging to them earlier this month demonstrates why they might find him over-bearing and why they have to be diplomatic. He is less able to meet their emotional needs than the mother.
- The children will be distanced from one or other
parent
whether they
remain
in England or
return
to the USA but, looked at in the round, their needs will be better met if they
remain
here with their mother, who is better able than the father to meet their needs. They will be able to have contact with their father and their
relationship
with him is likely to improve once this application is concluded and they know where they will be living in the future. The children have not suffered harm to date and I do not believe that there is a grave risk of harm to them were they to be
returned
to the USA. Nevertheless, there is some risk of emotional harm to the children from
return
due to separation from their mother and the overriding of their strongly held wishes, whereas there would be no such risk were they to
remain
in England. The court has the
power
to impose conditions on the
return
of the children but no conditions would mitigate the adverse impact on the children's welfare of their schooling and home lives being disrupted by
return,
the separation from their mother, and the overriding of their wishes. It is quite
plain
on the evidence I have
received,
without the need for further inquiry, that it would be contrary to the best interests of both children for them now to be
returned
to the USA. That is very likely to
remain
the
position
until the end of the mother's stationing in England, but the court cannot foresee every circumstance that might affect these children.
- Accordingly, for the
reasons
I have given, I dismiss the father's applications under the
Hague
Convention
and the inherent jurisdiction.