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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> IK (A Child), Re (Hague Convention: Evidence Consent) [2022] EWHC 396 (Fam) (25 February 2022) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2022/396.html Cite as: [2022] EWHC 396 (Fam) |
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FAMILY DIVISION
IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
INCORPORATING THE 1980 HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
IN THE MATTER OF IK (A CHILD)
Strand, London, WC2A 2LL |
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B e f o r e :
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VK |
Applicant |
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- and - |
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LK |
Respondent |
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Anita Guha (instructed by Goodman Ray) for the Respondent
Hearing dates: 2, 3 and 10 February 2022
Approved Judgment
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Crown Copyright ©
Mr Justice Peel :
"14. It is therefore important to recognise that the nature of the relief which is granted under the 1980 Convention is essentially of an interim, procedural nature. It does no more than to return the child to the home country for the courts of that country to determine his or her long-term future. The relief granted under the Convention does not make any long-term substantive welfare decisions in relation to the subject child. If one were to draw an analogy with a financial dispute the relief is akin to a freezing order coupled with a direction that the assets the subject of the dispute be placed within the jurisdiction of the forum conveniens.
15. It is for this reason that the procedure for a claim under the 1980 Convention is summary. Oral evidence is very much the exception rather than the rule. The available defences must be judged strictly in the context of the objective of the limited relief that is sought. Controversial issues of fact need not be decided."
Progress of the proceedings
Consent-the Law
"23. Article 13 of the Convention provides exceptions to the obligation under Article
12 to order the return forthwith of a child who has been wrongfully removed from
the place of his or her habitual residence. One exception is consent:
"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… had consented to or subsequently acquiesced in the removal or retention; …"
24. Consent is an exception that is infrequently pleaded and still less frequently
proved. The applicable principles were considered by this court in Re P-J
(Children) (Abduction: Consent) [2009] EWCA Civ 588 [2010] 1 WLR 1237,
drawing on the decisions in Re M (Abduction) (Consent: Acquiescence) [1999] 1
FLR. 174 (Wall J); In re C (Abduction: Consent) [1996] 1 FLR 414 (Holman J); In
re K (Abduction: Consent) [1997] 2 FLR 212 (Hale J); and Re L (Abduction:
Future Consent) [2007] EWHC 2181 (Fam); [2008] 1 FLR 914 (Bodey J). Other
decisions of note are C v H (Abduction: Consent) [2009] EWHC 2660 (Fam);
[2010] 1 FLR 225 (Munby J); and A v T [2011] EWHC 3882 (Fam); [2012] 2 FLR
1333 (Baker J).
25. The position can be summarised in this way:
(1) The removing parent must prove consent to the civil standard. The inquiry is fact-specific and the ultimate question is: had the remaining parent clearly and unequivocally consented to the removal?
(2) The presence or absence of consent must be viewed in the context of the common sense realities of family life and family breakdown, and not in the context of the law of contract. The court will focus on the reality of the family's situation and consider all the circumstances in making its assessment. A primary focus is likely to be on the words and actions of the remaining parent. The words and actions of the removing parent may also be a significant indicator of whether that parent genuinely believed that consent had been given, and consequently an indicator of whether consent had in fact been given.
(3) Consent must be clear and unequivocal but it does not have to be given in writing or in any particular terms. It may be manifested by words and/or inferred from conduct.
(4) A person may consent with the gravest reservations, but that does not render the consent invalid if the evidence is otherwise sufficient to establish it.
(5) Consent must be real in the sense that it relates to a removal in circumstances that are broadly within the contemplation of both parties.
(6) Consent that would not have been given but for some material deception or misrepresentation on the part of the removing parent will not be valid.
(7) Consent must be given before removal. Advance consent may be given to removal at some future but unspecified time or upon the happening of an event that can be objectively verified by both parties. To be valid, such consent must still be operative at the time of the removal.
(8) Consent can be withdrawn at any time before the actual removal. The question will be whether, in the light of the words and/or conduct of the remaining parent, the previous consent remained operative or not.
(9) The giving or withdrawing of consent by a remaining parent must have been made known by words and/or conduct to the removing parent. A consent or withdrawal of consent of which a removing parent is unaware cannot be effective."
34. "In consequence of his conclusion on consent, the Judge was not bound to order the summary return of the children to Romania. As noted above, he directed himself to the leading case of Re M (Children). That was a settlement case in which Baroness Hale surveyed discretion in the context of the Convention generally, with some remarks about the approach to its exercise in the context of the different exceptions.
"39. Thus there is always a choice to be made between summary return and a further investigation. There is also a choice to be made as to the depth into which the judge will go in investigating the merits of the case before making that choice. One size does not fit all. The judge may well find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that factor and to all the other relevant factors, some of which are canvassed in Re J, will vary enormously from case to case. No doubt, for example, in cases involving Hague Convention countries the differences in the legal systems and principles of law of the two countries will be much less significant than they might be in cases which fall outside the Convention altogether.
40. On the other hand, I have no doubt at all that it is wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention. The circumstances in which return may be refused are themselves exceptions to the general rule. That in itself is sufficient exceptionality. It is neither necessary nor desirable to import an additional gloss into the Convention.
…
42. In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the Contracting States and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the Contracting States.
43. My Lords, 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. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para 32 above, save for the word "overriding" if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.
44. That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention. As is clear from the earlier discussion, the Convention was the product of prolonged discussions in which some careful balances were struck and fine distinctions drawn. The underlying purpose is to protect the interests of children by securing the swift return of those who have been wrongfully removed or retained. The Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention considerations and to the interests of the child will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be."
46. By way of illustration only, as this House pointed out in Re D (Abduction: Rights of Custody) [2006] UKHL 51; [2007] 1 AC 619, para 55, "it is inconceivable that a court which reached the conclusion that there was a grave risk that the child's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation would nevertheless return him to face that fate." It was not the policy of the Convention that children should be put at serious risk of harm or placed in intolerable situations. In consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country."
35. In her decision ten years earlier in Re K (above), Hale J had declined to make a return order in a consent case. In doing so, she expressed a different view to what she said in Re M in the latter part of paragraph 46. In Re K at page 220 she said this:
"The final thing which I have to weigh in the balance is the purpose of the Convention. This is something to which the courts attach the greatest possible importance. We all want children to be returned as soon as possible to the place from which they have been wrongfully removed. The reasons why the Convention exists to secure this are partly that it is bad for children to be uprooted from one jurisdiction to another and partly to fulfil the obvious proposition that if there is a dispute between parents as to the future of their child it is better dealt with in the courts of the country where the child has hitherto been habitually resident because that is where the best information lies.
However, I have to bear in mind in particular that that factor has a different weight in a case in which consent to the removal or retention has been established. Indeed, in cases of consent, all of those factors carry a rather different weight. But if it has been agreed between parents that a mother may bring her child to another country and, if she so chooses, remain here with the child, then frustrating those two purposes of the Convention scarcely comes into question."
36. Of this difference, Munby J made these obiter observations in C v H (above):
[46] Discretion in every Hague case is at large and unfettered: see in particular the recent judgments of the House of Lords in Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] AC 1288, [2007] 3 WLR 975, [2008] 1 FLR 251 and in particular the speech of Baroness Hale of Richmond. There was a certain amount of debate before me as to the extent to which the learning in Re M requires a re-visiting and re-appraisal of the earlier learning encapsulated in particular, as it happens, in the judgment of Hale J (as she then was) in the case of Re K (Abduction: Consent) [1997] 2 FLR 212 in 1997: see in particular her observations in the penultimate paragraph of her judgment. I am inclined to think that the approach which Hale J there set out remains good and wise learning notwithstanding the subsequent elaboration of her thinking as Baroness Hale of Richmond in Re M. I am inclined to think that it will be an unusual case in which consent having been established, it is nonetheless appropriate to order a return. But, as I have said, that question does not arise. It is sufficient and dispositive of this case that, in my judgment, for the reasons I have given, the mother has failed to establish the positive and unequivocal giving of consent by the father, which alone is relied upon as the only defence to this claim."
37. The establishment of the consent exception is of course no bar to an order for summary return. In one of the cases referred to above (Re L) consent was not established, but a return order would have been made if it had been, while in another Re D (Abduction: Discretionary Return) [2000] 1 FLR 24, Wilson J did order the return of two children to France despite their mother having consented to their father bringing them to England. At page 36, he said this:
"Under the Hague Convention, the father's proof of consent opens the door for me to exercise a discretion as to whether to order the children to return to France. My perception of where their welfare lies is important. But their welfare is not my paramount consideration.
Mr Setright says that, where a defendant establishes other defences allowed by Art 13, so that where, for example, the children object to a return to the foreign country or where there is a grave risk that a return would expose them to harm or place them in an intolerable situation, it is more likely that those same grave impediments to a return will dictate the result of the discretionary exercise which follows, namely that the children should not be returned; whereas, says Mr Setright, where the defence established is consent, or presumably also acquiescence, such grave impediments would not be present to influence the discretionary exercise. Miss Jakens, on the other hand, might say that the spirit of the Convention is always an important factor in the discretionary exercise; that the spirit of the Convention is that wrongfully abducted children should be returned to the country of their habitual residence; and that, where there has been consent to the removal, then, in effect, the abduction is not wrongful, with the result, that the spirit of the Convention a less potent a factor in favour of return than in other cases under Art 13."
That was said in a case that actually turned on the exercise of the discretion in the context of consent. In the end, Wilson J found that the arguments for the children's return to France were "so powerful" that summary return was the only proper order. The children's connection with France was much stronger than with England. The French court was obviously the more convenient court to decide contentious welfare issues that existed in France and a refusal to return the children would conflict with a French order and make contact impossible.
38. In his decision in A v T (above), My Lord, as Baker J, found that a father had agreed that a mother could bring the children from Sweden to England if she wished. The children were not returned to Sweden even though they were Swedish nationals who had lived there all their lives.
39. In their leading work, International Movement of Children: Law Practice and Procedure (Lowe, Everall and Nicholls, 2nd edition, 2016) at 23.36, the authors note these decisions and refer to Baroness Hale's observation in Re M about discretion in consent cases:
"Notwithstanding the above comment, once consent is established it will be relatively difficult to persuade the court to order a return."
40. The observations on discretion in consent cases in paragraph 45 of Re M therefore need to be read with care. They were made when drawing a contrast with cases of grave harm, where policy considerations in favour of return may be weak and welfare considerations against return are likely to be particularly strong. They do no more than say that the relevant considerations "might" point to a speedy return so that future decisions can be made in "the home country". However, they carry a different emphasis to the earlier analysis in Re K, which was not cited in Re M and where the decision actually turned on the exercise of discretion.
41. To sum up, the exercise of the discretion under the Convention is acutely case-specific within a framework of policy and welfare considerations. In reaching a decision, the court will consider the weight to be attached to all relevant factors, including: the desirability of a swift restorative return of abducted children; the benefits of decisions about children being made in their home country; comity between member states; deterrence of abduction generally; the reasons why the court has a discretion in the individual case; and considerations relating to the child's welfare.
42. In a consent case, the better view is that the weight to be given to the policy considerations of counteracting wrongful removal and deterring abduction may be relatively slight, while the weight to be attached to home-based decision-making and comity will depend critically on the facts of the case and the view that the court takes of the effect of a summary return on the child's welfare."
Acquiescence–the law
"To bring these strands together, in my view the applicable principles are as follows:
1. For the purposes of Article 13 of the Convention, the question whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind. As Neill L.J. said in In re S. (Minors) "the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question whether the applicant acquiesced in fact".
2. The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.
3. The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law.
4. There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced. "
"This case has all the hallmarks of what no doubt frequently occurs in these cases, of parents seeking to compromise a situation, allowing the abducting parent to remain in the country to which he or she has gone provided the wronged parent is satisfied as to the other matters which are in issue between them. Only if there were such a concluded agreement could it be said that there was clear and unequivocal conduct such as to fall within the exception….it would be most unfortunate if parents in this situation were deterred from seeking to make sensible arrangements, in consequence of what is usually an acknowledged breakdown in the relationship between them, for fear that the mere fact that they are able to contemplate that the child should remain where he has been taken will count against them in these proceedings. Such negotiations are, if anything, to be encouraged. They should not therefore necessarily fall within the exception or necessarily lead to the conclusion as a matter of fact that there was a subjective state of mind that was wholly content for the child to remain here."
Habitual Residence – the Law
45. "It has been established for some time that the correct approach to the issue of habitual residence is the same as that adopted by the Court of Justice of the European Union ("CJEU"). Accordingly, 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 p.69:
"2. The concept of 'habitual residence' under article 8(1) of Council Regulation (EC) No 2201/2003 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. It is for the national court to establish the habitual residence of the child, taking account of all the circumstances specific to each individual case."
46. It is also relevant to note that the factors listed in paragraph 2 (quoted above) were taken verbatim from the judgment, at [39]. Their purpose or objective appears from the preceding paragraph:
"[38] 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 is 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."
The need for some degree of integration (as again referred to in A v A, drawing on Sir Peter Singer's analysis of the CJEU's decision in Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22) is, therefore, to distinguish habitual residence from temporary or intermittent presence. It is for the purposes of assessing what Lord Wilson described in In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] AC 1038 at [1] as, "the nature and quality of that residence". Another expression used, again derived from the European authorities, is the "stability" of the residence.
47. Accordingly, as summarised by Lord Wilson in In re LC, 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".
48. What is meant by "some degree" of integration? As Lord Wilson said in In re B, at [39], there does not have to be "full integration in the environment of the new state … only a degree of it". He also said: "It is clear that in certain circumstances the requisite degree of integration can occur quickly". In In re LC, Lady Hale, at [60], referred to the "essential question" as being "whether the child has achieved a sufficient degree of integration into a social and family environment in the country in question for his or her residence there to be termed 'habitual'".
49. As referred to above, another relevant factor when analysing the nature and quality of the residence is its "stability". This can be seen from In re R in which Lord Reed referred to both the degree of integration and the stability of the residence. In that case the mother (who was Scottish) and the children, with the father's agreement, had moved from their home in France (the father was French) to live in Scotland for a year. The issue was whether, having arrived in Scotland in July 2013, the children were habitually resident in France or Scotland in November 2013. At first instance they were found still to be habitually resident in France. On appeal, this decision was overturned and they were found to be habitually resident in Scotland.
50. As explained by Lord Reed, at [9], an Extra Division of the Inner House of the Court of Session had overturned the lower court's determination because the judge had treated "a shared parental intention to move permanently to Scotland as an essential element" when considering whether the children were habitually resident in Scotland. This decision was upheld by the Supreme Court because, applying A v A, it was "the stability of the residence that is important, not whether it is of a permanent character", at [16]. There was "no requirement that the child should have been resident in the country in question 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".
51. Lord Reed summarised, at [17], what Lady Hale had said in A v A, at [54], emphasising that: (i) habitual residence is a question of fact which requires an evaluation of all relevant circumstances; (ii) the focus is on the child's situation with the "purposes and intentions of the parents being merely among the relevant factors"; (iii) "it is necessary to assess the degree of integration of the child into a social and family environment in the country in question"; (iv) the younger the child, the more their social and family environment will be shared with those on whom the child is dependent, giving increased significance to the degree of integration of that person or persons.
52. Later in his judgment, at [21], again applying A v A, Lord Reed referred to the important question as being "whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent". The judge at first instance, by focusing on the parents' intentions, had failed "to consider in his judgment the abundant evidence relating to the stability of the mother's and the children's lives in Scotland, and their integration into their social and family environment there".
The evidence
"Evidence cannot be evaluated and assessed in separate compartments. A judge in these difficult cases must have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the local authority has been made out to the appropriate standard of proof."
Consent-my findings
i) On 15 February 2021, M texted F: "I need to relocate, to Europe now and then to the USA".
ii) On 17 February 2021, M texted F: "I have a bad situation…I have issues with personal life…I need money ASAP….take son with you….At least for half a year. I will visit….Let him live with you. While there's no school. For now….I need at least 2 years for myself. Before I can be ready to go fully into parenting. …Need to sort personal life and work". M told me, and I am inclined to accept, that the reference to "half a year" was for Z in England, whereas "2 years" was the time she needed to sort out her own life, including financially, but on the basis that Z would live with her.
iii) On 17 March 2021, F texted M: "In order to get a visa and everything else here, I will need to have official custody of the child, otherwise no one will be able to issue him a visa". M replied "But I don't want to lose him. We need to discuss everything properly….I must understand everything. You can be unpredictable and that complicates everything".
iv) On 25 March 2021, M texted F: "As far as I understand, the main reason is not in the area of caring for the child. It's the wish to do everything in a way that is the most unacceptable to me".
v) On 28 March 2021, M texted F: "It's better for the child to be with me. You know this yourself. Therefore only a temporary option is acceptable…And I love my son very much. There is no way without him.". Clearly, and on any view after the mid March timeframe by when F told me agreement had been reached in the terms he advances, M had in mind only a temporary stay, and the issue of custody (i.e who Z lives with) was at the forefront of her concerns.
vi) Later that same day, M texted: "Our son will be with you from July to August. I will bring him. You will pay for his ticket….He will be on a tourist visa for now….To live OK but you were saying a different thing during the conversation. That you want to apply for custody for yourself and our son will live with you for more than 2 years and even up to going to university. So, the problem is obvious". This text suggests the diametric opposite of what F says had been agreed by M, and in my judgment is clear evidence of M's consent being limited to a trip until no later than the end of August.
vii) On 29 March 2021, F texted M: "In the conversation I said 3 years. And you replied – OK", and M replied: "I am not giving consent to this. What is your status? Work permit/residence permit?".
viii) On 15 April 2021, F messaged: "I have a temporary residence permit. I did not plan to obtain citizenship". M replied: "Why? You will live there. And it would be a great bonus for my son to have British citizenship". She sent to F details of summer holiday programmes in London, which F told me he did not look at.
i) F's translation is that: "I, [M], hereby give my consent to travel of my underage son, [Z],….escorted by [F], from the Russian Federation to the United Kingdom for a period from fifteenth of April 2021 to 1 June 2024. The purpose of travel is studying". The implication is one permanent move.
ii) M's translation is that: "I, [M], do hereby consent for trips of my minor son [Z], …. Accompanied by [F]….from the Russian Federation to Great Britain for study within the period from 15 April 2021 until 1 June 2024". The implication is a number of separate trips.
iii) The jointly appointed translation (instructed pursuant to court order) is that: "I, [M] give my consent for [Z], who is a minor,….to travel… in the company of [F]….from the Russian Federation to Great Britain for the purposes of study for the period from 15 April 2021 to 1 June 2024".
Prima facie, that accords more with F's version of the translation. However, there is an important footnote after the words "to travel" which reads: "tr.note: the Russian word vyezdy "departures" is in the plural, so consent is given for more than one journey. That, in my view, tends to support M's version.
i) Although it is a document giving consent for travel, it is on any view not a document under which M expressly, and in terms, gives consent to Z relocating for 3 years to England to live with F. Had that been the case, it would surely have said so given the magnitude of the proposed step.
ii) The expert translation refers to the document as envisaging multiple trips, which, in my view, is supportive of M's case that it was intended to enable Z to travel to and from England with F from time to time, rather than one final, definitive relocation.
iii) The parties each signed identical (at any rate, identical in Russian, although the translations differ slightly) consents on 19 July 2021 enabling the other to travel abroad with Z to a long list of designated countries (including the United Kingdom) from 15 April 2021 to 1 June 2024. These consents are in very similar form to the one signed by M on 15 April 2021, and it seems to me that they are probably what M envisaged would have been signed by both of them on 15 April 2021.
iv) Although F's written evidence places heavy reliance upon the 15 April 2021 document, in oral evidence he told me it was partly to enable relocation to take place, and partly for visa purposes; he seemed less wedded to the document than had previously appeared to be the case. There is, oddly, no mention of this notarised consent by F in messages after 15 April 2021, even when M later said she wanted Z to return to Russia. One would have expected F to refer M to it time and again during their ongoing, and at times difficult exchanges.
v) F relies upon the document referring to him assuming responsibility for the life and health of the child, giving numerous examples thereof, but it seems to me that this formulation of words fits just as well with M's case that this enabled F to discharge his responsibilities when Z was to be with him in England during study trips.
i) On 16 May 2021, M texted F: "I'm talking about learning and perspective. For him to study in London. ….You can't judge by the first month. Need more time". F replied: "Well, let's see. In any case, 6 months will be enough to deal with the details of the visa and how [Z] will feel here".
ii) On 16 May 2021, M texted F: "I am waiting for the name of the visa…How can I trust you with my son when there is no even proper communication" to which F replied in respect of schooling that "The criteria are simple. 1. Whether Z likes it himself We will ask him: …do you like it here? Do you want to go to school here? 2. Whether he would be comfortable here among the local children". This was part of a series of exchanges about schooling in both Russia and England from March 2021 onwards. M's perspective on schooling in England (as, in my judgment, the texts broadly show) was for holiday schooling, preparatory courses and tutoring, indicating that she anticipated this to be a temporary arrangement over the summer. She sent details of the SKOLA Regent's Park summer school to F on 15 April 2021 and talked of private tutors on 16 May 2021. Having read these exchanges about schooling carefully, I am not satisfied that M, prior to Z leaving for England, was unequivocally committing to schooling in England, beyond something temporary in nature, during school holidays when she thought he could travel from Russia to England.
iii) As for schooling in Russia, M sent F a list of the best schools in Sochi on 29 March 2021, and, in June 2021, secured places in Russian schools for Z to start in September 2021; I see no reason to doubt letters from the Russian schools to that effect. It is hard to see why she would have done so, had she expected Z to attend school in London permanently.
iv) On 17 May 2021, M texted F: "It is very important to think that I also have a long term visa for the future. Not only the son". M told me, and I accept, that she contemplated a long term visa, and British citizenship, for Z because she thought he might benefit from them in the long term, not because she planned for him to leave Russia. Her own visa plans were designed to enable her to work in different jurisdictions with ease.
v) On 1 June 2021, M texted F: "I am in deep shit with my finances. I have made enquiries. Your employer might be able to pay for your son's education…..We need to apply now. In which case there will be no need to wait for 2 or 3 years….Our son can't stay in this country."
vi) On 4 June 2021, M texted F: "I also love my son. I won't leave him. …I expect from you notarised consent to the departure of the child from the father that the child can go to England with his mother".
vii) In June 2021, F and his wife moved to a larger property to accommodate Z. This arrangement is consistent with each party's case; per F, for Z to live with him, and per M for Z to travel to London regularly and stay with F.
viii) Despite repeated anxious requests in the messages, F did not inform M where he was living (and therefore where Z would live), allegedly because she had previously broken into his flat in Russia without his consent, which does not seem to me to be a particularly satisfactory reason.
ix) On 17 July 2021, M texted F: "A child under 16 needs his mum….And I need him….it's mutual."
x) On 19 July 2021, M asked F for his address, saying "I'm going crazy with anxiety".
xi) On 19 July 2021, the mutual travel consents, to which I have referred, were signed by both parties.
xii) On 20 July 2021, M texted F: "If everything is clearly written down and signed, I will make me feel less anxious". It seems to me that this reflects a lack of clear, written agreement.
xiii) On 21 July 2021, M texted F: "In May I asked you to take our son for a month" which is broadly supportive of M's case generally. That, surely, was an obvious time for F to respond that she was bound by the 15 April 2021 consent; but nowhere did he say so.
xiv) Between 21 and 22 July 2021 there were numerous further exchanges, with ideas, suggestions, and thoughts passing back and forth, but quite clearly no general agreement, let alone one descending to details. They show a level of mistrust, concerns expressed by M and uncertainty. All of this was only a couple of days before Z left for England and I am left with the clear impression that there was no agreement which was "broadly in the contemplation of both parties" (Re G).
Acquiescence-my findings
i) On 5 August 2021, M texted F: "I'm taking my son. I am not going to sign any agreement, so that he only stays with you…You are not complying with the agreement" and said that she would come after 20 August. That could hardly have been clearer. As at that date, only 12 days after Z's arrival in England, M was demanding his return towards the end of August.
ii) On 9 August 2021, M texted F: "I will not leave him to live with you".
iii) On 9 August 2021, F texted M that he was applying for a visa for Z, to which M replied that she was "against the visa".
iv) On 10 August 2021, M texted F: "We can designate a period of no more than six months for custody, if possible. While I'm looking for a job. Indefinitely I do not support. Everything can be discussed as adults".
v) In August 2021, F secured a place for Z at a local school in southeast London, without involving M in any way, including her in the application process or sending her any of the documentation. The omission of M from the process is likely to have been because F knew she would object, she having said that she wanted Z to return to Russia and go to school there.
vi) On 20 August 2021, M came to England. She had a 1 month visa and arranged accommodation for the same period. I am confident that she intended to return with Z to Russia, as she had told F on a number of occasions.
vii) F agreed to a number of periods of 3-4 days contact during August and September which took place, although M was still not told of F's (and Z's) address.
viii) On 4 September 2021, M texted F: "I'll never sign for him only to live with you".
ix) On 7 September 2021, M texted F: "I will take him to school…I will live in London from October".
x) On 10 September 2021, M texted F: "I'll stay here for now. It's better."
xi) On 13 September 2021, M texted F: "My lawyer said that I shouldn't register my son in your name. No way. Otherwise I may never see him again. I will have a visa in 3-4 weeks….I want him to go to Chelsea".
xii) On 14 September 2021, some terse messages were sent by M to F:
a) M said to F: "I only want my son to be with you half a week. But everything will be arranged in my name. I will have citizenship in 5 years. With you 1 Passport 2 £160 for flight 3 Suitcase In exchange for son. If you don't want to stay with your son, I'll take him to Moscow while I arrange everything or stay here. I want him to go to Chelsea. For now it can be as it is but then he can be moved. It is necessary to live on the spot for at least six months before the school will give him a place."
b) M said to F: "I will take (him). Write what time. While living with me. I won't let him go without a passport. I will lose him forever. Lawyers explained everything to me clearly. I will show that I am his mother and a visa will be issued for me. Until then, we find a private school for a month".
c) M said to F: "If you care about his education, then let's take him to a private school. While I make a visa. But in this situation, that I don't know where my son lives and you don't give me the opportunity to choose a school, you don't do it together, I refuse to agree to the general business".
It is, to my mind, all but impossible to see these messages from M to F
as evidence of acquiescence in circumstances where she was seeking a
return to Russia for Z, F was resolutely opposed to Z returning, she did
not know where F and Z lived, she could not secure a passport for Z, and
she was limited to staying in England for 1 month.
xiii) On 14 September 2021, M and F's wife spoke together. I heard oral evidence about their conversation. M said that she was thinking of working in London, doing some business, living with Z in Chelsea, and sending him to school there. I am quite sure that as M told me (but F's wife may not have fully grasped), she contemplated this possibility because she had no real alternatives given that she could not return with Z to Russia in the absence of a passport for Z. She was having to make decisions on the hoof. As she had said to F in a message on 10 September 2021: "I'll stay here for now". On any view, she was not contemplating Z continuing to live with F. And I note, none of this has actually come to pass.
My determination