GP (A Child) [2017] EWCA Civ 1677

[2017] EWCA Civ 1677Case No B4/2017/1881
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2017] EWHC 1480 (Fam)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
HAYDEN J
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/10/2017
Before
LADY JUSTICE KINGLORD JUSTICE LINDBLOMLORD JUSTICE HENDERSON
In the matter of GP (a child)
Hearing Hearing date: 5 September 2017
Aidan Vine QC and Martyn Bennett (instructed by PCB Solicitors LLP) for the Appellant, Mother
Nick Goodwin QC and Edward Bennett (instructed by Dawson Cornwell Solicitors) for the Respondent, Father
Judgment Approved

Introduction

[1]The issue on this appeal from Hayden J is whether the child GP, who is the 11-year-old daughter of an Italian father and a Latvian mother, should be returned to Italy (which is agreed to have been her country of habitual residence at the relevant time) following her wrongful abduction from Italy to England by her mother in February 2016.[2]The father’s application for GP’s return to Italy was heard by Hayden J on 26 May 2017, some 15 months after the abduction had taken place. For the reasons given in his reserved judgment handed down on 20 June 2017, and by his order of the same date, the judge ordered GP to be returned to Italy forthwith, and in any event by no later than 25 July 2017, pursuant to Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) which was given domestic effect in English law by section 12(2) of the Child Abduction and Custody Act 1985.[3]In reaching this conclusion, the judge considered and rejected the mother’s case that the exception under Article 13(b) of the Hague Convention was made out, namely that she had established that there was “a grave risk that [GP’s] return would expose [her] to physical or psychological harm or otherwise place [her] in an intolerable situation”. The judge also declined, in the exercise of his discretion, to refuse to order GP’s return under the second limb of Article 13, having found that she objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views.[4]Permission to appeal was apparently not sought by the mother from the judge, but she requested permission in her Appellant’s Notice filed on 10 July 2017. On 20 July 2017, Black LJ (as she then was) granted the mother permission to appeal on the first two grounds in the Appellant’s Notice, which sought to challenge the judge’s conclusion on Article 13(b) and the exercise of his discretion under the second limb of that Article. Black LJ refused permission on a third ground, which related to the conduct of the meeting which took place between the judge and GP. No renewed application for permission to appeal on that ground was made before us by counsel now instructed on the mother’s behalf, Mr Vine QC leading Mr Martyn Bennett, neither of whom appeared below. The appeal to this court is therefore confined to the first and second grounds.[5]Black LJ also granted a stay of the directions for removal contained in the order of Hayden J pending determination of the appeal.[6]The hearing of the appeal was expedited and we heard it on 5 September 2017. The respondent father was also represented by counsel who had not appeared below, Mr Goodwin QC leading Mr Edward Bennett. After hearing concise and helpful submissions from leading counsel on each side, we were able to announce our decision at the end of the hearing, which was that the mother’s appeal would be allowed, the order to return GP to Italy would be set aside, and the matter would be remitted for rehearing in the High Court by a different judge. We said that we would give our reasons later in writing. Our decision has now been embodied in an order, which also provides for the case to be listed before a High Court judge (other than Hayden J) for directions within 7 days of the handing down of our judgment in the Michaelmas term.[7]In this judgment, I explain why I agreed that the mother’s appeal had to be allowed.

Background

[8]The father was born in Italy in 1966. The mother was born in Latvia in 1970. They married in Italy in May 2001, having first met in Latvia in 2000. At the time, the father was a technical engineer for an American telecommunications company. His employment involved frequent travel around the world.[9]According to the father, the mother was unhappy that his job required so much travel, so he decided to leave it, and in 2002 they moved into his parents’ home in San Benedetto del Tronto (which is a sizeable town on the Adriatic coast of Italy, in the province of Ascoli Piceno and the region of the Marches). He says that he then decided to start a new business, so he opened a company in Latvia distributing cosmetics for an Italian company. The business was successful and the mother was its financial administrator. Various aspects of this account were challenged by the mother in her evidence, and the judge was in no position to make detailed findings of fact about it, merely finding that after the marriage the couple were primarily based in San Benedetto del Tronto, although they travelled periodically to Latvia.[10]GP was born in Latvia in December 2005. She was premature, and spent the first two months of her life in hospital. This must have been a very worrying time for the mother, as two children had been born to her prematurely in an earlier marriage and they had both sadly died in early infancy. If she is to be believed, her relationship with the father had already deteriorated by the time of GP’s birth, and she makes allegations against him of violence and financial neglect. These allegations are denied by the father, and the judge, probably wisely, again did not attempt to make any findings about them.[11]On any view, the marriage was in serious difficulty by late 2010, when (as the judge found) the parties returned to Italy on a permanent basis, and GP started nursery education. In November 2010, without the father’s prior knowledge or agreement, the mother removed GP from the family home in San Benedetto del Tronto and took her to Sommacampagna in northern Italy, some 450 kilometres away. The father reported the mother to the police for child abduction, and he says that over the following five months he only saw his daughter once with the help of the police. By the spring of 2011, the mother had begun divorce proceedings and the father had started a new relationship with his current partner. Later in 2011, the mother moved to a town near Verona, and in July 2014 she moved again to Montecchio Maggiore, near Vicenza. On each occasion, GP had to change her school.[12]On 24 July 2014, the Court of Ascoli Piceno pronounced a decree of separation between the parties, and made a shared care order, the broad effect of which was to give the mother custody of GP for the school year from September to June, and the father custody during the long summer holiday, with arrangements for weekend access for the other parent. The father was also ordered to pay maintenance of €300 per month to the mother during the nine months of each year when she was GP’s primary carer.[13]On 21 November 2014, the mother was found guilty by the Criminal Division of the Court of Ascoli Piceno for the removal of GP to northern Italy three years before, and sentenced to one year’s imprisonment. She was also ordered to pay the father compensation, with a payment on account of €5,000. The mother then appealed against her conviction, which had the effect that her sentence was not activated pending the appeal.[14]The mother’s appeal was eventually dismissed by the Court of Appeal in Ancona on 12 January 2017. In its judgment, the court found (among other things) that: a) in removing GP, the mother had taken advantage of the father’s absence in Latvia and had used a vehicle she had obtained from a man with whom she had started a romantic relationship, and with whom she moved together with GP to Sommacampagna; b) she then consistently hampered the father’s efforts to make contact with his daughter; c) her argument that her decision had been based on necessity lacked any evidential support; d) her allegations of violence and abuse against the father were “totally generic in content”, and had been disregarded by the matrimonial court which granted the decree of separation; e) GP had a strong bond with both the father and the mother; and f) the mother “had created a situation whereby she could keep the child under her exclusive control with the purpose of excluding [the husband] from any decision and contact, and… she ceased that conduct only when forced to do so by the judicial orders”.[15]Meanwhile, on 10 February 2016, the mother had again wrongfully abducted GP, taking her from Italy to England, initially to stay with the mother’s brother in Derby. This was done, as before, without the father’s knowledge or consent, and in brazen disregard of the joint custody arrangements which were in place, and had indeed been affirmed on appeal (with minor variations) in August 2015.[16]The mother’s evidence is that after the move to Derby she immediately enrolled her daughter in a local school, and looked for employment herself. She first worked as a housekeeper at a local hotel, and then went to live in Shrewsbury with a man who had befriended her. She now works as a self-employed interpreter and her business is growing. In September 2016, GP started school in Shrewsbury, where despite the language barrier she made good progress and became fluent in English.[17]According to the mother’s statement dated 17 March 2017:
“44. [GP] has made friends in the area with whom she spends time with [sic] outside of school. She regularly has play dates. She attends after school clubs namely choir, netball and cricket. 45. On the weekends [GP] and myself spend time with my brother and his family which she enjoys very much. [GP] thoroughly enjoys spending time with her cousin [R] who is 2 years old. They have developed a very close and loving relationship. 46. We also spend time with my cousin and his family. My cousin has a step-daughter [E] who is 10 years old. [GP] has developed a strong relationship with [E] and they love each other very much. They are always in contact in the week via Whatsapp when they cannot see each other. 47. [GP] was prevented from having a relationship with my mother when we were in Italy. Since we have moved to the UK my mother has visited at least 4 times and [GP] now has a relationship with her grandmother and she loves her dearly. They speak every day on Skype. 48. [GP] is the happiest I have ever seen her and I believe this is because she is able to be free and feel protected.”
[18]The husband immediately reported his daughter’s abduction to the police in Italy, and in August 2016 he issued an application in Venice for sole custody of GP. On 10 October 2016, he applied to the Italian Central Authority for GP’s return under the Hague Convention, and in November the appropriate procedure was set in motion. On 20 January 2017, English solicitors for the father were instructed, and on 25 January, over 11 months after the abduction, proceedings were issued in this jurisdiction. The mother was eventually served on 1 March 2017, after engaging in what the judge found to be “a determined and cynical evasion of service”: see [2017] EWHC 1480 (Fam) at [8].[19]In due course, the mother instructed solicitors and filed evidence. CAFCASS interviewed GP on 27 March 2017, and on 29 March the Reporting Officer, Teresa Julian, prepared her report. GP also wrote a letter to the judge, expressing her wish to remain in England with her mother.[20]At the hearing on 26 May 2017, the judge had before him a number of witness statements from both parties, and Ms Julian had been directed to attend to give evidence. At the final directions hearing on 10 April 2017, the mother had confirmed to the judge, through her counsel, that if a return to Italy was ordered by the court, she would return to Italy with her daughter. The judge had also given directions for a final round of evidence, in which the father was given permission to file a short statement setting out any further evidence he wished to rely upon with regard to the provision he would make for GP and the mother in Italy to accommodate and maintain them were they to return, and in relation to his assertion that the mother would be able to commute her one-year custodial sentence to community service. The mother was then granted permission to serve a short statement in response. Pursuant to these directions, the father filed a further statement dated 9 May 2017, to which the mother replied on 19 May.[21]Ms Julian duly gave evidence at the hearing, but for reasons which I need not elaborate attempts to obtain a transcript of her evidence had unfortunately proved fruitless by the date of the hearing before us. Although this was regrettable, as the court might well have been assisted by the transcript, Mr Vine sensibly elected not to apply for an adjournment and was content to rely on the views which Ms Julian had expressed in her written report.

The Hague Convention: Relevant Provisions

[22]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 of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2 then requires Contracting States to “take all appropriate measures to secure within their territories the implementation of the objects of the Convention”, for which purpose “they shall use the most expeditious procedures available”.[23]By virtue of Article 3, the removal of a child is to be considered wrongful where:
“(a) it is in breach of rights of custody attributed to a person… either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal…; and (b) at the time of removal… those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal… .”
It is common ground that the removal of GP by the mother to England breached the husband’s rights of custody conferred on him by the order of the Italian court in the matrimonial proceedings. It is also common ground, as I have already said, that GP was habitually resident in Italy immediately before the breach took place: see Article 4.[24]Under Article 12:
“Where a child has been wrongfully removed… in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial… 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… the authority concerned shall order the return of the child forthwith.”
In the present case, less than one year had elapsed from the date of the abduction when the English proceedings were commenced on 20 January 2017. Accordingly, it was the duty of the court to order the return of GP forthwith, subject to the potential exceptions set out in Article 13.[25]Article 13 provides as follows:
“Notwithstanding the provisions of the previous Article, the judicial… 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) …; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial … authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial … authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.”
As I have explained, the provisions of Article 13(b) are reflected in the mother’s first ground of appeal, while the provisions of what I have termed the second limb, in the following paragraph, are reflected in her second ground. It is perhaps worth making the obvious point that, where either of these potential exceptions, or “defences”, is made out, this must be taken to accord with the objects of the Convention, because the mandatory provisions of Article 12 are expressly made subject to and qualified by Article 13. (a) …; 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.[26]As to the principles which should guide the court in deciding whether either of the defences is established, the mother accepts that the judge directed himself correctly. Her complaint is not that the judge misunderstood or mis-stated the law, but that he failed to apply the law correctly to the facts. In these circumstances, I can deal with the relevant principles fairly briefly.[27]With regard to Article 13(b), the judge cited extensively from the judgment of the court, delivered by Baroness Hale of Richmond and Lord Wilson of Culworth JJSC, in In re E (Children) [2011] UKSC 27, [2012] 1 AC 144. The following guidance is of particular relevance:
“31. … By its very terms, [Article 13] is of restricted application. The words of article 13 are quite plain and need no further elaboration or “gloss”. 32. First, it is clear that the burden of proof lies with the “person, institution or other body” which opposes the child’s return. It is for them to produce evidence to substantiate one of the exceptions. There is nothing to indicate that the standard of proof is other than the ordinary balance of probabilities. But in evaluating the evidence, the court will of course be mindful of the limitations involved in the summary nature of the Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under article 13(b) and so neither those allegations nor their rebuttal are usually tested in cross-examination. 33. Second, the risk to the child must be “grave”
. It is not enough, as it is in other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm. 34. Third, the words “physical or psychological harm” are not qualified. However, they do gain colour from the alternative “or otherwise” placed “in an intolerable situation” (emphasis supplied). As was said in In re D [2007] 1 AC 619, para 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”.” Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. Mr Turner accepts that, if there is such a risk, the source of it is irrelevant: e.g. where a mother’s subjective perception of events leads to a mental illness which could have intolerable consequences for the child. 35. Fourth, article 13(b) is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home…”[28]Turning to the second limb of Article 13, and consideration of the child’s objections, the judge cited from the leading judgment of Black LJ (with whom Ryder and David Richards LJJ agreed) in In re M (Children) [2015] EWCA Civ 26, [2016] Fam 1, at [69] to [71], before summarising the position as follows at [22] of his judgment: “It is now well established that there are two limbs to the child objections defence. It is necessary for the respondent firstly to show that:(a) the child objects to being returned; and(b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views. If each of those first two “gateway” limbs is established, the court then has discretion about whether or not to order a summary return.” (a) the child objects to being returned; and (b) the child has attained an age and degree of maturity at which it is appropriate to take account of his or her views.[29]As to the factors which have to be taken into account in exercising the discretion, Black LJ said at [71]:
“The factors do not revolve only around the child’s objections, as is apparent. The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them from the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the 1980 Convention considerations. It must at all times be borne in mind that the 1980 Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said in In re M, at para 42, “[the] message should go out to potential abductors that there are no safe havens among Contracting States”.”
[30]The judge also aptly quoted from the guidance given by Baroness Hale in the earlier Inre M [2007] UKHL 55, [2008] 1 AC 1288, where she said at [46]:
“These days, and especially in the light of article 12 of the United Nations Convention on the Rights of the Child, courts increasingly consider it appropriate to take account of a child’s views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are “authentically her own” or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child’s objections should only prevail in the most exceptional circumstances.”

The Article 13(b) Exception: Grave Risk of Harm

[31]It follows from the structure of Article 13 that the first main issue which the judge had to consider was whether the mother had established, to the usual civil standard of proof on a balance of probabilities, that there was a grave risk that ordering GP’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. I will therefore begin by summarising the main evidence which the judge had before him on this critical question. (a). Would the mother’s sentence of imprisonment be activated?[32]A matter of obvious and pressing concern was whether, upon her return to Italy with GP, the mother would immediately be required to serve the sentence of one year’s imprisonment for her earlier wrongful removal of GP from the family home in Italy, her appeal against conviction and sentence having recently been dismissed in January 2017. The father exhibited to his final witness statement an email from his Italian lawyer, Ms Gerardina Orlandella, which confirmed that it is possible to commute a prison sentence to one of community service in accordance with Article 47 of Law No. 354. Ms Orlandella offered no explanation of how this law works in practice, or whether it was probable that its provisions would be applied in the mother’s case, notwithstanding the presumably aggravating factor of her second abduction of GP to England.[33]Examination of Article 47 itself (of which there is an unreliable English translation in the bundle) indicates that: a) where a sentence of imprisonment does not exceed three years, the convicted person may be entrusted to the social service “outside the institution” for an equivalent period; b) this measure is adopted on the basis of the results of observation of the convicted person’s personality, carried out collegially for at least one month in the institution, where there are grounds for considering that it would contribute to the rehabilitation of the offender and ensure prevention of the danger that he might re-offend; c) the need for an initial period of observation in the institution may be dispensed with if the conduct of the offender, since his conviction, has been such as to permit a judgment to be formed as in (b) above; d) if an order for community service is made, detailed directions will be given with which the offender must comply during the period of probation. Compliance with these conditions will be monitored, and be the subject of periodic reports to the supervising magistrate; e) the order may be revoked if the offender’s conduct appears incompatible with the continuation of probation; and f) if the period of probation has a positive outcome, it will then extinguish (not “extend”, as the translation has it) the sentence of imprisonment and all other penal effects.[34]The judge observed, with some understatement, that Ms Orlandella’s advice on the point was “less than pellucid in clarity”, but added “it is apparent that a 12 month custodial sentence is far from inevitable” (paragraph [18] of the judgment). He did not consider the further question whether, even if community service were a realistic option, the mother would in any event have to be held in custody for at least one month while the initial personality assessment was made. Nor did he consider the likelihood of such an assessment being dispensed with, in the light of the mother’s conduct since 2011. The judge did, however, observe that the mother’s wrongful removal of her daughter to England had, so far, not been the subject of a prosecution, and whether it would be was “entirely a matter for the Italian authorities”.[35]For his part, the father offered an undertaking to the court, which was embodied in the judge’s order, not to institute or voluntarily support any proceedings, whether criminal or civil, for the punishment of the mother arising out of the removal of GP to England in 2016 or for the internal abduction which occurred in 2014, and to support in any way he could “the suspension, waiver or transmuting of the current custodial sentence imposed on the Mother in respect of the 2014 internal abduction, so as to avoid her serving any term of custody in respect of this matter”. No steps appear to have been taken on behalf of the father, or indeed the mother, to contact the relevant Italian authorities to see if any indication could be obtained of the risk to the mother of imprisonment upon her return to Italy with GP, or the risk that she would be prosecuted for the 2016 abduction.[36]On the basis of the very limited evidence before him, the judge rightly did not discount the possibility that the mother might serve a period in custody, but understandably he felt unable to calibrate the risk more precisely than that. The important point, for present purposes, is that the possibility clearly could not be ignored, and the judge therefore needed to consider what the effect would be on GP of her mother’s imprisonment, and what practical arrangements could or would be made for her care and maintenance while her mother was in custody.

(b) Accommodation and financial resources

[37]The mother’s evidence about her financial circumstances is at times confusing, and sadly lacking in particularity. In her first statement, dated 3 March 2017, she said that she “fled Italy” with GP “because of our dire financial circumstances”, made even worse by the father’s failure to pay any of the maintenance ordered by the court. The allegation of failure to pay maintenance appears to be correct, as it is nowhere denied by the father. The picture which the mother paints of her life in England is one of contentment for herself and her daughter. They have moved between Derby and Shrewsbury, staying either in her brother’s house in Derby, or at her friend’s home in Shrewsbury, or in “a tidy and clean apartment near the river” in Shrewsbury. The mother gives no details of the financial arrangements for this accommodation, nor does she give any particulars of her earnings from her work as an interpreter. She says nothing about any savings she may have, nor does she say what, if any, financial support she might be able to obtain from her mother or other members of her extended family. She does, however, say, in her final statement of 19 May 2017, that:
“It is clear that [GP] and I, if returned to Italy, would have no suitable accommodation and no way of supporting ourselves financially.”
In this context, it may be noted that the judge said the mother had “historically, been able to find work as a translator in Italy”. This appears to be an error, as there was no evidence to this effect before the judge. On the other hand, he would clearly have been entitled to take the view that, having established (on her own evidence) a successful business as an interpreter in England, she might well be able to find similar paid work in Italy.[38]As for the father, he stated frankly in his first statement dated 5 April 2017 that he was unable, on his current salary, to provide accommodation for his wife and daughter. He had, however, made enquiries of his local social services, and exhibited a short list of homes provided by charitable institutions where they might be able to live free of charge. He also offered an undertaking to provide the mother with financial support of €300 per month.[39]In his second statement of 9 May 2017, the father provided a little more detail. He said he was unable to afford more than €300 per month by way of maintenance because he did not currently have a full time job. He works for a friend who is a ship broker, earning on average €500 per month, although in April 2017 he earned only about €350 because of the Easter holidays. As to accommodation in Italy, it appeared from enquiries he had made that it would cost in the region of €3,000 per month to rent an apartment during the summer months, which he could not afford. It would be possible to find apartments costing €600 per month, but only on the basis of a rental for at least one year. The father confirms that he does not have a property of his own, and still lives with his mother in San Benedetto del Tronto. The charitable accommodation to which he had referred in his first statement would not in fact be available in his local area, because of a shortage of spaces caused by an influx of people from Amatrice after the earthquake in 2016.[40]In these circumstances, the only suggestion the father could come up with was that the mother should seek similar charitable accommodation near her last residence in Montecchio Maggiore:
“Either [the mother] can call or email the priest of the church in Montecchio Maggiore or perhaps a friend who lives there could do so on her behalf. I am unable to do so because I am not the person in need. The accommodation is a bit like a women’s refuge in the UK. The bedrooms are private but the kitchens are shared with the other female residents. This accommodation is usually available for one or two months. I will ask my priest to make enquiries of the properties in Montecchio Maggiore prior to the next hearing…”
[41]In her final evidence in reply, the mother made the obvious point that €300 per month, even if paid by the father, would not be enough for GP and herself to live on. Rent would be a minimum of €600 per month, which would not include utility bills, food, travel, etc. She said that they would need a minimum of €500 per month in order to live in Italy with access to basic amenities, on top of the amount needed to rent a flat. There would also be costs relating to GP’s schooling: approximately €600 per year to the Council to cover the cost of travel to school, €800 per year for school books, and €5 per day for school lunches. The mother added:
“I cannot afford to meet these payments, nor can the Applicant.”
[42]The mother also said that she did not know how to apply to commute her sentence to community service, and this information had not been provided by Ms Orlandella. She then said: “I am worried that if [GP] and I returned to Italy, there is a risk that the sentence may not be commuted and I end up in prison. I also worry how [GP] will be taken care of as Italy does not have a welfare system like Britain and I do not know how I would be able to provide funds for myself and [GP] to live if I am doing unpaid community service for one year.

(c) The CAFCASS report

[43]In her report, Ms Julian described her interview with GP in March 2017, when she was aged eleven years and two months. It is clear from this description that GP had mixed feelings about Italy, saying at the beginning that she had enjoyed visits to Venice with her mother when they lived near Vicenza, but she had never enjoyed staying with her father near the sea (i.e. at his mother’s house in San Benedetto del Tronto). She had evidently been influenced by her mother to express very negative feelings about her father, and made allegations against him of physical abuse when she was small. She painted a dismal picture of life in San Benedetto, and contrasted it with her present happiness in England. She was aware that, if her mother was returned to Italy, she would be in danger of going to prison. If she had three wishes, she said they would be to “stay here, don’t see him [her father] again, not go to Italy”, adding “I would rather kill myself” than go. GP then agreed to write a letter to the judge, which repeated many of the same sentiments about her father.[44]Ms Julian commented that, when she returned GP to her mother, “she did not present upset when she left and was looking forward to an afternoon visiting the attractions in London”.[45]Under the heading “Age and Maturity”, Ms Julian said she had contacted GP’s school and spoken with her headteacher, who described her positively as a “pleasant outgoing girl” who appeared “very settled in class”. While acknowledging the difficulties of assessing a child’s level of understanding and maturity, especially when talking about such sensitive issues, Ms Julian assessed GP’s maturity to be “broadly commensurate with her chronological age”.[46]In the final section of her report, headed “Conclusion”, Ms Julian said she had not expected GP to become upset so soon during their meeting, or that her upset would be so unrelenting. She clearly recognised the psychological impact that ill treatment of the kind GP described at the hands of her father might have had, if the allegations were true. On the other hand, one incident of alleged bruising apparently related to a time when GP was only two years old, and Ms Julian said she was “immensely troubled” by how GP was able to report it as having occurred when she was six or seven years old. She added:
“It is most unlikely that [GP] would have a conscious memory of an incident at 2 years old and would therefore need to have had it reported to her. That she is able to repeat it to me as a memory of her own is extremely worrying indeed.”
[47]Ms Julian continued: “25. That [GP] is a vulnerable child subjected to entrenched family contact is evident from reading the evidence and is compounded by her reports to me during interview. The escalation to believing that she could be harmed by the father, even killed, or that she would rather kill herself than return to Italy suggests to me that the dispute between her parents is already having a very worrying negative impact on her.26. It is difficult to understand why the mother would not have raised the incident of bruising in the Italian proceedings and so have assumed it was considered by the court when welfare decisions were made by them. That said, I remain concerned about [GP] in whichever jurisdiction she is to live.27. Whilst I am encouraged that the dispute does not appear to have impacted on [GP’s] functioning at school, if she is to remain in this jurisdiction I would wish to make a s17 referral to the local children’s service accompanied by this report to assess any support needs she may have. That she has such polarised views of each parent is not going to help her in the longer term and I hope she can be assisted to have a more balanced view whilst ensuring she is safe.” […] 29. Although I recognise that the Italian courts have determined that [GP] should spend time in her father’s care, given her recent disclosures to me regarding that care, I would wish for there to be a welfare assessment regarding [her] needs. I would hope that [her] father understands the current difficulties facing him in his relationship with his daughter going forward, and that he would welcome assistance in understanding [her] current needs and how to progress things safely for her. 30. It would be helpful that if in the event of [GP] returning to Italy, the father agrees that he will await careful consideration by the Italian courts before resuming the previous arrangements.

(d) The judge’s assessment

[48]In the light of all this evidence, the judge’s assessment of the risk of harm to GP was relatively brief. The core of his reasoning is contained in paragraphs [19] and [20] of his judgment, where he said this:
“19. Whilst I do not discount the possibility that [the mother] may serve a period in custody and that this, if it happens, will be traumatic to GP, it does not seem to me, on a proper construction, to amount to intolerability even in a subjective sense, by which I mean: ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’. Moreover, to conclude otherwise would be, it seems to me, to undermine the central principle of comity which underpins these proceedings. Every child who is returned to a country from which he has been wrongfully removed must, logically, face the prospect that the abducting parent may be incarcerated. All children bear a burden when a parent serves a custodial sentence. These are part of the inevitable repercussions from which children cannot always be protected. Indeed, the realisation that actions have consequences and that breaches of the law may attract punishment, may be harsh lessons for a child but ones which carry at least some longer term benefits. GP, as is clear from the CAFCASS report, is a resilient young girl who has had to adapt to much change. She is, sadly in many ways, better equipped to face disruption than some children of her age might be. 20. [The father] has offered some financial support, albeit limited, to provide for assistance with accommodation if [the mother] and GP return to Italy. It is by no means sufficient. All are agreed that [the father] has very limited resources. The transition will inevitably be uncomfortable and [the mother] will have to bear some of the costs. There are extant proceedings before the Italian Courts with a forthcoming hearing on 30th June. Those Courts are well placed to survey and protect the full gamut of GP’s welfare needs and I am satisfied that adequate arrangements are available to secure the protection of the child on her return…”
[49]Later in his judgment, the judge described his meeting with GP. He found her to be “a striking and delightful young girl”. Although she had lived in England for barely a year, her English was faultless and spoken without any trace of an accent. She found school in England to be much easier than in Italy, and is already fluent in Italian, English and Latvian. She told the judge that “Italy was a good place to go for a holiday but not to live”.[50]The judge was entirely satisfied that GP was sincere in her expression of her resistance to returning to Italy, but he was also clear that her views were coloured and influenced by her mother’s own wishes. Her objections were therefore “not wholly authentic”: see paragraph [31]. In the following paragraph, the judge observed that GP’s life had “to date been characterised by upheaval and relocation”. The judge had no doubt that her affection for England was both sincere and strong. She was “obviously settled and happy”. In addition, she was to some extent free from parental conflict in England, although deprived of her right to a relationship with the father and the paternal family, which the Italian courts had concluded was rooted in a “strong bond”. The judge thought it manifest that the Italian courts, who had considered GP’s circumstances so carefully, were “best placed properly to identify her welfare interests”.[51]The judge then returned, at [33], to the basic principle underlying the Hague Convention that children who have been abducted by a parent from their country of habitual residence must expect to be returned. The judge said that “[a] parent’s efforts to defeat that process require to be evaluated with healthy scepticism”.

The judge then stated his final conclusion:

“34. Accordingly, I reject Mr Hepher’s submission that there is a grave risk of harm to GP in an order to return made by this Court. For the reasons I have set out above I do not consider [the mother’s] risk of imprisonment, however that risk be calibrated, to carry the weight it is asserted on [her] behalf should be given to it. Whilst [the father’s] undertakings, constrained by his financial circumstances do not ensure that GP’s ‘landing’ is as ‘soft’ as [the mother] would wish it to be, I am satisfied that it offers sufficient reassurance. I am encouraged that [the mother] agrees to accompany GP, and express the hope that she will, despite the history of her behaviour, use her best endeavours to minimise the upset to GP that my decision will undoubtedly cause.”
The judge then noted that, because of her age, GP would be required to transfer to senior school at the end of the school term. This “natural hiatus” would provide “a useful opportunity to ameliorate the impact of the return to Italy”, and the judge therefore proposed that his order should not be given effect until the end of GP’s school year. This proposal was then reflected in the order which he made: see [2] above.

Submissions

[53]On behalf of the mother, her counsel submit that the judge had no basis for rejecting her evidence that she would be unable to accommodate or provide for herself and GP in Italy. They further submit that paragraph [19] of the judgment provides inadequate reasons for the conclusion that a return to Italy would not be intolerable for GP. The judge made only general observations about child abduction, comity and the risk of imprisonment of the abducting parent, without regard to the particular circumstances of the case apart from a brief reference to GP being “resilient” as described by the CAFCASS report. Leaving aside the fact that Ms Julian did not herself describe GP as “resilient”, counsel submit that such a characterisation by the judge pays insufficient regard to the limited nature of the CAFACSS inquiry, which did not explore with GP either the consequences of her mother having insufficient means to live in Italy, or of her mother having to serve a custodial sentence in Italy. In all the circumstances, the evidence before the judge pointed to a grave risk of harm and of an intolerable situation if GP were returned to Italy, but the judge failed to reach any determination as to what her particular circumstances would be if she were returned, and he therefore cannot have considered the question adequately. Furthermore, there is no passage in the judgment that would enable this court to make good the omission on appeal.[54]In his oral submissions to us, Mr Vine QC emphasised that the father had not applied to the Italian Central Authority until October 2016, some eight months after the abduction, and the application to the English court was made only a short time before expiry of the 12 month limit in Article 12 of the Convention. GP has now been living in England with her mother for over 18 months. More generally, he submitted that the judge had failed to investigate with the necessary depth and particularity the situation that GP would have to face on her return to Italy, whether or not her mother was imprisoned.[55]On behalf of the father, his counsel emphasised in their written submissions that the mother’s second abduction of her daughter, to England, was on any view cynical, pre-meditated and in breach of Italian and international law. She had applied for Latvian passports without the father’s knowledge, she had secured employment in England before her departure, and she had arranged accommodation with her brother in Derby. Plainly, the custodial sentence imposed on her in Italy for the domestic abduction had had no deterrent effect. In such circumstances, the underlying policy of the Hague Convention, read with the provisions of the United Nations Convention on the Rights of the Child against child abduction, and in support of every child’s right to have and maintain personal relations and direct contact with both parents, resonate in the present case with particular force. Counsel further submit that the judgment of the judge needs to be read as a whole, and shows that he took all relevant circumstances sufficiently into account before rejecting the Article 13(b) defence. Reference was made to Re F (Children) [2016] EWCA Civ 546, where Sir James Munby P emphasised at [22] that:
“The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable.”
In the same case, Sir James Munby referred, at [23], to the well known observations of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360 at 1372, and warned that “[i]t is not the function of an appellate court to strive by tortuous mental gymnastics to find error in the decision under review when in truth there has been none”.[56]With regard to the financial issues, counsel for the father submit that the judge was entitled to conclude that the difficulties the mother would face on a return to Italy would not render GP’s situation intolerable within the meaning of Article 13(b). In many abduction cases, the abducting parent will relinquish accommodation, employment and income in the process of a wrongful removal; and when the receiving country orders the child’s return, the period of transition for the abducting parent and the child will often prove uncomfortable and challenging. In some cases, the facts may support an Article 13(b) defence, but the courts should in general be slow to accept intolerability on this basis. In the present case, the judge was right to take the view that the Italian courts would be best placed to consider these issues in the context of the pending matrimonial proceedings begun by the father.[57]Counsel for the father point out that over five years had elapsed between the separation of GP’s parents in September 2010 and the abduction to England, during which period the mother had clearly been able to find accommodation and support her daughter. They submit that it was plainly open to the judge to infer that the mother could re-establish herself in Italy, and rely on earned income to make ends meet. Moreover, although the mother bore the burden of proof in seeking to oppose a summary return, she placed no detailed information before the court about her likely circumstances. In his oral submissions, Mr Goodwin QC stressed that the judge had to do the best he could with the limited information available to him. The mother’s financial predicament had not been pleaded as a separate ground of appeal, nor was it mentioned by Black LJ when granting permission to appeal. In those circumstances, the evidence on financial matters fed into the exercise of the judge’s discretion, but was insufficient to found a conclusion that the Article 13(b) defence was made out.[58]On the question of the mother’s possible imprisonment, counsel submitted that this is always a potential issue in child abduction cases. The husband had offered undertakings to the court in what are now fairly standard terms, designed to allay anxieties on this account. We were referred to a number of cases in which the prospect of imprisonment of an abducting parent has been considered by the returning court, including the decision of Wilson J (as he then was) in Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433, where he ordered the return of three-year-old twins to Florida following their abduction by their mother, first to Denmark and then to England. I found this case of little assistance, however, given the very different factual circumstances. In particular, the father in that case had produced evidence from the prosecuting attorney that, subject to conditions, he would strongly recommend that the court in Florida should grant the mother bail. Further, Wilson J saw no reason to suppose that, in deciding whether to continue with the prosecution after the mother’s return, the state prosecutor would exclude consideration of the interests of the children, or that the judge in Florida would do likewise. Conversely, the position in the present case is that the mother is already subject to a sentence of one year’s imprisonment which has recently been upheld on appeal, and this is now the second occasion on which she has unlawfully abducted her daughter.

Conclusion on Article 13(b)

[59]Despite the considerable force of some of the father’s arguments, I was satisfied by the end of the hearing that the judge’s conclusion on Article 13(b) could not safely be allowed to stand. With the greatest respect to the judge, I cannot escape the conclusion that he was unduly influenced by considerations of comity and the underlying policy of the Hague Convention, combined with his understandable wish not to let the mother profit from her deplorable behaviour, while paying insufficient regard to the predicament which was actually likely to face GP on her return to Italy with her mother, and which needed to be considered with some care on the alternative assumptions that the mother would, or would not, be imprisoned.[60]The question upon which the judge had to focus, as he correctly appreciated, was whether the exception in Article 13(b) had been established by the mother on the evidence before him. If the exception was not established to his satisfaction, it was the judge’s duty to order the immediate return of GP to Italy, subject only to consideration by him of the second (discretionary) exception in the second limb of Article 13. Furthermore, the threshold test in Article 13(b) of a “grave risk” that the return of GP to Italy would “expose [her] to physical or psychological harm”, or “otherwise place [her] in an intolerable situation”, is undoubtedly a high one, as the Supreme Court emphasised in In re E.[61]In order to decide whether this test was satisfied, it was in my opinion necessary for the judge to examine in concrete terms the situation that would actually face GP on her return to Italy. What would happen when she and her mother stepped off the plane? Would her mother be arrested? Where would they go, and what would they live on? Nobody suggests that it would be realistic, or in GP’s best interests, for her to go immediately to live with her father in San Benedetto del Tronto, presumably without her mother who as matters now stand could hardly be expected to live under the same roof as the father. It is clear that GP has, or at least has come to have under her mother’s influence, unhappy memories of time spent in her paternal grandmother’s home; and it would anyway be contrary to Ms Julian’s recommendations if GP were to live in her father’s custody before careful consideration by the Italian courts of her welfare. All of that would take time, so what is to happen in the meantime?[62]The judge had no answer to these questions, although he was rightly satisfied that the transition for GP would inevitably be uncomfortable. He said that the mother would have to bear some of the costs, but did not explore at all what those costs would be, or how in practice she would be able to meet them, both in the period immediately after their arrival, and in the short to medium term while GP’s custody and welfare were under consideration by the Italian court. In my opinion these matters all needed careful examination, and although it was not incumbent on the judge to set out all the evidence in detail, it was necessary for him to state the conclusions he had reached about how GP could reasonably expect to be accommodated, maintained and educated upon her return to Italy, and what would happen to her if the mother was imprisoned.[63]If the judge felt that he had insufficient information to answer these questions, he should in my view have adjourned the hearing so that more detailed evidence could be obtained, for example about the financial position of the mother and the practicalities of an application to commute the mother’s sentence of imprisonment to community service. It is true that expedition is of the essence of procedure under the Hague Convention, but the need to achieve a just outcome is even more important.[64]Furthermore, it is clear from Ms Julian’s report that GP has already sustained considerable psychological harm from the warfare between her parents, and that there are serious concerns about her future whether she lives in England or Italy. In these circumstances, it was necessary for the judge to consider with particular care whether, and if so in what respects, her enforced return to Italy would increase the likelihood that she would sustain further serious psychological harm, particularly on the hypothesis (which could not be ignored) that the mother had to serve (in whole or in part) her existing sentence of one year’s imprisonment. In that situation, GP would be left, perhaps very abruptly, in the sole care of her father, with whom she has not lived for many years, and about whom (under her mother’s influence) she has come to have very negative views. Nor, with respect, can I endorse the judge’s comments to the effect that it might somehow be salutary for GP herself to learn the “harsh lesson” that “actions have consequences and that breaches of the law may attract punishment”. Lessons of this kind no doubt have their place in an appropriate context, but not when considering whether there is a grave risk of psychological harm to an eleven year old girl caught up in a bitter custody dispute between her parents.[65]Had all these matters been sufficiently investigated and considered by the judge, I consider it at least possible that he would have concluded that the Article 13(b) exception had indeed been made out by the mother. I was therefore reluctantly persuaded that the judge’s decision on this issue was unsafe, and the mother’s appeal would have to be allowed. This is not the kind of case where we could be satisfied that, if the judge had directed himself correctly, and on the basis of the evidence before him, his conclusion would inevitably have been the same. On the contrary, I am satisfied that there may indeed be a grave risk that the return of GP to Italy with her mother would expose GP to psychological harm or otherwise place her in an intolerable situation. Justice therefore requires that the whole question be reconsidered.[66]The mother initially submitted that, if we allowed the appeal, this court should itself determine that the Article 13(b) defence succeeded and refuse to order GP’s return to Italy. It was submitted that we had all the material that was before the judge, and we were as well placed as he was to reach a decision. By the end of the hearing, however, it had become common ground that the better course would be to remit the case for a rehearing before a different judge of the Family Division. In the first place, we do not have all the material which was before the judge, because (as I have explained) we unfortunately lack a transcript of Ms Julian’s oral evidence. In a case of this nature, the views of an experienced CAFCASS officer will normally be of great assistance to the court, and the judge who makes the decision needs to have the entirety of that evidence at his or her disposal. Secondly, I have pointed out various respects in which the existing evidence is lacking in detail, incomplete, or otherwise unsatisfactory. In my judgment, it is clearly desirable that these deficiencies should be remedied, so far as it is possible to do so, before the final decision is taken.

The Second Ground of Appeal: Discretion

[67]In the circumstances, it is unnecessary for me to deal at any length with the second ground of appeal. The judge was clearly satisfied that the “gateway” conditions were satisfied, that is to say GP objected to being returned and had attained an age and degree of maturity at which it was appropriate to take account of her views. He also had a meeting with her, which he describes in the judgment at [30]. He therefore had a discretion to refuse to order her return. Although the judge did not deal expressly with the discretion stage of the analysis in his judgment, it is reasonably clear from reading the judgment as a whole that he decided in his discretion to order GP’s return notwithstanding her objections, which he found were “not wholly authentic”.[68]In the absence of any statement by the judge of the factors which he took into account in the exercise of his discretion, I cannot be satisfied that its exercise was not vitiated by substantially the same deficiencies which I have identified in his treatment of the Article 13(b) issue. Since the case anyway has to be remitted to a different judge for a rehearing, it is enough to say that the question of discretion will also need to be considered afresh.

Conclusion

[69]While it is very clear from his judgment that the judge was striving to achieve a just outcome to the unenviably difficult issue he had to resolve, and while the mother’s conduct had undoubtedly been deplorable, it is also clear to my mind that the approach adopted by the judge was in some respects flawed. In particular, he failed to consider in sufficient detail what was actually likely to happen to GP on her return to Italy, before reaching his conclusion on the question whether there was a grave risk that she would be exposed to psychological harm or otherwise placed in an intolerable situation, especially if her mother were imprisoned. I was therefore satisfied that the appeal must be allowed.[70]I agree.[71]I also agree.

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