Y & Z (Children : Hague Convention) [2017] EWFC 102 (13 October 2017) [2017] EWFC 102

EWFC
Y & Z (Children : Hague Convention) [2017] EWFC 102 (13 October 2017)
[2017] EWFC 102 · 2017-10-13
[1]This case concerns two children, Y, who is aged 15 years and seven months, and Z, who is aged 11 years and five months. Their father, J, applies for their summary return to the State of Virginia in the United States of America pursuant to the 1980 Hague Convention on Civil Aspects of International Child Abduction, known as the Hague Convention; I will refer to it simply as ‘the Convention’ during the rest of this judgment.[2]J is present in court and he is represented by Mr Edward Devereux QC and Ms Mehvish Chaudhry. The children’s mother is K, who is the only respondent to this application. She also is present in court and represented by Ms Gina Allwood, her counsel. I hope the parties do not mind if I refer to them collectively as ‘the parents’ and individually, as ‘Father’ and ‘Mother’. The Background:[3]The parents have been in a relationship since 2001 and they married in 2014. The children were born and brought up in England, where the family lived until 2015. Latterly they lived in northern England.[4]In August 2015, the parents moved to Virginia with Z whilst Y stayed behind with the intention of remaining at boarding school to complete another year of his education, taking him up to the beginning of GCSE level.[5]One of his mother’s older sons by a previous relationship, X, remained living in Northern England and he acted as Guardian to Y. In August 2016, Y joined the rest of the family in Virginia. X also moved to Virginia to take up a place in the business run by the parents.[6]The family had entered the USA on what are described as long-term E-2 treaty visas for investors and employees, which are valid until July 2018 and can be renewed indefinitely.[7]On 4 June this year Mother travelled to the UK with the children for the purposes of a holiday and to see their family and friends who remain here. Father joined them on 4 July. It was intended that the family would return to the USA on 2 August and as I understand it, tickets had been purchased.[8]By the end of July the parents’ relationship had deteriorated significantly and Father had placed their joint savings account in America ‘under dispute’. Mother said that she needed time to think and would return to the USA a week later. Father returned alone on 2 August. On that day, Mother consulted solicitors who sent a letter to Father stating that Mother had consulted them and they were instructed to issue divorce and financial remedy proceedings.[9]Shortly thereafter it became apparent that Mother was involved in a relationship with another man. It can be inferred that this was an operative feature in her decision to remain in this jurisdiction, and she says in her statement that she had made contact with him when she returned to England, which was early June.[10]After Father returned to the USA there were communications between him and the children. He says that the children wanted to return to the USA; Mother says they did not.[11]What certainly transpired is that on 18 August, Y messaged his father asking him to book a flight to the USA as soon as possible, and Y said that he wanted to return before Saturday, which was 26 August. Father duly booked a flight for 23 August and, on 21 August, Y messaged his father again to say that his mother was planning to drive him to the airport at 2 am on the day of the flight.[12]On that same day, that is 21 August, Father received a letter by email from Mother’s solicitors, in which it was suggested that Z should divide her time between her parents and should attend a school in the United Kingdom. It was acknowledged that Y had expressed a preference to return to his school in the USA but the letter concluded that Mother “does not feel that she can permit Y to take the flight unless the living and educational arrangements for Y and Z have been agreed.”[13]By this stage. Father had instructed solicitors, who had been authorised by the Lord Chancellor, the Lord Chancellor being the central authority for England and Wales under the Convention, to act for him in an application for the summary return of the children to the USA. On 22 August those solicitors wrote to Mother’s solicitors pointing out that Father considers that the children are habitually resident in the USA and have been wrongfully retained in the jurisdiction of England and Wales.[14]His solicitors confirmed that Father had not, and does not, consent to the children remaining in the UK and that the central authority had authorised them to commence an application for summary return. It was suggested that Z should fly back with Y on the same flight, but the letter stated that if the children were not returned to the USA, an urgent application for their return would be made.[15]No response was received to this letter until a telephone call at 6 pm that day from Mother’s solicitor, who said that he had not received the email due to a problem with spam within the firm. However, Father had sent his solicitor’s letters directly to Mother. A little later that evening, her solicitor confirmed that Mother was “not content to put either Y or Z on the flight in the morning.”[16]On 23 August, Mother informed Father through solicitors that her case was that the children are habitually resident in England and Wales, whereby there was no wrongful retention under the Convention, but if she was wrong about that, she relied on the defences in Article 13, that the children object to returning to America and the defence under Article 13(b), that if they were to return to America, they face a grave risk of harm on their return.[17]This application was commenced on 25 August and on the 29 August an order was made by Cobb J, timetabling the case, making necessary directions for the filing of evidence and for a report to be prepared by the Cafcass High Court team.[18]Both parents were prohibited from withdrawing the children from their schools in the USA or seeking to enrol the children in schools in England, and the order required Mother to file a witness statement appending all evidence upon which she wished to rely, to include the application forms to enrol the children at [a particular] School. She has not produced those documents, and no explanation has been proffered for her failure to do so.[19]The order of Cobb J also contained this recital: ‘And upon the court, whilst expressing no view itself as to the merits of the mother’s respective defences, inviting her, in consultation with specialist international family lawyers, to adopt a realistic approach to her position on habitual residence and Article 13(b), given the way in which the case has been argued thus far in correspondence’.[20]Cobb J would of course have read the statement of Anne-Marie Hutchinson, a partner at the firm Dawson Cornwell, which represents Father. Ms. Hutchinson attaches numerous documents evidencing the intention of the family to move permanently to the USA, amongst other things.[21]I was informed that Mother maintained her position on habitual residence until 10 October, and she maintained her position on the Article 13(b) defence until 11 October. By the time this case commenced, yesterday, 12 October, it was conceded that: 1) the children are habitually resident in the USA; 2) the children have been wrongfully retained in England and Wales; and 3) the applicant was exercising full rights of custody at the time of the wrongful retention.[22]In those circumstances it is necessary for me to deal with the legal framework in a much more limited way than I otherwise would. The Legal Framework:[23]Article 12 of the Convention provides: 'Where a child has been wrongfully removed and at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith’. On the face of it, this court is required to order the return of the children to the USA.[24]The defences under the Convention are then set out in Article 13, which reads:
“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 that person, institution or other body which opposes its return establishes that...” a) deals with consent and acquiescence and b) as we know, deals with grave risk; the Article continues: “The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and he 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 and administrative 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.”
[25]Article 11(2) of Brussels IIA provides: ‘When applying Article 12 and 13 of the 1980 Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity.”[26]Of course, Article 11(2) of Brussels IIA is not directly applicable to non-European cases such as this, but Baroness Hale expressed the view in In Re D [2007] 1 AC 619 at 58, that the principle in Article 11(2):
“ ...is of universal application and consistent with our international obligations under Article 12 of the United Nations Convention on the Rights of the Child. It applies, not only when a defence under Article 13 has been raised, but also in any case in which the court is being asked to apply Article 12 and direct the summary return of the child, in effect, in every Hague Convention case. It erects a presumption that the child will be heard unless this appears inappropriate. Hearing the child is not to be confused with giving effect to his views.”
[27]In a case such as this, where the central issue is a child’s objection to return, it is particularly important to highlight Article 12 of the United Nations Convention on the Rights of the Child which states:
“Parties shall assure to the child who is capable of forming his or her own views, the right to express those views freely in all matters affecting the child, the views of that child being given due weight in accordance with the age and maturity of the child.”
[28]In the case of In Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 , referred to in this judgment as Re M (Republic of Ireland), Black LJ, as she then was, gave the only judgment in the Court of Appeal, with which Ryder LJ and Richards LJ agreed. Black LJ set out the well established principles regarding the gateway stage for the Article 13 objection of the child defence. At paragraph 34, Black LI said this: ‘Where does the law stand in relation to the gateway requirements? Certain features can perhaps be treated as tolerably well established.(1) Factual matters It is established that whether a child objects to being returned is a matter of fact. It seems to me that the degree of maturity that the child has is also a question of fact…(2) No chronological threshold ' A second established feature is that there is no fixed age below which a child's objections will not be taken into account. However, the younger the child is, the less likely it is that he or she will have the maturity which makes it appropriate for the court to take his or her objections into account…(3) Objections and not anything else A further feature about which I think there is, in fact, no real difficulty is that the child's views have to amount to objections before they can give rise to an Article 13 exception. This is what the plain words of the Convention say. Anything less than an objection will therefore not do. This idea has sometimes been expressed by contrasting “objections” with “preferences’”.[29]Black LJ then went on to discuss the distinction between objections and preferences and how that has been dealt with in the various authorities, and she concluded at the end of paragraph 41 of the judgment:
“I do not see it as a gloss on the Convention or as a term of art but rather as one way of summarising that, for reasons which will differ from case to case, the child's views fall short of an objection.”
[30]Black LJ returned to the features that can be treated as tolerably well-established. (4) “Objection to return to country of habitual residence It is said that the child has to object to returning to the country of habitual residence rather than to returning to particular circumstances in that country, although it has been clear from early on that there may be difficulty in separating out the two sorts of objection” and she went on to refer to cases in which this difficulty has been discussed, thereafter resuming to the list of well-established features: “(5) Objections are not determinative” citing the opinion of Baroness Hale in Re D, which I have already set out above.[31]Black LJ went on to review all previous authority on the manner in which the court should approach the issue of a child’s objection in Article 13 and to what extent the court should adopt what she referred to as a highly technical, structured approach, which requires the court to go, with considerable detail, into the circumstances in which the children object. Having reviewed the authorities, she concluded at paragraph 69:
“The position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views. Sub-tests and technicality of all sorts should be avoided.”
[32]Black LJ saw this approach as being in line with the approach of Baroness Hale in the case of In Re M (Children) (Abduction: Rights of Custody) [2008] 1 AC 1288 and the striking and pithy view of Wilson LJ, as he then was, in the case of In Re W [2010] 2 FLR 1165 that the gateway stage represents “a fairly low threshold.”[33]In terms of the discretion that is engaged if the court is satisfied as to the two gateway elements of the Article 13 objection defence, there is guidance on how the discretion is to be exercised provided by Baroness Hale in the case of Re M, which I have just cited, which I will refer to as In Re M (Abduction). At paragraph 42, Baroness Hale said this:
“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 contracting states.”
[34]At paragraph 43 Baroness Hale continued:
“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.”
[35]And later, at paragraph 46: In child’s objections cases, the range of considerations may be even wider than those in any other exceptions. The exception itself is brought into play when only two conditions are met’, I will not repeat those conditions, but Baroness Hale continued:
“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 Evidence:[36]The evidence that has been placed before me, in addition to the statement of Anne-Marie Hutchinson and its exhibits, are a statement from Mother dated 12 September and a statement from Father with further exhibits regarding life in America which is dated 27 September. I also have the report from Ms Jacqueline Roddy of the Cafcass High Court team, dated 28 September 2017.[37]It was Ms. Roddy’s job to comply with the order of Cobb J that Cafcass should address: a) the child’s wishes and feelings; b) whether the child objects to the summary return to the US; c) the extent of the child’s integration in the USA.[38]Ms Roddy saw the children and it was through her that they were heard within this application. Her evidence is important in considering the gateway to the child’s objection defence. I heard Ms Roddy give oral evidence. She was cross-examined on behalf of the Father in particular, and was in the witness box for over an hour.[39]Ms Roddy saw the children for one hour and 45 minutes. She saw them together, although she had some time with each of them separately after the meeting, when they each separately filled out their letters to the Judge, which are attached to her report. She also had a short telephone conversation with Y, after having considered Father’s statement.[40]I do not propose to set out in detail what the children said to Ms Roddy. In essence, the children expressed a wholly negative view of their life in the USA and in particular their school and social experiences, and a recurring theme was that they want to live with their mother who, they know, does not want to return to live in the United States of America.[41]A secondary theme was that they feel that they belong in the United Kingdom and have far greater connections here in terms of family and friends.[42]Regarding the letters to the Judge, which I have considered with some care, Y’s letter is focused on belonging in England and his family being here, going out with his friends more here, and being old enough to make his own decisions. He also mentions that he might want to go into the RAF, and being in America might put him at a disadvantage.[43]Z’s letter is much more focused on wanting to stay with her mother and being with her family in England; which resonates with feature number four in the list set out by Black LJ in Re M (Republic of Ireland) . Analysis and conclusions:[44]Is the objection to returning to the country of habitual residence, as opposed to returning to particular circumstances in that country? Mr Devereux and Ms Chaudhry raised the nice point: insofar as, in Z’s case in particular, the children’s focus is so much more on staying with Mother than not returning to the USA, whether that means that the gateway is not passed, because it cannot be said that they have a specific objection to returning to the USA.[45]It is a very nice point and there is an added difficulty posed by the fact that the children were not presented with the option of going back with their mother to the USA pending a decision of the court in Virginia. The discussion between Ms Roddy and the children was focused on only the two choices, of staying here permanently in England with their mother, or going to America permanently with their father. But it seems to me that I must not be drawn into this sort of debate and I must, in the words of Black LJ, simply carry out a straightforward and robust examination of whether the simple terms of the Convention; are satisfied, in that the child objects to being returned.[46]It is difficult to extricate to what extent the children object to going to the USA, as opposed to focusing on other considerations. It seems to me that they are all inextricably linked. I have come to the conclusion that the children do object to returning to America.[47]The second element of the gateway that I must then consider is the question: have each of these children attained an age and degree of maturity at which it is appropriate to take account of their views? Ms Roddy repeatedly said how bright these children were and how they had thought very carefully about what they wanted to say, how they were polite und self-assured. Ms. Roddy said that Z appeared to be mature beyond her eleven years and Y had a maturity commensurate with his age of fifteen years.[48]On behalf of Father, this part of the gateway was conceded and, in my judgment, wisely so. These children are at an age, and have a degree of maturity at which it is appropriate to take account of their views, and of course, I place those views into the balance now when coming to consider the exercise of the discretion that arises.[49]I turn now to consider the circumstances in which their objections have been expressed, and firstly to look at the wider context, by which I mean, the evidence about the life of this family in America before they came to England in June.[50]Although the mother claimed that she has always been unhappy in America and never intended to stay, this is contradicted by all of the documentary evidence. Indeed, in June this year, shortly after the mother came to England with the children, an application for green cards was submitted on behalf of the parents, and Mother was involved in making that application. That manifests an intention to remain permanently in the USA.[51]Also arrangements had been made for additional tuition for Y and other activities on the family’s planned return to the USA in August. Tickets had been purchased for various concerts in Washington DC in September 2007. Mother had been arranging for an expensive college course that she wanted to undertake, which was a major financial commitment. The family were looking for, and indeed intended, to purchase their own home. There are documents attached to Father’s statement regarding changes in the parties’ bank accounts in the USA in the middle of June, and there is an email from Mother in which she refers to not changing the joint household account until they have moved house in America.[52]Not only does all of this evidence not fit with Mother’s negative account of the life the family had in the USA, it does not fit with the children’s wholly negative view as put forward in their discussion with Ms Roddy. It seems to me that if Mother really believed that, and if the children were in fact so unsettled as described to Ms Roddy and as described by Mother in her statement, then the steps that I have just described to achieve further permanence and provide for the children would not have been taken.[53]When speaking to Ms Roddy, Z specifically said that her school may report that she had been unhappy. The school did not so report. Indeed, the account given in the report of Ms Roddy is that Z’s school reports clearly illustrate this academically able child’s steady progress, and it is noted that she is a deeply reflective student. It also goes on to record that Z had made tremendous progress socially throughout the school year.[54]Z gave the impression to Ms. Roddy that her involvement in Scouts was a peripheral part of her life but when this was pursued with her, it was obviously better than she had recounted. Ms Roddy said that Z was very keen to be disparaging about every aspect of life in America, even about Halloween which she said was not enjoyable.[55]Y told Ms. Roddy how anxious he was at school in America and how worried he was about falling further behind. The evidence certainly indicates that Y had some difficulties, but the report from the school in the USA says that he has engaged well with the soccer team and made friends, and was adjusting socially very well. The documentary evidence shows that, with some additional tutoring, he had started to improve his performance academically.[56]It is clear from the evidence that the children were involved in the process of Mother’s engagement with her solicitor. Mother and the two children sat down together to compose the letter that was the basis of the email sent by Mother’s solicitors to Father on 21 August.[57]Mother might well believe that she was giving the children choices but that degree of involvement in what is adult business, and involving them in her side of the issues, was far from giving them a choice. Ms Roddy reported that Z was clear that her mum had told her that she should consider going back to the USA and make her own decision, and also that Y had been told that he could make his own decision. Y did make his own decision, but he went back on it. Y told Ms Roddy that he had rushed that decision and very quickly reconsidered it. That also is not supported by the evidence in his message to his father which shows that Y wanted to go back to school, he was ready to go and there was some urgency about it.[58]He changed his mind because he was aware that his father had not agreed his mother’s terms as set out in the solicitor’s letter. This is apparent from the text exchanges, wherein Y texted his father to say “You need to reply to mum’s solicitor’s email or else I can’t come mate,” and then Mother herself texting Father, using Z’s phone, saying “Y would like us to talk before he goes on the plane. Please respect the children’s wishes and speak to me about the children. Nothing else. He wants some reassurance.”[59]Shortly after, Mother made it clear through her solicitor that she was no longer giving consent to Y leaving. Y sent a text to his father:
“I want to live here now mate. I wanted you to be fair to me and Z, like Mum was.”
[60]I also bear in mind that Mother has adopted a wholly unrealistic position in these proceedings by persisting in her case on habitual residence and the Article 13(b) defence, until practically reaching the door of the court. This supports an impression that she is unable to take an objective view. Mother was also expressing her misery quite blatantly throughout the hearing; she was crying on and off throughout much of yesterday. It was evident to me from this distance, and it indicates that she is a person who cannot control or hide her emotions. That is not a criticism; it is not necessarily a bad thing, but in the context of this case, when considering how these children may have been affected by their mother’s feelings, I have to say I drew no reassurance from her presentation in court.[61]The evidence shows that, up until 30 July, these children were expecting to go back to the USA. The evidence shows that they were happy in America and doing well. For them to have changed their minds so radically and in such a relatively short space of time is stark, in my judgment, and I have come to the conclusion that they have been very much influenced by their involvement in the mother’s conversations with her lawyer and her own expressed emotions about what she wants in this situation.[62]Further evidence of Mother involving the children in these proceedings is what occurred on 19 September. This is an occasion when the children visited their father, he having come to England for the purpose of seeing them. His solicitor’s letter sent the next day recounts what happened:
“Our client informs us that Z shouted that our client was “in control of all this and you can make it stop” and that he was “stopping her” from “moving on with her life”
. She had stated that she had seen her “mother crying on the floor’”.[63]That strongly reinforces the impression that I have had from all the other evidence, that these children have been drawn into their mother’s feelings and views. How could Z possibly have known that her father was in control of the process and could withdraw the application unless her mother had told her?[64]I now consider welfare issues. Ms Allwood stressed that the children have missed half a term of school already; if they stay in this country their welfare needs will be better met because they could immediately carry on with their education by attending a school here. However, no school in particular has been identified and no evidence has been provided of any such identified school places.[65]Ms. Allwood stresses that the children have spent all of their childhood in this country, save for two years in Z’s case and one year in Y’s case. She stresses that many family members and friends are here and the children have been able to re-engage with their friends and with extra-curricular activities, which is it said were not available to them in America.[66]Mother asserts that she does not accept the undertakings offered on behalf of Father. Those undertakings are as follows: confirmation that Mother’s job will be open to her upon her return; confirmation that she can take up her employment in a different office to his own; payment for a car until the family court in Virginia determines the issues between them; return to the family home which he would vacate; maintenance as determined by the court in Virginia; and the provision of plane tickets from the UK to Virginia on direct flights.[67]It was said only in final submissions that those undertakings are not accepted. It is not for me, on the basis of those assertions made at the last minute, to find any basis for impugning Father’s credibility and good faith in putting forward those undertakings. In any event, there are remedies available if he were to disobey or renege on those undertakings. There could be committal proceedings in this court and I am sure that the American court would take a dim view if he did not fulfil promises made to this court.[68]As far as Father is concerned, there is another side to the welfare issue. Firstly, if; the children remain in this country there is a question mark over the continuation of their relationship with him. There is a question mark over whether the mother will actively promote that relationship given the extent to which she has involved the children in her own feelings regarding a return to America.[69]Mr Devereux also points out that there is a question mark about school places being available here, whereas the schools in America remain available. There is a question mark over how long the home in Northern England, which is currently occupied by Mother and the children, will be available, whereas the home in America remains available, complete with pets. There is other family there, as the elder half-brother, X, and his wife remain in America. Everything that was part of their life in America remains as it was.[70]It was Ms Allwood’s case that welfare can override Convention policy considerations and ultimately her submissions were that, in essence, if I may put it this way, that the combination of the welfare issues, as she put them, and the children’s objections were sufficient to override the Convention policy considerations and bring the balance down firmly in favour of refusing this application.[71]It may be that in some cases welfare and a child’s objections can override policy considerations but not in this case. I give appropriate weight to the children’s objections but I have come to the view that the children have been heavily influenced by being enmeshed with Mother’s feelings, which undermines the weight to be attributed to their objections.[72]As far as welfare issues are concerned, I do not accept that welfare considerations bring the balance firmly down in favour of the children remaining here. If I had to make a decision on that issue, I would say, on the evidence that I have, it is pointing more in the direction of the USA, but that is not a decision that this court should make.[73]The Convention principles are important, as set out by Baroness Hale in In Re M (Abduction) cited above. In opening this case, Mr Devereux said that this is a paradigm case for the application of the Convention principles. The children are habitually resident in a different jurisdiction. They came here for a holiday during which their mother changed her mind about where she wanted to live. It is, he said, a classic example of what the Convention was designed to deal with, to prevent one parent from taking unilateral decisions to change the habitual residence and all other social and personal arrangements for the child based on her own desire to change those circumstances.[74]The ethos of the Convention is that the courts where the children are habitually resident will decide what is best for the children on all the available evidence, and on the basis of a timescale allowing for proper enquiry and consideration in the home state; the decision about what is best for the children will not, in effect, be predetermined by one party making a change of plan without consultation and based on personal desires.[75]I have come to the conclusion, having balanced all the relevant circumstances in this case, that I must exercise my discretion by ordering the return of these children to the United States of America and the state of Virginia.[76]The father has already issued proceedings in Virginia seeking various forms of relief, including resolution of the children issues, and the case is listed for a first hearing on 20 November. Clearly, the children must be returned forthwith.[77]This is my judgment This transcript has been approved by the judge.

Cited in 2 later judgments