C (a child), Re [2006] EWHC 1229 (Fam)

[2006] EWHC 1229 (Fam)Case No FD06P00475
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/05/2006
Before
THE PRESIDENT
C (A Child)
Hearing Hearing date: 9 May 2006
Mr Marcus Scott-Manderson (instructed by Messrs Reynolds Porter Chamberlain) for the Plaintiff
Miss Catriona Murfitt (instructed by Messrs Frank Allen Pennington) for the Defendant
Judgment
This judgment is being handed down in private on 25 May 2006 It consists of 15 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Sir Mark Potter, P :

[1]These proceedings under the Hague Convention concern a young girl (whom I shall call A) who was born on 11 May 1992 and is now just 14. Her father who brings the proceedings and her mother, with whom she is living in this country, are both citizens of the USA.[2]There is an issue as to when and in what circumstances A and her mother came to England, to which I shall shortly turn. However, it was either just over or somewhat under five years ago. They have been living here at an address unknown to the father who discovered their whereabouts by finding on the internet a report relating to bullying at school in which A was cited as an example, having been the victim of a violent “happy slapping” incident which received substantial publicity.[3]The parties were married in 1991 in Jacksonville, Florida. They had both been married twice before. The mother had a young daughter by a previous marriage, R, who was adopted by the father shortly before the birth of A. A was born in Jacksonville and is herself an American citizen. The father has now remarried and has three young children of his present marriage (2 children of his new wife by her former marriage and a child of his by another relationship).[4]The parties last lived together in Michigan and separated in 1998 after a turbulent marriage. It seems clear that the father frequently used violence towards the wife. Prior to their divorce in May 1999, in the course of individual counselling sessions following reference by the court to its Family Counselling and Mediation Division, R complained of sexual abuse by the father over a period of some four years, as well as persistent use of violence against her. Upon divorce, the Michigan Court awarded sole physical and legal custody of A and R to the mother, providing for supervised parenting time on the part of the father in Florida where the mother was now living with the maternal grandmother. Following investigation of R’s complaint, the police decided not to pursue charges and the Michigan Court removed the requirement for supervision of the father’s contact. At a hearing which the mother did not attend, an order was made giving the father general visitation rights in Florida and unsupervised contact during the children’s school vacations.[5]The mother did not comply with the contact order which was confirmed at a hearing which she attended on 7 October 2000. In November 2000, the mother married again. She asserts, and I accept, that she and A left Florida and flew to England on 14 December 2000 where her new husband lived., She accepts that this was done without the knowledge or consent of the father or the approval of the court and that, at the time, there was current a dispute over the father’s contact.[6]On 17 January 2001, at a time when the father did not know her whereabouts, he secured the issue of a bench warrant from the Michigan Court for the arrest of the mother for her failure to comply with the contact orders and, in March 2001, he applied for custody of A.[7]On 4 October 2001 the Michigan Court granted the father temporary sole legal and physical custody of A (then aged 9) until the age of 18 or until further order and ordered the mother immediately to hand over A to the father.[8]The mother asserts that she was unaware of this order, having received no notice of it, and being at an undisclosed address in England.[9]The father on the other hand asserts that she was aware of the order and that she had in fact remained in the US and that when he went to collect A pursuant to the terms of the 4 October 2001 order, he acceded to the mother’s request for a final contact session with A. However, she failed to return A to his care and only disappeared at that point.[10]It is not in dispute that, thereafter at least, all contact was lost between the parties until the father located the mother and A in a town in the north of England in February 2006, by means of the internet as already described.[11]The originating summons herein was issued on 13 March 2006. On 24 March 2006, by order of Munby J, directions were given, including an order for the instruction of a CAFCASS Officer to interview A following the filing of the parents’ evidence. Provision was made for the mother to allow A to have reasonable interim contact with the father by e-mail and telephone. That has occurred to date.[12]In her statement of defence dated 30 March 2006, the mother defends the proceedings on grounds that:(1) She denies removing A in breach of the sole custody rights asserted by the father, pointing out that the orders upon which he seeks to rely were made after she had removed A to the UK. She asserts that, at the time of that removal, sole physical legal custody, control and maintenance of A were vested in her pursuant to the Michigan Court order of 6 May 1999. She reserves her position as to whether the removal of A was wrongful within the meaning of Article 3 of the Hague Convention.(2) She asserts that A has become settled in her new environment in the United Kingdom over the last five years within the meaning of Article 12 of the Convention and that the court can and should exercise its discretion not to return A summarily to the United States, whether under the Hague Convention or its inherent jurisdiction.(3) She relies on Article 13 of the Convention and asserts that the court should exercise its discretion not to return A because such return would expose A to physical or psychological harm or otherwise place her in an intolerable situation.(4) She relies upon A’s objections to returning to the United States asserting that, at the age of fourteen, A has attained an age and maturity where it is appropriate to take account of her views.[13]I propose to deal with those defences in the order in which they have been raised. Wrongful removal.[14]The hearing before me began with a concession by the mother’s counsel that, for the purposes of Article 3 of the Convention, the evidence deduced by the father established a wrongful removal, not because he could establish any breach of his own rights of custody (at the time of the removal of A in December 2000 the mother was the beneficiary of a court order giving her sole custody rights) but because there was extant a provision in that order that the children should not be removed from the State of Florida without the approval of the judge who awarded custody. In such a case, as the decision in Re H (Child Abduction: Right’s of Custody)[2000] AC 291 made clear, removal in the face of such an order is a breach of the foreign court’s right of custody and sufficient to establish breach of Article 3.[15]Nonetheless, the original basis on which the father asserted his right to proceed deserves highlighting because, as is now apparent on the evidence before me, it involved invocation of this court’s jurisdiction on a false basis calculated to assist his case which does the father no credit and, indeed, causes me to view his credibility with the utmost circumspection where it clashes with the assertions of the mother or A. In paragraphs 30-32 of his affidavit, the father puts forward a circumstantial account of events calculated to make clear that the mother was still in Florida in 2001 and was aware of the courts orders made in 2001 (in fact obtained in her absence) and that, in the face of the October 2001 order, she made deceitful arrangements with him to hand over A with which she did not comply, instead removing A to England in breach of the father’s custody rights.[16]As I have already indicated, the mother denies that this was so and I am satisfied that her account is correct, in the light of the entries in her passport which show her arrival in England in December 2000 with no subsequent stamp or other indication of departure or re-entry; the absence of corroboration by the father’s US Attorney, despite her statement of the position up to the hearing in December 2000; and production by the mother of a newspaper article obtained from the internet, in which the former husband is quoted as saying that he has never seen the mother or A since December 2000. I record that Mr Scott-Manderson for the father obtained instructions from the father over the telephone that the newspaper article was “inaccurate”, but its form and content do not suggest room for error and, on the evidence before me, I reject the father’s evidence to the timing and circumstances of the mother’s departure to England. The substantive defences[17]The Article 12 and Article 13 defences are interrelated in nature so far as the evidence is concerned.[18]I do not propose to give more than a brief summary of the evidence of the mother and father. In her statement of 31 March 2006, the mother complains of violence during the marriage and exhibits documentation evidencing R’s complaints, the mother’s own complaints of violence to the police, and a revealing report of the Family Counselling and Mediation Division of the Michigan Court to which I have already referred. That report was only a few months after the break-up of the marriage. It refers to the marital conflicts as recounted by the parties at the time. It makes clear that the mother had been experiencing mental health problems which the husband did not understand and with which he did not co-operate. It refers to a marriage of “continuous conflict, chaos, and confusion [which] resulted in the minor children’s psychological, emotional, and physical well-being, being at risk”. It reported that, while the mother was sad and very emotional during the interview process, she regained her composure when discussing her involvement with a support organisation called First Step, which had had a positive impact on her ability to cope and function. It had strengthened her self worth and ability to care appropriately for and protect the children from further harm. The report stated that, by the time of the report, the mother had “demonstrated the ability to make sound decisions, obtain effective support, and protect her children.” It reported A, at the age of 6, as having accepted that her parents lived separate lives, and as being “age-appropriate yet struggling with emotional and psychological needs.”[19]In the light of the suggestion in these proceedings that A’s statements to the CAFCASS reporter may be based on suggestions from her mother rather than from her own memory, it is important to record the position set out in the contemporary mediation report, namely that A “was animated and responsive to inquiries” and spoke of “continuous verbal abuse and domestic violence”. While she stated that she was not fearful of her father, she only wanted to visit him if her big sister was present. A report by First Step of 26th March 1999 makes clear that A then stated that she had witnessed the father physically abusing the mother and both R and A were fearful and mistrustful of their father. Both spoke of several harmful threats made by the father towards the mother but reported that their level of fear had decreased since moving away from Michigan to Florida.[20]The mother states that her departure for England with A was as a result of the re-establishment by the court of unsupervised contact for the father and renewed expressions of intention by him, in circumstances where she could not afford the fees of an Attorney and a variety of threats by the father. She went with her new husband to his hometown in England despite diffidence at the prospect of life here. Soon afterwards her new husband deserted her by returning to the USA, ostensibly to fetch R who had remained behind, but did not contact her again. R came to England by herself. Since that time the mother has lived in the same town with A, where R is also resident and now married. The mother has established a small business in the form of a shop selling somewhat eccentric items.[21]The mother records bullying and hostility to A from groups of unsupervised children in the community, which culminated in an incident of violence in October 2004 recorded in the media. She makes clear that A now has the assistance of therapeutic and counselling services and has developed her own personal strategies for dealing with any bullying should it arise again in future. She states that A has developed into a young woman with likes and dislikes of her own, opinions and firm friendships amongst her own age group and with the staff at her school where she is now happy and well settled. She is happy and integrated into her home life together in England where she feels secure save for recent worries that her father may come and remove her. A has made it clear to her that she does not wish to return to America and will not go.[22]Finally, the mother states that, having from time to time suffered from depression and been prescribed medication last year, she no longer requires it.[23]In the father’s affidavit by way of response, he states that he denies ever having been verbally or physically violent towards the mother, R or A. However, he noticeably fails to deal with the allegation made by the mother that, prior to their parting, he had been arrested for violence towards her on three occasions, on one occasion being given 6 months’ probation. He also denies sexual abuse of R and asserts in general terms that such abuse has been “the constant theme of [the mother’s] false allegations” against him. He asserts that the mother was frequently verbally and physically violent towards R, and that the mother had mental health problems which led to his taking on the role of both mother and father for R and A.[24]He deals with his account of the events at the time of break-up and gives his account of the US court proceedings. He asserts that R’s complaint of his sexual abuse arose in 1999 and that he can only surmise that the mother bullied R into lying. He deals with the course of the Michigan proceedings in terms which, as I have already indicated, are plainly inaccurate as from December 2000. He explains the circumstances in which, so far as he was concerned, D and A simply vanished until he was later able to trace them.[25]The father sets out his present family circumstances since his marriage in 2004. He is living in a 4 bedroom family home in Florida with his wife and 3 children of their family, he working for a national home building firm and she in the local county library. He makes clear that A will be welcome in the home and that, if she would prefer to stay with other family members pending further proceedings in Florida, she could stay with his sister and her husband nearby, or members of the mother’s family who could also accommodate the mother.[26]So far as the defences advanced by the mother are concerned, his case is as follows.[27]He does not accept that A is settled, relying upon her attendance at several schools and the apparent systematic bullying which has occurred as evidenced by an ITV documentary about bullied children and victimisation in the “happy slapping” attack. He also relies on a website message from the mother, asking for prayers and blessings for A, having been bullied over the past 5 years and which refers to her, at 13 years old, as having been drinking and “running around with an 18 year old man and doing things no 13 year old girl should be”. It also refers to her having “started self harming”.[28]He also refers to the fact that the mother and A are both American citizens and passport holders who have no legal right to remain living in England, their last leave to remain having apparently expired in May 2003. The last leave to remain was subject to “no recourse to public funds”, whereas it appears that the mother and A are reliant on English state benefits.[29]In addition to this evidence, I have before me the report dated 9 May 2006 of Ms Oliver, a CAFCASS officer who, on behalf of the court, interviewed A as to her wishes and feelings, elaborating her report before me in oral evidence. Her evidence is to the following effect.[30]A made clear her strong objections to being returned to the United States. Ms Oliver states that A was able to express herself well, soon became relaxed and generally engaged, was self-possessed and fluent, and gave considered responses to Ms Oliver’s questions. She was able to demonstrate a degree of maturity in considering her situation as well as giving her opinion forcibly and with some emotion. I observe here in parenthesis that, whereas the father has suggested that A’s feelings are the result of improper influence or pressure, there is no support for that to be derived from Ms Oliver’s report or her oral evidence as to her assessment of A as an historian.[31]Ms Oliver made clear in oral evidence that although it was apparent that A had seen the papers in the case and was confirmatory of her mother’s general version of events (she insisted that her father was lying in various respects), A was able to make clear what she remembered for herself and was clear about her own experiences. While she had learned of her sister’s allegation of sexual abuse, she had not talked to her sister about it and was not aware of any of the details. She said clearly that she did not know what happened to her sister and that she had never asked.[32]Ms Oliver stated that A presented as a young woman who had developed a strong view of her own, based on the family history, a strong part of which was her own experience of what happened when father and mother were together. She talked of what were a difficult series of issues with ease, and struggled hard to be open, honest, and frank about them. She had memories of events when she was little which included memories of her father using violence to her mother and an occasion, when going to join her sister in bed, she found her father under the covers with her and was subject to a peremptory order from him to “get your arse upstairs”.[33]A made clear, that even if she were able to live with her mother in the USA, she did not wish to do so. Besides her memories and a worry that, if her mother went back to America she might be arrested and A might be obliged to live with her father, she felt settled in England where she had a family who were not blood family, but were family to her, including her mother’s best friend who helped them when they could not afford things and when A herself had difficulties. She said that she was exceptionally happy in the area where she was living. She said that the family and friends in England had been with her mother and her for every step of what they had done since they arrived, Naming a number of people to whom she was close, she described how each individually supported her and her mother and made them laugh. She talked to her aunt Christy about having been bullied at school, and her aunt had gone and found those responsible and talked to them about what they were doing. She also had a counsellor called Sheena with whom she got on well. She was now at a decent school, where after a difficult time coping with bullying in earlier situations, she was now happy. She had been there for one and a half years and everything was now fine.[34]A described her current lifestyle as being “boring”. She got a bit bored of being in a small village like that where she lived and would like in time to move to somewhere there were more people. She said that she would at some stage like to move to London, being a city person and liking being “around people”. However, she made clear that she did not want to go back to stay in America, she loved her mother, liked where they lived and wanted to continue living there.[35]A told Ms Oliver that she wished to assure her that her father had told lies in the papers when saying that her mother had beaten A and her sister. Her mother had never hit her or beat her, had always been loving and made clear that she loved her. Ms Oliver made clear in evidence that A had told her that the mother had strong views on non-violence which had in fact inhibited A from fighting back when she was first bullied at school. She knew that her mother had mental health problems for which she took anti-depressants, but she did not suggest that it had any major effect on her relationship with A.[36]When asked about her objections to returning to America, A made clear that her memories of living with her father were unhappy. Although she had then known nothing of the alleged abuse of her sister, she did remember that when her mother was at work she heard her father beating her sister who would be screaming. She said there was a rule that she was not to go into her sister’s room and that she did not dare to go down there as she would get shouted at. She said that she had no feelings for her father and, so far as she was concerned, she had no dad. He was too busy in his own lifestyle to bother about her. She believed that, whatever he wanted, he would do, and that he would get what he wanted no matter how much it hurt people. She said that she had been crying at the prospect of return to the U.S. and that her fingers were crossed that she would not have to go back. She wished to stay in this country with her mother.[37]Because, she was plainly fearful that if she went back to America her mother might be put in jail and she might be with her father for four years until she was eighteen, Ms Oliver asked her how she would feel if she had to go back but in circumstances where she would live in America with her mother. A responded by saying that she did not love her father and hated him for everything he had put them through and lies he had told. If she went back to America she did not think she would be able to get on at school, and she would miss her friends. She would not like being in the America as she considered it to be too violent. Her grandfather had been killed there and she associated it with violent people. When they lived in America, she remembered that she was not able to play out in the front yard because of drive-by shootings. If she went back, she would not merely be in fear of the people who lived in America but also of her father, as she realised that she is now at an age that he could do to her what he did with her sister. She said that, when they lived in the US, her sister was never allowed out and was grounded for 90% of the time.[38]She described her father as being fine face to face but he would “stab you in the back”, was a liar, and cheated on her mother. She also remembered that her father would beat her mother in the course of arguments. She (A) would hide under the dining room table and had watched her father strike her mother round her head with a frying pan. She said that her father was lying when he said that her mother had used violence towards him. She found it hard to believe that her father expected her to go back to him; she would rather sleep on the streets than do so.[39]Asked if she remembered anything nice about her father, she said that all he did was watch television. He had never hit her or molested her, but he shouted at her. She said that when she talked to him on the telephone during current contact, he said that he would take her to places. However he had never taken her to places in her past. It was only her mother that had done this. She had last talked to her father on the telephone on Tuesday, but had now ended the telephone calls and was no longer planning to talk to him. She was so angry with him that she did not wish to talk to him any more. They were still e-mailing, but she planned to end this as well. She neither wishes to see her father, nor receive his telephone calls.[40]So far as A’s current emotional state was concerned, Ms Oliver asked her about the fact that she had self-harmed during the period of bullying. A stated that she had spoken to her mother about the problem and had since seen a counsellor. She had not done it since. She was asked about the incident the previous year when she had run away with a boyfriend of eighteen and her mother had had to alert the police. She said that, during that year, she had been in a rebellious phase so that, whatever her mother said, she did the opposite. Because her mother had tried to ground her she had walked out. She now realised that her mother was only trying to protect her and that her boyfriend had been abusive, because he had hit her during their relationship. She was now going out with someone else of the same age as her. She had a really good relationship with her mother and, although they argued, it was A who had the temper and not her mother. Her mother had never hit her and, if anyone touched or molested A, she would tell her mother.[41]So far as A’s progress at school is concerned, A acknowledged that she had been through a rebellious stage at school and had argued with teachers. However she was now doing well at school and did not get stressed easily. When she got stressed her school work went down hill. For example, since the court case had started, she had not been able to concentrate.[42]In the section headed assessment at the end of her report, Ms Oliver made clear that the information provided in these statement of the parents and in A’s interview suggested that further enquiries should be made about her current welfare, her emotional state, and further consideration of the risks involved in her return to America from the father, observing that this would provide a clearer picture of how settled A was currently in her home town and the impact of further change upon her. Ms Oliver stated that the provision of A’s and the mother’s medical records would be helpful, combined with further reports from the school from any counsellors who had supported A. At the same time she made it clear that, from what they said, she had a strong fear of her father from what she said she remembered of the domestic violence perpetrated by the father towards the mother and the abuse and violence she said her sister experienced. When the question of a possible adjournment for further evidence was raised before me at the start of the hearing, both parties indicated that they considered the matter should be dealt with forthwith on the basis of the evidence already available from Ms Oliver. Thus I’m obliged to deal with the matter in the absence of any medical records, though there is a report from A’s school and her supporting mentor there, to which I refer below.[43]In her oral evidence, Ms Oliver made clear that, so far as any question of “coaching” from the mother was concerned, she did not get any sense of adult phrasing or input from the answers to her questions and that A appeared to be open honest and frank in her answers, a strong feature of which appeared to be her own experience and recollection of what had happened when her father and mother were together. A had made clear that she had a very positive relationship with her sister and her husband, that she felt supported by a group of adults who were there for her and had helped her through her issues of difficulty and appeared to have her own young friends in the area. Questioned by Mr Scott-Manderson for the father, Ms Oliver made clear she had strong concerns at the probable effect of uprooting and returning her to America. A is a troubled teenager who was plainly fearful of return there. She had expressed very strong views, and said that she would rather sleep on the streets (of England) than return to America. Given that in the previous year she had shown a willingness to run away when in disagreement with her mother over an older boyfriend, Ms Oliver was concerned that she might run away again if ordered to return to America against her will.[44]A letter from the Senior Learning Mentor of A’s present school, where she has been since September 2004, makes clear that, whereas A initially presented with very low self-esteem and “difficult relationships with her peers and local community”, there has been a marked improvement in her attitude to herself, her school and her peers, supported by improved attendance and attainment. She and her mother had engaged well with an organisation called Positive Activities for Young People, with whom A went on a recent residential trip over Easter, being described as “delightful and a wonderful member of the group”. The report states that A’s mother has been very supportive of the school which have a very positive relationship with her. There is increasing evidence of A’s desire to do well at school and play a part in the school community. There had been few incidents of bullying in the school reported by her and those reported had been dealt with quickly and to her satisfaction. It is stated that the mentor is pleased with A’s personal development and that her confidence is growing with much improved self-esteem. She is developing positive relationships with her peers and making academic progress. The report ends “she is making a positive contribution to the school and should be proud of how far she has come since September.”

Settlement

[45]Article 12 of the Convention provides that where a child has been wrongly removed within the terms of Article 3 (as is now conceded in this case), if proceedings for recovery of the child have been commenced within a period of less than one year from the date of wrongful removal the court must order the return of the child forthwith. Where the proceedings have been commenced after the expiration of the period of one year (and in this case the relevant period is some five years) the court “shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.”[46]The word “settled” has two constituents. The first is more than mere adjustment to new surroundings; it involves a physical element of relating to, being established in, a community, and an environment. The second is an emotional and psychological constituent denoting security and stability. It must be shown that the present situation imports stability when looking into the future: see the review of the relevant authorities in Cannon v Cannon [2004] EWCA Civ 1330 [2005] 1 FLR 169 at paras [22] – [25]. The term “new environment” encompasses place, home, school, people, friends, activities and opportunities but not, per se, the relationship with the defendant parent: see Re N (Minors) (Abduction) [1991] 1FLR 413 per Bracewell J at 417H-41HB.[47]In determining the issue of settlement, as well as the exercise of the court’s discretion if settlement is established, the reason for the delay in bringing the proceedings and the parties’ conduct, particularly where the abducting parent has concealed the whereabouts of the child, are relevant: see Re H (Abduction: Child of Sixteen) [2000] 2FLR 51 and Cannon v Cannon supra. In the latter case, Thorpe LJ stated at para [61] that it is not enough to have regard to the physical characteristics of the child’s settlement; equal regard must be paid to the emotional and psychological elements and that, in cases of concealment and subterfuge, the burden of demonstrating the necessary elements of emotional and psychological settlement is much increased. Thus the approach is not simply to disregard a period of concealment, subtracting it from the total period of delay in order to calculate whether 12-month period has been exceeded; the court must look critically at any alleged settlement that is built on concealment and deceit, especially if the abducting parent is a fugitive from criminal justice. Thorpe LJ went on to emphasise at para [62] that, even if settlement is established on the facts, the court nonetheless retains a residual discretion to order return under Article 18 of the Hague Convention.[48]At paragraph [54] Thorpe LJ made clear that:
“concealment or subterfuge in themselves has many guises and degrees of turpitude. Abduction is itself a wrongful act, in that it breaches rights of custody, but the degree of wrong can vary from case to case.”
He went on at paragraph [58]:
“There will often be a tension between the degree of the abductor’s turpitude and the extent to which the 12-month period has been exceeded. Obviously the present case illustrates the possibility that the considerable turpitude of the mother’s conduct will be out weighed by the quality of the false environment and the years of history that it has achieved. It is, of course, an injustice to the deprived father that the longer the deprivation extends the less his prospect of achieving a return. The other side of the same coin is that the longer the mother persists in her deceit the more likely she is to hold her advantage. Not only does she increase her chances of resisting an application for a return order, but she also complicates the process or reintroducing the father into the child’s life and reduces the prospect of ever restoring the relationship that might have been between father and daughter but for the lost years.”
[49]In that case, the court allowed an appeal by the plaintiff father on the issue of whether or not, the judge below having found settlement established, the court nonetheless retained a residual discretion to order the return of the child, accompanied by the provision of safeguards in respect of the child’s welfare pending a decision in the courts of the jurisdiction to which the child was ordered to be returned. Having made clear that there is indeed such discretion and that, in exercising it, the court is obliged to have regard to the overall rationale and philosophy of the Convention, the Court of Appeal remitted the case to the Family Division to find the relevant facts in the light of which the discretion was to be exercised.[50]Following such remission, in Re C (Abduction: Settlement) (No2) [2005] 1 FLR 938, Kirkwood J dealt with the matter accordingly and, on the basis of his further findings, he declined to order the return of the child to the USA.[51]At paragraph [27] of his judgment, he adopted an approach, which I too would commend, when he stated as follows:
“Considering the court’s discretion, I have particular regard to: (a) the purposes of the Hague Convention; (b) the mother’s wrongdoing; (c) the injustice to the father; and (d) the welfare of S. The Convention serves to discourage child abduction, removal by a parent acting unilaterally of a child … to another state where it is in breach of another parent’s rights of custody in respect of the child. Such action is recognised to be against the welfare interests of the child. Parental disputes about the child must be resolved in the courts of the child’s home territory. [28] The Hague Convention accordingly provides a swift and summary procedure to procure the immediate return of the child. The English court is robust in its implementation of the Convention. It is particularly alert not to allow abducting parents to gain advantage for themselves by wrongful actions in removing the child. Yet Art 12(2) provides an instance in which an order for return is not an automatic response.”
[52]He went on to find that, despite the vital importance of giving effect to the Convention, and the undesirability of allowing benefit to the mother for wrongdoing, he was left with the practicalities of the situation in which, well over five years from removal and long after the time for swift and summary return under the Convention,(a) the Californian Court concerned was no longer in a noticeably better position than the English court to decide welfare questions concerning the child, because all the evidence concerning the child her needs and so on were in Liverpool and(b) it was an extremely unusual case in which the child had settled and got on with her life in a quite outstanding way.[53]In my view, the same result should obtain in this case, though for somewhat different reasons based on the circumstances of A’s history since arriving in England, her life since and her current need for equilibrium after some difficult years.[54]It is clear from the evidence put before me that, so far as the necessary physical element of settlement is concerned, i.e. that of being established in the community and a new environment is satisfied. This is not a case where the mother and A have, as it were, gone from place to place as fugitives of justice. They have simply gone and settled in the area where the mother’s third husband originated and where her older daughter now lives, having married “a local”; besides that proximity, they have also integrated into a small community of supportive friends and relatives by marriage. While it is plain that A has had a history of trouble from persistent bullying by and a number of emotional disturbances, neither factor goes to the question whether or not she is physically settled into the community in which she has lived for 5 years. I find that she is so settled.[55]While I accept that those factors require attention when considering the emotional and psychological elements of settlement, the fact that a child or teenager is “unsettled” in her own emotional or psychological state, does not, in my view demonstrate that she is not well settled for the purposes of the Convention in the place she resides, has an established family life, and intends to remain since, as made clear above, the place of settlement means the community or environment in which the child is now living. She has been living in the same community for some 5 years where she has a home. In this respect, she is not only living where other members of her family live, she has attended several schools within the area and is now happy and making progress at her most recent school (see the letter referred to at para 43 above). She is well established in a circle of friends and supporters and her activities are all centred in the same community.[56]So far as the future is concerned, the only question mark hanging over the continued residence of A and her mother where they presently are, is their immigration status. They are plainly subject in principle to a threat of deportation. However, it is clear that they have not been given any warning or notice to that effect, despite the fact that their position is well known to the Home Office, and I have been told that an application by the mother for leave to remain is still pending. Mr. Scott Manderson submits that the evidence to which I have been referred cannot be regarded as establishing settlement for the purposes of the Convention, given the uncertainty of the position. I note that, in this regard, in Re L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433 Wilson J observed at para [24] “In Re S (a Minor) (Abduction) [1992] 2 FLR 1, 24C, Purchas LJ described what was required as a long-term settled position; and in Re N (Minors) (Abduction) [1991] 1 FLR 413, 418C Bracewell J observed that the position had to be as permanent as anything in life could be said to be permanent. Whether a Danish mother who has been present with the children in England for a year only because it has been a good-hiding place and who faces likely extradition proceedings could demonstrate the children’s settlement in England within the meaning of those authorities is doubtful.”[57]Cases fall to be decided on their particular facts. In this case there is no question of extradition proceedings and it appears that the Home Office have been well aware of the position of the mother and her wish to remain since 8 August 2003 and have done nothing in that regard. This is not a case where the mother arrived, or has since moved about, as a fugitive from justice; nor does it appear that she has done anything to avoid the attention of the Home Office. In those circumstances, I do not consider that I should assume that it is likely that A or her mother will be deported in the near future and in my view settlement within the meaning of Article 12 of the Convention is established.[58]That being so, I turn to the question whether or not I should exercise my discretion to make an order for A’s return nonetheless. I do not consider that I should. I have regard to, and bear well in mind the purposes of the Hague Convention. As in the case of Re C, I consider that the position has been reached whereby the court in Michigan or Florida is no longer in a noticeably better position than an English court to decide welfare questions concerning the child, given that the difficult events which have shaped her young life over the past 5 years and which govern her present welfare needs have all taken place here.[59]In assessing the degree of the mother’s wrongdoing and the injustice to the father, there is of course no doubt that she must have realised she was in breach of the order of the Michigan Court in proceeding to England without obtaining court permission. However, it appears the mother was under considerable mental stress at the time and in a situation where R had complained of sexual abuse by the father, albeit the police considered that there was insufficient evidence on which to act. That did not excuse the mother’s wrongdoing, or the injustice to the father in denying him contact with the children in the face of a court order. However, it goes some way to explain her conduct it in a manner which is not wholly discreditable to the mother. However my principal concern, like that of Ms. Oliver, arises on welfare grounds and is directed to the effect upon S of ordering a return to the United States after 5 years in this country. Not only would it be to uproot her in her vulnerable early teenage years; it would be to destroy the emotional and educational stability now within her grasp after a sustained effort by family, friends and counsellors to that end. I would therefore decline to exercise my discretion to order her return. Physical or Pyschological Harm[60]Having expressed that view, it is not of course definitive of the question whether an order for the return of A would be likely to subject her to physical or psychological harm or otherwise place her in an intolerable situation within the meaning of Article 13 of the Convention. I consider I have insufficient evidence on that question to find such defence established. However, in the light of the conclusion I have reached in relation to A’s objections to returning to the United States, it is unnecessary for me to say more in this respect. A’s Objections[61]It has been conceded by Mr. Scott Manderson that, on the evidence before the court, it is clear that A has attained an age and maturity where it is appropriate to take account of her views. However, he has submitted that this is a case where nonetheless discretion should be exercised to order the return of A to the jurisdiction of the Florida Court. In this connection he has urged me, as I do, to take into account, as I do, of the policy of the Convention as set out at paras [16 – 19] of the recent decision of the Court of Appeal in Zaffino v Zaffino (Abduction: Children’s Views) [2005] EWCA Civ 1012 [2006 1 FLR 410 in which Thorpe LJ approved and emphasised the observations of Balcombe LJ in Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 to the effect, that in normal circumstances, it is to be considered in the best interests of children generally that they should be promptly returned to the country whence they have been wrongfully removed and that it is only in exceptional cases that the court should have a discretion to refuse to order an immediate return. Thus it is that, if the court should come to the conclusion that the child’s views have been influenced by some other person such as the abducting parent, or that the objection to return is simply because of a wish or preference to remain with the abducting parent, then little or no weight should be given to those views.[62]In this case, and despite Mr. Scott Manderson’s submissions to the contrary, I consider that A’s views are clearly her own. While it would be idle to suppose that they are not to some extent influenced by those of her mother, it was made clear to me by Ms. Oliver that they are largely based on A’s own recollection of life in America and her own wish to remain in this country, despite the difficult time she has experienced in the past. I do not consider, as Mr Scott-Manderson submits, that her objections to return are based simply or largely on the fear that her mother may be punished for breach of the orders of the America court. Such objections could be properly safeguarded by the undertakings offered by the father not to seek or assist in the making of any order in that regard. A’s views are strongly expressed and appear to go far wider than that. Again, for the same reasons as those I have expressed under the heading “Settlement”, there are strong welfare considerations in relation to A and her position which militate against sending her back to the United States, given the recent advances made in her self esteem and self confidence, and the likely fragility of those improvements if an order for return to America were made, whatever the outcome of subsequent proceedings there. Conclusion[63]For the reasons set out above, I decline in my discretion to make an order for the return of A to the USA and accordingly I would dismiss the father’s application. However, I shall suspend the operation and effect of the order for dismissal for 14 days from today’s date to allow time for the father to consider the question of an appeal and, if so advised, to take the appropriate steps. The orders previously made which prevent the removal of A from England and Wales and from her present address and which relate to the withholding of the mother’s and A’s passport will therefore continue for 14 days and will thereafter be discharged subject to any further order of this court or the Court of Appeal.

Cited in 17 later judgments

and 8 more of the most senior