MM v VM [2007] EWHC 1820 (Fam)

[2007] EWHC 1820 (Fam)Case No FD07P00994
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/07/2007
Before
MR. JUSTICE RODERIC WOOD
Between
MMApplicantVMRespondent
Mr. Marcus Scott-Manderson Q.C. and Mr. David Williams for FatherMr. Michael Nicholls Q.C. and Mr. Edward Devereux for MotherHearing Hearing dates: 18 th July to 20 th July 2007
Judgment
[1]MKM (hereinafter referred to as “M”) was born on 3rd August 1994 and is fast approaching her 13th birthday. Her younger sister TM (hereinafter referred to as “T”) was born on 25th April 1997, and is thus 10 years and 3 months of age.[2]They live with their mother and her new “husband” (see below) in the town of H in the north east of England.[3]Neither child has a lawful right to be in the United Kingdom, nor does their mother, nor indeed her new “husband”.

The Application:

[4]This is an application brought by MM (hereinafter referred to as “the father”) pursuant to the provisions of The Child Abduction and Custody Act 1985, and The Convention on the Civil Aspects of International Child Abduction dated 25th October 1980 (hereinafter referred to as “The Hague Convention”). He seeks the return of both of his daughters to the land of their birth, which is also the land of his and their mother’s birth, namely to Zimbabwe, where he resides.[5]He had applied to the Central Authority of Zimbabwe in about September or early October 2006, but unaccountably the English Central Authority was not notified of the application until 26th January 2007. The English Central Authority were then obliged to make further enquiries of the Central Authority in Zimbabwe, and it was not until late April that the father’s solicitors were instructed by the English Central Authority, and they had, by 10th May 2007 issued an originating summons launching these proceedings.[6]There has been a series of conventional orders in the ensuing months which I need not recite, in detail, but I shall make passing reference to aspects of them hereafter.[7]Mrs. Justice Pauffley, on 25th May 2007, required the mother to set out a Defence. The court was clearly notified that one of the issues the mother was raising was consent on the part of the father to the removal of the children from Zimbabwe, that removal having taken place as long ago as 7th March 2005. It is clear from the fifth paragraph of that order that the mother was indicating that she would also raise a defence under Article 13 (b) of the Hague Convention asserting “intolerability/grave risk based on the general situation in Zimbabwe”, for the judge provided for the filing of a situation report (if available) from the Foreign and Commonwealth Office, and a similar report from the United States Department of State. It is further clear that the mother was raising the issue of the children’s wishes, for she ordered a member of the Hague abduction team of CAFCASS PRFD to interview the children on that subject.[8]HHJ. Turner QC, sitting as a deputy Judge of the High Court, ordered, on 31st May 2007, that the mother could file further evidence (which I assume was to relate to her claim that the general circumstances in Zimbabwe are such that the children should not be returned there).[9]Mr. Justice Moylan on 21st June 2007, unable to hear the matter in full, gave directions extending the time estimate for the final hearing to 2 days and gave the mother permission to file yet more documents concerning the general situation in Zimbabwe, including articles from the Economist and Newsweek. He also provided for a period of contact between father and children to take place on 22nd June 2007, the father having flown in from Zimbabwe for the purposes of the hearing which, unhappily, had not taken place for lack of time.

Materials Available:

[10]I have been provided with a trial bundle running to 3 volumes. Leaving aside nearly 50 pages of preliminary documentation prepared by counsel pursuant to the provisions of the President’s Practice Direction of 27th July 2006 concerning family proceedings/court bundles/case summaries etc., there were over 550 pages of affidavits (including exhibits); a short section combining material from CAFCASS and from The Home Office; a miscellaneous collection of documentation including the articles from Newsweek and The Economist, letters concerning the immigration position etc., amounting 125 pages; extracts from Hansard; and two full lever-arch files of Treaties, authorities, and reports from external agencies.[11]Apart from reading the formal Court bundle (sections A – E), I have of course read the relevant passages from the authorities provided, and such sections of the other documents to which I was referred. I have undertaken some further limited reading to which I was not specifically directed within that material, but it is not necessary to recite it here.[12]I had the advantage of hearing short evidence from Mrs. Aviva Morris (CAFCASS PRFD Hague Convention Team), the mother and the father.[13]The father was represented by Mr. Marcus Scott-Manderson QC with Mr. David Williams, and the mother by Mr. Michael Nicholls QC with Mr. Edward Devereux. At the conclusion of the evidence, at my direction, the submissions of each parent were provided to me in writing.

Brief Chronology:

[14]The father was born on 14th April 1967 and is thus now 40. The mother was born on 3rd June 1976 and is thus now 31. Their two children are the subject of these proceedings, although the father is in a new relationship with “LR”, and he has, by his new partner, a little girl (N) born on 25th February 2005. Although M and T were excited at the prospect of the arrival into their then home of N (they at that time living with their father – see below for further discussion of this aspect) they have little recollection of her now, having left Zimbabwe only two weeks after her birth.[15]M and T were born following a customary ceremony of marriage which had taken place between their parents in 1993. It was not until 21st October 2000 that the parties married under civil law in a ceremony carried out at the Harare Magistrates’ Court. Very shortly after that ceremony the parties separated, and the evidence establishes (there being no dispute as to this) that the mother voluntarily left the children with the father. Although she subsequently (2001) submitted an application to the Magistrates’ Court of Mashonaland seeking custody of the children, the application was dismissed when she failed to attend to prosecute it. It is her case that she was influenced by the father not to go ahead with that case. It is the father’s case that she simply did not bother to attend court, and thus her application was dismissed. He told me in his oral evidence that his own lawyer in Zimbabwe had then informed him that there was automatically an order for custody in his favour; this is clearly erroneous, but accounts for such an assertion of there having been a “welfare enquiry” leading to the making of such an order in one of his documents. I fully accept that the father innocently misunderstood the position, and was not trying to mislead me in the documentation.[16]Although she is not specific, the mother alleges that the father married his new partner (a Jehovah’s Witness) some time in 2001/2. It is not at all clear to me whether she is asserting that this was a customary marriage or a marriage under civil law. In any event the father denies being married to his new partner, for he asserts that he is still lawfully married to the mother (see below).[17]On or about 20th January 2002 the mother left Zimbabwe to visit England. She was not permitted entry and was deported back to Zimbabwe.[18]It is the father’s case that thereafter the mother assumed a new identity (Grace Munyaro), and at some unspecified date shortly after January 2002 successfully made her way to England and continued to live here for at least two years with her new husband. Contrary to that assertion it is the mother’s case that she went to live in South Africa, stayed with her sister, worked there, and did not leave South Africa (save for brief external trips) for 2½ years. She undoubtedly did not see her children in that period, wherever she was.[19]The mother says she returned to Zimbabwe in October 2004 (the father asserts December 2004 as the date), and thereafter it is the father’s case that she had periodic contact (including brief periods of staying contact) with the children. The mother’s case is that within a very short period of re-establishing contact with the children she was, in effect, sharing the care of them with the father.[20]The mother’s case thereafter is that she discussed with the father her plan to leave Zimbabwe with her new husband and the two children, and make a new life in England. She says the father consented to this plan. The father’s case is that the children went with their mother for a period of staying contact, extended to a few extra days with his consent, but that when he became anxious about their non-return to his care his enquiries revealed that the mother and children had left the country on 5th March, arriving in London on 7th March (the mother saying that her route of departure involved taking the children by bus via Mozambique, Malawi and Kenya for reasons which I shall describe hereafter).[21]The mother and children spent a period in detention at London Heathrow and were then transferred to the Hillside Induction Centre in Leeds.[22]The mother’s new husband (whom she had married in a civil ceremony at Harare Magistrates’ Court on 2nd March 2005), arrived at London Heathrow on 10th March 2005. On his arrival, as the mother had on behalf of herself and her children on their arrival, he claimed asylum. I shall deal with the immigration position later.[23]It is the father’s case that he sought help from the police in Zimbabwe, but they felt unable to assist as the children were in the care of their mother. He made enquiries of a number of lawyers in that country in order to try and secure the return of his children, but he was advised that the proceedings, which would have to take place in England, would be lengthy and expensive, and although able to live comfortably in Zimbabwe, he did not have the means to litigate here. No-one told him of the Hague Convention.[24]By about April 2005, the mother and children (and her new husband) were provided with local authority accommodation at an address in H. It is the mother’s case that she informed the father immediately of this address, but she further states that this was by no means her first communication with him, for she had telephoned him almost immediately after their arrival in London on 7th March to tell him of their whereabouts so that he would not worry. She further asserts that the mother and father, and the father and his children, were in regular contact by telephone and e-mail very shortly after their arrival here. The father’s account is that he was kept in the dark as to their physical whereabouts for a very considerable period, and that the first time he heard of their address in England was in September 2005 (see below where I consider the e-mail exchanges between M and her father). He told me in his oral evidence that whilst he had received telephone calls from the mother and/or the children prior to learning of their address, these were always from the mobile phones or public telephone boxes with the number withheld, so that he had no idea where they were, save that he did know the country.[25]The mother claims that if I am not persuaded that the father consented to the removal of the children from Zimbabwe, I can find that the evidence establishes that he acquiesced in the arrangements she had made for them (see below for discussion).[26]The father tells me that at the beginning of September 2006 he read in an Harare newspaper of the case of a Dr. G who had successfully sought the return of his child through The Hague Convention procedures. Armed with this information he consulted a lawyer (Mr. Motsi) the very next day, and went to his offices at close of business likewise on that day, the conference lasting some five hours. During that time Mr. Motsi made enquiries and discovered the procedures under the Hague Convention. Thus it was that as late as September 2006 these proceedings began, in contemplation at least. The father told me in his oral evidence, and I accept, that it is not possible to physically call at the premises of the Central Authority in Zimbabwe. All communication is by letter or by telephone. Mr. Motsi wrote on behalf of the father, and had to chase with many following communications until ultimately the Central Authority indicated that they had received the referral and were acting upon it. Thus many weeks passed in anxiety for the father. I accept his account.[27]I have here set out the bare bones. I shall consider parts of the history in more detail later, but before so doing find it convenient to turn to the law. The Law: The Hague Convention: Article 3:

The Law:

[28]The removal or retention of a child is considered wrongful where- i. 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 or retention; and ii. at the time of removal or retention those rights were actually exercised, either jointly or alone ...

Article 4:

[29]The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights.

Article 12:

[30]“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting Estate where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child”.

Article 13:

[31]“Notwithstanding the provisions of the preceding Article the ... Authority of the requested state is not bound to order the return of the child if the person … which opposes it’s return establishes that i. the person ... having the care of the person of the child ... had consented to or subsequently acquiesced in the removal or retention; or ii. 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 “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”.

The Purpose of the Hague Convention:

[32]As to the purpose of the Hague Convention I have been referred to the case of Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 where Ward LJ, at 1152F, cited a passage from the speech of Lord Browne-Wilkinson in Re H (Abduction Acquiescence) [1998] AC 72 'The recitals and Art 1 of the Convention set out its underlying purpose. Although they are not specifically incorporated into the law of the UK, they are plainly relevant to the construction of an international treaty. The object of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence. This is to be achieved by establishing a procedure to ensure the prompt return of the child to the State of his habitual residence.' Defences: Defences - General Comment:

Defences:

[33]In this case the mother raises a number of defences including “settlement” (within the terms of Article 12), “consent” (within the terms of Article 13 (a)), “acquiescence” (also within the terms of Article 13 (a)), “grave risk”/intolerable situation etc (within the terms of Article 13 (b)), and the objections of the children (see the penultimate paragraph of Article 13).[34]The authorities clearly place the burden of establishing each such defence upon the parent asserting the defence (in this case the mother). The standard of proof is the civil standard of proof, namely the balance of probabilities, and given the issues I must consider with great care the cogency of the evidence put before me in respect of each.[35]In this connection I have been referred to Re D (Article 13B:Non Return) [2006] 2 FLR 305 [2006] EWCA Civ. 416 at Para 16 in which the court observed that:
“In weighing the evidence of an abductor seeking to justify or explain conduct, the judge needs to subject the evidence to rigorous and perhaps sceptical scrutiny, particularly where, as here, there is a history of previous abduction and an outstanding application for permission to re-locate.”

Article 12: Settlement:

[36]The leading authority on this issue is the Court of Appeal decision in Cannon-v-Cannon [2005] 1 FLR 169. I adopt Mr. Scott-Manderson’s summary of that authority as accurate insofar as I need to refer to it. a) Settlement requires consideration of the physical aspects, but also the emotional/psychological aspects. b. The abducting party must establish the issue with appropriate evidence. c. Even if settlement is established the court has a discretion to return the children, pursuant to Article 18. See also Re C (Abduction: Settlement) [2005] 1 FLR 938 where a similar approach is adopted.[37]Even if settlement is established on the facts, the court retains a residual discretion to order a return (see Article 18 of the Convention).

Article 13: Consent:

[38]The burden of proof lies upon the Defendant to establish that the Plaintiff gave his consent to a permanent removal of the children: see Re H (Abduction: Habitual Residence: Consent) [2000] 2 FLR 294 at 301. The standard of proof is the balance of probabilities with a recognition of the need for clear and cogent evidence. If the court is left uncertain as to whether consent was given, the exception is not established.[39]Consent does not need to be given in writing. See Re C (Abduction: Consent) [1996] 1 FLR 414 at 419 (Holman J) & Re K (Abduction: Consent) [1997] 2 FLR 213 at 217 (Hale J as she then was). It must be a real consent and unequivocal, and not tainted by fraud or non-disclosure on the part of the removing parent. It need not be express, but can be shown by a course of conduct from which consent can be inferred. In Re C (above) Holman J said, “‘If it is clear, viewing a parents words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Article 13. It is not necessary that there is an express statement that “I consent”.’ ”

Article 13: Acquiescence:

[40]The leading authority on this aspect of the Convention is In Re H (Minors) (Abduction: Acquiescence) [1997] 1 FLR 872. Lord Browne-Wilkinson summarised the law relating to acquiescence as follows: i) For the purposes of Art 13 of the Convention the question whether the wronged parent has “acquiesced” in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) (Abduction: Acquiescence) [1994] 1 FLR 819:”... the court is primarily concerned, not with the question of the other parent’s perception of the applicant’s conduct, but with the question of whether the applicant acquiesced in fact.” ii) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent. iii) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent that to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law. iv) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced.”[41]I have also considered the case of Re S (Abduction: Acquiescence) 1998 2 FLR 115, a decision of the court of appeal. In the course of the judgment of Butler-Sloss LJ (as she then was) at 122A she adverts to the position of a parent without the knowledge, or full knowledge, of his rights. She says this:
“In the present case, however, the extent of the father’s knowledge of his rights is in my view crucial to the consideration of acquiescence and whether he formed the subjective intention to agree to the child remaining in the UK. In earlier decisions of this court the lack of knowledge and misleading legal advice had been considered relevant factors to which the court should have regard”. [There then followed relevant citations]. “In Re AZ (A minor) (Abduction: acquiescence) 1993 1 FLR 682 this court held that it is not necessary, in order for the defence under article 13 to succeed, to show that the applicant had specific knowledge of the Hague Convention. Knowledge of the facts and that the act of removal or retention is wrongful will normally usually be necessary. But to expect the applicant necessarily to have knowledge of the rights which can be enforced under the Convention is to set too high a standard. The degree of knowledge as a relevant factor will, of course, depend on the facts of each case.”

Article 13: Harm:

[42]The lead authority on this issue is Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145. The court held:
“A very high threshold had been set to establish defences of a grave risk of physical or psychological harm or of the placement of the child in an intolerable situation: the court should require clear and compelling evidence of a grave risk of harm or other intolerability, to be measured as substantial, not trivial, and of a severity which was much more than was inherent in the inevitable disruption, uncertainty and anxiety which followed an unwelcome return to the country of habitual residence.”
[43]In C-v-B (Abduction: Grave Risk) [2006] 1 FLR 1095 commenting upon it the President, at paragraphs 55 and 56, described Re C (above) as laying down the authoritative test that:
“There is therefore, an established line of authority that the court should require a clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity that is much more than is inherent with the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence.”
He also quoted with approval Ward LJ’s comment on:
“… the high standard which, in my judgment, it is vital that our courts maintain in order to give full effect to the purpose of the Convention so as to carry out our international obligations. Stringent tests must be enforced not diluted.”
[44]In Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478 CA Thorpe LJ. said (as summarised in the head note):
“Article 13(b) was an exceptional remedy intended to deal with unusual issues of welfare of the child which took the case outside the normal provisions of the Convention. In testing the validity of an Art 13(b) defence, judges should ask themselves what were the intolerable features of the child's family life immediately prior to the wrongful abduction, and if the answer was scant or non-existent, then the defence was in difficulty.”
[45]In considering this aspect of the case I will have to assess the risk/intolerability bearing in mind the particular circumstances of each of the two children in this case, and how they might impact upon each of these particular children.[46]In the recent decision of the House of Lords In Re D (Abduction: Rights of Custody) [2006] 3 WLR 989), at paragraph 52, Baroness Hale of Richmond observed:
“Intolerable” is a strong word, but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate’. It is, as article 13 (b) makes clear, the return to the requesting state, rather than the enforced removal from the requested state, which must have this effect. Thus the English courts have sought to avoid placing the child in an intolerable situation by extracting undertakings from the applicant as to the conditions in which the child will live when he returns by relying on the courts of the requesting state to protect him once he is there. In many cases this will be sufficient. But once again, the fact that this will usually be sufficient to avoid the risk does not mean that it will invariably be so. In Hague Convention cases within the European Union, article 11.4 of the Brussels 2 Revised Regulation (Council Regulation (EC) number 2201/2003) expressly provides that a court cannot refuse to return a child on the basis of article 13 (b) “if it is established that adequate arrangements have been made to secure the protection of the child after his or her return”
. Thus it has to be shown that those arrangements will be effective to secure the protection of the child. With the best will in the world, this will not always be the case. No one intended that an instrument designed to secure the protection of children from the harmful effects of international child abduction should itself be turned into an instrument of harm”.

Article 13: Child’s Objections:

[47]As Mr. Scott-Manderson asserts, in the case of Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 the Court of Appeal, relying on Balcombe LJ.’s judgment in Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242, sub nom S v S (Child Abduction)(Child’s Views) [1992] 2 FLR 492 gave guidance at pp.203-204 on the approach to this issue. This can be summarised as follows,a. Does child object?b. Is he of sufficient age and maturity at which it might be appropriate to take account of the child’s views?c. Is it appropriate to take account of his views bearing in mind: i. What is the child’s perspective of what is in his interests in the short, medium and long term? Self-perception is important because it is her views which have to be judged appropriate. ii. To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear to the child to be so grounded? iii. To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent? iv. To what extent will the objections be mollified on return and, where it is the case, on removal from any pernicious influence of the abducting parent?[48]The objection must fall within the Hague concept of an objection. A mere assertion of preference without substantial well-founded objection will not suffice. Mr. Nicholls warns me not to be lured into false distinctions between objections/preferences, a jejune and, he submits, a potentially misleading exercise. I have of course warned myself against falling into any such possible trap, recognising that one child’s “preference” may be another child’s “objection”, and the presentation of the material in a written report prepared by their interlocutor is heavily dependent on the author’s use of language, framing of questions, and subsequent reportage of both.[49]See also the observations of the Court of Appeal in Klentzeris-v-Klentzeris [2007] EWCA Civ 533 for recent re-affirmation that non-return is appropriate only in cases which fall into a “most exceptional category”, in that case the court basing its decision upon “the extraordinary strength of the evidence of the CAFCASS officer.” (Para 20 & 21).

Discretion: General:

[50]I have a discretion to refuse to order the return of the child when considering defences under articles 12 and 13.[51]In the case of Article 12 settlement cases, the discretion arises from the terms of Article 18. The discretion under Article 13 is specifically incorporated within its language.[52]If the discretion in relation to children’s objections arises the court must weigh up the objections as against the policy of the Convention to ensure return to the State of Origin. In Zaffino-v-Zaffino [2006] 1FLR 410 ([2005] EWCA Civ 1012) Thorpe LJ in dealing with the exercise of the discretion quoted what Balcombe LJ. said in Re S. (A Minor) (Abduction: Custody Rights) [1993] Fam 242. Thorpe LJ. at para [18] describes this statement of principle as authoritatively stating the proper approach:
“(a) The scheme of the Hague Convention is that in normal circumstances it is considered to be 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. That discretion must be exercised in the context of the approach of the Convention - see Re A (Abduction: Custody Rights) [1992] Fam 106, per Lord Donaldson of Lymington MR. (b) Thus if the court should come to the conclusion that the child’s views have been influenced by some other person, e.g. the abducting parent, or that the objection to return is because of a wish to remain with the abducting parent, then it is probable that little or no weight will be given to those views. Any other approach would be to drive a coach and horses through the primary scheme of the Hague Convention.”
[53]As Mr. Scott-Manderson submitted in (Vigreux v Michel) [2006] 2 FLR 1180 the Court of Appeal further emphasised the exceptional nature of the case that would be required to fall outside the return net (see paragraph 35 of that Judgment).

Lies:

[54]In the course of this hearing each party has submitted that the other has told a number of lies, and further evasions if not downright lies, recorded in the written documentation and the oral evidence. I shall refer to a number of them in the course of this Judgment. In considering them I have found it useful to remind myself of the terms of the Practice Direction given by judges to juries in Crown Court trials on the subject of lies, based, as it is, on the leading authority of R v Lucas [1981] QB 720. An individual may tell lies for many reasons: to cover their embarrassment; in a vain endeavour to bolster what they perceive to be a thin defence; to cover up for others; etc. I need not set out the full terms of this Practice Direction, but record that i) I have directed myself by it when considering these lies, when I have found a party to be evasive and/or lying; and ii) that a lie told by a person can only strengthen or support evidence against that person if I am satisfied that a) the lie was deliberate, b) it relates to a material issue, and c) there is no innocent explanation for it.

General Comment:

[55]In considering this case I have directed myself in terms of the statute, the Articles of the Convention, and the authorities summarised in the above extracts/summaries.

Credibility:

[56]Each of these parents asserts that the other has sought deliberately to mislead me in their evidence on many of the crucial issues. A combination of an analysis of the written documentation referred to above, and hearing each parent give oral evidence from the witness box has, I believe, given me the fullest opportunity to come to clear conclusions on this subject. In the course of my further consideration of some aspects of the disputed evidence below I shall give specific examples which have led to my conclusions on credibility, but I state now by way of preliminary that overall I found the mother to be devious, untrustworthy, and frequently given to lying, such that I can place little or no confidence in much of what she said.[57]As to the father’s evidence, I considered him to be measured, frank (even where his answers were against his interests) and trustworthy. This finding has implications not only for my findings on issues such as consent and acquiescence, but also in what faith I can put in the undertakings which he offers to this court.

The Immigration Position:

[58]The children were habitually resident in Zimbabwe before removal to the United Kingdom on 5th March 2005.[59]The mother, and her new husband a few days later, admits travelling to England and seeking entry on a false passport. False passports were also made available by the husband for the children. They were all passing themselves off (the children innocently enough, and probably in total ignorance) as citizens of Malawi.[60]It is clear from the notes of the interview of the mother at Heathrow that she was disbelieved by the interviewing officer on many aspects of her story, but it is quite clear that the relevant officer did make one mistake in finding her to be a citizen of Malawi when all agree she is from Zimbabwe (see the “Reasons for Refusal” of 8th April 2005 at C71-75).[61]Pages C 71-73 (paragraphs 1-10) deal with the issue of nationality, and lead to the finding by the officer that the mother is Malawian. Pages 73-75 (paragraphs 11-19) is an analysis of the mother’s claim that by virtue of her husband’s alleged involvement in an organisation known as the Central Intelligence Organisation “CIO” it would be too dangerous for him to return to Zimbabwe, and thus she and the children should stay here with him. This claim was rejected by the interviewing officer on the grounds set out in those paragraphs, but essentially the mother’s account was disbelieved, and there was found to be no reason why her husband should not return to Zimbabwe.[62]Thus the decision of the Home Office Immigration and Nationality Directorate is not based solely on the issue of the nationality of the mother. It also took into account what she said about the poor likelihood of her being treated well upon her return and/or having her human rights respected (particularly those which fall under the terms of Articles 3, 6 and 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 as incorporated into English law by the Human Rights Act 1998, which the Government of the United Kingdom is obliged to respect, and take account of, when deciding whether or not to grant asylum.[63]I do not have the relevant documentation relating to the husband’s interview, nor any document issued to him setting out the “Reasons For Refusal” in his case. However, such is the detail set out in the document relating to the mother to which I have already referred makes it clear that the story they were putting forward to the English immigration authorities related to alleged risks to his freedom, and likely imprisonment on return to Zimbabwe, and/or physical maltreatment of him and/or (query) a risk to his life. The mother also asserts that there is a risk to her of (query) imprisonment and/or arrest/physical maltreatment of herself as the wife of a wanted man, or should he return with her or later, as the wife of a criminal, or in any event as a failed asylum seeker (she asserting that this category of returnees are the subject of vengeful attack and/or imprisonment with or without a fair trial).[64]Notice of refusal of leave to enter dated 8th April 2005 is marked with a date of service of 10th April 2005, and a further notice that any appeal must be received by 22nd April 2005 (E 82/83). The documentation suggests that the mother and her new husband entered their separate appeals (they at that time being unrepresented) against their respective refusals, they sending them by post on 26th April 2005, the court receiving them the next day. They were thus on the face of it out of time, and their applications for an extension of time within which to file their appeals was refused by immigration judge D.N. Bowen in a decision of 11th May 2005. Although the husband applied for a reconsideration of that decision, he was advised in December 2006 that the Tribunal had no jurisdiction to reconsider a preliminary decision of an immigration judge. The mother did not make any such application for a re-consideration. C & Co (her new immigration solicitors) are, nevertheless, arguing that the cut-off date for entering the appeal is 27th April based on their assertion that the mother’s previous immigration solicitors only received the determination of 8th April on 13th April, and thus the appeal was lodged within time. They are accordingly urging the Tribunal to correct what they call an “accidental error made by the immigration judge and to list our clients’ appeals for hearing” (C & Co also acting for the mother’s husband). I have seen no response to this letter.[65]Subject to a successful outcome of their application for re-consideration, the position I am considering is conclusively that each of these adults (and the mother’s children) are at risk of deportation. The Home Office have expressed a clear interest in the outcome of these proceedings. I have set this information out at some length, for it is part of the father’s case that the current status of the mother, her husband and the children is such that there is a real and imminent risk that they may be deported from the United Kingdom, thus undermining the mother’s assertion of “settlement”.[66]It is noteworthy that the mother has only made these enquiries, having instructed these fresh immigration solicitors, after the inception of these Hague Convention Proceedings. She has chosen to do little or nothing to secure proper lawful status in this country since the failure of her earlier applications in April 2005, although it is true to say that her husband was apparently seeking to appeal the earlier decisions much later than her, for the chronology shows that in November 2006 he was visited by a member of staff of the National Asylum Support Service and informed that he had been listed as “Appeal Rights Exhausted”. He was further informed on 11th December 2006 that his application to reconsider the preliminary decision of April 2005 had been refused by Immigration Judge Bailey.[67]It is the clearest inference, and I so find, that the mother had chosen on behalf of herself and her children to keep a low profile and not draw the attention of The Home Office to her continued presence in this country and thus risk deportation. I also find that her recent enthusiasm for instructing fresh immigration solicitors to take up the cudgels with the immigration service is a clear and belated attempt, following the inception of these proceedings, to bolster her claim that she and the children are settled and not at risk of deportation.[68]I shall return to aspects of the mother’s account to the interviewing officer on her arrival in this country later when I consider the defence of consent.

Marital Status:

[69]Earlier in this Judgment I set out the dates upon which the mother and father celebrated their customary marriage, and later their civil marriage. The father told me in his oral evidence that he had issued divorce proceedings as long ago as 2001, following his separation from the mother, and that he had understood them to be in agreement that there should be a consent divorce. However, the mother reneged on what he believed to be the arrangement and refused to consent. She then left the country, and he has not pursued divorce proceedings subsequently, although he still wishes to be divorced from her. The mother in her oral evidence told me that she had been informed by the father as long ago as 2001 that they were already divorced, and thus she felt able to marry her new husband, the civil ceremony celebrating that marriage taking place at the Harare Magistrates’ Court on 2nd March 2005,just before her flight. In passages of her interview with the immigration service on arrival in England (see section E pages 7 – 27 inclusive) she states that she was married by traditional ceremony to her new husband on 21st October 2000 (in fact the date of her civil marriage to the father), and married under civil ceremony on 2nd March 2005. The same information appears in typed form signed on 6th April 2005 by the mother at E 35. In her oral evidence she simply attempted to assert that this was an innocent mistake. I do not believe her. She was lying to me when she told me the father had told her she was divorced, and she lied to the immigration services about the traditional ceremony in October 2000 to her new “husband”. It was, in my judgment, a clear attempt to persuade the immigration authorities that she had been married both by custom, and later by law, for a number of years before arrival here in order to bolster her position. She is of course not lawfully married to him, and I have no faith that she ever underwent a customary marriage to him earlier on.[70]In a subsequent typed statement made by the mother in support of her application for asylum, and bearing a facsimile marking of March 2005, but otherwise not specifically dated (see E 28 – 32), the mother refers in paragraph 2 of that document to her “husband” (as I shall continue to call him) his employment and the fact that “we lived in the Kanfinsa area of Harare with our two children”. They were of course not his children, nor does the evidence establish that they lived together for long or at all, and I find this is a further illustration of an attempt to mislead the authorities by attempting to establish a strong family unit which had to be kept together, a position which might well be significantly undermined if she had owned up to a marriage occurring only three days before she left Africa. This impression is strongly reinforced by paragraph 16 of the same document (E 30) where she speaks of M being followed by men between her school and home who asked M “when was the last time her father went to South Africa and they would ask my daughters friends where M’s father was” (sic). This is a clear reference not to the father but to her new husband as is clear from the wider context of the document where she is seeking to make a case that both her husband, and necessarily by association with him, she and the children would be at risk if returned to Zimbabwe. Defences: The Facts: Consent:

Defences: The Facts:

[71]In his oral evidence the father told me that he had been concerned ever since the mother’s re-appearance in their lives in December 2004, that she would attempt to remove the children unlawfully from Zimbabwe. It was thus, he told me, that he was very careful to keep his and the children’s passports locked in his safe at work, and no-where in the family home where, on a visit, she might discover them and take them. The contextual detail and the way he gave his evidence give me no hesitation in believing this account.[72]No doubt, thus deprived of their lawful passports, the mother, through her husband, obtained false passports and travelled as citizens of Malawi, leaving the airport in Malawi, rather than flying from Harare. The further aspect of her account which fits with the surreptitious nature of their departure without the consent of the father is the obtaining of passport photographs of the children in December 2004, as part of her scheme to remove the children from Zimbabwe. She would not have needed such photographs at that time for she gives no account of losing either her own or the children’s passports until 2005, and indeed never had them in her possession to lose as I have earlier found.[73]As part and parcel of her scheme to obtain passports for the children, she obtained in January 2005, copies of their birth certificates, and I have to ask myself why she would do so if she had the full consent of the father to depart with the children, for it is he who had possession of earlier certified copies of their birth certificates, which he has produced in the course of these hearings. I have no doubt at all that this mother was planning to remove the children without the father’s consent many months before she did so, for she knew that she would never obtain such consent. I have no doubt at all on the totality of the evidence that the father gave no consent. The mother’s lies have no other purpose than to conceal the reality, namely that she wrongfully removed the children.[74]In coming to this conclusion I have not only relied upon the mother’s repeated deceptions, but also the positive evidence in the brief but speaking description given by the father of the way he found out of the mother’s departure with their children. He had been extending the contact by a few days at a time at her request, but when he became anxious and started making enquiries, he discovered that the maternal aunt with whom the mother had been staying with their children had moved home and left no forwarding address; and when he made further enquiries of the school, he discovered that the children had held a “farewell party” the previous Friday. This is, to my mind, the sort of compelling detail that makes his account utterly credible.

Acquiescence:

[75]As part and parcel of the oral investigation of this issue, careful attention was paid to a number of e-mails passing between the father and his daughters. As a precursor to an examination of them I record the following: the father told me that he had a different computer covering the initial period once he was notified that the children were in England up to and indeed overlapping with the beginning of the series of e-mails I have been provided with. That computer crashed, and accordingly the majority of the e-mails on it are irrecoverable (the few survivors appearing in my bundle). He had on the old computer, and indeed on the new one, dedicated e-mail accounts for trading messages with his daughters, and a separate e-mail account for corresponding with the mother.[76]Without reciting the detail of many of these exchanges, it is conceded by the mother that the messages I have seen are those of a sensitive, loving and affectionate father. He is demonstrably extremely proud of them, and encouraging of them and their school work. He says nothing in these e-mails about wanting the girls to come back to Harare, although he makes it abundantly clear that he misses them. Mr. Nicholls QC in cross-examining the father attempted to suggest to him that if indeed he was intent on obtaining the return of the girls, he would have said as much directly and made specific reference to his wishes in that matter. I listened to the father as he explained to me, without rancour, that he wished to say nothing to his daughters which would upset their equanimity, for these were not matters which he felt it suitable to discuss with them. His exchanges on the subject on which he made his wishes abundantly clear were with the mother in his exchanges with her on her dedicated e-mail address. By restricting exchanges of that nature to her account he ensured that his children would not be caught up in the conflict between the parents. He was critical of the mother for not producing her copies of these exchanges. I accept the father’s evidence on this matter, whilst of course noting that it was not in the mother’s interests to produce any documentation of the kind I accept he sent her requiring her to bring the girls home forthwith, for it would fatally undermine her bogus claim that he both consented and/or acquiesced.[77]Having accepted his evidence that he knew not where to find his children prior to receipt of an e-mail from M to him dated 14th September 2005, he was asked why, once armed with that information, he did not come to England to seek their return forthwith. I have already dealt with his evidence concerning the expense and his inability to meet it, of litigating in England. I accept his evidence on that and do not regard this submission by the mother’s counsel as of any weight.[78]Whatever the mother chose to believe about the father’s position on the children remaining here, I find no evidence to suggest that he subjectively acquiesced, nor that his asserted “inactivity” can be taken to be acquiescence. I find that the minute he by chance discovered the remedy of The Hague Convention, he pursued that remedy with vigour. As fate would have it, Mr. Scott-Manderson had acted for Dr. G, and confirmed, with the consent of Mr. Nicholls, that Dr. G. had indeed obtained the return to Zimbabwe of his child at about the time this father purported to be reading of it in the Harare newspaper.[79]At no point in these proceedings has the mother raised any credible explanation for why, if he either consented or acquiesced, he subsequently sought to begin Hague Convention proceedings through the Zimbabwe Central Authority late in 2006. She has not done so, for in my judgment there is no possible explanation for it other than that he genuinely, and all along, wanted the girls brought home.

Settlement:

[80]There is a stage in the e-mails earlier referred to where the girls (M in particular) are suggesting that they do not like living in England and want their father to come and get them. The first relevant message is to be found at C523 (14th September 2005 at 1:53 pm). It reads:
“Do not thank me for this because Mom reads my messages, our address is” and then she gives their address in the town of H. At C 525 (22nd October at 3:34pm) she says: “DEAR DAD, I HATE IT HERE. I AM WRITING IN BIG LETTERS BECAUSE I AM ANGRY BECAUSE I GAVE YOU THE ADRESS FOR YOU TO COME AND TAKE ME AND T. REPLY ME (sic) AS SOON AS YOU GET THIS MESSEGE”
. On the same day, 11 minutes later, T sends her father a message reading:
“DEAR DAD, I HATE IT HERE BECAUSE I AND M ARE THE MAIDS. REMEMER M SAYING THERE ARE NO MAIDS HERE?”
Although I can locate no precise timing, there is on the same page (C 524) a loving response from the father. Two days later on 24th October at 1:53 pm there is a much longer message in lower case (the previous two having been in upper case). It is full of optimism and how much the girls are enjoying themselves and how they would like him to come and visit. It is full of suggestions of friends and entertainments etc. (C527). Forty minutes later at 2:33 pm M writes in upper case:
“IF YOU SEE ME CHANGING MY MIND, I AM NOT THE ONE WRITING THEM MASSEGE (sic) I AM IN A HURRY SO THAT MOM KENT (sic) FIND ME DOING THIS”
. And just under 4 hours later on the same day at 6:21 pm. M sends a further message to her father responding to an earlier suggestion of his that he would buy and send her a lap-top: “NO I DON’T WANT A LAPTOP I WANT TO COME BACK TO ZIMBABWE” (C530).[81]Two points should be made in my judgment about the above series of exchanges. The first is that the father submits that the message full of optimism at C 527 is not in fact from M but is from her mother. It is clear from the evidence that the mother reads all of the e-mail traffic of her daughters, a perfectly proper thing for her to be doing given their ages. But it is equally clear that had she found the messages suggesting that M & T were unhappy living in England, she would have done her best to countermand this impression swiftly, as I find she did, for I prefer the father’s interpretation of this insertion into a series of disenchanted e-mails to have been made by the mother. I do so even bearing in mind that children can change their minds very quickly depending on what is going on in their lives. Having taken account of that possibility, I reject it as the explanation.[82]The second point to make is that this is clear evidence in my judgment that at that period the children were indeed unsettled.[83]However, I have to look at the evidence in its totality on this subject. I have taken into account the material from the girls’ respective schools where they are clearly doing extremely well, and where both parents have every right to be proud of them. I have also taken account of the father’s evidence (against his own interests) where he agreed in cross-examination that indeed the girls are settled in their new circumstances. I have further taken account of the tenor of the content of their interview with Mrs. Morris where a similar impression is made. These aspects of the evidence do indeed suggest that these children have settled.[84]Arguing for a contrary view, Mr. Scott-Manderson points in particular to the immigration status of the mother and children, which he asserts would be substantially more precarious if the IND were aware of the extent of the misleading and untruthful evidence that the mother has given to them (not all of which by any means I have recounted in this Judgment). Mr. Scott-Manderson further points to the fact that the mother has been served with a Notice of Refusal, her appeal was out of time, and an application for judicial review is two years out of time. I infer that he would argue that the recent attempts by C & Co. on her behalf are likely to prove fruitless, and he finally points to the continuing interest of the IND in the outcome of these proceedings.[85]Mr Scott-Manderson further argues that although Mr Nicholls quite rightly drew my attention to the current Home Office suspension of deportations to Zimbabwe, the blanket policy on suspension of deportations to that country should be considered in the light of the Court of Appeal decision in AA v Secretary of State for the Home Department [2007] Civ 149. He submits that, although Mr Nicholls in his closing submissions refers on a number of occasions to the “brutality” inflicted upon the mother by the forces of the State, this brutality (so Mr Scott-Manderson suggests) amounted to allegations that she had been slapped. Thus, in Mr. Scott-Manderson’s submission, it is most unlikely that she could possibly make out, in her own case (let alone in relation to the children), that she would face from the forces of the State in Zimbabwe assault or mistreatment of any kind sufficient to qualify as a breach of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as incorporated into domestic law. Article 3 of that Convention is of course a consideration for the IND, for they must consider whether a deportee would face treatment such as to amount to a breach of their Article 3 rights in deciding whether to deport or not as earlier stated.[86]As Mr. Scott-Manderson further points out the Court of Appeal decided in the case of Re S (Child Abduction: Asylum Appeal) [2002] 2 FLR 465 (as summarised in head-note 1) that even if immigration legislation in effect prevented the Home Office from removing a person that would not constrain the Family Division from exercising its jurisdiction, on the facts of any particular case, under the Hague Convention jurisdiction. I have also been referred to the first instance decision in the same case, reported at Re S (Child Abduction: Asylum Appeal) [2002] 2 FLR 437. The decision of Bennett J. (under appeal) makes it clear that “s 15 of the Immigration and Asylum Act 1999 did not prevent a family judge from exercising his powers, whether under international Convention, statute or wardship, to return a child to the country of its habitual residence where that return was in the child’s best interests, whether or not the child was the dependent of any asylum applicant, as in this case, or had made an asylum application in his or her own right”. I take it that the reference in that extract to “that return was in the child’s best interests” was specifically in the context of the case Bennett J. was deciding, he considering the matter under the inherent jurisdiction, for the country to which he was returning the child was not a signatory to the Hague Convention. Save for that cautionary note, reminding myself that the Hague Convention does not operate on the principle of the child’s best interests, but on its own wording imposing its own obligations on each contracting State. I respectfully agree with Bennett J.’s approach.[87]Mr. Scott-Manderson invites me further to consider the influence direct or simply ambient more likely than not (he submits) colouring the views of the children about their life in this country. Settlement must of course to some extent also take into account what the children have lost, and what, as they grow older, may come to seem more important than it does now. He points in particular to the loss of the paternal and maternal family, to loss of experience of their own country of habitual residence, and its culture.[88]Overall, and on fine balance, I find that the children are settled here within the meaning of the Convention. Article 13(b) “Intolerability/Grave Risk” Grave Risk/Mother’s Personal Circumstances:

Article 13(b) “Intolerability/Grave Risk”

[89]The mother asserts that it is too dangerous for her to return to Zimbabwe for personal reasons, the first set of facts relied upon relating to the problems allegedly facing her husband, and the consequences thereof to her; and the second set (albeit related to the first set) concerning her own circumstances.[90]As to her husband she claimed at length in her interview with the Immigration Services on arrival, and in the subsequent document prepared in March already referred to, that he had worked for an organisation known as CIO, and fallen foul of the Zimbabwean authorities, had been sought as a criminal, following his arrest had been treated brutally such that he was unrecognisable when he was released; that he has faced a warrant for his arrest (which may or may not remain outstanding); and that it is believed that following charges against him of breaches of state security there may have been a trial ending in a verdict, that trial being held in his absence.[91]I have no account from the husband, and thus am reliant on the history given by the mother to the Immigration Services and to me. Given the acute question marks over her credibility, can I believe all or any of it?[92]There was earlier in the hearing some considerable doubt as to whether or not the warrant for his arrest (C 239) was a genuine document or one executed by others at the behest of the husband or the mother as part of their camouflage to bolster their application in the UK for asylum. Certainly on the face of it the husband was said to have breached state security by breaking some unspecified section of one of the security acts. Since it was not the equivalent of an indictment there were no particulars upon the face of the document. In the course of the hearing an e-mail was produced dated the 17th July 2007 (09:48) to the father’s solicitor from the father. He had made enquiries through his office as to the warrant of arrest and its validity. The answer reads:
“Have checked with the clerk of court at Rotten Raw (sic) and he confirmed the document as a true record, there was a trial and a verdict passed, that’s all he could say”
. Once again father is producing material which is on its face not in his interests to produce, for he was concerned as to validity of the warrant although, it being a copy, he declined in oral evidence to assert that it was a forgery, simply raising the question in a proper fashion. He now, through his own office in Zimbabwe, produces evidence to show that there was indeed a trial of the mother’s husband. He does not know whether it led to an acquittal or a conviction, thus I must take seriously the risk that it was a conviction with the obvious consequences or potential consequences for the mother’s husband should he return to Zimbabwe.[93]I find that as a probability the husband had been in some unspecified way at some unspecified time in breach of the security laws (to a degree and of a seriousness unknown to me). I find as a probability that he has faced a trial in his absence, although to assert any consequence arising therefrom as a probability is impossible. As part of the landscape I consider it would be unwise of me to rule out as a real possibility that the husband will face arrest and possible imprisonment should he return. Should that risk turn into a reality it will have an obvious impact on the household of the mother and the children (should the mother return with them).[94]As to the mother’s circumstances, apart from the factor above adverted to, she states that she has in the past faced police “brutality” (some verbal abuse, being pursued by agents of the CIO in cars which tried to force her off the road, questioning by members of the police seeking her “husband”, and an overnight remand in custody where she was slapped etc.) in the course of questioning as to the whereabouts of her husband when the security services/others were interested in discovering it. She fears that as the wife of a convicted man, if he is one, she will face equal problems, particularly bearing in mind what is said to be is unspecified breaches of state security.[95]Furthermore she claims that as a returned failed asylum seeker she will face prejudice and probable prosecution by the state for attempting to flee. She may also face, although no one has yet reported her, prosecution for a bigamous marriage (as I find it to be) to her husband.[96]Finally she asserts that the father is wholly untrustworthy, and thus all the practical arrangements which he proposes for her and the children on their return would be unlikely to be put in place by him with obvious consequences for her and the childrens’ welfare, amounting to an intolerable situation.[97]As a countervailing argument the father submits that although he has attended upon the police shortly after the mother’s non-consensual flight, it was to seek help in finding them, not to launch criminal prosecution. He has never sought to bring a prosecution subsequently. He offers an undertaking he would not seek of his own motion to bring or aid a prosecution against her. I accept his evidence on all three aspects (for further consideration of the proposals see the section below marked “Undertakings”). I have also in that section dealt with the issue of practicalities, but I record at this stage that I believe the father will fulfil the promises he makes, and make proper provision for his wife, his children, and, should the husband return with the mother, for him also.[98]As to the mother’s own risk of imprisonment/police maltreatment, whilst I consider it to be a risk, I consider it to be a very slight one. It is her case at its highest (and I have already doubted her credibility on many issues) that she was only being sought/maltreated in the course of enquiries into the whereabouts of her husband. They are not, essentially, interested in her. As to the risk of prosecution of her as a failed asylum seeker, the father told me, and I accept, that he has never heard of any such prosecutions, and that it is most unlikely that she would face such a procedure. I accept his evidence, whilst of course bearing in mind the submission made by Mr. Nicholls recorded elsewhere that there is or may be a real risk of such an outcome (see that part of this judgment which discusses the cessation of forced deportations to Zimbabwe, and the case of AA v Secretary of State for the Home Department [2007] EWCA Civ. 149 (see above).[99]There is also evidence, which I accept, that the mother will have the ability (as she did in the past in Mashonaland) to apply to the civil juvenile court and/or the High Court to determine issues relating to the welfare of the children. Once again the mother casts doubt on this purported safety net by suggesting that the father cannot be trusted, she also giving evidence herself of her own capacity to manipulate judicial outcomes, thus suggesting that the structure of the courts in Zimbabwe cannot be relied upon to bring in a just result. I do not accept her evidence on this subject, and in rejecting it simply advert to the fact that she has, at times, been sufficiently trusting of it to seek domestic orders relating to the custody and welfare of her children in the past.[100]In consequence of what she submits are the risks to her husband and to herself the mother has given clear evidence that she will not return to Zimbabwe even if the children are returned, and that I must therefore consider the risks of both physical and psychological harm to the children in the event that they are separated from her and from her husband (whom the children have made it clear in their responses to Mrs. Morris they regard affectionately as one of their carers). I remind myself (not in a spirit of mischief, nor indeed casually) that it was this mother who absented herself voluntarily from the lives of her two children for a period of some two and a half years without thought as to the psychological consequences to them of so doing. However that previous absence should not be taken by me as either a benchmark of her attitude towards her children, nor as an indicator that these children in their current state could sustain a further separation from her, for they are now older and their circumstances quite different from those which pertained between 2002 and 2004.[101]For my conclusions on this issue see below.

Grave Risk/Intolerability: The State:

[102]Mr. Nicholls argues forcefully, and at length, that I should regard Zimbabwe as a “failed state” and elaborates his argument which may be summarised (albeit very crudely) in the following way: if Zimbabwe is failing and/or has failed (he would submit the latter) then although my duties under the Hague Convention to consider its purposes and effect them remain (neither contracting state having seceded from its obligations under the Hague Convention, and by virtue of the Vienna Convention on the Law of Treaties Article 60, it not being open to me to regard the Hague Convention, or any of its articles, as abrogated in relation to Zimbabwe), I should nevertheless, in considering the nature of the allegedly “failed state,” and the general circumstances which pertain there, decline to return the children to it because of the risks to them arising from the general deterioration of the infrastructure (including legal systems as well as practical conditions).[103]I quote two paragraphs of Mr. Nicholls’ opening submissions where he sets out his case in summary: i) The mother’s case is in two parts: it is submitted first that, regardless of our obligations under the Convention, returning the children to Zimbabwe would have such a potential to breach their rights under the European Convention on Human Rights, “the ECHR”, that no court should contemplate it. ii) Secondly, it is submitted that(a) such is the state of Zimbabwe that to return the children there would not achieve the purpose and objectives of the Convention; and/or(b) on the facts of this case, the mother is able to rely on one or more of the “defences” within the Convention.[104]In my judgment the evidence provided to me falls a very long way short of establishing that the state of Zimbabwe has failed. Nor does it establish that her or the children’s rights under the E.C.H.R. would not be respected there.[105]I have been provided with enormous quantities of information from a variety of sources, ranging from journalistic assertions in well known publications (e.g. the Economist and Newsweek adverted to earlier) to documents provided by the Foreign and Commonwealth Office of the United Kingdom, and the United States State Department. As a member of the public I cannot fail to be aware of general reportage (in newspapers, on the wireless, or on television) concerning events in Zimbabwe from time to time. Even after the close of the evidence, and indeed the close of written submissions, I was provided (with the consent of the father’s leading counsel) with an extract from Hansard recording a debate in the House of Commons on the subject of Zimbabwe which had taken place on 19th July 2007. I have read that material with care. It contains, as Mr. Nicholls points out, comments by the Under-Secretary of State for Foreign and Commonwealth Affairs, and the Parliamentary Under-Secretary of State for International Development. Those comments are highly critical of the general conditions operating within Zimbabwe, and of the administration of Mr. Robert Mugabe in particular. On a more positive note, I have also been provided, at an earlier stage, with a letter dated 18th July 2007 from Ms. M. Chiduku, Director Policy and Legal Research, for the Secretary for Justice Legal and Parliamentary Affairs (Central Authority of Zimbabwe) which gave an altogether different view of the state of the nation. I remind myself that these competing assertions about Zimbabwe were made by or on behalf of the respective governments of countries who, at the moment, take diametrically opposed views of what is best for Zimbabwe.[106]I further have the advantage of having heard the father who made concessions that indeed in some respects there are risks to certain sectors of the community in Zimbabwe (in particular those involved in political activities/agitation).[107]It is accepted evidence that there are food shortages, petrol shortages, and hyper-inflation. It is furthermore accepted, in the bulk of the material provided that there are attacks (allegedly sanctioned by, if not organised by, the government of Zimbabwe) on political agitators, in which periodically members of the wider public are caught up.[108]However the overall picture (which I accept) presented by the documentation, and in particular that of the Foreign and Commonwealth Office and the US State Department in relation to travellers to the country establishes that whilst there are risks to certain groups in certain parts of the country, and that travellers are given cautious advice about where to go, and how to go about their travels, there is no suggestion that Zimbabwe is reduced to a state of civil war or anything like it, nor that there are grave risks to any person (be they citizen or visitor) to that state if they take basic precautions for their safety typical of the measures which the wise traveller takes in many parts of the world.

Grave Risk/Intolerability: Findings:

[109]I do not find this defence to be established in relation to these children in considering the specific circumstances applicable to their return to Zimbabwe.[110]I reject the notion of the “failed state”, and accordingly any risks particular or general to these two children.[111]I reject the submission that if their mother returned with them there would be a risk that her and/or their rights under Articles 3, 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 as incorporated into our domestic law would be infringed.[112]If the mother declines to return, I do not consider that these children will suffer circumstances which would give rise to a successful plea of an Article 13(b) defence under the Hague Convention. They would go to the home of a loving father who has cared for them in the past for extensive periods prior to their wrongful removal, the mother consenting thereto, and reinforcing her consent and lack of worry by absenting herself from their lives for a period of two and a half years. Although the children have not seen their father between March 2005 and the brief period of contact on the 22nd June 2007, that contract was accepted by both mother and the father, and is accepted by me, in the light of not only her concession but also the father’s brief evidence on the subject, as being a highly successful reunion in which the children showed their immense pleasure at being reunited with him. Although they have expressed reservations/disinclination to be cared for by the father’s new partner, I do not consider that the matters they report (even if completely true – on which I express no concluded view) would amount to circumstances establishing a defence under Article 13(b). What they describe cannot possibly be seen to fall into the category of a grave risk of physical harm or psychological harm, nor of intolerability.

Children’s Objections:

[113]I have considered very carefully the two CAFCASS reports of Mrs Morris, and her oral evidence. It seems to me that the following points were established: i) The children do object; ii) At their ages (12 and 10) and upon Mrs Morris’ assessment of them, their age and maturity (bearing in mind their age and circumstances) are sufficient in principle to permit me to consider their wishes and give them all due weight; iii) Their wishes (whether they be designated objections or preferences) are inevitably coloured by the fact of having been in the care of the mother and her new husband, neither of whom are in favour of a return, and both of whom are more likely than not to have spoken of Zimbabwe in such a way as to give both children a comparatively negative view of the current circumstances operating in that country, even if the girls had good memories of it from the past (which they seem to hold); iv) There is a strong theme of a wish to remain with the abducting parent in the account of both girls to Mrs Morris, and each of these girls will be in no doubt that their mother does not wish to return. It is more likely than not, in my view, that the mother will have made that clear to them prior to their discussions with Mrs Morris; v) Whilst the children do not care for the father’s new partner, and would not wish to be in her care, they have a good and loving relationship with their father, who has cared for them for extended periods before (including a lengthy period when their mother took no part in their lives); I have not ignored the few complaints they make of him (see D 4-6 paragraphs 2:11 to 2:15). vi) Although the mother raises issues of maltreatment of the children by the father (and the children speak of maltreatment by his new partner) they are not of a sufficiently high order to be of sufficient weight to disqualify from a return; vii) Neither child gives any sense of awareness (perhaps happily) of the precariousness of their position in this country in terms of their immigration status; viii) Neither child gives any sense that they have considered medium to long term issues, including permanent separation from their paternal and maternal families (with the possible exception, should they remain here, of the father flying to visit them from time to time).[114]They were also asked what they would like by way of contact with their father of they remain in this country, and it was quite clear they were very enthusiastic to see him; to have him visit the school (M) and have periods of staying contact (T). I record that they were both clear that they did not wish the father’s new partner to be present or part of these events.[115]They were asked what arrangements they wanted if they were to return to Zimbabwe, and said they would be happy if their mother came with them. They would like to live with her and her “husband” and see the father for contact, but again without his present partner.[116]Although I have made a finding in paragraph 111 (iii) above that the mother and/or her “husband” are not likely to have spoken enthusiastically of Zimbabwe, I note particularly in Mrs. Morris’ comment that she detected no evidence of coaching. I consider there to be a significant difference between positive coaching, and general commentary and attitude towards Zimbabwe over a long period in the household which they occupy. I too could not, on this evidence, make any finding that either child had been specifically coached for this interview, and the subsequent telephone call referred to in the second of the CAFCASS reports.[117]Overall I do not regard the children’s statements in this matter as being sufficiently strong for me to regard them as determinative of the issues. If I am considered to be wrong in that assessment see below in relation to the exercise of my discretion. Discretion:[118]I have set out earlier in this Judgment in the section headed The Law, the relevant principles. I do not repeat them here. I direct myself by them.[119]Having considered the policy of the Convention (to ensure the return of children to the State of origin when I have found them to be wrongfully removed) I have gone on to consider whether or not this case is an exceptional case such that I should exercise my discretion to refuse to order an immediate return, as well as the general discretion in Article 18.[120]Having set out at length the facts as I find them to be, I can find nothing in this case which would qualify it as exceptional, and thus decline to exercise my discretion against a return, and in the case of Article 12 (settlement) exercise the discretion in Article 18 to return them.[121]I have considered the nature and seriousness of the wrongful removal, including the many layers of deception deployed by the mother in bringing about that wrongful removal, keeping the children at an address unknown to the father for many months; wrongly refusing to return the children to Zimbabwe when the father so requested (as I have found he did in the missing email); that on the father’s proposals the mother (and her new husband) could return to Zimbabwe with the children to care for them; and that even if the mother and or her new husband declined to accompany the children, they would be properly cared for in the home of their father; that their cultural and social roots (including their wider paternal and maternal family) are all still in Zimbabwe. I have also considered the children’s objections. Ultimately, there is nothing exceptional about this case on any view. I therefore, even though settlement has been established, have exercised my discretion in favour of an immediate return.

Undertakings:

[122]I have no hesitation in accepting the father’s undertakings as set out in the document appended hereto marked “Annex A”.[123]Mr. Nicholls submits that I should be cautious about the father’s undertakings for a number of reasons, not the least of which is that he is, in the mother’s view, untrustworthy. I reject the mother’s evidence on that subject as contrary to my findings as to his credibility, and as being simply part and parcel of her forensic posturing to attempt to prevent a return.[124]Mr. Nicholls further criticised the father in producing no corroborative evidence that he could fulfil these undertakings. I do not find it to be essential that he should do so. I was impressed by his measured evidence, by his acceptance that there are, for some members of the population in Zimbabwe, shortages and difficulties (further admissions against his own interest). I was further impressed, and accept his evidence also upon the following: his own financial affairs are in a sufficiently healthy state for him to comply with these undertakings; as for the provision of petrol, his evidence was careful and detailed when he told me that his transport business has contractual arrangements with B.P. for direct supply to his company from their depot in South Africa, thus avoiding the shortages which fall upon other citizens. I further accept that he has a smallholding, the arable sector of which provides green-grocery provisions to international supermarkets, some of which could be diverted by way of provision of basic staple foods to his family, and cattle which, when slaughtered, can provide basic animal products.[125]Although the father originally offered undertakings for a period of two months, he further through counsel, invited me, if I saw fit, to extend the period of them. I do so, for I consider that should the mother return with the children she will need a little time to stabilise her affairs and seek legal advice, and take such action as may prove necessary to engage in the litigation process, if that proves necessary, in Zimbabwe. I have thus extended the period to three months. Some of the undertakings as specified in the pre-amble to them are not intended to be time-limited, and in respect of those so nominated, I accept them without limitation of time, and subject only to any further application if ever made in the English courts to vary or discharge them.[126]In the second schedule, the father invites the mother to give undertakings. Should she decide to return to Zimbabwe (contrary to her clear evidence to me that she would not) I would wish her to give such undertakings. Should she decline so to do it seems to me that it may be necessary for the father to take such action in the domestic courts as he considers necessary and appropriate. In the event that the mother chooses to return to Zimbabwe with the children, and wishes to give these undertakings to this court, then she may execute the appropriate written form of undertaking, and a short directions hearing can be taken in front of the Urgent Applications Judge in the event of my absence from London so that she can give those undertakings formally.

General:

[127]For all the above reasons I order the return of these children to Zimbabwe. I accept the undertakings proffered by the father as referred to in the first schedule to the annexure hereto. I would wish the mother to give undertakings in the terms of the second schedule to the annexure hereto, but should she decline so to do her refusal shall not stand in the way of a return of either child to Zimbabwe.

Order:

[128]I invite counsel to draft the necessary orders to bring this Judgment into effect. That is my Judgment: ANNEX A: Undertakings Offered by the Father And in support of the obligation and power conferred on this Court under Articles 12 and 18 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction this court accepts the undertakings given to this court by the Father and the Mother set out in the First and Second Schedules hereto and being part of this order, such undertakings constituting binding and enforceable obligations. 129. PREAMBLE TO THE FIRST AND SECOND SCHEDULES The undertakings set forth in the First and Second Schedules below have been accepted by the Court to achieve the objects of Article 12 of the Convention and for the limited purpose of returning the children to Zimbabwe and securing their welfare until such time as the courts of Zimbabwe shall exercise jurisdiction over them AND HAVE BEEN OFFERED freely and voluntarily by both M M (hereafter “the Father”) and V M (hereafter “the Mother”) having been advised of their binding and enforceable nature both in England and Wales and in the courts of Zimbabwe. The undertakings shall have effect for the period specified or until such time as the courts of Zimbabwe shall exercise jurisdiction over the children, whichever is the later, save for Undertakings numbered 7, 8, 9, 10, 12 & 15 which shall have permanent effect. Nothing in the undertakings shall be construed as usurping the jurisdiction of the courts of Zimbabwe or as constituting any admission or concession as to the position once the Zimbabwean courts are seised of this matter. FIRST SCHEDULE. The Father undertakes for a period of 3 months, following the arrival of the children in Zimbabwe if accompanied by the mother;[1]To vacate the family home in Harare and to allow the Mother and the children exclusive occupation of the property and not to return to the property save for the purposes of collecting and returning the children. Alternatively the Father will arrange and pay for the rental (including any deposit required) of a furnished 3 bedroom property in the W area for the exclusive use of the Mother, the children and J M.[2]To provide the Mother immediately upon her arrival with a car for her and the children to use, which will be insured, taxed and maintained together with 40 litres of petrol per week.[3]To pay to the Mother the sum of £100 sterling per month, the first payment to be made immediately upon her arrival in Zimbabwe.[4]To provide to the Mother 2 months supply of general food provisions (including maize, meat, dry and tinned foods), the same to be left in the property which the Mother and children are to occupy and to be available immediately upon their arrival.[5]To arrange (in consultation with the Mother and children) places at private schools (boarding or day) and pay the relevant school fees (the same to include school uniforms and any additional school related expenses, excluding travel).[6]To place the children on the Father’s private health insurance through his employers scheme and to arrange for and pay the premiums on an equivalent health insurance scheme for the Mother. And the Father further undertakes,[7]Not to voluntarily support any proceedings (whether civil or criminal) for the punishment of the Mother (whether by imprisonment, arrest, fine or howsoever otherwise) in respect of any matter arising out of the removal or retention of the children as alleged in the Originating Summons and not to make any such further complaint seeking the punishment of the mother and to withdraw any such existing complaint.[8]Until the first inter partes hearing in the Zimbabwean Courts in which orders can be made in respect of the children, not to remove the children from the physical care of the Mother save for such contact as is agreed or ordered by the Zimbabwean courts.[9]To cause a copy of this order with the undertakings herein to be lodged with the Zimbabwean Central Authority and the Zimbabwean Court as soon as possible.[10]To instruct his lawyers to seek an inter partes hearing in respect of the children as soon as possible after the return of the Mother and the children to Zimbabwe.[11]Not to assault, threaten to assault, harass or pester the Mother.[12]Not to impede or otherwise seek to obstruct the free movement of the Mother into or out of Zimbabwe.[13]Not to remove the children from the jurisdiction of Zimbabwe without the permission of the Zimbabwean \court in proceedings on notice to the mother.[14]Not to apply for a passport or other international travel document for the children save with the permission of the Zimbabwean court in an application on notice and save as ordered herein.[15]To pay the airfares of the Mother (if she elects to accompany the children) and children to effect their return to Zimbabwe. Undertakings Sought by the Father SECOND SCHEDULE The Defendant mother undertakes that;[1]Upon return to Zimbabwe she will reside at the accommodation provided by the Father pursuant to his undertaking and will not remove the children overnight from that address until the first inter partes hearing in the Zimbabwean courts.[2]To provide an address within Zimbabwe for service of any court proceedings relating to the children.[3]Upon her return to Zimbabwe not to remove the children from the jurisdiction of Zimbabwe without the permission of the Zimbabwean court in proceedings on notice to the father.[4]To lodge her passport (or other travel document) and those of the children with the father’s solicitor Mr. M forthwith upon arrival in Zimbabwe, the said passport to be returned to her only if there is written prior consent by the father, or the Court in Zimbabwe so directs.[5]Not to apply for a passport or other international travel documents for the children save with the permission of the Zimbabwean court in an application on notice and save for the purposes of returning them to Zimbabwe in accordance with the terms of this order. Penal Notice To the Plaintiff and to the Defendant TAKE NOTICE that if you disobey the terms of your undertakings and or the terms of this order you will be in contempt of court and you may be liable to imprisonment.

Cited in 1 later judgment