Z v Y [2013] EWHC 3381 (Fam)

This judgment is being handed down in private on 5 November 2013. It consists of 19 pages and has been signed and dated by the judge. The judge 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.Case No FD13P01412[2013] EWHC 3381 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/11/2013
Before
MRS JUSTICE PARKER
Between
ZApplicantYRespondent
Mr. D Boyd of Counsel (instructed by Creighton & Partners) for ApplicantMr. E Devereux of Counsel (instructed by Bindmans LLP) for RespondentHearing Hearing dates: 23 and 26 September 2013
JudgmentMrs Justice Parker :
[1]A is just 13. She was born in a country which shall be referred to as X. Her parents cohabited from 1999 until April 2013, with a short separation in 2003, and a longer separation from 2006 to 2008.[2]A has always lived in X, apart from a brief period in England in 2003, and has always been at school in X. Her grandfather lives in London.[3]The parents and A had been due to travel to London together for a holiday this summer. After the separation the family’s plans to travel together were shelved, but the mother changed the flight tickets to an earlier date without telling the father. She brought A to this country on 12 June 2013. They are staying with the mother’s father. A’s father, who remains in X, seeks her return under the Hague Convention.[4]The case has taken a familiar course. First a location order and then directions, with the final hearing listed before me for one day, originally, on 23 September 2013, and then a further hearing on 26 September 2013.[5]The mother’s defences were: i) Rights of custody (either not existing, or not exercised); ii) Child’s objections; iii) Article 13 (b) grave risk of harm or intolerable situation;[6]After a legal opinion had been obtained the mother accepted that the father had rights of custody and withdrew the assertion that they were not being exercised.[7]The parties filed statements. Finance is a particular theme for both with each presenting the other as unreasonable. The mother complains that the father is a poor provider. The father’s case is not that he is unwilling to pay but that the mother should pay her share. They each give very different accounts of the history; save that their relationship has plainly been one of considerable conflict.[8]The mother describes the father as an emotional bully; both forceful and controlling. She says that he was angry, moody and aggressive but does not complain of physical violence. She asserts that the father forced her and A to live in poverty and that she functioned as a one parent family with A. She says that the father abandoned any interest in A as at the date of separation and had shown scant interest in her before. She asserts that A has written to her father and he has not replied. Her statement is unremittingly critical and ranges over a number of asserted faults and misbehaviours of the father. She asserts that A “hates” her father and that A begged her to take her to England; only after they arrived did she decide that they should stay. She says that she did not believe that she required the father’s consent and that A does not want to be returned to live with her father. The father has not in fact suggested this. She says that she could not manage financially if they returned but her main emphasis is on A’s asserted antipathy to returning.[9]The father asserts that he has played a major part in caring for A in the past. He says that there were money troubles including as a result of the mother’s failed restaurant business. He says that an emotional email which he wrote on separation has been misconstrued, and that his lack of contact with A at that stage (which he asserts that he regrets) was dictated by circumstances. He takes the view that she has been forced to take sides, and enlisted in support of the mother’s desire to leave X. The father has produced a short, child focussed letter written by him to A dated 4 July 2013 in which he said that both parents loved her, that money was short but that he would pay for her upbringing and schooling, and that there were other issues which would need to be explained in due course but were not decisions which she currently needs to make. He has also produced email correspondence with A, which I accept demonstrates a normal relationship and communication with mutual affection. He expresses pleasure in her exam results and she asks him to get information from her school. He refers to her returning to X and she does not demur. There is no hint of estrangement between them, until she suddenly stopped replying on 1 August 2013, the day that the location order was obtained and served. He points out that subsequent emails from him have been read in the early hours of the morning and he suggests that this is because A has to do so in secret because she does not want her mother to know. He emphasises that she elected to retake her exams so as to be able to return to school. This involved him making arrangements with a college in London by arrangement with her school. He points to many inconsistencies in A’s presentation, and says that much of what she asserts is just not accurate.[10]The mother states that she will make a leave to remove application immediately if A is returned to X.[11]She seeks undertakings: a) a lump sum of €11,500 (representing maintenance at €1,250 per month for 9 months); b) A’s school fees to be paid in advance; c) €4,000 for her legal fees; d) The costs of return flights; e) Not to be present at the airport on arrival; f) Not to remove A from the mother's care save for the purposes of agreed contact or order of the court; g) Not to use or threaten violence and not to harass the mother; h) Not to prosecute any civil or criminal action in relation to the removal of A from X.[12]The father offers undertakings: a) Not to support any criminal prosecution; b) To provide accommodation until such time as the mother can make her own arrangements; c) €700 per month, plus half the school fees: but he will pay until the mother can find employment; d) That he will travel from X to collect A. e) To pay for A’s flight but not for the mother’s.[13]The mother asked for A to be separately represented. She withdrew her application after Ms Bartley of Cafcass had interviewed A and filed her report. A told Ms Bartley that she did not want to go back. She gave various reasons. The mother relied on her objections to return. The father says that A has been influenced. He says that it is not in her interest to leave her school in X at this stage in her education. A has been at various departments of this school since she was an infant. He wants to repair his relationship with her.[14]The case was listed originally for one day.[15]At the outset I discussed with the parties, and again with Ms Bartley (who was the first witness) whether I should see A. I indicated my intention to: i) tell her that I was conducting a limited evaluation in accordance with an international agreement; ii) see her in accordance with the Guidelines for Meeting Children [2010] 2 FLR 1872. The Guidelines stress that the child should be assisted to feel part of the proceedings, and to understand the process as well as expressing their views.[16]I stated that my usual practice with children of this age is to see them in the courtroom, although sitting in the well of the court, with the guardian, the associate, the usher and my clerk present (to assist with a note). I said that I would speak to A about whether she was happy about this. My reason for seeing A in the courtroom rather than in my room was: a) so that there could be a recording; b) because I consider it important that a young person of A’s age should appreciate the seriousness of the issues and that the meeting is part of the court process; c) Mr Devereux in particular stressed that I should see A in court so that our discussion could be recorded and the mother’s legal team could obtain a transcript.[17]I expressed my view (not for the first time) that with a young person of this age: a) I should stress to A that she had a responsibility to comply with an order of the court, if made after I had considered her objections and concluded that they did not justify non-return. b) I was entitled to form an evaluation of her wishes and feelings including on her presentation and demeanour and take into account any differences in what she had said.[18]Mr Devereux questioned the purpose and status of my discussion. I accept Mr Boyd’s submission that I was in fact hearing A’s representations: hearing her voice direct, not evidence, and in some respects akin to submissions. In that context, it was permissible for me to probe what she said not by in effect cross-examining her but by asking her to expand and to explain.[19]After I had raised the question of seeing A Mr Devereux referred me to Re G (Abduction) (Children’s Objections) [2010] EWCA Civ 1232, [2011] 1 FLR 1645, repeated in Re J (Abduction) (Children’s Objections) [2011] EWCA Civ 1448, [2012] 1 FLR 457 that the Judge needs to assess where a return order will lead if enforcement were resisted, and could be an influence for acceptance. I had already raised this issue.[20]I saw A for over an hour. I reported back in detail after the meeting. I have a very full note, and had at the time a very clear recollection of what had been said. I have checked my note.[21]A was brought to court by her grandfather. She had not expected to come to court that day, but at a later date. Why this was, since the hearing was originally listed only for one day, I do not know. A agreed to see me in the courtroom, with the tape on. She understood that there could be no secrets, and that a transcript might be obtained.[22]A said something to Ms Bartley after the meeting with me and Ms Bartley gave further evidence about this. All agreed that this justified the offer of another meeting between A and Ms Bartley. A took this up and Ms Bartley provided another brief report.[23]The hearing overran and was listed on Thursday 26 September for part of the day.[24]I intended to give judgment on the afternoon of 26 September 2013. Partial transcripts of the evidence of Ms Bartley and of my meeting with A were produced just before I was to deliver judgment. I read them, so did not have sufficient time to deliver a judgment which incorporated them. A more complete version was later provided: still not fully complete or accurate. Where there is a conflict between my note and the transcript, I am confident that my note is to be preferred. I announced the decision, that afternoon, ordering a return.[25]I had offered A the opportunity of seeing me once I had made my decision, so that I could tell her and briefly explain my reasons. In spite of my having made it absolutely clear that I wanted to tell her my decision and give her brief reasons, Ms Bartley chose to inform her what my decision was, as a result of which A did not want to see me, and left the building. There has been no opportunity for Ms Bartley to explain to me why she did this: I suspect that her very obvious sympathy for A played a part. But I regard this as not only unfortunate but positively unhelpful and I am concerned that it may undermine my decision.

A’s objections: the law: Article 13(2)

[26]I have to consider whether(i) A is objecting to return, and if so,(ii) whether she has reached an age and degree of maturity when it is appropriate to take account of her objections, and if so(iii) exercise my discretion (or as per Re B [2013] UK SC 33) make an evaluation as to whether I should nonetheless order a return.[27]If I do not order a return, the court in X may still order a return pursuant to Article 11 (6) to (8) BII R, and if so this court would have to enforce and implement such an order.[28]In Re W (Abduction: Child’s Objections) [2010] EWCA Civ 520, [2010] 2 FLR 1165 Sedley and Wilson LJJ stressed that: a) (at [17]) Although the defence was originally intended to apply to children shortly to become 16, there is no doubt that it can apply to younger children, and in Re D Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, [2006] 3WLR 989, [2007] 1 FLR 961, at [59], that “children should be heard far more frequently in Hague Convention cases than has been the practice hitherto” where there is a defence of a child’s objections. b) (at [22]) to “take account” means no more than what it says, so, albeit bounded of course by considerations of age and degree of maturity, it represents a fairly low threshold requirement. In particular it does not follow that the court should “take account” of a child’s objections only if they are so solidly based that they are likely to be determinative of the discretionary exercise which is to follow: see Re D above per Baroness Hale of Richmond, at [57], and Re J and K (Abduction: Objections of Child) [2004] EWHC 1985 (Fam), [2005] 1 FLR 273, at [31].[29]In Re T (Abduction: Child’s Objections to Return) [2000] 2 FLR 192 , Ward LJ (at 204B) stated that the question whether it is appropriate to take account of the child’s views:
“requires an ascertainment of the strength and validity of those views which will call for an examination of the following matters, among others. (a) What is the child’s own perspective of what is in her interests, short, medium and long-term? Self perception is important because it is her views that have to be judged appropriate. (b) To what extent, if at all, are the reasons for objection rooted in reality or might reasonably appear (my emphasis) to the child to be so grounded? (c) To what extent have those views been shaped or even coloured by undue influence and pressure, directly or indirectly exerted by the abducting parent? (d) To what extent will the objections be mollified on return and where it is the case, on the removal from any pernicious influence from the abducting parent?”
[30]In Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288 the House of Lords held that: i) the court does not have to find something exceptional in that case over and above the child’s objections: “exceptionality” is a description - not an additional test to be applied at the discretion/evaluative stage. ii) But “once the discretion comes into play, the court may have to consider the nature and strength of the child’s objections, the extent to which they are authentically her own or the product of the influence of the abducting parent, the extent to which they are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations …. The older the child, the greater the weight that her objections are likely to carry, but that is far from saying that the child’s objections should only prevail in the most exceptional circumstances”.[31]In Re K (Abduction: Case Management) [2011] 1 FLR 1268 Thorpe LJ emphasised that:
“[24] There must be a very clear distinction between the child’s objections and the child’s wishes and feelings. The child who has suffered an abduction will very often have developed wishes and feelings to remain in the bubble of respite that the abducting parent will have created, however fragile the bubble may be, but the expression of those wishes and feelings cannot be said to amount to an objection unless there is a strength, a conviction and a rationality (my emphasis) that satisfies the proper interpretation of the article.”
[32]I accept that A is objecting and that she is of an age and a degree of maturity when it is appropriate to take account of her views.

A’s Objections Analysed

[33]A’s objections were voiced in: i) A note which she provided for Ms Bartley, written, according to her, some weeks before the hearing; ii) Her meeting with Ms Bartley, of some 2 hours and 20 minutes, on 10 September 2013; iii) Her meeting with me on 23 September 2013; iv) What she said to Ms Bartley outside Court after that meeting; v) A further meeting with Ms Bartley.[34]A has been consistent in each of those meetings in saying that she does not want to return. Her reasons however have been variously expressed. I need to examine them, their consistency, their cogency, their rationality and their congruency with other established facts.[35]Her note is headed “Why I don’t want to go back” It is directed wholly towards the alleged bad behaviour of her father and his family. It does not give any other reason why she does not want to go back to X. Ms Bartley effectively discounted her complaints about the father’s family, which are expressed in overblown, somewhat child like and highly dramatic language, “soap opera” or film speak, with reference to cinematic monster figures. Some of her complaints in her letter are difficult to understand: she made a complaint about her father putting up shutters in the home, and references to not getting her report card. In her meeting with Ms Bartley and me she did not mention her father’s family at all: she made a number of complaints about her father.[36]In her meetings with Ms Bartley and me her complaints were: i) against her father: a) To Ms Bartley she described him as “moody”, spending time in his “man-cave” (her and her mother’s description) and as “bi-polar”. I do not accept Ms Bartley’s view that she would have alighted on this term through internet searches spontaneously, without some adult suggestion as to potential mental illness. b) To me:
“He’s so gloomy, the room so heavy, like its crushing you. No way to live, not being able to be happy and voice your feelings.” c) She complained that he did not listen to her or take her opinions seriously. When Ms Bartley suggested that he might want to protect her from adult decisions she said that she had the “right” to be consulted. She repeated the same complaint to me and I asked her to give an example. She said that she had wanted to discuss what subject she might study at university. He had told her that she did not have to make a decision just yet. She saw that as dismissing her opinions. She could not think of another example. d) She complained to me about a letter he had written to her in which he said that he did not blame her mother or her maternal aunt (who remains in X with her three cousins). She thought this was false. She complained that its tone was “formal”
. I did suggest to her that he might find it very difficult to know what tone to adopt, and that he was “damned if he did, and damned if he didn’t”. She reluctantly agreed to consider this. e) She told me that she would continue to receive and read his emails “I have no choice”. When I suggested that it might be polite to reply, she agreed to consider this. f) She said that she would not want to see her father whether she was in England or X “not for some years”. She then asked why he could not come to see her in England, where his elder daughters live. But when I asked whether this meant that she would be prepared to see him, she repeated that she would not, not for some years. g) She said that she did not want to go back to X because she might see her father “it is a small place”. When I asked why, she said that she did not think that she could control her anger, and might shout or become violent to him. She later told Ms Bartley that she regretted having said that. In her note she said that she wanted to spit on her father, and now wanted to do so even more. h) I suggested that she might regret her estrangement from her father in later life. I stressed that all parents have faults. I did not, as she later told Ms Bartley, suggest that her father was blameless. She told me that she had "forgiven him", but she continued to express extreme anger with him, an anger which did not seem to be justified in any way by the examples which she gave. i) She said that he never did anything with or for her, but also said that he would suggest an activity to “spite her mother”. j) In her note she said that he had “thrown us out” when she was four. Ms Bartley said that it would have been unusual for her to be able to remember this and wondered whether she had overheard a discussion between the parents. The father denies that this happened, and it seems to me that she must have been told this by her mother. k) She told Ms Bartley that her father can be fun when he “takes the pole out of his arse” (i.e. relaxes) and lets his hair down, rather than spending his time in his “man cave”. A was very polite and did not use vulgar language when with me and she did not make any similar comment. Ms Bartley regarded what A said as “unfortunate”. I regard it as offensive and rude, particularly for a well brought up girl from a conservative country such as X. What she said does not connote any fear: or even any real criticism: it is simply disrespectful. It is highly likely that it reflects discussion with her mother. l) To me:
“just going back to my dad and his family is such a horrible thought … wasn’t very pleasant to live with my father: never did anything with me: just someone who had given me life.” m) Her father makes her mother out to be an “evil woman” who “stole his child.”
Since A has had little communication with her father, and the correspondence which I have seen and about which she told me was measured and uncritical of the mother that must have come from someone else: I assume the mother or a member of the mother’s family. n) Both A and the mother say that A’s father is not interested in her and does not care about her. They give different reasons why the father was at fault in not taking A to the hospital when she was ill (the father says that he had no car so someone else had to do it).[37]Her objections to X were: a) “It’s not particularly nice”; b) she had no trust in the legal system (based upon her mother’s problems with civil proceedings, about her restaurant business, apparently); c) the language and people were “horrible”, the people were inbred, stupid (Ms Bartley described those remarks as “unfortunate”, particularly since three of A’s grandparents are from X ); d) (to me) beautiful and nice beaches but really a holiday place, not the ideal place to live; e) the tourist areas were full of “pervy old men", (she indicated to Ms Bartley that this was where she and her mother were living, but that is not the mother’s case: she says that they went shopping in an area where there were strip clubs: I was not told why); f) (to me), everyone gossips , the people are odd, not particularly nice, stupid, don’t use their indicators when driving, inbred, not very intelligent; g) Ms Bartley stated in her report that “X is associated with conflict and difficulties that she says are known to her peers and community”: that is not actually what she said, either to me or Ms Bartley; h) Ms Bartley said that X is bound up with feelings of poverty and her father would not fund peer group activities so she did not fit in (the school report does not mention this: mother says that he would not pay for school trips, father says that after separation she did not tell him about them or ask him to pay): finances impacted on her life. But the only concrete example A gave was with regard to school trips; i) she did not complain about living conditions at all, either to Ms Bartley or to me, save for the comment about her father putting up shutters in the family home, which I did not understand;

Schooling

[38]A did not make any complaints about her school until after her meeting with me. Ms Bartley has been able to obtain some information from the school. i) A’s school reports, produced by the father, describe a girl who is a keen learner. Her behaviour is described as outstanding, and her attainment between good and outstanding (the three highest categories of six): save in the X language, and maths, with which she seems to struggle. Her personal qualities and social skills are marked good/very good, and she is described as outgoing, confident, empathetic, thoughtful and with good integration into the group. ii) To Ms Bartley she suggested that she had limited friendships: Ms Bartley doubted that was true. So do I. iii) A did not complain about her school to Ms Bartley. She only said that she could not take part in activities because of finances. iv) To me she said that she preferred her school here (she had been there for only a week) “it’s a very lovely school and the students accepted me straight away”. With regards to X she said “I was a bit of an outcast because everyone is so limited there; no one had ever heard of Japanese “Anime” cartoons” (she makes the same complaint about her paternal grandmother in her letter). v) She told me “Everyone in my year was preparing to go out partying … wearing short skirts … not appealing at all: partying the only thing you could do”.[39]After she saw me, A told Ms Bartley that she had been bullied at school about her weight and had been the subject of sexual comments. The mother through counsel said that A had not told her that she was bullied. A told Ms Bartley that she had told her mother about this – it is not clear to me whether it was after or before her meeting with me. In the second interview she went further and said that she had been called a “dyke”: she went on to say that everyone should be entitled to a sexual choice: and that X was narrow and conservative in its thinking. Ms Bartley asked her why she was now focussing her complaints on X rather than her father or any other factor. She could not explain, save to say that it was because she had read her father’s emails the previous night. I do not understand the connection.[40]It is asserted that the father had not paid the fees so that A had missed school. The school does not support this.

Returning to X

[41]A told Ms Bartley that she would have to be “tranquillised” to get on the plane. I told her that there was no question of this: but that if I made an order, after taking into account her objections, I expected it to be obeyed. I said that as a girl on the cusp between childhood and adulthood she needed to understand this. I said that I would expect her mother to support the decision too. She told me that she did not think that she could go. I have a recollection, although it is not in the transcript, and I do not have a note of this, that I asked her again and she did not reply. In her second interview with Ms Bartley she said that she may need some assistance to get on the plane. She said that she understood what the judge said about being adult but “inside it hurt a lot”.

Evaluation

[42]I note that Ms Bartley did not have her report with her when she came to give her evidence and had not reread it, and had to be reminded of its contents.[43]Ms Bartley saw A for 2 hours and twenty minutes: longer than she would normally have spent. Ms Bartley found A to be mature in presentation, (she is tall for her age and well built): articulate, witty, confident and engaging. I agree. Although quite cheerful in demeanour, she was alternately laughing and crying. I found the same. Ms Bartley said that she is able to express a degree of insight, able to converse about a range of subjects, consider alternative perspectives, reason and explore but is clearly emotionally affected by recent events.[44]In evidence she said that “I sense a genuine objection to a number of things … clear as to A’s ownership of her views and the wishes that underpin her expressed wishes and feelings … there is always some degree of influence in these cases although (she thought) less than in other cases … as a result of emotional alignment with one parent or another … a degree of clarity: spontaneity … authenticity”. Her presentation was very genuine. She found no evidence of coaching in the sense of a rehearsed learned repetitive script with no emotional content. I do not disagree with that bald statement, and said so at the time. But having read and reread my own notes, and the transcripts. I am clear that what A said must reflect quite a high level of adult influence. Furthermore her reasons for not wanting to return, although expressed emotionally and strongly, were flimsy and at times lacking in any apparent foundation in reality. They have all the flavour of casting around for criticism, and of an undigested repetition of things that have been discussed. I found A to be intellectually mature when discussing matters unrelated to this case: school work, her interests and so on. But her reasons for not wanting to return were repeated like a mantra, and she continued to assert that she did not want to return to her father or his family, when I made it clear that this was not the issue: she said “Going back to X automatically means going back to him, no way you won't run into him”.[45]Ms Bartley suggested that it would not be helpful if A were to be subjected to a “forceful return”. Mr Devereux attempted to push her further in cross examination. Ms Bartley did not adopt Mr Devereux’s proposition that A should not have to tolerate a return. She suggested, although she had not maintained this in her report, that A might benefit from a degree of support if she returned. a) I am just thinking now that it would be helpful if she is given some professional support on return because of the strength of her objections but … I do not think that I can say that it is going to be harmful in the long term: it will be a struggle to persuade her. b) To be forced to return - that is how she sees it - would place her under some emotional and psychological distress and she is likely to need some professional support. c) In the short term it would be incredibly distressing, in the longer term … would depend on a range of different factors. d) The impact of her immediate return will be significant. What I am not able to say is that that will be the case longer term or even in the medium term. It depends on what support, assistance and changes are in place on her return. e) Many young people are returned against their will. I am not underestimating the impact on A personally. But lots of young people go back to situations that they are very much against going back to and manage it with the right support. f) It is a matter for the court: views are clearly very strong, so no, she does not want to return. She is very much against that. Should she be returned will there be some harm? Certainly in the shorter term because it is very much against her will, but I am not able to say how long that harm will be present. It depends on so many different things. So, yes, she will be psychologically distressed for a period but I do not think I can go further than that. More than teenage angst. g) Yes, certainly in the short term she will need some professional support. She will be distressed. But the longer term impact on her will depend on what environment she returns to. h) She would find it difficult to withstand ongoing parental conflict in X: has been unhappy about some of the environmental aspects of X and about the parental relationship.[46]A said that she had found the meeting with me “overwhelming” and that she had not felt able to express herself. I am not sure whether she felt that at the time or not. Certainly I gave her every opportunity to express herself and did not challenge her reasons: although I did tell her that she might regret it if she did not repair her relationship with her father, as also had Ms Bartley. There were lighter moments when we were able to laugh together, and I discussed subjects unrelated to these proceedings, such as her interests. A said that I thought that she did not understand the law but she did. Ms Bartley told me in evidence that A had been different when she saw me: more rigid, just as tearful, but not so spontaneous. She told me that her account had not been as detailed: there were few specifics. But I have looked carefully at Ms Bartley’s report. There were few specifics in Ms Bartley’s account of the first longer interview in her report: and in her oral evidence she was no more specific. The kinds of things which A told me were very similar to what she told Ms Bartley.[47]It is quite plain from A’s own account to Ms Bartley that there have been many critical comments discussed between mother and daughter. She knows about habitual residence: the mother’s original case was that she was entitled to change A’s habitual residence because the father did not have or was not exercising rights of custody.[48]Furthermore, A has seen her father’s statement. Ms Bartley accepted A’s account that she had insisted on seeing it and her mother had felt unable to resist. I am far from sure that A was the driving force. If she was, then she has been inappropriately empowered. A also told Ms Bartley that her mother had discussed with her whether she had made the right decision and whether they should go back to X (and I note that this is not the mother’s case). This I think shows considerable ambivalence and questioning in her own mind about who has made the decision and whether it is the right one. A has demonstrated that she is inappropriately empowered elsewhere in what she has said to Ms Bartley and to me: such as “I have the right to decide”. Also she has been allowed to believe or to present that she was the driving force in the move: which I do not accept. The offence which she has taken about her father refusing to take her opinion seriously when he suggested that she does not yet have to make up her mind about university indicates a distortion of perception, and very probably one which derives from discussion with others.[49]Ms Bartley described her as at times “very dramatic”. She told Ms Bartley that in England she “felt alive as if she could breathe”. “So much pent up all the years of living there it is really not OK. I’m 13, I should not have so much anger. I feel like I need to destroy what destroyed me”. Ms Bartley told me that she could not say what it was that in A’s mind that justified such dramatic but very generalised remarks from a girl of 13, and that she discounted them.[50]In the end, Ms Bartley's reasons for suggesting that there should be no return were: i) the passion with which A expresses her opposition, and not what she actually says; and ii) her belief that if A is permitted to remain here her relationship with her father has a greater chance of repair iii) her concern that A would “struggle” to return.[51]I accept that A was very passionate and emotional. But in my view Ms Bartley has responded to the passion without evaluating what she has actually said. Notwithstanding that she told me that she starts from an approach of cynicism and looks for signs of influence, I do not think that she has subjected what A said to the necessary degree of analysis.[52]I thought that A was very confused. Although the way in which she expresses herself is mature, the actual foundation for doing so is shifting, irrational, and nothing that she said could objectively justify an objection to return. In many respects what she says is at material odds with what I am told from other reliable sources, such as her school.[53]I accept that A has been subject to a considerable degree of parental conflict. That does not explain or rationalise her objection to return.[54]I do not accept that A objects to a return to X as such on any cogent or rational grounds. I do not accept that she objects on “environmental” grounds (per Ms Bartley). The complaints about lack of money do not justify her objections. I do not accept that there is “a degree of clarity”, or indeed any clarity about her reasons. Ms Bartley accepted that many of her reasons were “unfortunate” or could be disregarded.[55]It did worry me when A told Ms Bartley after the hearing that she was bullied at school about her appearance and other matters. But her school in X describes her as well integrated and reports no concerns about bullying. The school report significantly undermines any conclusion that she was an outcast, or not popular at school. A told me that the school was “OK”, but she did not want to back there, because she preferred her new school. But A is not in a position to assess what things will be like for her in her south London school. She may feel that she has different interests from others there too. Children can be very cruel about others who are perceived to be different, and on the basis of physical appearance, and girls in particular can be superficial and frivolous. Mother’s financial position is not secure here either: she may continue to feel left out.[56]Notwithstanding A’s expressed feelings there is evidence to support the conclusion that A at least at some level accepts that she should return to X. The fact that she took the exams for her school in X, without which she could not return there, is very telling. This must have taken some effort and she told me that she had to go to the library to access information. Her emailed replies to her father show a keen interest in knowing about her results, and she did not protest at all about the idea of returning to her school. She continues to receive and read his emails (and justifies this on the basis that she "has no choice": not objectively the case) and she reads his emails in the middle of the night. The correspondence itself shows a wholly different relationship between father and daughter than is presented by the mother: who still maintains that A “hates” her father and that the father has no interest in her.[57]Ms Bartley concluded by saying she thinks that it is in A’s interests that the fracture in her relationship with her father must be “resolved”. I agree. Ms Bartley thinks that A does want a relationship with her father “in fact given her emotional reaction during our interview I think she deep down wishes to have a relationship with him”. I do not think that it is in fact that deep down. But she has allied herself with her mother. She cannot express positive or even ambivalent feelings about her father in that environment. Her maternal grandfather may also be an influence: Ms Bartley has not spoken to him. She will not be able to have a relationship with her father whilst in England. It is highly significant that she stopped replying to his emails once this process commenced. A showed her ambivalence also by suggesting that her father should come to see her in England, where he visits his older daughters from his previous marriage. She then retreated from this once she realised the inconsistency about what she had said about not wanting to see him at all.[58]A’s complaints about her father may have some foundation. He may have been moody. But her complaint about her father not listening to her and the reasons she gives are no basis for non- return. There is a circularity of reasoning: that she is not heard by her father as to her wishes, thus she wants to leave X.[59]Ms Bartley said that A’s views were expressed with such strength and conviction that they should be given “serious consideration” by the court. I have given them that consideration. I accept that she is voicing an objection to return that she feels at some level is genuine.[60]I reject Mr Devereux’s submission A has expressed a long list of rational objections. And it is not in her interests that they should prevail. Furthermore it is plain that her objections to X as such have come very late, and are not objections which are founded in reality since her consistent theme was that she was she did not want to be returned to the care of her father or grandparents. Person and territory are not interwoven in this case.[61]I accept Mr Boyd’s submission that I must take into account the psychological consequences of failing to order a return. I consider that this child has the burden of decision making on her shoulders and that she is attempting to shore up her mother’s wishes not to return by dredging up a series of flimsy rationalisations. I do not think that her social and psychological development will be enhanced by knowing that she has the responsibility for non-return.[62]In the light of my findings about her ambivalence about returning to X, I do not accept Ms Bartley’s “worst case” prediction about her reaction. But even if she is correct, this is not a reason for not ordering her return.[63]In the end I was concerned that the strongest reason in support of non-return would be a physical refusal to board the plane. I do not think that I need to fear that now. I found it highly significant that once given permission by me that she could accept that with support she will return to X.

Article 13 (b) intolerability/ grave hardship: the law

(b) intolerability/ grave hardship: the law

[64]Mother relies on: a) Financial hardship. b) Psychological and emotional effect on A of having her wishes overridden.[65]Ms Bartley says that she is also concerned that “forceful return” as she puts it will not help A’s relationship with her father, and that she is more likely to want a rapprochement with him if she stays here. Ms Bartley did not ask her directly about that, whereas I did. I have expressed my views about her relationship with her father above. I do not think that in any event that consideration can amount to an Article 13 (b) defence.[66]I am referred, of course, to Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 and to Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10. I am familiar, of course, with the well-known passages in para.29 onwards in the joint judgment of Baroness Hale and Lord Wilson: I look at this on a fairly frequent basis. Grave risk of physical or psychological harm or otherwise placing the child in an intolerable situation must be “restrictively applied”, (the House of Lords in Re D):
“The authorities of the requested state are not to conduct their own investigation and evaluation of what will be best for the child. [But, of course] there must be circumstances in which a summary return would be so inimical to the interests of the particular child that it would also be contrary to the object of the Convention to require it.”
[67]The fact that the defence is restrictively applied does not mean it should never be applied. The words of Article 13 are quite plain and need no further elaboration or gloss. I need also to consider: i) The burden of proof lies with the mother opposing the child’s return. The court will be mindful of the limitations involved in the summary nature of The Hague Convention process. It will rarely be appropriate to hear oral evidence of the allegations made under Article 13(b). ii) The risk to the child must be “grave”. “Grave” characterises the risk rather than the harm. Of course, there is, in ordinary language, a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as “grave” while a higher level of risk might be required for other less serious forms of harm. iii) The words “physical or psychological harm” are not qualified … “Intolerable” is a strong word and must mean “a situation which this particular child in these particular circumstances should not be expected to tolerate”. That includes physical or psychological abuse or neglect of the child herself and also exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent. iv) Article 13(b) is looking to the future as the child’s situation would be in the home country immediately or fairly soon. This does not necessarily mean the same as being returned to the person, institution or other body who has requested her return and the situation which the child will face on return depends crucially on the protective measures which can be put in place. v) Where allegations of domestic abuse are made, the court should first ask whether, if they are true, they would be of grave risk that the child could be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If so, the court must then ask how the child could be protected against the risk. The appropriate protective measures and their effectiveness will vary from case to case and from country to country.[68]Mr Devereux criticised Ms Bartley strongly for putting the test the wrong way round: risk of grave harm, rather than grave risk of harm. She conceded this. The Supreme Court in Re E of course recognised that there is an overlap. It is for me to assess the gravity of any risk. Ms Bartley said that she did not think that there was a grave risk of harm, or that there was a risk of grave harm.[69]The mother says that the father’s proposed undertakings are insufficient to protect her against a grave risk of harm.[70]There is no asserted risk of violence or ill treatment.[71]The father declines to give an anti-harassment undertaking. No such behaviour is asserted.[72]The father has declined to give an undertaking that he will not seek to remove A from the mother’s care. He seems to think that this precludes him from making an application for residence/custody or contact. He has not challenged the mother’s care of A thus far. But he is anxious to restore his relationship with A. I think that it would be wise for the father to agree that A should remain in the care of her mother unless or until a court in X rules otherwise.[73]The real issue is whether that father’s proposal of €700 p/m is so low as to create a grave risk. The mother has set out no budget.[74]The father suggested that the mother should live in a property owned by her father. The father was criticised strongly for putting this forward and the mother provided photographs of a property under renovation. But the father was not to know about the building works. When they will be finished I do not know.[75]The mother’s sister is still in X, and before her flight she was living with a friend. The father has offered accommodation. I have no cogent reason for doubting that there will be accommodation of some kind available. I do not know why the mother says that €1,250 or €1,100 per month is appropriate rather than €700. The father says that the mother can work as she has done previously: she is a chef. He wants her to pay half of A’s school fees, once she has found employment. The mother says that the X court can award child support. I have no evidence of any limit on the amount.[76]These arrangements, even though they may not be lavish, are not such as to create a grave risk of harm.[77]Nor do I regard Ms Bartley’s evidence (which varied significantly in her view as to how dire A’s reaction would be: see above) as showing that there is a grave risk of harm to A if she returns.[78]I do not accept that Ms Bartley went so far as to say that there should be no return: and if she did she would not have been entitled to do so.[79]I do not accept that the Article 13 (b) defence is established.[80]Even if it were I would order her return.[81]In this case it is in A’s interests to return. Quite apart from the underlying purpose of the Convention, it is in her interests to return to her home, her environment, her school, and to a place where she may be able to restore her relationship with her father.[82]I decline to suspend the return order to permit the mother to apply for leave to remove in X whilst she and A remain here.