AVH v SI & Anor (By Judith Bennett-Hernandez As Her Guardian) [2014] EWHC 2938 (Fam)

[2014] EWHC 2938 (Fam)

Case No FD14P00811

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 04/09/2014

Before

MR JUSTICE COBB

Between

AVHApplicant

SIRespondents

SIVRespondent

Miss Katy Chokowry (instructed by Williscroft & Co.) for Applicant (mother)

SI (father) in person for in person

Ms Sam King (instructed by Cafcass Legal) for child SIV

Hearing Hearing dates: 3-4 September 2014

Judgment

MR JUSTICE COBB

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

The Honourable Mr Justice Cobb:

Introduction

[1]By application issued on 6 August 2014, I am required to determine the immediate future of S. She was born on 14 June 1999, and is now therefore 15 years old. She is the third and youngest child of the Applicant mother (represented by Ms Chokowry), a Mexican residing in her home country, and the Respondent father, a British citizen born in Bangladesh and living in Essex (who appeared before me in person). The mother has been able to observe the proceedings, and directly participate in them to the limited extent necessary, by video-link from her home in Mexico.

[2]I have been asked to determine the mother’s application for a summary return of S to Mexico pursuant to the provisions of the Child Abduction and Custody Act 1985 (incorporating the Convention on the Civil Aspects of International Child Abduction 1980 (“The Hague Convention”)), and under Article 11 of Council Regulation (EC) 2201/2003.

[3]By order of 13 August 2014, S has been joined to the application and is represented at this hearing by her Guardian Ms Judith Bennett-Hernandez, who appears by counsel Ms Sam King. S has been in court for the majority of the hearing and is again present for this judgment.

[4]For the purposes of determining these proceedings, I have(a) read the statements filed by and on behalf of the parents, and of S’s older siblings, M (aged 20) and D (aged 16),

(b) considered a number of supporting documents,

(c) read carefully the reports of i. Ms McCann of Essex County Council and of ii. the CAFCASS Guardian, Judith Bennett-Hernandez I have also

(d) required some limited oral evidence to be given by Ms Bennett-Hernandez and Ms McCann.

Background facts:

[5]The background facts can be summarised as follows. The parents were married in England but separated when S was only a year or so old. The parents were divorced in May 2003. The father remarried (Mrs RI) in around 2004 and continues to live in England with his second wife and their two children, aged 8 and 6. The mother lives with the three children in Mexico, and is reported to have a new partner. S is said currently to have a somewhat difficult relationship with her older brother D, but she and her older sister (M) regard each other as “best friends”.

[6]In 2008, the mother applied through the English courts for permission to remove the children permanently to her native country, Mexico, and following a contested hearing was given permission by the court in the following year. She actually relocated the children in 2010. The children have therefore been living in Mexico for 4 years. There has been no direct contact between the father and the children for the whole of that period, though he has had indirect contact. The father himself told me that he had not had much contact with the children in the years since they have been in Mexico. It now appears that during the spring and early summer of 2014 (and possibly for a period even before that) S and her father were in regular contact.

[7]Once in Mexico, the children were initially educated, it appears, in a bilingual school, which given their ages and doubtless their limited competence in Spanish at that time, was undoubtedly helpful to them. The father told me that after a year the children went to a Spanish speaking state school; I am unclear whether this was because the mother could no longer afford bilingual education though I note, and it is not disputed, that the father has paid little by way of maintenance for the children since 2010.

[8]S describes a poor experience of schooling in Mexico; she complains about struggling to learn in Spanish and not being able to take the educational courses of choice. Her description of school life does not entirely correspond with the appraisals of her teachers – in this respect, I have seen a letter from Mr Rosales Zepeda which confirms that S attended school regularly and showed “an acceptable level of achievement and a good mastery of the Spanish language, which proved to be no obstacle against her passing this subject”, and from Professor Silva Valenzuela who comments on S’s intelligence and proficiency in Spanish, achieving normal educational development. M described S as confident in and “amazing” at Spanish.

[9]On 7 July 2014, S informed her mother that she was leaving the family home to stay at a local friend’s home overnight. In the afternoon of 8 July 2014, the mother received a message from S via Facebook stating that she was in London and she intended to remain here permanently. History now reveals that the father had assisted S (both practically and financially) to leave her home, and leave her country by crossing the border to the United States and flying to England. This was done clandestinely, without the mother’s knowledge, let alone her consent. The father informed his wife that S was coming to England for a holiday.

[10]Within four days of her arrival in this country, and while at her paternal grandparents home, S was witness to what appears to have been (on the information available to me) an appalling scene of domestic violence when her uncle (the father’s brother) assaulted his wife, MK; S later described to her guardian how MK (her aunt) was “being physically attacked by her uncle”, and how her uncle was “strangling [MK]”. S reacted to this scene (commendably in my judgment) by calling the police; however her actions in doing so provoked an extreme and inexcusable reaction from members of her paternal family; first, her grandfather allegedly assaulted her, grabbing “her by the neck and arm and push[ing] her down onto the floor”. Secondly, and perhaps more significantly still, at about 3a.m. later the same night, her father evicted her (or attempted to evict her) from the home.

[11]I pause here to mention that, according to the father, S’s uncle has been charged with an offence of violence, and is scheduled to appear at court within the next few days.

[12]S managed to persuade the father not to throw her out of the house on the night of the assault, at least until she could be assisted to leave by M’s friend, which was later that same day. Two days later S moved to live with MK’s family in Ealing. S reported to the Guardian that on 7 August 2014, the father informed her in a telephone call that “he does not want her” and “she cannot come back to live with him”.

[13]Unsurprisingly S described herself as “shocked” by her father’s transformation from the parent she had met again at the airport on the 7th July, and felt utterly rejected by her father and the paternal family; she later described to the Guardian her “strong sense of unhappiness, distress and dislike of the father”; the Guardian reported that “S has a strong sense that the paternal side of family have completely rejected her, including her father”. In a phone conversation between S and her father on 7 August, the father apparently told S “he did not want her to return and that she was not welcome” (see again the evidence of Ms Bennett-Hernandez). S's reaction, which she shared with Ms Bennett-Hernandez, was “surprise and sadness because her father had promised her education.”

[14]Within these proceedings, a hearing took place before Pauffley J on 8 August 2014; S attended that hearing, and Ms Bennett-Hernandez was asked to interview her. S prepared a letter for the Judge; in which she says:

“my reason for coming to London was because I was promised a good education and bright future by my father… Mexico has nothing to offer me, the education there is terrible … I was born and raised in London which is where I wish to stay… schooling in Mexico is horrible and because I know some Spanish my mom expected too much of me that I couldn’t give I failed almost every class due to my lack of Spanish … I haven’t learned anything the past four years…”

She also refers to the fact that:

“after the situation with [MK] occurred (sic) I was told by my father that I was no longer welcome in his house…”

[15]I have seen the transcript of the oral report which Ms Bennett-Hernandez gave to the court on 8 August; in that report, Ms Bennett-Hernandez describes finding S to be “insightful” in relation to her own position. She further described S as articulating her wishes and feelings “extremely well and very clearly” – adding:

“I am of the view that from what she has shared the court can place a lot of weight on what she has not only written but also what she is stating as her wishes and feelings to the court.”

[16]At a hearing five days later (13 August 2014), S again attended; at that time she indicated that she wished to move into foster care. She was counselled by her Guardian and social worker to consider moving back to live with her father. S ultimately agreed to return to her father’s home (it was suggested by the Guardian that this may have had a tactical component believing that her prospects of being able to remain in England would be better), but subject only to conditions that a social worker from Essex County Council should visit the home once a week, that she could continue to see and have contact with MK and that the father would not discuss the criminal proceedings with her.

[17]About ten days after her return to her father, a family birthday celebration took place at the father’s home; the paternal family (including the grandfather and uncle) attended. S was understandably reluctant to see them and initially sought refuge in her bedroom; although she was coaxed out, she managed the situation only by largely ignoring the family guests. S described the occasion as “uncomfortable and awkward”, especially as her uncle gave her “icy looks”.

[18]In the last few weeks Ms Bennett-Hernandez and Ms McCann have assessed and supported S, and have reported to the court their assessments of her current situation. I am grateful to them for their assistance.

Hague Convention

[19]This application is determined by reference to the provisions of the Hague Convention. The objectives of this Convention were summarised by Baroness Hale in the decision of Re D (A child) (Abduction: Custody Rights)

[2006] UKHL 51

, wherein she said (at paragraph 48) “The whole object of the Convention is to secure the swift return of children wrongfully removed from their home country, not only so that they can return to the place which is properly their 'home', but also so that any dispute about where they should live in the future can be decided in the courts of their home country, according to the laws of their home country and in accordance with the evidence which will mostly be there rather than in the country to which they have been removed.”

[20]The starting point is Article 3 of the Hague Convention, which specifies that:

“The removal or the retention of a child is to be considered wrongful where – (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”

[21]There is no doubt (and no challenge raised in this case) but that on 7 July 2014, S was habitually resident in Mexico, and in the care of her mother who was exercising rights of custody over her. On the evidence, the father secretively facilitated the removal of S from Mexico and the care of her mother, and has in any event retained S here; he has done so without the mother’s consent, and in my judgment in breach of the mother’s rights of custody. None of this is in dispute in this case.

[22]My conclusion, on the evidence, that there has been such a wrongful removal or retention, obliges me to “order the return of the child forthwith” (Article 12) unless one of the exceptions in Article 13 applies.

[23]In this case, only one potential exception is engaged – namely that S objects to returning.

[24]When considering a child’s objections to a return under

Article 12 of the Convention

the Court must address these questions:(a) Does the child object to being returned?

(b) Has the particular child attained the age and maturity at which it is appropriate to take account of her views?

[25]The question of whether a child has attained the age and degree of maturity at which it is appropriate to take account of their views are questions of fact uniquely for my discretion.

[26]In evaluating the children’s views in this case I have adopted the principles conveniently summarised by the then President of the Family Division, Sir Mark Potter, in De L v H

[2010] 1 FLR 1229

at §63/64:

“‘Gateway’ findings which are required of the court in relation to the discretionary defence of ‘child objections’ under Article 13 of the Hague Convention are of course: 1. That the child does in fact object to being returned; and 2. That he has attained an age and maturity at which it is appropriate to take account of his views. On being so satisfied, the matter involves a wide range of considerations in relation to the exercise of discretion: see Baroness Hale of Richmond in Re M (Children)(Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1AC 1288, sub nom Re M (Abduction: Zimbabwe) [2008] 1FLR 251 at paragraphs 43, 44 and 46. As to (a) it is important to bear in mind that the objection to return must not simply be based on the child’s preference to be with the abducting parent. The basis of objection is that of return to the State of habitual residence rather than simply to the care of the applicant (see per Balcombe LJ in Re S (A minor)(Abduction: Custody Rights) [1993] Fam 242 [1993] 2WLR 775 sub nom S v S (Child Abduction) (Child’s views) [1992] 2FLR 492 at 250 and 499 respectively. Nonetheless leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated: see per Wall LJ in Re T (Abduction: Child’s objection to the return) [2002] FLR 192 at 203. In relation to this question and, in any event, in relation to the exercise of the courts discretion once satisfied the objection is established, the court analyses on the evidence before it the grounds on which the child’s objections are based in order to determine and weigh the strength, soundness and validity of those reasons against the background of the overall purpose of the Hague Convention, namely one of prompt return to the country of habitual residence so that the courts of that country may determine the question of custody and residence on the basis of a full welfare investigation.”

[27]On the important distinction between the child’s objections to remaining in the requested State with the Abductor, as against returning to the State of habitual residence, I have had regard to the decision of the Court of Appeal in Re K (Abduction: Case Management)

[2011] 1 FLR 1268

, paying particular attention to the passage which I have highlighted below: “Now it does not seem to be that the obligation to hear the child under provisions of Article 11(2) of the Brussels II (revised) regulation means that hearing the child, and hearing the wishes and feelings of the child clearly expressed almost automatically results in the conclusion that the child’s objection threshold has been crossed, and all that remains is for the Judge to exercise a discretion. The Hague Convention in its terminology. 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, conviction and a rationality that satisfies the proper interpretation of the Article”.

[28]This exception under Article 13 was originally devised as an escape route for mature adolescents only slightly younger than the age of 16 at which, under Article 4, the Convention ceases to apply, but is in fact now more widely applied in relation to even younger children (see Baroness Hale of Richmond’s obiter comments in Re D (Abduction: Rights of Custody)

[2006] UKHL 51

, Wilson LJ in Re W

[2010] 2 FLR 1165

@ para.17, and Art 12 of the United Nations Convention on the Rights of the Child 1989).

[29]What it means to “take account” of the child’s objections was further discussed by Wilson LJ in Re W (supra) at §22, to mean just that: “Earlier confusion in our jurisprudence about the meaning of the phrase ‘to take account’ in Art 13 (exemplified, for example, in Re T (Abduction: Child’s Objections to Return)

[2000] 2 FLR 192

at 204B–D) has in my view now been eliminated. The phrase 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]”.

[30]In this case, S’s objections are firmly rooted in her belief that she is not receiving a reasonable education in Mexico, and that she enjoys prospects for a superior education in this country. She maintains that she struggles to learn in Spanish (her second language) and she has not been able to take the courses of her choice (including music). S obviously has many talents, and ambitions; rightly, and understandably, she wishes to maximise her opportunities to cultivate those talents and realise her ambitions.

[31]I have been left in no doubt that her views about her education are passionately and genuinely held, and they are her own (i.e. she is not reproducing the views of either of her parents). Ms Bennett-Hernandez described her as “very articulate and bright young woman … endearing … determined confident and resourceful”, and from everything I have read this would appear to be right. I have evaluated her views by reference to the test of “strength, conviction and rationality” which Thorpe LJ referred to in Re K. As to their strength and conviction, the evidence is clear.

[32]As to rationality, I reach my conclusion with a little less confidence; I believe that S is probably a more able student in Mexico than she gives herself credit for, and her decision to switch not just schools, but educational systems, and home countries (particularly without discussion with her mother) suggests a degree of impulsivity. I also question the rationality of:(a) abandoning her established schooling in Mexico to an unknown arrangement here in England (as I go on to discuss below, there is at present no school place for her here and term has started); she appears to have undertaken little if any planning for such a radical shift of education; and

(b) dismissing out of hand the private school education in Mexico which the mother has now been able to arrange for her on a full scholarship, particularly given that she has not in fact visited the school; this is surprising given that she had told Ms Bennett-Hernandez that:

“…there are better schools in Mexico that would actually meet her needs and be a lot more pleasant and offer her the subjects that she would like to do but they are fee-paying schools and she tells me that her mother cannot afford them.”

[33]However, in wishing to be educated largely or exclusively in her native tongue, English, and in a school system which is statistically said to be superior to that in Mexico, taking courses which are more to her taste, there is in my judgment sufficient rationality in her view to amount to an objection in Convention terms.

[34]There is no doubt that at 15 years old, she is of an age at which it would be appropriate to take account of her views. She is a bright, articulate, intelligent, able young person, who has, in many domains of her life, displayed considerable emotional and intellectual maturity; the events over the last two months have been extraordinarily testing for her, and she has reacted with a reasonably high level of maturity and responsibility in dealing with them. While she may not yet display the rounded and more complete maturity of many (but by no means all) fully-fledged adults (and I note that even her father described her as immature in some respects), I would be placing the bar too high if I would to search for such a sophisticated level of development. In summary, and on the evidence taken overall, I conclude that she is a mature 15 year-old.

[35]For the reasons set out above, I have reached the clear conclusion that S not only objects to returning to Mexico, but that she is also of an age and maturity at which I should take account of her views.

[36]This finding opens the gateway to consideration of whether I should order, or decline to order, her return to Mexico.

[37]In reaching a view about how I should exercise my discretion, I have followed the guidance set out in the speeches of the House of Lords in Re M (Abduction: Zimbabwe)

[2007] UKHL 55

[2008] 2 FLR 251

in particular at §43-56. It is not helpful or necessary to reproduce lengthy sections from the relevant speeches into this judgment, but I extract from that authority the following propositions:(a) The discretion which I must exercise now is a wide one;

(b) I can and indeed should take into account the various aspects of the Convention policy, including the objective of the Convention to secure the swift return of children wrongfully removed or retained away from their home country, but this is not the dominant factor;

(d) I should take into account S’s objections (i.e. the circumstances which give me this discretion); in this specific respect it is helpful to rehearse the comments of Baroness Hale at §46) thus: “Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are "authentically her own" or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances”.

[38]In this case I was particularly concerned to explore at this hearing, and consider in my review of the material, the extent to which S’s views coincide or are at odds with other considerations which are relevant to her welfare. Of those other considerations, the following have particular importance:(a) Currently, there is no school place for S in this country at present; the autumn term has started;

(b) Neither S nor her father have undertaken much if any research into whether secondary schooling here really will suit S;

(c) That when S accesses a school here, she would have to drop an academic year, and to be educated with peers a year younger than her;

(d) That bilingual education is now available in Mexico, as the mother qualifies for a scholarship for S for the school at which the mother herself teaches; and

(e) The instability of her father’s home, and the impact of that on her education. I develop these points in the paragraphs which follow.

[39]As to (a) (school place), the father told me that he had identified two possible local schools for S – A School and B School. He applied for a school place for S at both schools but only after S had been in this country for some days or weeks; in my judgment this was probably only after 22 July (he told me that the school term had ended by the time he applied). Both schools have rejected her application for a place, and both schools are notoriously over-subscribed. That rejection is the subject of an appeal (though there has been no date given for the determination of the appeal). Until the appeal is determined, S is out of school. Term started earlier this week. If the appeal is dismissed, there is no clear or meaningful ‘Plan B’ for S’s schooling. When I asked the father about this, he told me that there were two other schools locally, but could not remember the name of one of them.

[40]As to (b) (research), although A School and B School enjoy good reputations, the father has not visited either school and has no direct experience of either through friends or family. He has not visited the schools suggested if A School and B School do not offer places (and as indicated above could not in court identify more than one). Neither the father nor S have it appears done any research into the current curriculum, the extent to which such curriculum would be compatible with S’s learning to date, and specifically whether S would be likely to be ahead or behind her peers in academic terms.

[41]As to (c) (academic year), it is a concern for me that S would have to drop an academic year; given the evidence about her intellect and my assessment of her maturity I fear that she may soon tire of the companionship of her 14-year old peers, and seek friendships in other years. As a newcomer to the school this could be socially difficult and ultimately isolating.

[42]As to (d) (school in Mexico), there is now opportunity for S to receive her education in a private bilingual school in Mexico; the father told me that all three children benefited from bilingual education in the first year following their arrival, and that problems only surfaced when they moved in to the Spanish speaking state system. In his written evidence and oral submission he appeared himself to accept that private education in Mexico may well compare favourably to education in this country (see his §36). S can thereby continue her studies there, and would be moving on from High School to study A level equivalents in two academic years time (i.e. no material disadvantage in terms of time than if she were starting her two year GCSE syllabus here now).

[43]As to (e) (home circumstances), the current arrangement in which S lives with her father is in my assessment at best fragile; after four years without seeing each other, their reunion in early July was initially short-lived when (after four days) the father evicted her from the home. I struggle to imagine the pain, and distress, which S must have felt at that time as a consequence of her father’s actions, and consider that while she may be able to conceal her pain now (and dismisses it as simply something in “the past” in her discussions with Ms Bennett-Hernandez), that wound will take time to heal. She speaks of making her own home here as soon as she is 16. In the meantime, relations between S and the paternal family are difficult (as their recent visit to the father’s home demonstrated), and are not likely to become easier while the paternal uncle faces criminal process as a consequence of S’s (entirely proper I emphasise) engagement of the police in the alleged incident in the grandparents’ home. If relations with the paternal family do not improve, S faces a degree of isolation, and likely tensions in her relationship with her father. He has no recent experience of parenting or taking responsibility for her; his limited role in that respect in the last few weeks has been fraught.

[44]Of particular relevance, I fear that S’s ability to engage constructively in, and benefit from, education in this country for which she yearns would be materially compromised if she were not able to live in, and rely on, a settled and secure home. I am conscious that S has spoken in less than favourable terms about life in Mexico with her mother, but that life appears on the evidence before me (for instance, her comments about life at home are not borne out by her sister and brother) to be more settled than that here. Moreover, I rely on the fact that if returning to Mexico, she would be physically and emotionally close once again to her older sister M whom (as I indicated above) she has described as her ‘best friend’.

Conclusion

[45]While taking account of S’s views, the considerations which I have discussed above point clearly to S returning at this time to Mexico. My decision – I stress for S’s sake if not for others – does not imply that S cannot at some point in the future come to this country to continue her education. Far from it. But if such a route is to be followed it surely has to be carefully planned, managed and structured, and discussions about S’s future, for as long as she remains a minor (and, I would hope, even as a young adult) should involve both of her parents.

[46]In his witness statement the father said that he would support S “no matter the decision made”; he confirmed that orally to me yesterday. I would like to rely on him now to support S in her return to Mexico, and so far as he is able at a distance, in her resumption of her education and integration into a new school there.

[47]I hope that S can accept that, while I understand and respect her views, there are nonetheless powerful considerations which clearly guide me to directing her return. She is plainly a bright and determined young person, and I wish her success in her future studies.

[48]That is my judgment.