FJN v EGLF [2014] EWHC 3168 (Fam)

[2014] EWHC 3168 (Fam)Case No FD14P00242
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Date Friday, 11 April 2014
PRINCIPAL REGISTRY
Strand
London
WC2A 2LL
Before
MRS JUSTICE HOGG
Between
FJNApplicantEGLFRespondent
Digital Transcript of Wordwave International, a Merrill Corporation Company165 Fleet Street, 8th Floor, London, EC4A 2DYTel No: 020 7421 4046 Fax No: 020 7422 6134Web: www.merrillcorp.com/mls Email: mlstape@merrillcorp.com(Official Shorthand Writers to the Court)
MS M SPARROW appeared for ApplicantMS GUHA appeared for Respondent
Judgment
[1]This is an application brought by the mother under the Hague Convention, for the summary return of twins, S and G, born 20 April 2009. They are not quite five. They were born in France. The mother’s application was made on 13 February 2014. She born in Rwanda and is now of French citizenship. The father was born in Montserrat and is a British citizen.[2]The parents met here. They have never married and they had what the father calls a casual relationship. The mother travelled back to France when she knew she was pregnant, gave birth to the children, left them in France with her mother while she came back here in 2009. She returned to France in 2010 and took over the care of her twins and her two older children.[3]She had some difficulty on her return to France, having not a permanent home, but in January 2012 she acquired a permanent home in P, it is a two-bedroom flat.[4]The French courts were involved between 2011, but toward the end of October 2012 they concluded that there was no further need of intervention.[5]On 23 February 2013, the parents, at the local court in P, were given joint parental authority, residence was fixed with the mother in France and there was to be contact with the father.[6]By April 2013 the French Social Services were again involved. It appears from the report we have that on 16 April there was a Juvenile Committee Conference and it was proposed that G, whose behaviour was causing concern, should be taken into care and the care would take place in addition to the existing procedures for appropriate schooling, especially at weekends and during school holidays. The purpose of this is to offer care suited to G’s behavioural problems and to enable him to acquire self restraint.[7]The Social Services arranged a meeting on 25 April, at which both parents attended so that they could discuss the plan. The plan was never put into being, because, as the French report says, “the mother had expressed her objection to the assistance with upbringing and with G being taken into care and informed us by telephone that the twins had gone to live in England with their father”. She explained that she wanted to join them when her state of health permitted. What the parents individually said to me is that the father arrived in France in time for that meeting, although not specifically for that meeting. He was in France. He says he came for the twins’ birthday on 20 April and that he had come at the invitation of the mother, who knew how and when he was arriving, because she collected him at the local train station and took him to her home. While he was there he says the meeting took place and an agreement took place between them that he would take the children back to England with him on 10 May. He says further that they agreed that he would return the children on 1 July for a holiday in France and to coincide with the mother’s christening into her church, which was due to take place on 14 July.[8]The mother tells a slightly different story, but it is an important difference. She says that there was disagreement. She says that the Social Services were involved, because she has a couple of very serious long-term illness, sickle cell and Wegener disease, both of which require her to be hospitalised on a regular basis and at about this time the Wegener disease was beginning to, as she put it, “wake up again”. It sounds as though she goes in and out of remission and that she was coming out of remission at this time, and that she knew she would have to go to hospital and so made an agreement with the father that while she was ill he would have the children on holiday with him in England and they would return to her permanently on 1 July. The father has always maintained that this was a permanent arrangement rather than a temporary arrangement.[9]She also told me that she did not invite him to come for the children’s birthday, but that he merely turned up. She tried in her evidence to convey to me that the Social Services in France were reacting to her need to provide care for the children while she was hospitalised, she tried to minimise the reality that G has been exhibiting difficult behaviour and that they were going to take him into care, which was quite clearly what the report said and what was in the Social Services mind. In any event, the children did not return to France on 1 July, because the mother in fact had sent a message to the father saying it was not an opportune moment and that she was still unwell.[10]The mother says now that the case is based upon wrongful retention of the children by the father either in July or in September 2013. She accepts that they came to this country with her agreement, but the agreement was for a temporary stay only while she was ill. That the father main defence is that she gave her unequivocal consent to their coming here to be cared for by him on a permanent basis.[11]On 14 May, three days after the father had left France with the twins, she wrote a letter to him in which she declares that “my children should live with their father and then they would be better off with their father, for indeed, I suffer from two rare diseases, sickle cell anaemia and Wegener. This forces me to be hospitalised regularly. In addition, G presents a hyperactive syndrome. The psychologist has prescribed a drug to help him, risperdal. It cannot be a full-time schooling for G. His concentration is limited to three hours per day”. She also sent a covering letter entitled: “To whom it may concern.” “You will find with this mail a letter explaining why the children should live with their father”, and various other documents being the children’s birth certificates and medical certificates from P Hospital concerning her own health. The explanations for the diseases, Wegener and sickle cell, two medical certificates for G, indicating the need for part-time schooling, the need for risperdal and G’s school evaluation, his results. She acknowledges she wrote that letter and it is in her own handwriting and it is in English. She says it was dictated to her by the father who was himself being dictated to by a one E T, which she alleges to be one of the father’s girlfriends and to L K, a social worker. The letter is clearly written by her, she acknowledges it. The spelling is extraordinarily good, as is the grammar for someone who alleges she does not speak English.[12]The father speaks English. If I may say, he has got that lovely lilt of the Caribbean. He finds it difficult to read and could not have spelt the long words involved in a letter. It would have been beyond him. I have not heard the mother speak English. The father tells me he does not speak French and when in France the mother translates for him and that she speaks to him in English. She herself acknowledges this. Although I invited her to attempt to speak to me in English, she declined to do so. I have no idea as to her standard of English, but the local authority here in London has had a number of telephone calls from her and have been able to discuss matters and were satisfied that she understood what was being said and that she was speaking good English and good enough English to understand what they were saying without the services of an interpreter.[13]I fully recognise that giving evidence can be an anxious making process and that if you are not wholly confident in a language it is helpful to have an interpreter available to you. I invited her to speak in English and to turn to her interpreter as and when she needed. She declined that invitation and I wonder why if she is able to talk to social workers and talk to the father of her children in English. Is it an attempt to persuade me that she really does not understand or is it reality? Part of me is sympathetic, her first language is French, but I think she was deliberately trying to convey to me that her English was not very good. I have great difficulty in accepting that, given the circumstances that the father and she communicate in English and she was able to communicate in a satisfactory way from the local authority’s point of view in English and then I have the letter written by her.[14]She says it was dictated to her, written three days after the children had gone with their father. She says that there the “permanent” is not in the letter and that the letter was really to say that they should be on holiday with their father until she was better. There is not one word of that. The word she uses in English is “should live with their father” she used those words twice, one in the letter and one in the document “To whom it may concern” a letter explaining why the children “should live” with him.[15]In my view, having heard the mother and the father give an account of what happened in May, there was clear consent that they should come here and come here to live with their father on a permanent basis. It then appears that she at some point changed her mind. It may be that she changed her mind a number of times about this. She is a lady who clearly has health issues and one has sympathy for that. Looking at the chronology from the London Borough, it is clear that by 8 August there had been some concern about the practical care that the father was giving to the children; and there had been communication by the Social Services in England to the mother in France and she said the following, according to the telephone call:
“She invited the father to France in order to care for the twins as she had been in and out of hospital for some time. She is a sickle cell anaemia sufferer and she is scheduled for another major operation in the coming weeks. The father came to France and advised her that it would be better for the children to go with him to the UK, as he does not speak French. The twins have been in the father’s care in London since May 2013. The arrangement is not for the children to remain permanently in father’s care but for them to be with him in London for some time pending when she fully recovers after her surgical operation. She will be coming to London the first week in September to collect her children back into her care.”
[16]There are further notes from the Social Services as to telephone calls and contacts they have had with the mother, the first being recording a note from a Ms L, to somebody within the London Borough. It is dated 16 August:
“I have managed to make contact with the mother. Contrary to previous information she has advised that she is very ill and at the time of contact was in hospital having undergone surgery. She has stated that the doctors are unsure whether her health would ever improve and she is now of the opinion the children need to remain with their father in England permanently as there is no one else to care for them. She has disputed claims about inviting the father to France and has stated that it is not appropriate for him to reside in her home, as they not in a partnership.”
Then she says:
“We hope that in light of this information your recent decision can be reviewed.”
The decision related to rehousing the father and providing him with more suitable accommodation with the children with him.[17]A gentleman in housing then writes back to the social worker to ask why the mother changed her mind. Ms L replied on 2 September:
“I apologise for the delayed response. She has informed me that she is of very ill health and her condition is worse than at first expected hence why it is in the children’s best interests to remain cared for by their father. She is currently receiving daily support for her own health needs and cannot support the daily care needs of the children.”
And she passed on the mother’s contact details.[18]It seems by 2 September that the mother had taken a decision that the permanent place was with the father, having perhaps waivered in August.[19]There has been Social Services involvement in this country. There were doubts about the provision the father made for them immediately upon the children’s arrival here. There have been difficulties with G’s behaviour and indeed, the father has raised some issues about S’s behaviour. The London Borough assessed the father and the children’s situation in his care. The assessment concluded on 30 November. The report makes it clear that by then the children were not only happy, but seemed to have settled in the father’s care; they showed him affection and were content where they were. There was no necessity to issue what we call public law proceedings, although support was required.[20]The mother said she wanted the children back in November and again in December. She came over here for contact and although there is a dispute as to what exactly happened during that week just before Christmas, it is accepted by both parents that the mother attempted to remove the children from the jurisdiction. She was unable to do so as she did not have their passports and brought them back from Victoria Station to the father’s home.[21]In January she was again in touch with the Social Services and father. She told the father that she was going to come and live here; that she had found accommodation and a job which would be commencing on 10 February. She repeated this to the Social Services social worker. She never came. She said she told the father she was coming so as to in some way to prevent the father from leaving this country and taking the children to the Caribbean, which she alleged he said he would do. When asked he said he would never make that threat.[22]The mother is still living in France. She has two older children there. She wants to keep recover the care of the twins so that all four children can live together.[23]The reality that I have to decide is whether there was a wrongful retention. It is agreed that the parents agreed that the children should come here. The issue is was it to be a permanent arrangement or was it a temporary one. I find it was to be a permanent arrangement and thus there was no wrongful retention. The mother does not have the right to change her mind having made clear unequivocal decision and agreement that the children were to live here. She may have felt that it was the right thing to do because of her ill health. Later she wanted to change her mind when she was feeling better. She does not have that right. She made a clear agreement with the father backed up by the letter. Indeed, looking at what the Social Services in the London Borough said, there is a clear indication that although she might have waivered at the beginning of August, by September she recognised because of her ill health that it was to be a permanent arrangement. She then changed her mind again. She cannot do that. She gave her consent for a permanent arrangement.[24]I have read the Social Services report that was provided by the London Borough. It is a clear assessment. I accept there were difficulties when the children first arrived in the provision of care that the father was able to give, but by the end of November more suitable arrangements had been made. They spend time with an older lady, Y, Monday to Friday at night. They live in her home, which is a three-bedroom home. The father only has a studio flat. He provides care for them by taking them out, entertaining them, feeding them, giving them a bath before he leaves to go home. Over the weekends they stay with him in his room. They are content. 25. The social worker has observed the children with their father and seen emotional warmth between them. The school is favourable towards him and says he is always able to attend school appointments when requested although the Auntie Y, as she is known, does much of the collecting and delivering; the children are settling down and the social worker concluded that there is no evidence to suggest that the father was unable to meet his children’s basic care needs. Concerns were raised at the beginning of the assessment, but he had minimal support at the time. Since then he has been able to make more stable arrangements for childcare. The children are now involved in school full-time, which minimises this risk. More stable arrangements have been put in place with Y, helping to provide care to the children alongside the father. She is not currently working and this gives the children more stability and care:
“His assessment has been completed and I can report that both children have been observed in the home environment and appear happy and settled in their father’s care. He has taken all necessary steps to ensure that his children are settled in the United Kingdom and is receiving the right care and support. He has involved them in education and registered them with health and no child protection concerns have been raised on the social worker’s part of his ability to parent.”
The assessment deals with the somewhat difficult behaviour that the children have exhibited and it concludes:
“Following my assessment it is felt that the sudden move from France to the UK appears to have been a very traumatic experience for both children. They were uprooted from their primary carer without warning and sent to live in a foreign country with little preparation or explanation. Though residing with their father, it has been established he had only seen the children about four times before they came here. As there is very little known about the children’s histories, it is felt that continued support from health, school and the additional first steps would be beneficial to the children to ensure better outcomes. The children are both young and are unable to comment on the assessment. However, they were able to share that they like living in the UK and residing with their father. Due to their age it is also important for the children to maintain contact with their mother, as she is an important part of their identity.”
During the course of the assessment it became clear that the mother was able to telephone the father and the children: the father accepted this and above all the children have commented that they were able to speak to their mother.[26]It is also interesting to note that the mother sought to say to me that the children had been told that she was dead and the school had been told that she was dead. Against this the children told the worker they were able to speak to their mother, certainly up to the end of November of last year when the report was written, and I have been told they have since kept in touch. The school provided a letter dated 26 February indicating that Y brings the children to and from school. They reside with their father and that the school had been told that mum was ill and dad was asked to care for the children. They were not told that mother was dead. It is another factor that causes me to think that I prefer the evidence of the father.[27]The children were happy and settled in their environment by 30 November. I have said there was no wrongful retention. Had there been any wrongful retention towards the end of August or September the children would have been settling down at that point after three months. It must have been a very difficulty traumatic event for them to be suddenly taken away from their mother, from the environment in which they were living to live with a man who they did not know very well, change their environment and change their language. They are now speaking English. They are now happy and settled. The local authority are fully aware of this family and although there was a brief investigation following something that G said earlier this year, that investigation came to nothing.[28]The mother wants the children back. France is a civilised country; of course there are protective measures available and the French courts have already been seized of this matter. However, she gave her consent. She may well have changed her mind. She is not telling the truth. I preferred the father’s evidence. I have to consider whether I should exercise my discretion in sending them back or keeping them here. I am quite satisfied they should stay here. It is in their best interests for at this stage. They have had one traumatic move last year. They have got through that. They are happy and settled and to impose upon them another move to my mind would be detrimental and not in their welfare and interests. I do not think it is justified to contemplate a return to France.[29]However, I hope there will be good contact, mother to the children. I agree with the assessment. She is part of their lives, a very important part. They need to know that part of their identity and that part of their family background. They must have contact and I hope that that can be arranged.[30]In the meanwhile having said they are happy and settled here, there has been in integration into this country, they have learnt English, they go to school here, they have a life here and I think it is right to say they are habitual resident here. I have been asked that I should make a residence order and I am prepared to do so. If mother wishes to issue Children Act proceedings she is at liberty to do so, but for the time being I am making a residence order and that there should be reasonable contact as part of the order, namely such reasonable contact to be agreed between the parents and I hope very much that they will be able to agree the contact. I am dismissing the mother’s application under the Hague Convention. __________________