K v D [2014] EWHC 3188 (Fam)

IMPORTANT NOTICEThis 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 persons concerned 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.Case No FD 14 P 00769[2014] EWHC 3188 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 26 th September 2014
Before
MR JUSTICE PETER JACKSON
Between
KApplicantDRespondent
Digital Transcription by Marten Walsh Cherer Ltd.,1 st Floor, Quality House, 6-9 Quality CourtChancery Lane, London WC2A 1HP.Tel No: 020 7067 2900, Fax No: 020 7831 6864, DX: 410 LDEEmail: info@martenwalshcherer.comWebsite: www.martenwalshcherer.com
Mr Alex Tatton-Bennett (instructed by Messrs Bindmans LLP)appeared for Applicant.Ms Nadine Finch (instructed by Messrs Wilsons Solicitors LLP)appeared for Respondent.
JUDGMENT
[1]This is an application under the Hague Convention in relation to a little girl, E, who was born on 18th August 2009 and so is now aged five years old. It is a somewhat unusual application for reasons that will become apparent.[2]The Applicant is E’s maternal grandmother, who is now 66 years old. The Respondent is E’s mother, who is aged 24. E’s father, Mr D, is 38 years old. All family members are nationals of the Czech Republic.[3]Before I describe the history of this matter, it is important to note that the question for this court is not what should happen to E in future or where E should live. The decision to be made is which court should determine decisions about E in future: should it be this court or should it be the court in the Czech Republic? This is not a welfare decision; it is a decision about jurisdiction.[4]The background to this matter is that, until around the end of 2011, everyone in this family was living in the Czech Republic. The grandmother was then still married to the mother’s father. The mother, as quite a young teenager, had got into considerable difficulties with drugs. When she became a mother at a very young age, the care of E gravitated towards her own mother.[5]Therefore, by October 2010, the grandmother was caring for E. There were then proceedings in the Czech court, which led to an order on 5th December 2011, under which the Šumperk District Court ordered that E should, from then on, live with her grandmother.[6]By this stage, according to the grandmother, the mother had disappeared from E’s life. In 2012, the maternal grandparents divorced and in early 2012 the mother came to England, where she has remained. She now speaks good English. The remainder of the family speak no English.[7]To complete the picture, in January 2014 the grandmother, for financial reasons, issued an application in the District Court to become E’s official foster carer. Those proceedings are still in existence, awaiting the outcome of these proceedings.[8]I now turn to the mother’s position. She describes being brought over to England with the promise of work as a waitress or as bar staff. However, she was in fact the victim of a criminal gang and was a victim of trafficking, whereby she was effectively imprisoned and forced to work, amongst other things, in prostitution. The gang behind this is said to be run from the Czech Republic and to have a particular leader who still remains there.[9]Happily for her, during 2013 the mother managed to escape and reported her position to the police. The result was that criminal proceedings were taken against two individuals, the son of the gang leader and his partner, which led to their conviction in March 2014. They were sentenced to 11 and 10 years imprisonment, respectively. The mother gave evidence during those proceedings.[10]The mother’s situation in London has, not surprisingly, been difficult. She has been in two relationships recently. The first ended in the middle of August, when she says that her partner was violent towards her and she left. The second is continuing at the moment.[11]One of the results of the police intervention was that the mother and grandmother were put back in touch with each other. It had been some years since the mother had had any contact with her own mother or with her daughter. There were a number of messages and phone calls and these led to the grandmother coming over to England with E on 18th June 2014.[12]The grandmother left England on 8th July, without E. There is a dispute between the grandmother and the mother as to why that happened. What is clear is that, within a few days of the grandmother’s arrival, she was in conflict with her daughter. The grandmother and E were living in very small and inadequate accommodation with the mother and her then boyfriend. It was only about four days after her arrival that they fell into disagreement.[13]In the time that followed, the grandmother contacted the police and the Czech Embassy, claiming that E had been taken from her care and asking for help. However, nothing came of it and on 8th July she went back to the Czech Republic, where she immediately contacted the authorities, who brought forward an application through the International Child Abduction and Custody Unit on 22nd July.[14]On 16th July, soon after the grandmother left, the mother herself issued an application for a prohibited steps order in this jurisdiction, to prevent the grandmother removing E from her care.[15]The grandmother now seeks an order for E’s return to the Czech Republic.[16]The unusual features of this application are, firstly, that E was brought here by her grandmother and, secondly, that the mother’s situation as a victim of trafficking creates a special context. There is no dispute between the parties that, up until 18th June, E had always been habitually resident in the Czech Republic. Nor is there a dispute that E was brought voluntarily to England by her grandmother. Therefore, this is not a case of abduction. What is alleged by the grandmother is that E was unlawfully retained in this country by her mother, in breach of the grandmother’s rights of custody under the Czech order.[17]The mother raises two defences to this application. Her first defence is that she alleges that the grandmother consented to E not only coming to England but remaining here. The second defence is under Article 13(b), by which the mother alleges a grave risk of harm to E in a return to the Czech Republic, or that E would be in an intolerable situation if sent back to that country. I deal with these in turn.[18]The essential issue between the parties is that the mother says that when E came here to England with her grandmother, she had come to stay. The grandmother puts it differently, saying that she had come to see whether the family could live together in England and whether E could be reunited safely with her mother.[19]I heard limited oral evidence from both parties about this question. I accept the mother’s evidence that there were many communications by phone or text message between early 2014 and the grandmother’s arrival. The mother says that the arrival was because of a plan to be together as a family. The grandmother told me that she came to England because she wanted to convince herself about the mother’s situation and to see how she was.[20]On behalf of the mother, Ms Finch points out that the family’s difficult situation, arising from the criminal investigation, would have been an incentive for the grandmother to move away from the Czech Republic. She also argues that there was at least some accommodation and possibilities for the future for the family in London.[21]Article 13(a) of the Convention provides that this court may refuse to order the return of a child that has been wrongfully retained if it is established by the person opposing the return that:
“a) the person, institution or other body having the care of the person of the child … had consented to … the removal or retention.”
[22]I have regard to the familiar authorities on this question, namely Re P (Abduction: Consent) [2004] 2 FLR 1057 and Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051. In particular, the effect of these authorities and others like them is that consent must be clear and unequivocal (although it need not be in writing), that the burden of proving it rests on the person who asserts it, and that one has to take a practical view of the realities of family life.[23]In this case, there was no consent to the retention of E in this country. I reach this conclusion for four reasons.[24]Firstly, even the mother herself does not produce evidence that there was an agreement that E was coming here permanently when she arrived in England; no evidence has been produced from any of the prior communications.[25]Secondly, bearing in mind that neither the grandmother nor E had ever come to England before, and also considering that E’s mother was something of a stranger to her by that time, it is unlikely that a final decision would have been taken before the journey was made.[26]Thirdly, I note the grandmother’s reaction after the breakdown in relations with the mother in getting in touch with English and Czech authorities both here and in the Czech Republic. It is possible that the grandmother agreed to E coming here permanently, but then, for some reason, changed her mind. However, it is much more likely that she is correct when she says that she came to investigate the situation, but was not satisfied.[27]Fourthly, I note the mother’s own reaction to the breakdown, in taking legal steps to stop the grandmother removing E. That too does not sit easily with there having been an agreement.[28]If things had worked out differently, if the grandmother had been impressed by the mother’s living conditions and if the mother and grandmother had got on well, I can easily see that it might have led to an agreement that E should stay here, in the care of her grandmother, in the care of her mother or, more likely, in the care of both of them. However, that unfortunately never happened.[29]As it is, the grandmother, I find, did not agree to hand over E to the care of her mother. I find that she did not agree to E remaining in this country, against her wishes.[30]I turn now to the defence under Article 13(b). There are many cases in which this Article is raised as a defence without any real basis in fact. That is not the case here. The court is bound to consider whether risk arises for E as a result of her mother’s courage in deciding to give evidence in such a serious case. The mother says in her evidence that she feels under threat as a result and that she fears that criminals involved with this organisation might seek to harm her or to harm her daughter, bearing in mind that one of the criminal defendants is a child of a leading member of the gang. I do not, in any way, take the mother’s feelings about that lightly.[31]I have a letter from the officer in the criminal case, A, dated 30th July, in which he refers to the defendants being part of a larger, organised criminal network, which is active both here and in the Czech Republic. He says that the grandmother had contacted the Czech police, feeling that she might be being watched by members of the group local to her. He also makes reference to the fact that there was evidence of at least one potential witness in the Czech Republic being bought off before the criminal trial and that, whilst the grandmother had not reported any violence or threats of violence, his concerns are real. Therefore, it is obvious that the question of risk of harm has been fairly raised by the mother in the circumstances of this case.[32]Article 13(b) provides that this court is not bound to order the return of the child if the person opposing the return establishes that:
“b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
[33]I direct myself in accordance with the decision in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758. The question has to be considered on an ordinary balance of probabilities, on the basis of actual evidence. I particularly refer to paragraph 33 of Baroness Hale’s speech:
‘Second, the risk to the child must be “grave”. It is not enough, as it is in other contexts such as asylum, that the risk be “real”. It must have reached such a level of seriousness as to be characterised as “grave”. Although “grave” characterises the risk rather than the harm, 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.’
Here, of course, the nature of the harm that is suggested is of a physical nature and of a high level of gravity. It would follow that, if the evidence for it exists, the level of the risk need not be particularly high.[34]I also have to have regard to the provisions of the Brussels II Revised Regulation.

(b) of the Hague Convention 1980:

“… if it is established that adequate arrangements have been made to secure the protection of the child after his [or her] return.”
[35]I have looked carefully at these unusual circumstances, when considering whether the mother has made out this defence. Having done so, and approaching the matter in the way that I have indicated, I do not find that there is a grave risk that E’s return would expose her to physical or psychological harm or otherwise place her in an intolerable situation. Although for anyone, adult or child, involvement in a history of this kind is bound to raise concerns of the sought mentioned by A, I have not been able to find any solid, established evidence of a threat to E in this country or in the Czech Republic.[36]Further to that, it is risk arising from a return order that provides a defence. I cannot find, to follow the wording of the Article, that a return would expose the child to harm. Even if I had found that she was at risk, I cannot find that the risk alters as a result of her returning to the Czech Republic.[37]In this case, any risk that arises in London may be increased by E being with her mother. In the Czech Republic, any risk may arise from proximity to others in the criminal enterprise. It is simply not possible to distinguish between the two.[38]For those reasons, this defence is not established.[39]That is, however, not all that can be said on this point. Even if I had concluded that Article 13(b) was engaged, it would be a question for the court as to whether a return should, nevertheless, be ordered. In this case, I would order a return, regardless of my conclusion under Article 13(b). This is because, as I have said, there is no evidence that any risk is worse in the Czech Republic than it is here.[40]Equally, I would order a return because, under Article 11.4, I am satisfied that adequate arrangements can be made to protect E. Moreover, from a review of the history, it is clear that E is a Czech child. All of her family, apart from her mother, are in the Czech Republic, including her father, who supports her return. The mother’s situation in England is very uncertain.[41]There are many reasons why it is much better that E’s future should be decided by the District Court, which already has proceedings in existence. I would say again that I am not making a welfare judgment, but the Czech court has conferred custody of E on her grandmother.[42]The mother now wishes to look after her daughter and that is understandable. I know that this decision disappoints her. There are a number of ways in which she has impressed me, but in order to reach a decision about E, the matter must be put before the court of E’s origin, to decide upon her future.[43]The mother, again understandably, is concerned about travelling to the Czech Republic. If she has a stable, solid plan for E, I am sure that there are ways in which she can present it to that court. However, difficult as this decision is for her, she has assured me that, to put it in her words, she will not make chaos for E now that this court has made its decision. If she has long term plans to care for her daughter, there is no better way for her to show her responsibility than by complying faithfully with the order that I now make.[44]I will direct that E is to be returned to the Czech Republic by 6pm on Monday, 13th October. That is two and a half weeks from now. In the meantime, to safeguard the position, the grandmother’s legal team will immediately give notice of this decision to A at the Metropolitan Police, or at least to his team, and also in translation to the Division of Social Affairs at the municipal office in Šumperk and to the office for the International Legal Protection of Children at Brno. Those letters are to be expedited and sent in Czech translation.[45]That is my decision and the reasons for it. I will now give each party the opportunity to make submissions about the manner of the return.