L (Grave Risk of Harm) (Child's Objections) [2015] EWHC 3300 (Fam)

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.Case No FD15P00376[2015] EWHC 3300 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/11/2015
Before
MR JUSTICE COBB
Between
FApplicantMRespondentsBRespondent
Re L (Grave risk of harm)(Child’s Objections)
Miss Jacqueline Renton (instructed by Brethertons) for fatherMiss Katy Chokowry (instructed by Miles & Partners) for motherMr Andrew Powell (instructed by Freemans) for older brother (B)Hearing Hearing dates: 5-6 November 2015
JudgmentThe Honourable Mr Justice Cobb :
[1]By application, dated 12 August 2015, brought under 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, a father seeks the return of his son to his country of habitual residence, Bulgaria. The application concerns L, who was born in March 2008 and is therefore currently 7 years 8 months old. L has one full brother, B, who is 15 years old and is, in circumstances which I allude to below, represented in these proceedings, although not a subject of them; B is educated in England pursuant to a Bulgarian Court order. L has an adult paternal half-brother, N, and a paternal step-brother, C (aged 15).[2]The application has been case managed by a number of judges of the Family Division in anticipation of the final hearing which was listed over 2 days on 5 and 6 November. At the conclusion of the hearing I reserved my decision for a short time in order to reflect on the evidence which I had read and heard, and the submissions of counsel. This reserved judgment sets out my detailed reasoning. For the purposes of determining the application, I have: i) Read the statements filed by the parties; ii) Read the witness statement of Ms Laura Coyle, assistant solicitor at Freemans, who has met both L and B, and was appointed litigation friend under (rule 16.5 FPR 2010)for B, upon his joinder as a party, at a hearing before Hayden J on 30 October 2015; iii) Considered a number supporting documents, including orders, judgments and professional reports generated in the lengthy proceedings concerning L and B in Bulgaria; iv) Read the report of the CAFCASS officer, Ms Janet Sivills, dated 13 October 2015; v) Heard oral evidence from Ms Sivills. I was invited to consider hearing oral evidence from Ms Coyle, but concluded, for reasons which I set out more fully at [47] below, that it was not necessary or proportionate to do so.[3]At the conclusion of the evidence of Ms Sivills, I briefly adjourned the hearing in order to allow the parties an opportunity to discuss the issues directly with one another, kindly facilitated by Ms Sivills; this process had been contemplated by an earlier case management direction (Holman J). This discussion did not produce a settlement.

The issues, and summary of outcome

[4]The following facts and legal framework are not in issue in this case: i) L was habitually resident in Bulgaria at the point at which his mother removed him and brought him to England in April 2015; ii) At the material time (April 2015), L’s father had rights of custody in respect of L, and was exercising them; iii) The core ingredients of Article 3 of the Hague Convention are established. In issue at this hearing, for my determination, is: iv) Whether a return of L to Bulgaria would expose him to a grave risk of psychological or physical harm or otherwise place him in an intolerable situation; v) Whether L objects to returning to Bulgaria, and has attained an age and degree of maturity at which I should take account of his views; vi) Whether, if either of these exceptions is made out, I should exercise my discretion not to return L to Bulgaria.[5]Having reviewed the material, and for the reasons set out fully in this judgment, I reject the mother’s argument that a return of L to Bulgaria would expose him to a grave risk of physical or psychological harm, or otherwise place him in an intolerable situation. I have concluded that L does object to returning to Bulgaria, and has attained the age and degree of maturity at which I should take account of his views. Notwithstanding L’s views, in the exercise of my discretion, I have concluded that L should be returned to Bulgaria; accordingly the father’s application for summary return under the Hague Convention succeeds.

The background facts

[6]The parents are both Bulgarian nationals. They married in 1998, separated in 2008 when L was an infant, and divorced in 2010. The breakdown of this family has on any view been highly conflictual, with intractable disputes between them generating years of contentious litigation in Bulgaria; applications and cross-applications by the parents for orders governing personal protection, child arrangements, and financial provision have continued almost unabated over the last five years. In the course of those proceedings, both parents have made allegations of abuse against the other, and each have alleged that the other has abused the children; the mother contends that the father’s conduct has been aggravated by alcohol misuse, the father alleges mental instability on the part of the mother. The predominant theme of the Bulgarian litigation appears to be (to borrow the term from the translated Bulgarian documents) ‘parental alienation’, that is to say, each parent contends that the other is seeking to ‘alienate’ the children from them.[7]Tragically, both B and L have been exposed to, indeed caught up in, this conflict, and have been affected by it. The Cafcass officer reporting in these proceedings, Ms Janet Sivills, was clear that the children had been “harmed” by the actions of their parents in the way they have conducted their lives post-separation – a view which is amply justified on the evidence. In the course of the litigation in Bulgaria, both B and L have been assessed and interviewed by multiple professionals, both psychologists and social work. The experts instructed there appear to speak with one voice in concluding that the conflict generated by the parents has affected the boys’ “psycho-emotional development”. B is recorded as “being deeply traumatised by the continuing conflicts between his parents” (2014).[8]The extensive history of the litigation requires no specific elaboration here. It is sufficient for me to mention only a few key events. In March 2011 the mother applied for, and in August 2011 obtained, an order in the Bulgarian Court permitting her to arrange for B to be educated in England; the application had been opposed by the father, who appealed it unsuccessfully. There is evidence which suggests (albeit this is disputed) that the father allowed his anger and disappointment with the outcome to spill over into his communications with B and with B’s English school; the mother, and B, allege that the father sent abusive messages to B and to the school in the early part of 2012. I have seen transcriptions of these messages and if they were indeed sent by the father it portrays him in a disgraceful light. Be that as it may, for the last four academic years, B has been educated as a boarder in a private school in England. As L remained in Bulgaria with his mother during this period, there have therefore been significant periods of time (i.e. term times) between September 2011 and April 2015 when L and B have been living apart; they have come together only for school holidays. In the last six months they have inevitably seen more of each other.[9]On 24 October 2013, the Bulgarian Court inter alia imposed a specific prohibition on the mother removing L from the jurisdiction without leave of the court. For a period of time in the summer of 2014, following a judicial finding that the mother had wilfully obstructed contact between L and his father, L was moved to live with his father; the transfer of care was accompanied by an order that L was to have no contact with the mother. It is not clear now how successful this arrangement was. Photographs taken in the relevant period show L enjoying time with his father; L now looks back on the period through a somewhat different lens, expressing unhappiness about the experience. The mother successfully appealed the order by which the transfer of residence was effected, bringing the arrangement to an end after three months.[10]The relevant current order for ‘contact’ between the father and children was made in November 2014, at the conclusion of the parents’ cross-appeals against the 24 October 2013 order. That order provides for L to stay every first and third Friday to Saturday of each month with his father, plus holiday time in October, December, March and May. There are still extant proceedings in Bulgaria, notably the mother’s application to limit the father’s exercise of parental responsibility; the father’s appeal against the order granting the mother custody of B, and in relation to B’s schooling in England is apparently still pending before the Bulgarian Supreme Court.[11]In the spring of 2015, the mother sought the father’s permission to remove L from Bulgaria for a holiday to Paris. The father gave his permission. However, instead of taking him to Paris, on 20 April 2015 the mother brought L to this country, and within the space of less than one week enrolled him in private school here. She and L have been here ever since.

The essential legal framework

[12]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 [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.”
The underlying philosophy of the Convention has more recently been highlighted in Re M (Republic Of Ireland) (Child's Objections) (Joinder Of Children As Parties To Appeal) [2015] EWCA Civ 26 at [11] (see further below).[13]The instant case illustrates well the rationale of welfare decisions being taken in the parents’ “home country” and in accordance with the “evidence which will mostly be there rather than in the country to which they have been removed”. There is already an abundance of evidence, both lay and professional, gathered in Bulgaria (a point I return to later).[14]As indicated above (see [4]), in this case there is no doubt that there was an unlawful removal of L from the jurisdiction of Bulgaria. The mother nonetheless invites me to exercise my discretion to refuse a return. I can only do so if she can demonstrate that the case falls within one of the recognised exceptions under Article 13, which aredefined as follows: “Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –(a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or(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. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.” (underlining added).[15]The second part of Article 13 corresponds with (albeit enlarges upon) Article 11(2) of BIIA which provides that: “When applying Article 12 and 13 of the 1980 Hague Convention, it shall be ensured that the child is given the opportunity to be heard during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity."[16]In this case, the mother seeks to oppose the application for return based on Article 13(b) (a ‘grave risk’ of ‘physical or psychological harm’ and/or intolerability) and on ‘L’s’ objections.

The parties’ cases: Article 13(b)

[17]The mother’s case is that there is a grave risk that a return of L to Bulgaria would expose him to physical or psychological harm or otherwise place him in an intolerable situation. She advances this case in three alternative respects: i) That L would be likely to be exposed to domestic abuse or child abuse at the hands of his father if returned to Bulgaria; she points to a history of domestic violence; she refers to a history of emotional abuse from the father towards B; she expresses concern that L is soon to be of an age where the father would be likely to seek to impose his control upon him, and may do so abusively as he did to his older brother; ii) That if returned to Bulgaria, L would once again be caught up in the highly destructive litigation there which has ‘harmed’ him over recent years; iii) That L would be effectively separated from B, which would be intolerable for him.[18]The mother asserts that L ‘objects’ to returning to Bulgaria and that he is of an age and maturity at which it would be appropriate for me to take account of his views.[19]B fully associates himself with his mother’s case. He draws attention to the upset which he personally has experienced throughout his childhood by reason of the matrimonial litigation to which he says L would be further subjected; he separately relies on his father’s abusive conduct towards him (reference the text and e-mail messages referred to at [8] above). He emphasises the closeness of the sibling relationship, which will be damaged if L were returned to Bulgaria now.[20]The father maintains that the exceptions are not established in this case under Article 13(b). He challenges the contention that L would be likely to experience a ‘grave risk of harm’, and disputes that L’s views amount to an ‘objection’; he further disputes that L has the ‘maturity’ at which I should ‘take account’ of any such objection. If the mother’s case is to be preferred on any of these aspects of the case, the father invites me to exercise my discretion to order a return of L to Bulgaria, arguing that this was a calculated and blatant abduction, and that any further disputes about L’s upbringing should be resolved in his country of habitual residence.

Discussion: Grave risk of physical or psychological harm; intolerable situation

[21]I consider the mother’s case in this respect under the three sub-headings identified in [17] above.[22]In doing so, I have much in mind what was said by the Supreme Court justices in Re E (Children) (Abduction: Custody Appeal) [2011] 2 FLR 758 at [31-35], specifically: i) The words of Article 13 are clear; they should not be given any ‘gloss’ [31]; ii) The burden of proof lies with the ‘person, institution or other body’ which opposes the child’s return; the standard of proof is the ordinary civil standard [32]; iii) The risk to the child must be serious enough to be classified as ‘grave’, not just ‘real’. Although ‘grave’ characterises the risk rather than the harm, there is 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 [33]; iv) The words ‘physical or psychological harm’ are not qualified. However, they gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’ [34]. There are some things which it is not reasonable to expect a child to tolerate. Among these are physical or psychological abuse or neglect of the child himself/herself, and exposure to the harmful effects of seeing and hearing the physical or psychological abuse of his/her own parent [34]; v) The situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home [35].[23]I further note (per Re S (A Child) [2012] UKSC 10) that the subjective anxieties of a respondent (the mother in this instance) can found an article 13(b) exception.[24][16(i)]: Exposure to domestic abuse or child abuse at the hands of the father: There is a history of alleged, and in some respects proven, domestic abuse in this case. Findings (for example, a finding of “an act of mental violence” in January 2012) have been made by the courts in Bulgaria by way of prelude to the grant of orders for personal protection in favour of the mother, on my reading of the material orders have been made in her favour in January 2012 and March 2013. A cross-application made by the father for a restraining order against the mother (June 2014) was granted but set aside on appeal. I note that on at least one occasion (it was said that there were two) an order in favour of the mother was enforced on a proven breach of its terms (even though the order breached was, I believe, set aside on appeal); the father was punished by way of a fine.[25]The last alleged incident of abuse on which the mother relies appears to have been in October 2013; however, on examination of the original documents, it is clear that the findings of the Bulgarian Court in respect of this allegation were in fact set aside on appeal. The relevant appellate judgment (30 June 2014) sheds important light on the issues: “It is indisputable that the testimonies of the witnesses show deteriorated relations between the parties under the case … it should be accepted that this case is a subsequent manifestation of negative attitudes between the parties … in this case it was not proven that these act (sic) exceed the deterioration of the relations beyond which the conflict would constitute an act of violence pursuant to the Domestic Violence Protection Act, rather the mutual negativism of the parties and the negative emotions experienced in relation to their contacts do not constitute a sufficient ground for the issue of a protection order.” (my emphasis)[26]The text messages and e-mails which were allegedly sent by the father to B (and to B’s school) in 2012 are abusive, and would be distressing for any 12 year old to receive. The father denies sending them, and I am unable to make findings one way or the other. It seems to me that even if they were sent by the father, they do not of themselves establish the ‘grave risk’ of psychological harm to L now given that:(a) these were allegedly sent nearly four years ago (January 2012), and so far as I know there has been no repetition,(b) they were sent in response to a specific development in the Bulgarian litigation,(c) B’s view, and the mother’s view, is that the father ‘prefers’ L to him which (if right) may make it less likely that he would be a target for such missives/abuse, and(d) thus forewarned of the father’s potential conduct, the Bulgarian court could make protection orders to protect L (and/or B) if required.[27]Miss Chokowry submitted that the mother believes that she is more likely to receive protection from domestic abuse from the English Court than the Bulgarian court; in support of this submission she referred to the fact that domestic abuse legislation (and the court’s interpretation of it) is less developed in Bulgaria than it is here. I am quite unable to accept this argument, for which there is no proper evidential basis. Indeed, the speed and thoroughness in which the Bulgarian Courts have dealt with issues of personal protection thus far significantly undermine the contention.[28]The evidence which the mother relies on to support her case as to the ‘grave risk’ of physical or psychological harm to L pre-dates the last substantive order of the Bulgarian Court (November 2014), by which the father was granted unsupervised staying contact with L; this order is not the subject of any complaint or appeal. This order was made by the Bulgarian Court (as for all such proceedings concerning children) with “the best interests of the child” as “a primary consideration”. Such a conclusion, on a welfare enquiry, is wholly inconsistent with a determination that L would be exposed to a ‘grave risk’ of ‘psychological harm’ from his father made here.[29][16(ii)] Return to litigation. I am unable to accept it is any more likely that L would suffer a ‘grave risk’ of ‘psychological harm’ by returning to an environment in which his parents are litigating in Bulgaria than he would if he remained here. The mother contends that if I refuse the return, and welfare-based litigation is engaged here, it will not be so ferociously pursued; alternatively she argues that she and/or L will be more insulated from such litigation conducted here. I have no reason to believe, by reference to the parents’ past conduct, that this is likely to be so, and cannot locate in the evidence any proper basis for her confidence. Whether L is ‘harmed’ by future litigation lies in some respects in the mother’s own hands. A regrettable but unavoidable fact is that by unilaterally abducting L to this country, she has considerably raised the temperature of the parental dispute, and if escalated litigation ensues, it must be she who carries the greater obligation to protect L from it; she can hardly rely on this scenario to claim that an Article 13(b) exception applies.[30][16(iii)] Separation of the siblings. I am satisfied that L and B have what Ms Sivills described as a “close relationship” albeit it is not a “special relationship” by reason of its “closeness”. B and L have “an emotional need to be near each other”. B was described as being “protective” of his younger brother; perhaps he has needed to be, given his parents’ failures to shield him from their hostilities. Eight years separate B and L in age, and they therefore have little by way of shared interests. They have not lived together for more than four years; indeed since L was 3 years old, they have spent many weeks at a time apart during school terms, given that B has been, by his mother’s choice and at her instigation, educated at boarding school in England while L has lived with his mother in Bulgaria. The sibling relationship is not, in my finding on the evidence, of such an intensity or quality as to create an ‘intolerable’ situation for L, or ‘harm’ to him (within the meaning afforded to those words under the Convention), were L returned to Bulgaria.[31]Although I was referred to authorities on the issue of sibling separation (including IB v MM [2015 EWHC 1502 (Fam), Re H [2009] EWHC 1735 (Fam) [2009] 2 FLR 1513, WF v FJ, BF, RF [2010] EWHC 2909 (Fam) [2011] 1 FLR 1153), there is no obvious point of principle or law to be collected from them; it seems to me that each case must be considered on its unique facts. Each sibling relationship will be different. In these circumstances, and for the reasons summarised in the paragraph above, I reject the argument that a separation of the siblings creates an article 13(b) ‘intolerability’ exception.

L’s objections

[32]I turn next to consider L’s views about returning to Bulgaria; specifically: i) Does L object to being returned? ii) Has he, as a question of fact, attained the age and degree of maturity at which it is appropriate to take account of his views? iii) If so, then how should the court exercise discretion?[33]In considering these questions, I have paid particular attention to the two judgments of Black LJ in the recent Court of Appeal decisions of Re M (Republic of Ireland)(Child's Objections)(Joinder of Children as Parties to Appeal) [2015] EWCA Civ 26 (Re M), and Re F [2015] EWCA Civ 1022 (Re F).[34]I turn first to a discussion of (i) and (ii) above, which operate, if answered in the affirmative, as ‘the gateway’ to a wider exercise of discretion (see Re M [18]).[35]I have taken L’s views from two sources: from Ms Sivills, the Cafcass officer following her discussion with L on 28 September, and from Ms Coyle, solicitor, in her discussion on 22 October. Inevitably, L has expressed himself in different ways in separate conversations (and within the same conversations) on the central question, and the reporters have themselves reported his expressions in different ways. I have tried wherever possible to concentrate on the actual words used by L, not on the description of them given by the reporters. While, as Black LJ said in Re F, the Cafcass officer’s “description … may tell him [i.e. the judge] something about the nature of the children's stance” (see [39]), it could obviously produce a false result if I were to ascribe to L himself the reporters’ interpretation or description of his comments. I have also conscientiously resisted the temptation to focus on one comment (or set of comments) in preference to another (each party here inevitably latching onto one helpful comment while discounting another); it is necessary to take all of L’s comments together, and assess whether, when looked in their totality (see Black LJ in Re F at [41]), L is articulating an objection to returning to Bulgaria.[36]Guarding myself against too “over-prescriptive or over-intellectualised approach” to the question of objection (per Re M [77] and Re F [33]), I have had some cause to consider here whether a child’s objection is properly an intellectual or an emotional expression, or a combination of the two. Insofar as this was an issue in this case, it arose because Ms Sivills was of the view that L’s ‘maturity’ was more highly developed intellectually (in respect of which she thought he was “quite advanced” functioning closer to the age of 8), rather than emotionally (her opinion was that he functions more as a 6½ year old) (see [43] below). Therefore, if ‘objection’ was purely an emotional or visceral expression, I would need to consider a rather lower “degree of maturity”, and this would take L very close to the borderline of what is generally regarded as the youngest age at which it would be appropriate to ‘take account’ of a child’s views. The issue in this case is perhaps more perceived than real, because I am of the clear view, and proceed on the basis, that ‘objection’ combines, or is likely to combine, a mix of intellectual and emotional components; I look at L’s stated view in this way, assessing whether the ‘age and degree of maturity’ criteria is established.[37]Ms Sivills had the opportunity to assess L in her office on 28 September in order to report on his views; she has read some but not all of the documentation filed. She has consulted with L’s teachers. She conducted her interview with L through an interpreter.[38]Ms Sivills’ report reflects that L “clearly wishes to remain in England and not to have to return to Bulgaria”. When L had been asked by Ms Sivills “how would he feel if the Judge said you’ve got to go back to Bulgaria?” he had chosen the “upset, worried and sad stickers”, though (per questioning from Ms Renton) he could not explain the feelings which lay behind his choices. Ms Sivills described L’s views about returning to Bulgaria as follows (per report): “…According to his age and stage of development this [i.e. L’s views] could amount to an ‘objection’. However, as his teacher described, a child of his age would be unlikely to understand the consequences of such a decision”.[39]Ms Sivills considered that his view was fashioned by the fact that when in Bulgaria he was “stuck in the conflict” whereas the last six months in England “he has had a different lifestyle” (i.e. relief from conflict). She added (oral evidence, in cross-examination from Miss Renton) that: “He’s at a school he prefers, and he is with his brother…. The way this interview evolved was for L to tell me about the “not very nice” teacher in Bulgaria; he was much more interested in telling me this…. [than any other aspect of life there]”.[40]When questioned by Ms Chokowry, Ms Sivills expanded on her view as follows (my note, not a transcription):
“He was saying ‘no’ to the country… I am not saying that he was objecting to going back to Bulgaria, full stop. … I did have doubts whether his feelings were that strong to be described as an objection. To me ‘opposing’ is a grown up word. He didn’t want to go back. I have doubts, not significant doubts, but doubts … I wasn’t absolutely sure that he was opposing a return”
. And went on in her evidence at that point, significantly, to add:
“He would prefer to stay [in England]. He likes it here; he likes his school; his brother is here. But my experience is that this is not enough for the court here to determine his future, as opposed to the country where the court is already seised”
. Later: “he would prefer the life he’s having here”.[41]Ms Sivills had not explored with L how or with whom he would be returning to Bulgaria if the father succeeded in his application. She expressed the opinion (when questioned by Ms Renton) that he identified the return to Bulgaria with a prospect of going to live with his father.[42]Ms Coyle, a little under a month later, evinced broadly consistent views from L, though apparently of a different strength and intensity than those expressed to Ms Sivills. L was apparently “very clear” with Ms Coyle about where he would want to live. L told Ms Coyle that there were aspects of life in Bulgaria which he liked but there were “lots of bad things” about Bulgaria, and specifically that he had not enjoyed the three months living with his father, and did not like one of his teachers in his school. He had added, when pressed:
“… there are lots of good things about Bulgaria, but I want to live in England”
. L told Ms Coyle, as he had told Ms Sivills, that he would be “sad and worried” if he had to return to Bulgaria, and significantly that:
“My mother would be unhappy because if she had to go to Bulgaria, she would have to see the judge again.”
The strongest objection which L articulated in his discussion with Ms Coyle is to living with his father; Ms Coyle added that “it is a very real concern to him that a return to Bulgaria would mean that he would have to go and live with his father because this happened before”.[43]As to his ‘age and maturity’, Ms Sivills explained the difficulty of making a reliable assessment of this in one interview. As I have already mentioned, she formed the view that L was intellectually “quite advanced” and more mature than his chronological age “closer to 8”), but emotionally rather less mature (“more like 6½”; “he didn’t seem like a 7½ year old”). She was struck by his preoccupation with a toy train in her office, displaying an interest in it which was more congruent with a child of less than 7 years old. Mr. Powell advised me that Ms Coyle had formed the view that L was competent to instruct his own lawyer (see [45(i) below).[44]Ms Sivills was questioned about the genuineness of L’s views and/or whether they had been subject to influence. I distil her evidence as follows: i) She did not consider that either parent (but in the circumstances of this particular case at this time, she focused on the mother) had deliberately coached or sought to influence L directly in the expression of his views; ii) L would have been likely to be affected psychologically / emotionally by the ongoing litigation in Bulgaria and by life events (see [7] above referencing his “psycho-emotional development”); iii) It was likely that L would have been influenced by both parents’ views about the other parent and generally over his life – latterly those would almost exclusively have been his mother’s views, as he has recently had such limited contact with his father; iv) The background of alleged parental alienation had to be factored into any assessment of his views; v) It “may or may not” be significant that he did not mention Bulgaria or his father when in school. These are matters to which I return when considering discretion below ([56]).[45]Ms Coyle’s meeting with both boys was described in a witness statement prepared for an earlier hearing at which the court was considering joinder of the boys. While I am prepared to accept the factual account of the boys’ conversations with Ms Coyle, I attach no weight to the opinions which she expresses about them. First, she expressed her opinion that L ‘objected’ to a return to Bulgaria in the context of Article 13(b); at the hearing no party sought to rely on this opinion, acknowledging that determination of ‘objection’ is a matter for me, on the facts. Secondly, she had “requested” that L should be joined as a party to the proceedings, to be represented by a Cafcass guardian, which (she volunteered) could be Ms Sivills. This ‘request’ was surprisingly made: i) without expressing a view as to L’s competence (though, as indicated above, Mr. Powell informed me that Ms Coyle assessed that he was competent to instruct a lawyer); ii) without sight of any of the filed documents (Ms Coyle could not know therefore whether Ms Sivills expressed a view which was consistent or inconsistent with L’s wishes); iii) without expressing why she considered that this step would be in the best interests of L (per rule 16.2 FPR 2010); no reference was made to PD16A para.7 which makes clear that a grant to a child of party status will be made only in cases which involve an issue of significant difficulty and thus only in a minority of cases, nor did she express a view as to the extent of the role which L should play in the proceedings.[46]That children should be heard in proceedings of this kind is well-established, and can be achieved in a number of ways: see In re D (A Child) (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619, Re M and another (Children)(Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 FLR 251 (‘Re M: Zimbabwe’), Re LC (Children) [2014] UKSC 1 and Article 11(2) of BIIa. Applications for party status for children in Hague Convention cases have increased significantly since the decision in Re LC (Children). It would be of considerable assistance to the judges if practitioners could frame any application for party status for a child, and focus any evidence filed in support, by clear reference to the best interests of the individual child in that individual case, drawing (where appropriate) on any particular characteristic of relevance contained in PD16A FPR 2010. Regrettably, this was not done here.[47]Issue arose as to whether Ms Coyle should be called to give oral evidence, and I heard submissions on the point. I resolved that it was not necessary to hear from Ms Coyle, for the following reasons: i) No one questioned the admissibility of the factual evidence of what the boys had said; it was plainly right that the views which L shared with his brother’s litigation friend could and indeed should be before the court; the issue was simply the weight to be attached to it; ii) Ms Sivills had been specifically charged by the court with the task of eliciting L’s views relevant to the article 13 exception and reporting to the court; the focus of Ms Coyle’s enquiry had been upon the issue of separate representation; iii) These are summary proceedings; as is customary in Hague Convention proceedings, I had received a great deal of evidence which was effectively untested. In proceedings of this kind, the task of the judge is to reach a summary conclusion within a relatively narrow ambit; oral evidence is the exception not the rule; iv) I had no reason to doubt the accuracy of the recording of the conversations; the additional commentary was, for the reasons outlined above, of no value to the Court.

Conclusion on L’s views

[48]Determination of ‘objection’ is a question of fact. The determination is intended to be a straightforward one, and I must approach the verb “object” as meaning just that - “object” – without gloss or bias (see Re F [40]).[49]L has spoken to both reporters of being “upset, worried and sad” at the prospect of returning to Bulgaria, and wanting to remain in England. While he has been able to identify some positive features of life in Bulgaria, he has not equivocated in his wish to remain here, nor has he equivocated in his wish not to return. I remind myself of Black LJ’s comments in Re F at [35]:
“It is not necessary to establish that the child has "a wholesale objection" to returning to the country of habitual residence and "cannot think of anything positive to say about that other country". The exception is established if the judge concludes, simply, that the child objects to returning to the country of habitual residence …. Whether a child objects is a question of fact, and the word "objects" is sufficient on its own to convey to a judge hearing a Hague Convention case what has to be established; further definition may be more likely to mislead or to generate debate than to assist”
(emphasis by underlining added).[50]The threshold requirement for establishing an objection is a “fairly low” one (see Re W (Minors)[2010] EWCA Civ 520[2010] 2 FLR 1165 at 22, and Re M [70]). I consider that L’s views, taken as a whole, are sufficient to cross threshold: he does, in my finding, ‘object’ to returning to Bulgaria. I detected in Ms Sivills’ hesitation about describing L’s views as an ‘objection’ for these purposes a sense that she may have been drawing on the now outdated (i.e. pre-Re M) approach to this question; her evidence tended to suggest that she had in mind at this gateway stage the more complex evaluation of the concept which was favoured in Re T (Abduction: Child’s objections to return) [2000] 2 FLR 192 at 202, rather than the more ‘simple’ approach preferred now, i.e. since Re M. In suggesting this, I do not intend to be critical of Ms Sivills’ approach (if I am right in my assessment) which, after all, has long been engrained in the jurisprudence. But the Re T approach at the ‘gateway’ stage is now viewed as “unhelpful” (Re M [65]) and “should be abandoned” [69].[51]Taking the evidence of Ms Sivills and Ms Coyle together (see [43] above), I am persuaded that L is of an ‘age and maturity’ that I should take his views into account. It is well-established that a child as young as 6 can be of sufficient maturity to have their objections taken into account (see Re M [67]), and in intellectual capacity, even if not in emotional maturity, L is nearer 8 years old.[52]In this respect, the ‘gateway’ within Article 13 is crossed, permitting for the Court’s exercise of discretion in the determination of the application.

Exercise of discretion

[53]I next address how I exercise my discretion on the important question of whether L should be returned to Bulgaria. The discretion afforded to me is “at large”, and I am: “… entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare” (see [43] in Re M: Zimbabwe).[52]In Re M: Zimbabwe, Baroness Hale went on to say at [46]: “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”.[54]Black LJ more recently observed (Re M at [71]), that at the discretion stage of a case the list of matters contained in [46] of Re M: Zimbabwe was not “exhaustive”: “… because it is difficult to predict what will weigh in the balance in a particular case. The factors do not revolve only around the child's objections, as is apparent. The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said at §42 of Re M, "[t]he message must go out to potential abductors that there are no safe havens among contracting states".[55]While satisfied that L does object to returning to Bulgaria, I do not find that this is a particularly strongly held view, and in his discussions with Ms Sivills and Ms Coyle he articulated positive views about certain aspects of his life there. I note that Ms Sivills at times referred to L’s ‘preference’ to stay in England, which in itself gave me some indication of the strength of the view which L expressed to her. I consider that his attitude to a return is inevitably coloured by a fear that he will be immediately placed in the care of his father. This much emerged from both Ms Sivills’ and Ms Coyle’s discussions with L. Ms Sivills did not specifically address with L that he may return to Bulgaria with the mother; she believed nonetheless that “it’ll be part of his thought-processes” that he would “end up in his father’s care”, which is – as she fairly pointed out – a reasonable conclusion “grounded in experience”. The father undertakes not to seek to remove L from the care of the mother until there has been an inter partes hearing in Bulgaria; this moderates the strength of the objection.[56]Moreover, I am satisfied that L’s objection to returning to Bulgaria is likely to have been influenced by the views of his mother, who plainly wishes to remain here, and who has a negative view of the father; L was evidently conscious that his mother would be “unhappy” if an order for return were to be made (see [42] above). Ms Sivills, indeed, considered that L had “obviously” been influenced by the mother, even though in general terms, parental influence on him was “not just down to her”. It is notable that the Bulgarian child protection services were of the view in 2013 that B had been the victim of ‘parental alienation’ by his mother against his father, and that L was (at that time) at “risk” of the same form of abuse by his mother. That said, I am not in a position to find, on the evidence, that the mother has deliberately influenced L in the views he expressed to Ms Sivills or Ms Coyle. I have borne in mind when considering the objection those matters rehearsed at [44] above.[57]At 7½ years of age, L’s appreciation of the implications of the alternative outcomes (i.e. return or no return) is not as rounded or complete as it would be for an older child. Particularly given Ms Sivills’ appraisal of L’s emotional development (which I accept), he is at the lower end of the age at which it would be appropriate to take account of a child’s objection under the Hague Convention. The fact that L may not be as able as an older child to understand and take account of all the material considerations relevant to his return is a factor which I may take into account in attributing weight to his objection (see the “watershed” decision – as it was described in Re S [2015] EWCA Civ 2 at [39] – of Re M & another (Children) (Abduction: Rights of Custody) [2007] UKHL 55 at [46] and Re M [67]).[58]I further take account of B’s views, and L’s relationship with B. B is keen that his brother should remain in England, and will miss him if he leaves; Ms Sivills told me that B is worried about how this application will ‘pan out’. B wants his brother to have the same opportunities which are available to him. B is in his GCSE year, and is already anxious about coping in the run-up to his exams if his mother is in Bulgaria with L. However, B and L have, of course, been accustomed throughout their recent lives, to living for extended periods in separate countries and have, notwithstanding geographic distance, been able to maintain the closeness of the relationship to which I have already alluded.[59]This is a clear case of child abduction; there is strong inference from the evidence that the abduction was pre-meditated, and calculated. The mother flouted a Bulgarian court order specifically prohibiting her from removing L from Bulgaria; she tricked the father into letting L leave the country, ostensibly bound for a short holiday in Paris, and immediately enrolled L in private school.[60]The mother retains a comfortable flat in Bulgaria where she can live with L. She received a significant financial settlement from the father.[61]Both parties have specialist lawyers in Bulgaria who are currently instructed in the family law litigation there and are fully versed in the proceedings there; undetermined applications still await resolution before the Bulgarian Courts. Miss Chokowry invited me to weigh in the balance against returning L that litigation would inevitably resume in that country, to which L would be inevitably exposed, and which would be harmful to him. This submission avoids a sad but all-too-apparent truth, namely that until these parents learn to put on one side their hostilities and give up their damaging behaviours towards each other, their children are bound to be victims of their litigation battles following the disintegration of their family. There is no assurance that if L were not returned, there would not open a new chapter of harmful litigation in this country, or indeed in Bulgaria. In short, a return to Bulgaria is no more likely to expose L to harmful litigation than if he stays here. Miss Chokowry further invited me to accept the mother’s contention that if she seeks permanent leave of the court to remove L from Bulgaria to live in England, this process may take two years; I cannot assess the validity of this submission on the evidence, but (in contrast to that submission) I note that the mother’s application for permission to arrange for B to be educated here took five months from the date of application to final hearing (March – August 2011).[62]Without embarking on any full-blown welfare enquiry here, it is nonetheless consistent with general welfare principles for me to order L’s immediate return to Bulgaria given “the proposition that it [is] likely to be better for the child to return to his home country for any disputes about his future to be decided there” (Re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80, paras 26 – 27). In my judgment it is indeed in L’s interests that the courts in Bulgaria make welfare decisions about L; there is already an extensive library of expert reports upon L and his brother which will be available to the Bulgarian judges, and there is a prospect of some judicial continuity there. A contact order is in place in Bulgaria; I have no reason to doubt that that order can readily be varied (if the mother seeks to take such a course), or enforced (should the father wish to do so).[63]Miss Renton sought to argue that I should weigh Article 24 of Charter of Fundamental Rights of the European Union (“CFR”) specifically into account in the discretionary exercise; the CFR is based on the United Nations Convention on the Rights of the Child 1989. Article 24 provides that: 1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” (underlining added for emphasis).[64]Miss Renton drew my attention to the decision of the European Court of

Justice in Povse v Alpago CASE C-211/10 (European Court of Justice). [64]:

“One of the fundamental rights of the child is the right, set out in Art 24(3) of the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p 1), to maintain on a regular basis a personal relationship and direct contact with both parents, respect for that right undeniably merging into the best interests of any child (see Deticˇek v Sgueglia (Case C-403/09) [2010] 1 FLR 1381, para 54). It is clear that an unlawful removal of the child, following the taking of a unilateral decision by one of the child’s parents, more often than not deprives the child of the possibility of maintaining on a regular basis a personal relationship and direct contact with the other parent (see Deticˇek, para 56).”
[65]Miss Chokowry argued that to take Article 24 of the CFR specifically and separately into account in the discretionary exercise would involve an element of double-weighting of one of the welfare considerations, given that the Hague Convention is already deemed to be compliant with the relevant 1989 UN Convention. Moreover, the discretionary stage of these proceedings inevitably takes account of "the wider considerations of the child's rights and welfare" (see Re M: Zimbabwe at [43]). She contended that there is a risk that by giving specific weight to Article 24 at this discretionary stage I would be: “… training two spotlights on the same thing, with the risk that other welfare considerations which should be considered, albeit in the summary way which has to be adopted in Hague cases, will be lost in the shadows” (see [56] of Re S [2015] EWCA Civ 2).[66]My view is that the child’s “right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests” is a matter which the court can take into account in the overall welfare determination at the discretion stage, but that this arises from the ordinary procedure under the Convention itself; see Re M: Zimbabwe at[43]. My view is that while Article 24 helpfully articulates the child’s right to a relationship with both of his/her parents, it should not be treated in the discretionary stage of a Hague Convention case as a separate and additional weight in the overall balancing exercise. The right to a relationship is already there in the general, albeit summary, ‘welfare’ review conducted “within the constraints” of that exercise (Re S [above] [59]). My determination on this point does not therefore assist the father’s case, but does not detract from it either. This novel point was raised in submissions somewhat at the ‘eleventh hour’ at this hearing; Miss Chokowry made her submissions on it skilfully, albeit ‘off the cuff’. While not encouraging litigation on this point, it could well be, I recognise, that in another case, with the benefit of full argument supported by research, the view I have tentatively expressed here does not withstand challenge. Finally, in exercising my discretion, I bear in mind the policy of the Hague Convention which is to ensure that the courts of the child’s habitual residence should ordinarily determine their futures; in this regard I have much in mind what Black LJ said at [11] in Re M, namely “The object of the Convention is to return abducted children as soon as possible to their home country, restoring the status quo and enabling the courts there to determine whatever disputes there are about their future upbringing.”

Conclusion

[67]I have already summarised my conclusions at [5] above. As indicated there, I have reached the clear conclusion that I should exercise my discretion to order that L should return forthwith to the jurisdiction of Bulgaria.[68]Arrangements now need to be put in place for L to be returned to Bulgaria as soon as can reasonably be achieved.[69]That is my judgment.