WA (A Child) (Abduction) (Consent; Acquiescence; Grave Risk of Harm or Intolerability) [2015] EWHC 3410 (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 FD15P00250[2015] EWHC 3410 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/11/2015
Before
MRS JUSTICE PAUFFLEY
Re WA (a Child) (Abduction) (Consent; Acquiescence; Grave risk of Harm or Intolerability)
Hearing Hearing dates: 5 – 6 November 2015
Brian Jubb (instructed by Duncan Lewis) for the Applicant, father
Naomi Scarano (instructed by Dawson Cornwell) for the First Respondent, mother pro bono
Roshi Amiraftabi (instructed by Goodman Ray for the Second Respondent, older sibling
Judgment

Issues

[1]In these proceedings for summary return under the Hague Convention and Brussels IIR, two issues arise. First, did the father consent to or acquiesce in the child’s removal from his home state? Second, would a return expose the child to grave risk of psychological harm or otherwise place him in an intolerable position?

Background

[2]The background as relevant to those questions is this. The parents are both nationals of their home state. Their relationship began more than 10 years ago. They are married. There are two children of the family – K, the mother’s child from a previous relationship, whom the father adopted (she is 15 and a party to though not a subject of these proceedings); and A who is 8 the parents’ natural child.[3]During the summer of 2014, the relationship between the parents came to an end. By July, according to the father’s evidence, “the marriage was over.” In September, they separated thereafter occupying different homes. K and A lived with the mother. As K described when she gave evidence, before she came to this country her “parents had been fighting all the time” which had caused everyone to be “stressed.”

Litigation history

[4]In February this year, the mother consulted lawyers in her home State. On 18 February, by which time she and the children were already in England, those lawyers issued proceedings for divorce and to limit the father’s parental responsibility. The applications are currently stayed pursuant to an order of 19 July as is usual where an application under the Convention is pending.[5]In March, according to the father’s evidence, he was in the process of preparing his application under the Hague Convention. His application to the Central Authority in his home country was made on 17 April. At the end of May, the International Child Abduction and Contact Unit here instructed Solicitors. The application was launched on 5 June 2015.[6]The proceedings began in the normal way. A Tipstaff order was made and executed. The mother was personally served a few days later. The first inter partes directions’ hearing on 15 June was not as effective as it might have been because, by then, the mother had not indicated her precise reaction to the application.[7]With the assistance of her Solicitors, specialists in this field, the mother’s formal Answer was swiftly prepared. It identified that she opposed the summary return application, relying on Article 13A; and had “given instructions that the father was fully aware that she was relocating to England and that he also had intentions to relocate in June…” [I pause to observe that those facts do not disclose a ‘defence’ founded either on consent or acquiescence]. In addition, the mother relied upon Article 13B identifying that K was “categorically opposed to a return” and that a return for A “would involve separation of the siblings.”[8]On 24 June, with the assistance of Solicitors, K applied to be joined as a party to the proceedings.[9]On 25 June the case was listed for directions and was adjourned to 27 July, with a time estimate of one day, for determination of the issue as to whether K should be joined.[10]On 27 July, exactly seven weeks after the application was issued, and for the first time, the proceedings were set down for final hearing on 21 September with a time estimate of two days. K was joined in accordance with her wishes.[11]There were then two pre-trial reviews, the first on 9 September when consideration was given to the filing of further evidence, the father’s willingness to offer undertakings in the event of a return order and a list of topics about which the father’s legal team wished to cross examine K.[12]The order resulting from the second pre-trial review on 17 September reflected that it had not been possible to resolve the issue as to whether K should give oral evidence. She was directed to attend on 21 September and to be prepared to give oral evidence, if required.[13]On 21 September the final hearing was adjourned because the mother’s public funding had been withdrawn just three days earlier on 18 September. The mother’s Solicitors were afforded an opportunity to take such steps as they could to secure public funding. The case was re-listed over two days on 5 and 6 November.[14]I mention the litigation history because as is well known, there is an imperative to handle cases of this kind at speed. Paragraph 2.13 of Practice Direction 12F contains the guidance in relation to the time table: “Proceedings to which the Council Regulation apply must be completed in 6 weeks ‘except where exceptional circumstances make this impossible’” – a reference to the Court of Appeal’s decision in In Vigreux v. Michel and anor [2006] EWCA Civ 630. The Practice Direction also identifies a number of procedural steps including a requirement for the court file to be marked to state the “hear-by date,” so as to instill urgency and ensure that applications under the Convention and Regulation are dealt with swiftly.[15]For reasons that I have not inquired into, beyond perusing the terms of the various orders made at each stage, these proceedings never progressed at the speed ordinarily expected. The result is that A has been living in this country for far longer that would ordinarily be the case at the end of proceedings under the Hague Convention. Had the case proceeded at the usual pace, a decision should have been arrived at by the end of July or, making allowances for the impact of the long vacation, by the end of August at the latest.[16]It causes great anxiety and regret that these proceedings have taken not six weeks but five months to bring to a conclusion.[17]One of the issues which had caused the proceedings to slow down, even stall (namely whether or not and if so how K should give evidence) was resolved by agreement at this hearing. At the end of the first day, after I had heard the mother’s evidence and mid way through the father’s testimony, at the Bar’s invitation, I indicated that for my part it would not be necessary for K to come to court. By then I knew how the mother put her case, how the father responded; and I had been able to formulate an analysis of the relevance of K’s evidence to the issues of consent and acquiescence. I also knew from the report of Mr John Power what was said about A’s views as well as Mr Power’s significant analysis of the likely impact upon A of a return either with or without his mother and sister.[18]Whilst indicating that there was no requirement for K to give evidence, I made clear that if she positively wished to do so I would be very content. The choice was left to her and she decided to participate orally.

Law relating to consent and acquiescence

[19]The law in relation to consent and acquiescence was summarised by Keehan J in Re H, R and E (Abduction: Consent: Acquiescence) [2014] 2 FLR 385. The following passage from the speech of Lord Browne-Wilkinson in of the House of Lords in the case of H v H (Abduction: Acquiescence) [1997] 1 FLR 872 remains the locus classicus in relation to acquiescence. "i) Acquiescence was a subjective state of mind. In English law acquiescence was normally viewed objectively but under the Hague Convention it must have the same meaning and effect under the laws of all Contracting States. Art 13 looked to the subjective state of mind of the wronged parent. ii) Acquiescence was a pure question of fact. The court could infer the actual subjective intention from the outward and visible acts of the wronged parent. iii) Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child. iv) The burden of proving that the wronged parent had acquiesced was on the abducting parent. v) The only exception to this general principle under Art 13 of the Convention was where the words or actions of the wronged parent clearly and unequivocally showed and led the other parent to believe that he was not asserting or going to assert his right to summary return of the children and were inconsistent with such a return."[20]In Re H, R and EKeehan J also took account of the decision in D v S (Abduction: Acquiescence) [2008] 2 FLR 293, that:
"The Hague Convention cases on consent required a true and unequivocal consent ..."
He accepted, as I do, that consent and indeed acquiescence can be inferred from the circumstances of the case. He referred to ReK (Abduction: Consent) [1997] 2 FLR 212 in which Hale J. (as she then was), said at 217-218:
"It is obvious that consent must be real. It must be positive and it must be unequivocal. But that is a separate issue from the nature of the evidence required to establish it. There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing. It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct."
[21]In the case ofIn Re P-J (Abduction Habitual Residence: Consent) [2009], 2 FLR 1051 Ward LJ identified a number of principles in relation to ‘consent’ deduced from the authorities –(1) Consent to the removal of the child must be clear and unequivocal.(2) Consent can be given to the removal at some future but unspecified time or upon the happening of some future event.(3) Such advance consent must, however, still be operative and in force at the time of the actual removal.(4) The happening of the future event must be reasonably capable of ascertainment. The condition must not have been expressed in terms which are too vague or uncertain for both parties to know whether the condition will be fulfilled. Fulfillment of the condition must not depend on the subjective determination of one party, for example, “Whatever you may think, I have concluded that the marriage has broken down and so I am free to leave with the child.” The event must be objectively verifiable.(5) Consent, or the lack of it, must be viewed in the context of the realities of family life, or more precisely, in the context of the realities of the disintegration of family life. It is not to be viewed in the context of nor governed by the law of contract.(6) Consequently consent can be withdrawn at any time before actual removal. If it is, the proper course is for any dispute about removal to be resolved by the courts of the country of habitual residence before the child is removed.(7) The burden of proving the consent rests on him or her who asserts it.(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case. (9). The ultimate question is a simple one even if a multitude of facts bear upon the answer. It is simply this: had the other parent clearly and unequivocally consented to the removal?

Mother’s case on ‘consent’

[22]The mother’s case in relation to consent is that from about September 2014 (by which time their relationship had ended and they were living separately) she and the father were “stepping up their attempts to move to England” and had made “serious, concrete inquiries and plans about moving.” The mother contends that although they had “never decided whether to move as a married couple or with (the father) living separately, (they) both agreed that (they) should relocate to England with the children.” In evidence, the mother said that after the separation, her husband was encouraging her to leave their home State and he preferred to live in England. Since September 2014, England had become the first option.[23]In her statement, the mother said that whilst they had not fixed an exact date for moving to England, it was clear to her that the father had consented. In evidence, she said they had “agreed the children would go during half term,” that is February, and the reason (she) had not told him they were going was because her husband “is really scared of flying.” In her statement, the mother explained that “this was the first time the children had ever been on a plane and, given the father’s intense fear of flying, (she) chose not to tell him that (they) would be flying as this was her children’s first flight.” She had not wanted the father to worry or scare the children, adding “whilst this may sound odd, it is as a result of (her) experience of his extreme anxiety when it comes to … travelling.” In evidence, the mother added that it was “just a question of the means of transport, nothing more” which had led to her deciding not to tell him.[24]The father’s case in relation to consent is that although as a couple they had talked about relocating to various countries including England, all of the discussions had been on the basis of relocating as a family unit. The father accepts he had been keen on the relocation idea because he wanted a new start for the family and was hoping that in a new city or country he and the mother would have been able to reconcile. He also accepts that he and the mother had gone into detail and had considered exactly how the planned move would work. However, according to the father, they had never made any firm plans about where they would live, when or how they would leave. Moreover, he denies that he had ever given the mother the impression that he would be agreeable to her relocating with the children to England on her own, without him.[25]The father stresses that he would never have agreed to the mother and children leaving without him. He has a very strong bond with, and would never have wished to be separated from, them.[26]Although the father accepts he has a fear of flying, he maintains that he his fear does not extend to others flying.

Written messages

[27]The written messages on social media, in emails and texts allow a straightforward analysis of parental attitudes at various stages. Although it is customary to permit oral evidence at summary return hearings where consent and acquiescence are in issue, the reality is that the extant written material permits a far more reliable assessment than the oral accounts particularly where, as here, the parties have such a strong investment in winning the arguments as to what the past comprised.[28]I am indebted to Ms Amiraftabi, in particular, who had undertaken her own analysis of the written communications as they related to(i) consent and(ii) acquiescence. During her final submissions – and in the best traditions of the Bar – she identified those passages which might most assist in evaluating the situation as between the parents. Ms Scarano also provided a list of the documents upon which she placed reliance. Mr Jubb’s final written submissions incorporate those extracts supportive of his client’s case that there was neither consent nor acquiescence.

Messages relating to the issue of consent

[29]On the issue of consent – what may have been agreed, inferred or at least in the mind of the parents – the following extracts from emails and social media messages are relevant. On 23 November 2014, the father sent a lengthy email to the mother in which he said this, “I myself am not important. I won’t mention my sadness. I do everything for our children to be happy with me and you. Taught by the last month’s experience, I don’t believe in the option of us going to England and that things will be fine suddenly … Either we get reunited in the near future or I’ll NEVER give my consent to the children going abroad with you … I give you my regards and I’d like you to receive my information calmly. There is not a grain of malice in it, just a desire to improve and make our children happy …”[30]Although the mother accepted in cross examination that the father’s attitude had been as set out with his late November email, she suggests he then changed his mind – and the problem was that he “goes from one extreme to the other.” As she gave that evidence, the father challenged her from the well of the court, asking “When” he had changed his mind. The mother responded that she would have “to check the documents.”[31]On 20 February, (5 days after the mother had taken A to England but two days before the father believed, as the mother accepted, they would be returning to their home State), at 20.38 he wrote this – “The date of the relocation in the middle of the year – a disaster for both K and A…. A super smart solution. In autumn applications are submitted, in June the school ends…. As agreed with K, and you said it to her in my presence, we are staying by the end of the school year … after (holiday camp) we go anywhere we want, we have fixed income, we live in any country.”[32]On the same day at 20.50, the father sent another message – “… I am not withdrawing from anything … or from the departure to England after (holiday camp), I am writing a CV because there are many offers for (my profession) in Dubai … in every school, university … may also (mother’s profession)? It’s the richest country so they need the … best people.”[33]In similar vein, on 23 February, at 15.53, the father wrote this message, “We’ve had an agreement and you communicated it to the children – it was 2 – 3 weeks ago. We are going to England after the school year. I have my task here, a really difficult one (a reference to financial problems)… Your departure is a terrible disaster in every aspect. For the children, for me and you, and how you lied to all of us. I’ve been to the police. They have confirmed that I have a full right to start a procedure as a result of which your unfair actions will have very sad consequences for you and the children.”[34]On 24 February at 22.13, the father said this – “I want to talk to you and agree on the children. Be fair and honest. Should I come to England and take him (A) home? You kidnapped him without informing the other parent, that is me…. Giving the reason that you wanted to go together, but you left alone, lying to me and the kids … Why didn’t you act honestly and in accordance with the law?”[35]Just a few minutes later, at 22.39, the father continued – “Making an agreement with you means you say something, make decisions and I have to nod and agree with you. You escaped unlawfully and illegally and instead of feeling ashamed and apologising … you say to me that we will have to sort out everything through the court … we were supposed to leave, maybe together and after the end of the school year. Not you, in February without anyone’s consent …”[36]On 16 March at 05.55, the father sent this message to K on social media. He said, “As you remember, Mum had an agreement with me that we are going to the UK together and that we will live there together. We first wanted to go there after the winter half term, but then we changed our mind and decided we will go there after the end of the school year … Knowing that we’re going together, that your Mum has promised it to me. I gave my permission to take your passports, I have transferred ownership of the flat to your Mum. … You went to (one of the mother’s friends) for two days, and suddenly your Mum calls and is telling me that you are in the UK for a few days and then – two days later when she has got a job – that you are staying there for good and that she does not want to be with me anymore. All of my dreams and hopes were dashed in this very moment. … I was blaming you because you have wanted to go to the UK so much and that I was left alone here, thousands of miles away…. Now when I talk to your Mum, she is telling me that I knew you would go to the UK … but there was never any talk about June, only that we should go in June. I understand that you must be happy, that your dream about living in England has come true, but it has never been my dream, nor A’s. When I say to Mum something about the fact that she has cheated me and that she is lying, she either laughs at me or switches her phone off, sometimes for a few days. I don’t expect you to take my side, or to take your mother’s side, but there is I think something like honour and the given word which should be kept? … ”

Conclusion in relation to consent

[37]The conclusions to be drawn from the circumstances surrounding the mother’s departure for England, the evidence about parental discussions in the period from September 2014 and the extant documentation – mostly messages written by the father – are straightforward and uncomplicated.[38]Though Ms Scarano has said everything possible on behalf of the mother in relation to this and the other matters in dispute, the reality is plain and obvious. There is no sustainable or credible evidence to support the notion that the father gave his consent. Everything points in the other direction.[39]Close examination of the mother’s claims, (supported as she is by K so far as she is able) reveal that they are built upon wholly insubstantial foundations. In the period prior to the mother’s departure with the children in February, there were discussions, as the father accepts, about relocating as a family. The planning exercise would seem to have been driven, at least in part, by K’s strong desire to relocate to England. As she said in evidence, she wanted “400% to go” to England. But as the father’s retrospective messages in the third week of February reveal, there was no concluded agreement about the country, the timing and – most significantly of all – which members of the family would be going. Plans batted back and forth do not equate with a concluded agreement to relocate. They do not amount to evidence of clear and unequivocal consent.[40]When account is taken of the mother’s consultation with lawyers it becomes obvious that any parental discussions as to a joint venture were proceeding on an altogether false basis. By early February – unbeknown to the father – the mother had given instructions which led to the issue (on about 18 February) of court proceedings for divorce, child maintenance and to remove the father’s parental responsibility. When discussions were taking place, self evidently, each parent had an investment in achieving an entirely different outcome. The mother was intent, as I find, on a new life in England, without the father, so as to secure educational advantages for K, in particular. The father wanted above everything else to reunite the family, to rescue the marriage and would have travelled more or less to any country in the world so as to achieve those objectives.[41]If there had been, in accordance with the mother’s case, a concluded agreement – positive and unequivocal consent on the father’s part to the mother and children leaving for England – then the written messages from the middle of February surely would have reflected that fact. In all likelihood there would have been responses from the mother referring to their agreement, remonstrating with the father for going back on his word, asking him why he was making trouble. As it was – from the mother’s side – there was an almost complete wall of silence. It is striking that the vast majority of the written material is in one direction. When the mother does involve herself she is very brief. She never replies substantively to his messages. On one occasion she said that she had to feed the children and would talk later. At no stage, does the mother suggest that the father had been agreeable to the children leaving their home State.[42]The circumstances of the mother’s departure are another powerful countervailing factor against the existence of consent. The mother surely knew that the father would never have agreed to her travelling abroad with the children on the basis that he was left behind in their home state which is why she left in such a clandestine or secret fashion. Her written statement does not reveal any of the considerable deception surrounding departure. The mother simply says her friend had bought tickets for herself and the children to travel on about 10 February.[43]When cross examined, the mother accepted that she had told the father she and the children had been invited that weekend to a friend’s home about 40 kms from their home town. However, she found it “hard to say really” whether the father had believed she and the children were there on 15 February; and the mother denied her actions had been “part of a deception.” She said that instead of going to (the friend’s) place they had gone to the home of another friend and her daughter in England. Curiously, the mother added, “I thought I would do what the father was expecting of me.”[44]The subterfuge about where she and the children were during those few days was designed, as I find, simply to afford the mother enough time to leave her home country with the children without alerting the father to their intended departure. It was an obvious and distasteful trick. If there had been any truth in the suggestion that he was in agreement to the plan to leave for England, there would have been no need for any lies about where the children would be at around the time of departure. The mother’s purported reason for not telling the father, namely that he may have scared the children because of his own fear of flying, is more than “odd,” it is absurd. It was nothing more than a futile attempt to explain away her devious behaviour.[45]The mother’s claims in evidence that when she came here she had “felt (she) was doing something based on (their) mutual agreement” and that he “would be happy and have no more subjects (issues) once she and the children arrived here and got out of the plane” were similarly nothing more that expressions of vain hope.[46]I have no hesitation in rejecting the mother’s claim that she brought A here with the father’s clear and unequivocal consent. Nor is there any validity in the assertion that consent may be inferred from the father’s words or actions. Everything suggests otherwise.

Messages relevant to acquiescence – discussion and conclusion

[47]In relation to the mother’s claim that the father acquiesced to A remaining in this jurisdiction several written communications are relevant. On 20 February (5 days after the mother’s arrival in England) the father wrote, “I want to talk to you and figure out something reasonable. I care for you very much. I don’t want any fights. I want reconciliation. Taking a child abroad without the father’s consent is a criminal offence…”[48]At 13.35, the mother wrote this message to the father, “So you’d like to come to us for a few days and stay.” There then follow a very large number of communications from him starting at about 13.35. He said, “… we could rent something that would let us be together, but so far I won’t stay here alone without you and I will do fine there.”[49]At 15.07, the father added, “So to recap … think about a good solution – in terms of the apartment – meaning, I can look for it on my own, maybe some 3 – 4 bedrooms? Or next to each other, I mean – if you and I lived close to each other? …”[50]That same day at 17.07, the father sent the mother this message, “I’ve been waiting (to speak to you on the phone) for a few hours … I am ready to drop everything to be with you, close to you, despite the fact that you’ve cheated me so badly and the kids as well. … the 4th March, is it OK if I come then? Let’s make it new, and I will do my best to make you happy … I am not withdrawing from anything, neither from the treatment, not from going to England after (holiday camp). I am writing my CV coz there’s lots of offers for (my profession) in Dubai.”[51]On 10 March at 19.15, the father wrote a six point email to the mother – “You didn’t let me present my suggestion yesterday. You were shouting, hitting the roof and lying…. My suggestion is as follow: 1. I am joining you in the UK – at the end of May – after the three months we’ve agreed upon, and we will live together with the kids. 2. I will start work … 5. I am packing all my things, your and the kid’s to a van. 6. We talk and agree where we are going to live – you and I … You, from your side, are going to write to me and sign that you are agreeing to my arrival and that we shall live together….But I think this is clear. If I don’t keep my promise (about my behaviour), we are going to divorce and – let me make it clear – I am not going to undertake any legal steps in relation to your move to the UK. As soon as you send me your promise to keep your word, I will send you my undertaking…. I will be supporting you and I will make every effort to keep you and the kids happy with me.”[52]The last four sentences of what is set out above from “But I think this is clear …” appear in quotation marks within the mother’s written statement. Anyone reading those sentences in isolation might have concluded that there was some substance in the mother’s claim relating to acquiescence. However, as soon as the entire message is understood, when the prelude to those three sentences is known, the notion that the father had acquiesced or was going along with the situation falls to the ground.[53]Plainly, the father was endeavouring to achieve reconciliation with the mother on the basis that he would be living together with, or close by, the mother and children in England. There is no substance in the mother’s claim that in anything he said the father was signifying acquiescence to A’s continued presence in England following his unlawful removal.[54]There are other powerful indications of the father’s attitude following upon the children’s removal which should be considered alongside the written messages. By 23 February, the father had been to the police and knew that what the mother had done in taking the children without his consent was unlawful.[55]From about the beginning of March, according to the father’s evidence, he was in the process of preparing his application under the Hague Convention. Those proceedings were issued in mid April. At no stage is there a message from the father in which he indicates he is content with the situation in which the mother and A live in England whilst he remains in their home country. The most that could be said is that, as he continued to seek to achieve reconciliation with the mother and reunification of the family, the father did try to negotiate with the mother. What he never did, at any stage, was to indicate that he would go along with or acquiesce in the situation created by the mother.

Article 13B principles

[56]The final issue is as to whether an order for A’s summary return would place him in an intolerable situation or at grave risk of psychological harm, as the mother contends, because the indications are that K will not be going back. Instead, as K described in evidence, she thinks she will stay here with and be cared for by her mother’s friend whom she identified as “aunty.”[57]As was made clear by the Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 there is no requirement to narrowly construe Article 13B. “By its very terms, it is of restricted application. The words …are quite plain and need no further elaboration or ‘gloss.’” A number of principles may be drawn from the judgment –• . The standard of proof is the ordinary balance of probabilities. The burden of proof rests upon the person opposing the child’s return. It is for that person to produce evidence to substantiate the defence raised.• . ‘Grave’ qualifies the ‘risk’ of harm rather than the ‘harm’ itself but there is a link between the two concepts. The risk to the child must have reached such a level of seriousness as to be characterised as ‘grave.’ A relatively low risk of death or serious injury might properly be qualified as ‘grave’ whereas a higher level of risk might be required for other less serious forms of harm.• . The situation faced by the child on return depends crucially upon the protective measures which could be implemented so as to avoid the risk that the child will be harmed or otherwise face an intolerable situation.• . Inherent in the Convention is the assumption that the best interests of children as a primary consideration are met by a return to the country of their habitual residence following a wrongful removal. That assumption is capable of being rebutted only in circumstances where an exception is made out.• . In relation to ‘intolerability’ Lady Hale in Re D (Abduction: Rights of Custody) [2007] 1FLR 961 said, “Intolerable is a strong word but when applied to a child must mean ‘a situation which this particular child in these particular circumstances should not be expected to tolerate.’”[58]I altogether accept that the separation of siblings can amount to intolerability and / or grave risk of psychological harm for the purposes of Article 13B: see Re LC (International Abduction: Child’s objections [2014] 1 FLR 1458. I also bear in mind, as Ms Amiraftabi reminds me, that in deciding whether to return a child under the Hague Convention I must have regard to the family life of any siblings who are not the subject of an application. An order which interferes with the sibling’s enjoyment of family life may be a violation of that sibling’s rights under Article 8 of the European Convention on Human Rights unless it is in accordance with the law, in pursuit of a legitimate aim and proportionate. Although, as Ms Amiraftabi accepts, K’s rights in this connection must be balanced with those of the parents and A himself.[59]Ms Amiraftabi submits that the effect upon K of an order for A’s return would be significant. Should such an order be made, K will be faced with an invidious decision – either to return with the mother and A contrary to her objections and interests or to remain here without her mother and younger brother. In her written statement, K said she would be “devastated to be separated … as (she) is very, very close to them.” She has only ever been apart from A on a very limited number of occasions; and they have a very close relationship. K is similarly close to her mother and would find it very difficult to be separated from her at an important time in her education. Most importantly, K would miss them immensely.[60]Three parts of the evidence are of particular assistance in guiding me towards a decision. The first is the report of John Power which deserves to be read in its entirety. It is a potent document which ends with this professional judgment. “I don’t find that A objects to (a return). If St Francis Xavier was correct when he said, ‘Give me the child until he is seven and I’ll give you the man’ A’s precocious maturity augurs well for the man he will become when conjoined with his wishes and feelings which strategically insulate him from the decision making process. I met a quite extraordinary and unforgettable little boy who asks the court to take the decision for him.”[61]In the section of his report dealing with the impact of these proceedings upon A, Mr Power says this – “A judiciously does not align himself with either of his parents but wants the court to decide if he should return … in the knowledge that a return would not necessarily be the end of the matter because it would be for the (home State’s) court to decide where (he) should live. He understood this. He believes his mother may not return because life in the UK is better for her and his sister and knowing this he still avoids expressing a preference thus not offending either of his parents who, to their credit, do not appear to have sought to influence his feelings. In terms of maturity at 7.5 years of age, A is remarkable in the sagacious and deft way he expresses his wishes and feelings. It must follow that he could live with either outcome; should he stay or should he go….”[62]The second part of the evidence which illuminates this part of the case was the account given by K of what she would choose to do in the event that an order for A’s return is made. Knowing that it is her mother’s intention to go back together with A if an order is made, K said she thought she would stay here with her aunty who would take care of her. She explained her reasons – “because it would really affect my education. (If I went back) I would have to re-do a year or possibly two.” K said she is in Year 11 and studying for GCSEs. Of her relationship with A, K said, “We are very close; we play with each other; I help him with homework. If he goes back, I might feel kind of lonely and will miss him a lot. A will miss me a lot; we spend every day together.” As she gave that evidence, K seemed to me to be remarkably unaffected by the emotional impact of what she was describing. She showed no distress or anxiety about the effect upon either herself or A of her decision to remain in England. All the signs are, to use a modern idiom, that she is “cool” about the idea of staying here which may explain why A, in his discussions with Mr Power, was similarly accepting of the fact that he may go back even without his mother.[63]The third important part of the evidence was that given by the mother as to how she views the potential separation of the siblings. She confirmed that if an order is made for A’s return, she will go back with him. She said she did “not think that K will go back.” She would stay with a good friend. Going back from K’s perspective was described by the mother as “a tragedy because she would not have any possibility of continuing with the educational opportunities” on offer here. The mother added that K “is feeling really good and is blossoming.” Taking the educational opportunities away from K, said the mother, “would be horrible for her.”[64]Ms Amiraftabi and Ms Scarano submit it would place A in an intolerable situation to be separated from his sister; and he would be, says Ms Scarano, at grave risk of psychological harm. Ms Amiraftabi suggests there would be no certainty as to the outcome of any relocation application by the mother and no basis for knowing how long the children might remain separated whilst the proceedings were pending before the court.[65]I do not underestimate the likely effect upon A of living separately from his sister. It is to be expected that he would miss her as part of his everyday life. Doubtless he would feel sad and at times he may be lonely.[66]However, I altogether reject the notion that separation from K would create for A a grave risk of psychological harm or place him in a situation which he should not be expected to tolerate. A has been required to withstand the considerable emotional consequences of being separated from his father with whom he has a close and loving relationship. As he told Mr Power, A misses his father. A also misses his friends, his Dad’s friends, his school, his older brother, grandparents, aunts and uncles. The disruption brought about by his unlawful removal and retention should not be underestimated.[67]Whether K stays in this country or returns with her mother and brother is not yet certain. The signs are that she will probably elect to remain here and her mother will go along with that decision because that is seen as best for K. The situation which the mother confronts is one which she has created.[68]To the extent that there is interference with siblings’ rights under Article 8 of the European Convention on Human Rights, the order which may involve their separation for an indeterminate period is in accordance with the law, in pursuit of a legitimate aim and proportionate. They have a right to enjoy family life; so, too, does the father. His ability to participate as he would wish in A’s day to day existence has been seriously curtailed over the last nine months. A’s right to pursue his loving relationship with his father by spending time in his company has been infringed. The balance falls firmly in favour of A’s return and notwithstanding the likely impact upon the sibling relationship.[69]Finally just this – close examination of the mother’s case in all its facets reveals that it amounts to a series of futile attempts to avoid the consequences of her unlawful actions. There is no substance in any of the three suggested ‘defences’ or exceptions to an order for summary return. A must go back to his country of habitual residence for the courts there to resolve the dispute about where he should live and with whom as well as the mother’s application to deprive the father of parental responsibility.

Cited in 3 later judgments