AJA v FIA [2017] EWHC 1009 (Fam)

Case No FD17P00062[2017] EWHC 1009 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Tuesday, 11 th April 2017
Before
MR JUSTICE HOLMAN(sitting throughout in public)
B E T W E E N:
Between
AJAApplicantFIARespondent
Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 New Street Square, London. EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MR J. ROSENBLATT (instructed by Zemansky & Partners Solicitors) appeared for Applicant Father.THE RESPONDENT MOTHER appeared in person. for in personMR J. FORD (Solicitor Advocate of Cafcass Legal) appeared for Guardian.
J U D G M E N T
[1]This is an application made pursuant to the Hague Convention on the Civil Aspects of International Child Abduction for the summary return of two children to the Republic of Ireland. It is beyond doubt, and not in issue, that prior to the removal of the children to England last December both children were habitually resident in that state.[2]The essential factual background circumstances are as follows. Both parents are of Nigerian origin and descent and, indeed, both parents are citizens of Nigeria. However, as long ago as 2003 the mother moved to Ireland to live and work. She has essentially lived there ever since until recent events. At that time the mother had a daughter, who was born in March 2003 and is now aged 14 and who has always lived with her mother. The father of that daughter remains, as I understand it, in Nigeria.[3]In 2007 the mother and father of the children with whom I am directly concerned married in Nigeria. From that marriage they have two sons. The elder is now aged about 8¾ and the younger is aged about 5 ¾. For the first several years after the marriage, the mother continued to live in Ireland but the father remained in Nigeria and they only met from time to time. So it was that, for the first several years of the life of the elder son, in particular, that child was living in Ireland with his mother and half-sister whilst his father remained living in Nigeria. However, in mid-2013 the father moved from Nigeria to Ireland and began to live full-time with his wife (the mother) and their children.[4]In 2015 the relationship between the parents broke down and the father moved out of the family home. Within the present proceedings each parent makes allegations of violence and abuse against the other. I have not heard any oral evidence, and it would be unwise of me to venture any observation at all today as to where the truth lies in relation to those various contested matters.[5]In November 2015 the father applied to a local district court in Ireland for an order in relation to access or contact between himself and his sons. The order provided that the father should have access each Tuesday and Friday from 6p.m. to 8p.m. at the home of the mother. As I understand it, he did indeed exercise access pursuant to that order, which means, however, that in the period of about a year, since that order and before the children travelled to England, the scope of the access or contact between them and their father was two hours twice week within their mother’s home. As I understand it, since the father moved out in 2015 the children have never stayed with him at all, nor, indeed, spent any time with him away from their mother’s home. Importantly, the court order of November 2015 adds the following:
“Provided that the party to whom custody of the said children is hereby given shall not remove the said children from the jurisdiction of this court without having first obtained the consent in writing of the other party or the leave of this court or of any other court of competent jurisdiction.”
Technically, as I read that order, it does not, on its face, give “custody of the said children” to any party, but it is clearly implicit in the structure of the order that the custody of the children was given to the mother with the relatively limited access to the father. If it can properly be read in that way, then the order clearly contained an embargo upon the mother removing the children from the Republic of Ireland without the prior written consent of the father or the leave of a competent court.[6]In December 2016 the mother travelled to England with both sons and also her daughter. She is now an Irish citizen and so, of course, was able freely to enter the United Kingdom.[7]On 13 December 2016 the mother sent an email to the father which says, in part: “Hello, I just want to let you once again that we have finally moved and relocated the UK.” [sic][8]The father promptly contacted the relevant central authority in Ireland, and these proceedings were promptly commenced in January 2017. As is expressly provided for in the Hague Convention, and as is routine in applications of this kind, the father, as applicant, has benefited from non-means tested, non-contributory, publicly funded legal aid. He is represented here today by a very well-known expert barrister in this field, Mr Jeremy Rosenblatt.[9]The mother has negligible means. She does not work. She has no savings of any kind. Her only source of income is Job Seeker Allowance of £73 per week. A housing allowance contributes substantially to her rent here in England, but she told me that even so she has to top up £92 per month towards her rent out of the £73 per week Job Seeker Allowance income. So her means are very exiguous indeed. She approached two firms of solicitors in Leeds but says that they each advised her that, due to changes in the law and regulations two or three years ago, they could not obtain legal aid in order to represent her. In the upshot, she has been self-representing throughout these proceedings and appears in person before me today.[10]I do not wish to be unkind in any way at all about the mother, if I say that she is very disadvantaged in doing so. She clearly has no legal knowledge, experience or understanding. She is generally a socially disadvantaged person. She is able to express herself in a clear way but is, frankly, very out of her depth. I have many times in judgments in this field deplored the marked inequality that thereby results between applicants and respondents in proceedings of this kind under the Hague Convention.[11]In the present case, a Family Court Adviser from the CAFCASS High Court Team was asked to interview the two boys to assess whether or not either of them objects to a summary return to Ireland. I will refer later on to the assessment in that regard. But as a result of his then limited involvement in this case, that officer, Mr John Power, was so concerned about the wellbeing of these children and their status within these proceedings, in which their father was well represented but their mother was not, that he sought a direction, which was given at an earlier hearing, appointing him as guardian for these children. In the result, I have had the advantage today of skilled representation by Mr Power himself and Mr Jeremy Ford, a solicitor advocate employed by CAFCASS.[12]It happens that the final assessment, recommendation and submission of Mr Power is that these children should not be returned to Ireland and that these proceedings should be dismissed. That being so, it has fortuitously happened that the position of the mother has not been overly prejudiced because, as it turns out, the outcome which she seeks has also been argued by and on behalf of Mr Power. But it might, of course, have been very different.[13]The mother has advanced three defences to this application. The first is an argument for the purposes of Article 13(a) of the Convention that, in fact, the father consented to the removal of the children from Ireland to England and Wales. I can deal with that very shortly. I reject that suggestion and defence. It is part of the context of this particular case that the order of the Irish court of November 2015 made quite clear that the mother could not remove the children from Ireland “without having first obtained the consent in writing” of the father, or the leave of a competent court. She did not obtain the leave of any court. She did not obtain the consent in writing of the father. The highest she puts it is that she says that his consent can be “implied” because, she says, he could see that she was preparing to leave Ireland by packing belongings and other steps, and he took no action or steps to resist or prevent that. But very well-known authority establishes that consent needs to be much more clearly and expressly given than that, and it cannot simply be implied from inaction.[14]The second defence which the mother raises, pursuant to the second paragraph of Article 13 of the Convention, is that each of these boys objects to being returned to Ireland. It suffices to say that Mr Power, who is immensely experienced in this field, met both boys in London, together with their mother, in early March 2017. The younger boy, of course, is still only about 5¾. Mr Power describes that after about ten minutes that boy left the room in order to go outside and sit with his mother. The elder boy is about 8¾ and Mr Power was able to have an open and informed discussion with him.[15]In his second report, dated 6 April 2017, Mr Power says in terms, at paragraph 22:
“I do not think it can be argued that [the elder son] objects to being returned to Ireland …”
. That being the assessment of Mr Power, who met the boy himself, I cannot, frankly, conclude that the boy does object and I unreservedly accept the assessment of Mr Power. So that defence also fails.[16]The third defence raised by the mother, pursuant to Article 13(b) of the Convention, is that:
“there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
It is, indeed, under this heading that Mr Power himself very strongly, and without reservation, submits that these children simply cannot be returned to Ireland. He says that to return them “would inevitably place them in an invidious, unprecedented and intolerable situation”.[17]This requires to be considered from two perspectives. One perspective is that the mother herself returns; the other is that she herself chooses not to return. The mother is impaled on a dilemma in this case for she does not have two children but three. She is no less responsible for her daughter, aged 14, than for her two sons. She makes very plain that her daughter has settled very strongly and well here in England and would be very resistant indeed to returning to Ireland. The mother herself could not possibly leave her daughter behind. In any event, she says that she has good personal reasons for strongly resisting any return to Ireland. These include the unhappiness which she has experienced there and the difficulties in her relationship with the father.[18]But over and above that, there is a huge void in this case as to what the living circumstances would be for these children and their mother if they were to return to Ireland. She says that she has never received a penny of financial support from the father throughout the lives of the children. She was living in local authority accommodation in Ireland and, unfortunately, accumulated considerable arrears. She has lost that accommodation. Mr Power has investigated as best he can with professionals in Ireland as to the availability of accommodation for the mother and children in Ireland. At paragraph 36 of his second report he quotes what has been reported to him:
“Local authorities have general responsibility for the provision of housing for adults who cannot afford to provide it for themselves, but they do not have a statutory obligation to house people. They also have nomination rights to all social housing provided by housing associations. They nominate from the housing list and you have to be on the list to be considered. An application needs to be made and if eligible, you qualify for the housing list. Even then it is roughly a seven year wait for local authority housing at the moment. In the interim, people on the list may be approved for housing assistance payment if they qualify. The difficulty is housing in Ireland is at crisis point. There are very few properties available. We have families unable to move from refuge because although they have been approved for housing assistance payment, there is no availability. In terms of delays, we are seeing and hearing months. There were 850 families in emergency homeless accommodation today (excluding refuges). In terms of housing it is as bleak as I have ever seen it.”
[19]That being the evidence from Ireland, albeit of a hearsay kind, I simply cannot have any confidence at all that if the mother and these children were to be returned summarily to Ireland, any suitable accommodation would or could be made available for them for an appreciable period of time.[20]The father is apparently of very limited means himself and has not made any kind of offer to fund or facilitate accommodation at which the children could live with their mother. She has no relations in Ireland and there has been no suggestion of friends with whom she could reliably and suitably stay. Meantime she does have suitable accommodation for herself and all three children here in England, for she has managed to secure a tenancy on a three-bedroomed house.[21]The alternative perspective, of course, might be that the children return to Ireland, not with their mother but to live with their father. I have no evidence from him as to his current living circumstances, although at paragraph 17 of his first report Mr Power reports the elder son as saying that his father “was living in an old shack”. At paragraph 8 of his own statement, dated 22 February 2017, the father wrote:
“If the respondent does not wish to return to the United Kingdom [sic – but he means Ireland] the boys will have a home with me. We have a close and loving bond and I have already spoken with the local authority who will provide a suitable property for me and the children upon their return to this jurisdiction.”
Beyond that bland assertion, there is, in fact, no evidence whatsoever as to the sort of accommodation that the father might be able to obtain or finance. On the face of it, his position would be no different from that of the mother, and the passage quoted by Mr Power, in paragraph 36 of his second report, would appear to apply equally to the father as to the mother.[22]Mr Rosenblatt frankly accepted today that he is in no position to suggest or submit that these children could be adequately housed with their father. He posed the rhetorical question that nevertheless should an application under the Hague Convention be rejected because of social housing conditions? He said the economic reality should not preclude the father from having a right to the return of his children. But he accepted that the reality is that if these children were returned to Ireland then the father, no less than the mother, would “have to join the queue”.[23]Quite apart from the accommodation problems, there is, as it seems to me, a huge lack of reality in the suggestion by and on behalf of the father that the children could simply move to living with him in Ireland. It is part of the background of this case that for many years he was a completely absent father, living in Nigeria. It is only altogether for about two years that the father lived at all in the same home as them. Since then, as I have described, they saw him only for two hours twice a week. They have not seen him at all now since December 2016.[24]The mother is saying that the boys are “scared” of their father. I asked Mr Power whether that accorded with his own view. He said that in relation to the younger child it was not possible for him to make an assessment since that child only spent about ten minutes in the room with him before going out to re-join his mother. But Mr Power expressly confirmed that it is his own assessment that the elder child is indeed scared of his father. At paragraph 19 of his first report, Mr Power reports that he asked the children if they would like to see their dad and the elder child replied:
“I’m not sure but definitely not in Ireland”
. At paragraph 20 he reported that child saying:
“If I’m sent back to Ireland I’d be worried about staying with my dad. He doesn’t know how to take care of us and he only gave us broken toys. Sometimes he didn’t come to see us and made up lies.”
At paragraph 32 Mr Power reported:
“I was left with a sense that [the elder son] does not abjure his father and wants him to mend his ways; to be good.”
[25]Quite frankly, against that background and in that context, the proposition that these children could now be summarily returned to Ireland and start immediately living there with their father borders on the fanciful, and would, indeed, place the children in an intolerable situation and be likely to be gravely psychologically damaging to them. They would be abruptly removed from their mother and, importantly, their half-sister, with whom they have always lived and to whom they are very attached, in order to be placed in a very uncertain situation with a father with whom they have not stayed at all for a long time and of whom the elder son is scared.[26]It seems to me that however one visualises the future in this case, an immediate return of these children to Ireland would indeed place them in an intolerable situation, as Mr Power argues, and would be potentially gravely psychologically and possibly even physically harmful to them. They cannot return with their mother because she is tied here by her daughter, and, in any event, she simply has no accommodation to which to go in Ireland. They cannot return with their father for the reasons I have just given.[27]It seems to me, therefore, that the defence under Article 13(b) of the Convention is clearly established in this case and that I must exercise a discretion not to order the return of these children, but to dismiss the present application, which I will do.[28]It is, to my mind, unfortunate that the father personally is not present today. Mr Rosenblatt says, very strenuously, that in the absence of an order for his attendance for the purpose of giving oral evidence (and there is no such order) it would not be possible for his travel and presence here to be funded as a disbursement to his public funding certificate. That may be so, but the cost of travel from Ireland is relatively small and, indeed, this very morning the father has said that he will travel (inevitably at his own expense) to England in order to see his children. So it does seem to me very unfortunate, since he lives as relatively near as Ireland, that the father has not travelled here for this hearing. I accept at once that he is a citizen of Nigeria and not of Ireland, and that he could not enter the United Kingdom without a visa or leave to do so. But one would hope that if that had been applied for, for the purpose of attending proceedings in relation to his sons, sympathetic consideration would have been given to granting it. At all events, the fact of the matter is that the father is not present here today.[29]I have had some tentative discussion between Mr Rosenblatt, on behalf of the father, and the mother personally, with regard to future contact arrangements. Further, I broke off for a period to enable Mr Rosenblatt to communicate with his instructing solicitor (who is not present), who in turn communicated with the father. The instruction from that communication is that the father would indeed travel to England, if he has the necessary visa or leave to do so, in order to have contact with the children here.[30]Concurrently with that, I enquired of Mr Power and Mr Ford, who, as it were, represent CAFCASS today, whether CAFCASS, locally to where the mother lives in northern England, would be able to facilitate and observe some contact between the father and the children. Mr Ford kindly spoke to the local CAFCASS office in the north. Their reaction was that they would wish first to be formally engaged in the case and to be able to make appropriate assessments of the children, and in relation to risk, before proposing or agreeing to any form of contact supervised by them.[31]Mr Rosenblatt was able to say that, in any event, it is the instructions of the father that if his application for the summary return of the children is dismissed, as it will be, then he will apply to the Family Court sitting locally to where the mother lives for a child arrangements order, dealing specifically with the time that the children should spend with him or otherwise have contact with him.[32]As the father is not present, and it is not possible to facilitate any further direct discussion or negotiation between the parents today with regard to any contact arrangements, I have concluded that I simply cannot engage further in that topic. Rather, I will, as I do, simply dismiss the present application. The way is open for the father to issue whatever welfare-based application he may wish, pursuant to the Children Act 1989, in the Family Court local to where the mother lives, and all issues of contact, and any other issues between these parents, must now be resolved in those proceedings. __________