CM v FC (Abduction: Consent) [2017] EWHC 1104 (Fam)

Case No FD17P00090[2017] EWHC 1104 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Thursday, 6 th April 2017
Before
MR. JUSTICE PETER JACKSON(In Private)
B E T W E E N:
Between
CMApplicantFCRespondent
Transcribed by Opus 2 International Ltd.(Incorporating Beverley F. Nunnery & Co.)Official Court Reporters and Audio Transcribers5 New Street Square, London, EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737civil@opus2.digital
MR. A. PERKINS (instructed by Access Law LLP) appeared for Applicant.MR. C. HARDING (instructed by Hornby and Levy) appeared for Respondent.
J U D G M E N TJ U D G M E N T: CM v FC (Abduction: Consent)
[1]This is an application brought under the Hague Convention on the Civil Aspects of International Child Abduction 1980 by a mother, as I shall call her, seeking the return to Romania of a 4-year-old child, who I will describe by the initial “D”. The respondent to the application is D's father. Both parents have been expertly represented by counsel and solicitors in this application, which was issued on 21st February.[2]D came with her father and her father's wife to England on 22nd December and has remained here ever since. During that time her contact with her mother has been limited to Skype calls.[3]The parties had discussions this morning, coming close to an agreement that the child should now return to Romania, but there were fundamental differences between them about the arrangements for that return. Accordingly, the matter has been looked into in all its aspects in the course of this afternoon's submissions.[4]Briefly the background is that this is a Romanian family. The parents married in 2009 and are now in their 30s. In 2013 the father came over to England with the possibility that the family would join him, D having been born in 2012, but instead he formed another relationship and the marriage ended in April 2014.[5]There were proceedings in Romania concerning the divorce and the child. Those consisted of several months of negotiation leading to an agreement on 14th October 2014, which was endorsed by an order of the Romanian court on 12th November 2014. That order placed D in the joint custody of her parents, provided for her to reside with her mother and to have regular contact with her father, including in England. In December 2014 the father remarried.[6]Through 2015 and again in 2016 D had a number of holidays in England with her father lasting typically for 10 days or so, and leading to return to her daily life in Romania. It is apparent that the parents' relationship, which is not an easy one, included at various times discussions about the possibility that the mother and D would move to England. In October 2016, for example, the mother came over for four days and stayed in the father's home, that being, as I see it, in the nature of a reconnaissance. The father says that the initiative for this came from the mother; the mother says that she was under continuous pressure from the father. It is not necessary to resolve that matter.[7]At all events, on 20th December, just before last Christmas, the mother handed D into the care of the father and his wife knowing that they would take her to England. Jumping forward, on 26th January the mother approached the Romanian Central Authority requesting it to communicate with the English Central Authority to take proceedings to recover D. That led to these proceedings in February, as I have already mentioned.[8]The mother's case is that she had agreed that the father should bring D to England for another holiday period of short duration followed by her return to Romania, as had happened on four or five previous similar occasions. The father's case now is that the mother had agreed to him bringing D here to live with him and his wife and their small child indefinitely, with the possibility that the mother herself would follow on in due course. He therefore claims that the mother has consented within the meaning of Art. 13(a) of the Convention and that on that ground her summons should be dismissed.[9]He further points to some abnormal behaviour that he says he has experienced from D that suggests that she has been influenced by neglectful parenting, particularly circumstances in which there is said to have been some sexual play between D and one or more other small children. He claims that this information engages Art. 13(b), so that the court should refuse to return D on the basis that she would be at risk of grave harm, or otherwise be placed in an intolerable situation.[10]I have read the statement of the father made on 23rd March and of his wife, and also the statement of the mother made on 3rd April. I have also studied, with counsel's help, the exhibits to those statements.[11]The Convention by Art. 12 requires this court, following a time-limited summary procedure, to order the return to the country of habitual residence of any child who has been wrongfully removed forthwith, unless certain specified defences are made out and the court considers that return is not appropriate. In this case the father contends that the removal on 22nd December from Romania was not wrongful because it was with the consent of the mother.[12]I have been reminded of the well-known authority Re P-J (Abduction: Habitual Residence: Consent) [2009] 2 FLR 1051 and, in particular, para. 48 in which, in essence, it is made clear that the court must take a practical family-focused approach to deciding whether consent was given or not, and that consent must be clear and unequivocal. The father in this case bears the burden of establishing that.[13]I start from the standpoint that the mother had, only two years before the child was removed, achieved a hard-negotiated outcome granting the residence of D to her. I then proceed to the point where it is apparent that the mother contemplated moving with D to England. I next come to a document which, in translation, appears at page C39A. It is a statement made by the mother before a notary public in Romania agreeing and consenting to D travelling to the United Kingdom by any means as a tourist and returning to Romania between May 2016 and May 2017.[14]It is asserted, on the father's behalf, that this amounts to a consent to the child's removal to live here in December. By no means can that document be understood in that way. It is clearly a document created for the purpose stated by the mother, namely to assist D in going backwards and forwards for the purpose of holidays.[15]The next document is at p. C63 in translation. D's travel documents were, as I understand it, due to run out at the end of January 2017. There was some question as to which parent should renew them. It was first intended that the mother should renew them and the father had given her money to do it. On 19th December she signed another notarial agreement providing her consent to D being issued an individual passport. Since the existing passport expired at the end of January the father says that this shows the mother knew that the child would not be back by the end of January. The document might bear that interpretation, but it might, in my view, more easily bear the interpretation placed upon it by the mother, which is that one or other parent had to renew the document so that the child had a future passport, and this was simply a step taken to enable the father to do it rather than herself. I regard that as being a neutral piece of evidence.[16]What is not, in my view, neutral is the contemporaneous email correspondence between the parents. This appears between pp. C15 and C19 and it is, in my view, highly illuminating. I will not lengthen this judgment with extensive citation of some five pages of correspondence stretching between 21st November 2016 and 18th January 2017. It is to be noted, however, that on 21st November the mother said, in effect, that D is not to stay away from her for too long because that had affected her on previous visits, that she could go to her father for the holidays but not for one month, and suggested 24th December to 2nd January being suggested. In a text conversation on that occasion she says, “I will never give up my child”, to which the father replies:
“When she is with me she's with me and that's that. When she's with you take care of her if you can't give up.”
[17]On 2nd January the mother asked the father to bring the child back by 15th January. On 6th January the father declared that he has put the child into school and the mother says, “Why is she going to school? She has a school here” and the father says that a child in England has to go to school at four years old. The mother replies, “The child is a Romanian citizen. She attends kindergarten here”. The father says that she's a citizen of the EU. The mother replies:
“But the girl is in my care and she has her residence with me. She comes to you during the holidays.”
The father's response to this is, in my view, highly significant. He says:
“…and by the way dad says he was the one taking her to a psychologist and he was the one paying for it because you failed to see the girl has problems. She has her residence with you and she stays with others all the time.”
He then goes on to criticise the mother as a parent and a person. It is, to my mind, inconceivable that if the father genuinely believed the mother had agreed to the child coming to live with him indefinitely that he would not have said so.[18]This pattern continues. On 12th January the father issued proceedings in Romania to vary the order of 2014. It should not be overlooked that in order to issue those proceedings it must be presupposed that the child is habitually resident there. There is no evidence that the father told the mother and she was not served with the proceedings until the middle of February. Instead there is a lengthy exchange lasting for some two pages on 12th January along these lines:
“Mother: If you don't bring her back until 15th January I will sue you in court. Father: You agreed with the end of February. Mother: I never said that. Father: Her passport expires end of January. You made me proxy because you knew she would exceed that date. Mother: I could not reach an agreement with you with regards to the date.”
Mother: I could not reach an agreement with you with regards to the date.”[19]Then the conversation degenerates with the father criticising the mother for her care of the child and the mother continually stating that she wanted the child back and had not agreed.[20]Once again the father's defence direct to the mother is nothing like his defence to the court. He said there, “You agreed with the end of February”. He says now that she agreed indefinitely.[21]At the end of that conversation:
“Mother: I want you to bring the child home. Father: I have no further things to discuss.”
So the correspondence goes on until 18th January when the same inconclusive toing and froing continues. Father: I have no further things to discuss.”[22]On 6th March the father, who was not represented but who has a command of English, appeared before Cobb J. On that occasion he tried to persuade the judge that he had the right to have D with him until May 2017 on the basis of the travel pass that the mother had agreed to. Against that background the father and his wife had filed evidence in support of the contention that the mother agreed to an indefinite move. They say that on 25th November the mother said she was still fine with such a move (para. 34) and that she said something similar on 19th December.[23]Miss Harding, who said everything that could conceivably be said on the father's behalf, applied for the court to admit oral evidence from the father and his wife in support of those statements. She said that it would enable the court to be impressed by the truthfulness of the couple and further to understand their concerns for D. As I said before the submissions were concluded, I do not think it appropriate to receive oral evidence. Miss Harding accepted that not only is there no agreement evidenced in the contemporaneous documents, but that they in fact differ from any contention that there was agreement.[24]It is a short step from that concession, rightly made, to the reality, which is that the documents are inconsistent with the father's case in his statement. I do not consider that it is the proper function, in these essentially summary proceedings, to allow a party to seek to persuade the court by oral evidence of something that cannot stand alongside the contemporaneous accepted record. I therefore refused the application.[25]The only other document relied upon by the father is an email that he sent to the mother on 19th January calling her a liar and saying that he had clear proof that she had agreed to the girl staying.[26]Returning then to the question, “Has the father established the mother consented?” the answer is clearly that he has not. The true picture here, on the information available to this court, is that the father has been dissatisfied with the arrangements for D for a long time and has wanted to change them in favour of an arrangement where he takes care of her. In that respect, looking at it from his point of view, he made some progress towards the end of 2016 in that the mother was prepared to consider coming to England with D. As Miss Harding put it, by the end of the year the father felt that he was being “messed around” by the mother in a deliberate attempt on her part to get a better financial deal and arrangements that suited her better.[27]I have no reason to doubt that he felt like that, nor can I tell where the truth lies in relation to the mother's overall intentions. However, I am perfectly clear that her consent to D coming to England over Christmas was for a short time limited holiday period with a view to her return to her normal existence in Romania. What happened after that was a matter for the future. I am afraid here the father has exploited the situation in his impatience to achieve what he wanted. I am drawn to that conclusion, firstly, by the mother's contemporaneous responses in the email, secondly, by her very swift legal action to seek the return of the child, and thirdly, by the father's responses to the situation, which included taking legal action in Romania, and his entire failure to give the obvious response to the mother's open protests.[28]The mother's agreement was to a short holiday. The father took the child intending to keep her for as long as he could. That is no agreement, no consent, and the removal of the child was wrongful. It is not necessary to identify the precise date when D was due to return, but it was measured in no more than a small number of weeks at the outside.[29]Turning to the issue of grave risk of harm, I remind myself that the question here is not a welfare one for this court except in the very short term. It is only a relevant matter if the stringent standards of grave risk of harm or intolerability are established.[30]The father's statement between paras. 47 and 70 sets out his concerns for his daughter's welfare and his complaints about her mother's behaviour. In particular, at paras. 65 to 70 he touches upon sexual matters. As I said during the hearing, I do not decide on these matters, I take them at their highest for the purpose of this exercise, and I do not disrespect the concerns of any caring parent. What I do say is that these matters do not come close to reaching the threshold required by the Convention. They are all matters that are properly dealt with by the Romanian court if they need to be dealt with by a court at all, and could conveniently be dealt with perhaps during the proceedings brought by the father himself.[31]Further to that, it is not open to me to refuse to return the child to Romania if protective measures are available there. Although there is no specific offer so far made on behalf of the mother, I am perfectly satisfied that the issues that the father wishes to raise are ones that would quite normally fall within the power of the Romanian authorities to regulate. The mother and the father are both intelligent persons who have fair knowledge of the systems in Romania. Romania is the country of this child's habitual residence. Romania is the country in which it is said that these matters arose. From every point of view, it is more appropriate that the matter be dealt with there if it needs to be pursued. That defence is also without substance.[32]It follows that there will be an order for the immediate return of D to Romania. The main issue which I deal with now, to enable the parties to have further discussion, is the question of how the child is to return. By virtue of s. 5 of the Child Abduction and Custody Act 1985 and Art. 11 of the Hague Convention 1996 I have the power not only to regulate the child's departure from this jurisdiction but also her arrival in Romania, and to do so up to the point where there can be an effective hearing before the Romanian court.[33]It will be recalled that the father agreed to return with D provided he kept her in his care. The mother, who has travelled from Romania for this hearing, says that she should be the parent who brings D back. I agree. The mother is the parent who has been entrusted with the care of this child under Romanian law. The father has been found responsible for her wrongful removal. The idea that he should be allowed to continue to detain the child from her mother's care, no doubt for as long as he can manage in Romania, is, in my view, plainly contrary to D's interests. The child will return as soon as possible with her mother. The time for the return shall be as early as travel documents can be made available, it being a feature of the matter that although the father was put in the position to get her a travel document he did not do so.[34]Those are all the matters, I think, that I need to deal with now. This case is scheduled to continue into tomorrow and so it shall, unless the parents are able to reach a comprehensive agreement on the next steps overnight. If they are and I see the draft of an agreement by 10.30, then I will do what I can to prevent the parents having to return to court. I think it may be more likely that they will need to do so, but I leave that to their experienced representatives to discuss with them. My intention is that the child should be returned to her mother as soon as reasonably possible if arrangements in this country are suitable, but that will be a matter of detail for the parties to discuss amongst themselves. __________