M v G [2017] EWHC 1712 (Fam)

[2017] EWHC 1712 (Fam)

Case No FD16P00166

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 22/6/2017

Before

Her Honour Judge Nancy Hillier

{sitting as a s9 High Court Judge)

Between

M(Applicant)

G(Respondent)

Ms Katy Chokowry (instructed by TV Edwards) for Applicant

Respondent in person for in person

Hearing Hearing dates: 19 and 20 June 2017

JUDGMENT

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published. For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.Failure to do so will be a contempt of court.

HER HONOUR JUDGE HILLIER:

Introduction

[1]Pursuant to an application issued on 21 February 2017, I am required to determine the immediate future of A and S. A was born in June 2006, so he is now eleven years old and S was born in February 2009, so he is 8 years old. The children are Romanian nationals, as are their parents.

[2]The father is represented by Ms Katy Chokowry of Counsel, instructed by TV Edwards. The mother represents herself. The case was listed for hearing before me to determine the father’s application for a summary return of the children to the jurisdiction of Romania pursuant to the provisions of the Child Abduction & Custody Act 1985 incorporating the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Hague Convention”) and under Article 11 of Council Regulation (EC) 2201/2003 (“BIIa”).

[3]For the purposes of determining these proceedings I have read the bundle including the statements filed by and on behalf of the parents, a number of supporting documents, and the report of the CAFCASS reporter Ms Ionescu. I also heard the oral evidence of Ms Ionescu about the children’s wishes and feelings and any objections they hold to returning to Romania and the parents’ evidence in relation to one of the defences which have been raised by the mother, namely of consent to retention or removal.

Background Facts

[4]The background facts can be summarised as follows. The parents met in Romania in 1997 and were married in 2002, divorcing ten years later. The children then lived with their mother and had contact with their father, including holiday contact in summer 2014. At some point the mother and children moved to Miroslava to live with her mother. The father moved to Norway in 2014 to work and he remains living there. The mother worked in England for several months. The children remained in Romania in the care of the maternal grandmother. Both the mother and the father returned to Romania from England/ Norway to see the children in Romania. In February 2015 the mother states that the father said that he would allow her to take the children to live in England. The father, however, states that he wanted to talk about the future care of the children but that they did not reach an agreement. The mother returned to Romania shortly afterwards “for good”.

[5]At around that time the father remarried. The mother made an application to change the father’s contact with the children and also sought his consent to enrol the children in a school in England for the academic year 2015/16. It is her case that he said yes but then changed his mind and the plan was abandoned. On 3 March 2015 a psychiatrist examined A and diagnosed reactive anxious-depressive disorder and oppositional defiant disorder. Risperidone and Sertraline were prescribed. S was diagnosed with “childhood emotional disorders”.

[6]In August 2016 the mother and father went to a Notary Public in Romania. They signed a document whereby they agreed that the mother could bring the children to England from 12 October 2016 to 26 October 2016 on the basis that they stayed at an address in Aylesbury, that their mother would travel and return with them and that they would be accompanied by her throughout.

[7]The mother did not return to Romania on 26 October. She applied on 11 November to the Romanian court for permission both to remain with the children in the UK during the 2016/17 academic year and to remain permanently in the jurisdiction of England and Wales. On 29 November the application to remove during the 2016/17 academic year was refused by the Romanian court. The father’s application under the Hague Convention for the summary return of the children was made on 15 December 2016 and solicitors were appointed for him in England in mid February 2017. The mother appealed against the November decision of the Romanian court and on 26 January 2017 her appeal was upheld. She was granted permission to remain in England with the children until 31 August 2017. The father in turn applied to review that decision and the hearing was listed in May and heard on June 8th. His application was dismissed.

[8]The father did not know where the children were living so he applied within the Hague Convention proceedings for a disclosure order on 22 February which was granted by Baker J. When the case was heard on 7 March, Moylan J recorded that the mother was asserting that the father had consented to her coming to England on a permanent basis if, during the 2 week agreed holiday, she could find employment and schools for the children. She also said that he had changed his mind on 26 October. She asserted that the children were at grave risk of harm if they returned to Romania as the father had been violent to her and the children in the past, that the children are frightened of their father and do not wish to return, and that she has insufficient funds to support them there. Directions for filing evidence were given. A Cafcass High Court Team reporter was appointed to report on the children’s wishes and feelings and any objections to return to Romania.

[9]Ms Ionescu reported on 27 April. She recommended that the children should be joined as parties to the proceedings and offered to act as their Guardian. On 4 May Cobb J considered the issue of whether the children should be made parties to the proceedings. He declined to make them parties as the recommendation did not correspond with the PD16A guidance and because the children do not have competence to instruct solicitors. I have not been asked to revisit that decision. The mother is recorded as having accepted the Cafcass assessment that the children were less mature than their chronological ages.

[10]On 22 May the Hague Convention application was due to be heard by HHJ Jakens. The father’s Counsel applied for an adjournment on the basis that it was vital to know the outcome of the decision in respect of father’s application in Romania for a review of the decision to allow the mother and children to remain here for this academic year. This was said to be particularly relevant to Article 12 considerations. HHJ Jakens granted the adjournment and wrote to the Romanian Court to ensure that the court was aware of the adjournment of this case to 19 June and to request information about the outcome of the Romanian hearing on 8 June. On 14 June this court was updated that file 1595/99/2017 concerning the father’s application for revision of the 26 January decision in respect of file 34661/245/2016 was dismissed and that the decision is final.

[11]The mother handed a document to me on the first day of this hearing in which she states that she filed an application under file number 38390/245/2016 on 11 November 2016 for permanent removal from the jurisdiction of Romania to the jurisdiction of England and Wales which is ‘pending’. Both the mother and father were aware that there is a hearing on 22 June in Romania in respect of that application but it was the first time this court had been apprised of the matter. The mother told me that she does not know whether the 22 June hearing is to be a final hearing or whether the application will be heard after 10 September when the Romanian court reconvenes after the summer vacation. The document she produced refers to an “establishment of minor child’s domicile; parental agreement” and that there is a reference to “an adjournment of ruling” on 22 June.

[12]Once I had seen the document I asked both Ms Chokowry and the mother whether either sought an adjournment of this hearing until the outcome of the 22 June hearing was known. Both made it clear that no adjournment was sought and asked me to continue with the hearing.

Summary of exceptions to return

[13]The exceptions to return relied on by the mother are firstly that father had consented to the removal on the basis that she satisfied certain conditions and when she had satisfied those conditions he had reneged on that agreement (Art 13(a)). Secondly, that returning the children to Romania would place the children at grave risk of physical or psychological harm or place them in an otherwise intolerable situation under Art 13(b) and thirdly, that A and S object to returning to Romania and are of an age and level of maturity where it would be appropriate to take account of their views under Article 13.

The Hague Convention, Brussels II(a) Article 11 and relevant law

(a) Article 11 and relevant law

[14]This application is determined by reference to the provisions of the Hague Convention and Article 11 of BIIa. The objectives of the Hague Convention were summarised by Baroness Hale in the decision of Re D (A Child) (Abduction: Rights of Custody)

wherein she said at paragraph 48:

“The whole objective 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.”

[15]The starting point is Article 3, which specifies that the removal or the retention of the child is to be considered wrongful where(a) it is in breach of rights of custody attributed to a person, an institution or any other body either jointly or alone under the law of the state in which the child was habitually resident immediately before the removal or retention, and

(b) at the time of removal or retention those rights were actually exercised either jointly or alone or would have been so exercised but for the removal or the retention.

[16]In this case the children were habitually resident in Romania prior to removal. Both parents were exercising jointly their parental rights over the children as the mother needed either the father’s permission or the court’s consent to remove. There was no permission from the Romanian court for the children to move here at the time of removal and unless the father’s consent can be proved there has therefore been a wrongful removal or retention of the children. Accordingly, I must “order the return of the child forthwith” pursuant to Article 12 unless one of the exceptions in Article 13 applies. The burden is on the mother to establish these exceptions. As she has represented herself before me in this difficult case, I have throughout endeavoured to consider the legal matters which her lawyer might have relied on had she been represented. I have assumed that if I find that an exception is made out the mother would ask me to exercise my discretion in order to allow the children to remain within the jurisdiction and that if I make an order to return she would ask that it be suspended until 1 September 2017

[17]The law in this area was reviewed by Black LJ in the case of Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal)

[2015] EWCA Civ 26

, [2016] Fam. 1,

[2015] 3 WLR 803

[2015] 2 FLR 1074

. In that case Black LJ reminded us that these cases should be dealt with speedily and summarily. The aim 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.”

[18]Black LJ suggested that the sensible place to start in these cases is with the Convention itself and its core provisions. That is where I have started, returning to first principles and endeavouring to avoid over-complication. Article 12 provides that:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.”

[19]In relation to the meaning of “rights of custody” Art 5 of the Hague Convention provides as follows: Article 5 For the purposes of this convention- (a). 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (b). 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.

[20]Article 13 continues: 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 it 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; orb) 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 position.

[21]In Re P-J (Abduction: Habitual Residence: Consent)

[2009] EWCA Civ 588

[2010] 1 WLR 1237

[2009] 2 FLR 1051

Ward LJ gave a useful summary in respect of the defence of consent:

“In my judgment the following principles should be deduced from these 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. Fulfilment 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?”

[22]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.

[23]In respect of the issue of wrongful removal or retention Ms Chokowry referred me to the cases of Re H (Minors) (Abduction: Custody Rights)

[1991] 2 AC 476

, Re S (Minors) (Abduction: Wrongful Retention)

[1994] Fam 70

and RS v KS (Abduction: Wrongful Retention

[2009] 2 FLR 1239

[24]I have also adopted and been much assisted by the concise and useful summary of the law in relation to Art 13(b) set out by MacDonald J in BK v NK (Suspension of Return Order)

[2016] EWHC 2496

: 45. The law in respect of the defence of harm or intolerability under Art 13(b) was examined and clarified by the Supreme Court in Re E (Children)(Abduction: Custody Appeal)

[2011] 2 FLR 758

. The applicable principles may be summarised as follows: i) There is no need for Art 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Art 13 are quite plain and need no further elaboration or gloss. ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process. iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. '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'. v) Art 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home (where, as in this case, Art 11(4) of BIIa applies, the court cannot refuse to return a child on the basis of Art 13(b) of the Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return). Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist. vi) Where the defence under Art 13(b) is said to be based on the anxieties of a respondent mother about a return with the child which are not based upon objective risk to her but are nevertheless of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to a point where the child's situation would become intolerable the court will look very critically at such an assertion and will, among other things, ask if it can be dispelled. However, in principle, such anxieties can found the defence under Art 13(b).

[25]MacDonald J also refers to Re M (Abduction: Undertakings)

[1995] 1 FLR 1021

as authority for the principle that if it is demonstrated that an order for return would result in the child being left destitute and homeless the court would be likely to find that the Art 13(b) defence has been made out. Delay can also in appropriate circumstances constitute the basis for consideration of whether the return of the child could amount to a situation which the child should not be expected to tolerate.

[26]At paragraph 49 of BK and NK MacDonald J considers the situation where, as in this case, a parent who requests return no longer lives in that country. The father has continued to live in Norway but requests return to Romania. In MacDonald J’s judgment the answer will be fact-specific as will the extent to which it can be said that the return of the child in such circumstances can be said to be placing the child in an intolerable situation:

“For example, where there has been delay in seeking the return of the child it is arguable that the absence from the jurisdiction of habitual residence of the parent seeking the return of that child to that jurisdiction, and the consequent inability upon the child's return to continue and promote the relationship between the child and the left behind parent in that jurisdiction, may increase or exacerbate the intolerability of uprooting the child for the purposes of return after a long period of settlement and/or the disruption, uncertainty and anxiety which follows an unlooked for return to the jurisdiction of the court of habitual residence. Against this, it might be argued that, where the left behind parent is still entitled, and able, to seek a welfare determination in the country of the child's habitual residence notwithstanding his or her absence from that jurisdiction, the underlying principle on which the Convention rests (that any debate on the merits should take place before the competent authorities in the State where the child had his habitual residence prior to his removal) will remain highly relevant.”

[27]A and S need the opportunity for their views to be aired. Article 11 of BIIa reinforces the 1980 Convention, indeed it takes precedence. It states at Article 11(2): “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”.

[28]In this case the boys were given the opportunity to disclose their wishes and feelings to Ms Ionescu, the Cafcass officer and to express to her any objections to return to Romania.

[29]When considering the objections to return under Article 12 the approach following Re M is to break the procedure down into the ‘gateway’ stage, followed, if the gateway is passed, by the ‘discretion’ stage. I must ask these questions. Firstly, do A and S object to being returned to Romania? Secondly, have they obtained the age and maturity by which is appropriate to take account of his or her views? Thirdly, if so, how should I then exercise my discretion and what order should I make in all the circumstances?

[30]The question of whether either of them has attained the age and degree of maturity at which it is appropriate to take account their wishes and views is a question of fact for me. At paragraph 76 of Re M Black LJ summarised the position thus:

“I now turn to how the law will work in practice. I do not intend to say a great deal on this score. The judges who try these cases do so regularly and build up huge experience in dealing with them, as do the CAFCASS officers who interview the children involved. I do not think that they need (or will be assisted by) an analysis of how to go about this part of their task. In making his or her findings and evaluation, the judge will be able to draw upon the entirety of the material that has been assembled in relation to the child's objections exception and to pick from it those features which are relevant to his or her determination. The starting point is the wording of Article 13 which requires, as the authorities which I would choose to follow confirm, a determination of whether the child objects, whether he or she has attained an age and degree of maturity at which it is appropriate to take account of his or her views, and what order should be made in all the circumstances. What is relevant to each of these decisions will vary from case to case.”

[31]I have also considered Re E (Children)(Abduction: Custody Appeal)

[2011] UKSC 27

,Re M (Republic of Ireland) (Child's Objections) (Joinder of Children as Parties to Appeal)

[2015] EWCA Civ 26

, Re F (Child’s Objections)

[2015] EWCA Civ 1022

,Re S (A Child) (Abduction: Rights of Custody)

[2012] 2 FLR 442

[2012] UKSC 10

,B v B

[2014] EWHC 1804 (Fam)

,Re M (Children)[2016] EWCA, C v C (Minor: Abduction: Rights of Custody)

[1989] 1 WLR 654

,BK v NK (Suspension of Return Order)

[2016] EWHC 2496 (Fam)

andRe M (Abduction: Zimbabwe).

[32]The threshold for establishing intolerability is necessarily a high one because one is looking at the issue of a grave risk. In such circumstances I must not refuse to return the children if it is established that adequate arrangements have been made to secure the protection of the child as to his or her return: Art 11(4).

[33]I have also reminded myself of the case of X & Latvia

[2014] 1 SLR 113

. Courts must satisfy themselves that adequate safeguards are convincingly provided in the country of proposed return and in the event of a known risk that tangible protection measures will be put in place. I bear in mind the principles of judicial comity that apply and it is not for me to require any investigation as to the adequacy of the courts in Romania. The Father’s case.

[34]The father’s case is that the children were wrongfully retained in England on 26 October 2016 at the end of the holiday. Ms Chokowry submitted that the definition given by Lord Brandon in Re H was significant in that removal and retention are mutually exclusive concepts. The ‘paradigm’ case, she submits, is wrongful retention after a holiday and that, following Re S, the question of whether there has been a wrongful removal, and if so when, is a question of fact. Ms Chokowry asks me to make an order returning the children to Romania forthwith, and in any event no later than 31 August. Ms Chokowry states that the father only consented to a holiday here and refers me to the document agreed by the parents before a notary public on 5 August 2016 which provides for the children to travel here with their mother on 12 October and return on 26th. The father has ‘custody rights’ in Romania and therefore Ms Chokowry submitted that there was a wrongful retention on 26th October. Ms Chokowry accepted that it is possible to give ‘future consent’, conditional upon the occurrence of events but the father’s case is that the consent must be clear, unequivocal and operative at the time of removal or retention. In this case the father does not accept that he gave any consent, whether conditional or unconditional to permanent removal to the jurisdiction of England and Wales. Miss Chokowry submitted that if I were to look for a point in time when it could be said that the parties actually agreed I would fail to identify such a time.

[35]Ms Chokowry also submits that the evidence does not support a finding that returning to Romania would expose the children to physical or psychological harm or otherwise place them in an intolerable position. The applicant has set out the protective measures which he offers in order to mitigate the harm alleged under the Art 13(b) defence and he has offered undertakings:• Not to use or threaten violence against the mother or the children

• Not to support any civil or criminal prosecution of the mother in Romania

• Not to attend at the airport of arrival when the mother and children return

• Not to seek to separate the mother and children save as agreed for the purposes of contact and until such time as the Romanian courts can make decisions for the long-term welfare of the children.

• To continue to pay the child maintenance of LEU 1000 per month.

[36]Ms Chokowry stated that the undertakings coupled with the support and protection to be derived from the police and courts in Romania “amply cover” the concerns which the mother has raised.

[37]In respect of the children’s objections Ms Chokowry submits on behalf of the father that the strong preference which the children have expressed to returning does not meet the test for objection to return to Romania. Further, that if they do object to return to Romania that the basis of that objection is that they do not wish to return without their mother. The father therefore submits that the gateway stage is not reached and that the defence should be dismissed.

[38]Ms Chokowry submitted that in the event that the defences are not made out the court must return the children to Romania and that it is only if a defence is made out that the court must consider its overall discretion not to return. She states that the children’s welfare is to be considered through the prism of the objectives of the Convention and that if I reach a stage where the discretion is to be exercised I should weigh in the balance the fact that the children have effectively lost their relationship with their father and that the courts in Romania are seised of that issue and have identified the therapy needed by the family to start to rebuild the fractured relationships.

The Mother’s Case

[39]The mother’s case is that it is unfair that the father seeks the return of the children to Romania as he is living in Norway and she states that he could have telephone contact with them wherever they are and/or he could come to England to see them, however she refused to let him see the children whilst on this visit for the court hearing. She asserts that the father is violent and controlling.

[40]The mother told me that the children were present when the parties discussed the school holiday break. She said that the children know that the father promised that if she met the criteria of finding a job, a place to live and enrolling the children with a GP and school that she could stay here. She also said that she had informed the father of the children’s school enrolment in England on 29 October 2016 and that he was aware of her circumstances through the Romanian proceedings which she started on 10 November in respect of removal.

[41]The mother submits that there is a grave risk of harm based on the intimate partner abuse which she suffered during the marriage and the father’s physical and emotional abuse of the children. Further, their circumstances if ordered to return would be intolerable because she would not be able to support the children financially. She was unsure whether the exposure to the grave risk of harm from domestic abuse which she felt existed and the intolerable circumstances would be met by the measures proposed by the father.

[42]The mother also says that the application for summary return should be dismissed because the children object to return and they are of sufficient age and maturity for me to give weight to their wishes. She stressed that the children have begged their father to allow them to stay here. Discussion Consent

Discussion

[43]Having considered the written and oral evidence of the parties I am not satisfied that the father consented to the removal of the children other than for a holiday. There was a long history between the parents of the mother asking the father to consent to her moving to England with the children. In 2014/ 2015 the children had been left with the maternal grandmother whilst the mother worked here. The father was living in Norway. I am satisfied that the parents returned to Romania in early 2015 to discuss how the situation could be managed. The mother says that the father agreed that she could come to England but she did not travel as A was in psychological turmoil. I was unconvinced by her evidence. In my assessment if he had agreed to removal at that time she would have brought the children here. As it was she returned to Romania in her words “for good”.

[44]The mother did not abandon her ambitions to come here with the children. She asked the father to agree to them coming to England for the next school year but he refused. The background was therefore one of conflict and disagreement on the subject of her bringing the children to England as well as about his contact. Against that background the mother tries to persuade me that despite the fact that the August 2016 document refers to a holiday there was discussion about this becoming a more permanent arrangement if she had a stable job, registered the children with a GP and schools. She says that the father consented to permanent removal on those terms and that she trusted him. I do not accept her evidence on this point and preferred the evidence of the father. It was very clear to me that he has held a longstanding objection to the children coming to England. The mother states that he is controlling and that may be the case, however I accept his evidence that he would not have consented at that time because he wanted only wanted the children to have a ‘break’. I am satisfied that he also wanted to continue with the counselling and therapy proposed in Romania so that he could pursue his application for contact with the children which was ongoing in the Romanian court.

[45]In my assessment there are several additional factors which point away from the father consenting to permanent removal. These parents do not trust each other at all. They needed to have a sealed document agreed even for a holiday and had failed to negotiate terms for the children to come to live here in the past. They are embroiled in litigation about contact in Romania. A told the Cafcass officer that they had come here for a two week holiday which had been extended for seven months and the report of Ermina Soroceano dated 27 August 2016 comments that the mother told the psychologists that the father was willing for her to leave permanently but would not sign the relevant papers. Ms Soroceano records:

“We mention the children’s father confirmed, in psychologist’s presence, that agreed to his children leaving abroad but during the summer holiday he signed before a notary public a document specifying that he agrees to his children’s leaving for England for a period of two weeks – and not for their leaving for an unlimited period of time as it would have been necessary for their enrolling at school in England”

. In my assessment if the father had subsequently agreed to permanent removal the mother would have ensured that the agreement was notarised before she travelled on 12th October.

[46]The mother did not attempt to enrol the children in an English school until they had travelled to England, nor did she make a transfer request to their Romanian school until some point between 1 and 7 November. Ms Chokowry submitted, and I agree, that if there had been an agreement for permanent removal prior to travel the mother would have started planning much earlier.

[47]It was clear to me that during the period of the ‘holiday’ there was little communication between the parents. The mother accepts that she ‘informed’ the father about the school enrolment and I am satisfied that there was no pre-discussion about it. Further she confirms that she applied in Romania for both permanent and academic year removal on 11 November. In my assessment the mother come to England on 12 October with no intention of returning. She knew that the father would not agree to a permanent removal and obtained his consent to a holiday in order to come here. This is in effect a similar situation to that seen in RS v KS where Macur J found that the mother had no intention of returning the child at the end of the holiday.

[48]I have carefully considered the evidence to see if at any point there was an agreement between the two that she could remain and I am satisfied there was not. Consent must be clear and unequivocal. In this case the relevant consent would have been to retention on 26 October. There was no communication on that date and I am satisfied that the father did not consent to the retention nor did he give advance or subsequent consent applying the Re PJ principles. The mother has failed to discharge her burden of proof and her defence of consent therefore fails.

Article 13(b)

[49]I turn now to analysis with the evidence in respect of Art 13(b) including grave risk and intolerability. The authorities I have considered at are clear that the risk to the boys must be of such a level of seriousness as to be “grave”. In Re E Baroness Hale made it clear that no gloss should be put on the wording of Art 13(b). The source of harm may stem from the subjective view of a parent which could have intolerable consequences for the child. The burden of proof is on the mother to prove these factors as her defence.

Physical harm

[50]In this case the allegations made by the mother are that in December 2010 the father put his hand round her throat and hit her. She alleges that she was bruised and that A commented to her parents about what his father had done. Her parents had agreed to the divorce when they saw her bruised face.

[51]She alleges that when they lived together the father slapped her, was controlling and regularly checked up on what she spent. The mother also alleged that the father had beaten A in the bathroom until he wet himself and had held him out of a third floor window at their home and shaken him. She told Ms Sorocianu that she had reported the matter to the police and had only agreed to joint custody of the children on divorce because she was afraid. She also alleged that the children had been told about inappropriate sexual matters whilst on holiday with the father’s family. A told the psychologist that he had seen his father beat his mother when he was four years old. He said he had wanted to bite him. He also said that his father had beaten him until he wet himself. He had been worried about going for contact with his father in case his father did not bring him back. A has said at his school in England that he is scared of his father and his father’s family. The mother alleged that the father had hit A over the head with a book when he was ‘doing lessons’ and made him stand in a corner.

[52]The mother asked me during the course of submissions to admit further evidence of grave harm in the form of drawings which A had made when he saw the psychologist. I have no doubt that A has been diagnosed with significant emotional problems and that he is very much opposed to contact with his father, displaying signs which the psychologists have identified may be related to parental alienation. I refused her application as it had been made clear to her that no further evidence could be filed without permission and she had not asked for that permission in a timely fashion. In addition I had ample evidence about A’s emotional difficulties and I was not dealing with the contact issue.

[53]The Supreme Court made it clear in Re E that every child is expected to put up with physical rough and tumble and the everyday knocks of life. The question is whether what is alleged amounts to circumstances which would be intolerable for these children to return. The level of violence alleged by the mother and A is significant. The father no longer lives in Romania and there is no allegation of post-separation violence towards the mother. The mother allowed the father to have generous contact when they separated although I am aware that she said that she had no choice.

[54]I have carefully considered the entirety of the mother’s evidence and the allegations she has made over time. In addition I have considered what A has himself said. I assess however that even if all the allegations are true and taken at their highest the risk of physical harm does not reach the threshold of categorisation as “grave” required by the Convention. The level of this harm involves over-chastisement and assault rather than more significant injury. I do not underestimate it but on the authorities I have considered I cannot categorise it as grave.

Psychological harm

[55]The boys have been subject to both psychiatric and psychological assessment as a result of the parental dispute about contact.

[56]Ermina Sorocianu provided psychological reports about the boys on the instruction of the mother. The first is dated 15 May 2015. The mother complained to her of “maltreatment” during the marriage and of financial conflict and ‘suspected’ abuse continuing after separation. She complained of the father controlling money and not consulting her about family decisions, and stated that the father had been violent to her in December 2010 when A was 4 and on other occasions. She also alleged that he had been violent towards A. The recommendation made by Ms Sorocianu was that there should be child psychotherapy for A and psychological counselling for the parents in order to diminish the negative consequences of divorce and family violence in children. The mother sought a further psychological report from Ermina Sorocianu on 24 October 2016. The psychologist diagnosed ‘mixed anxious and depressive disorder with anxiety episodes’. It was noted that the child was currently in England because the father had consented to him travelling to England as a tourist and recorded that A had been taken for ‘psychological tests’ on 11 October, the day before he left for England. On that occasion A had complained that his father had spent a lot of time on the computer, that his father had disbelieved him preferring the paternal grandmother’s account of something and that he loved his mother, brother and maternal grandmother. He also expressed a wish to leave “…together with his mother for England and to live there”. Her later recommendations were that psychological counselling may be appropriate for the parents and A.

[57]Dr Catalin Luca (the only court-approved psychologist to assess the children) provided a psychological report on 19 August 2016 about the family within the context of the Romanian legal proceedings. She evaluated the maternal and paternal family and the children. She observed the mother to be highly critical of the father and to be someone who did not encourage contact. She comments that the mother attended with a box of Lego bought by the father which she felt was unsatisfactory because he could afford better toys. She assessed the father as prioritising his children’s needs and applying educational and behavioural rules and was concerned that the children allied themselves with the mother in a way which was unhealthy. She also recommended psychological counselling for the family. A further child psychologist, Ms Ottilia reported on 25th August that A shows signs of “fury and aggression” towards his father but could not give a reason for them. She recommended that both parents should be involved in the planning for the children, counselling to develop closer bonds and to promote the development of collaboration between family members. The mother reported to me that recently A acted out stabbing his father during a biology dissection lesson and that she has sought an appointment for him on 30 June to achieve professional help.

[58]In my assessment there is a consensus between the psychologists that this family is in desperate need of therapy and counselling to repair family relationships if possible. The divisions in the family go back several years. I am not however persuaded on the evidence, which I have carefully weighed, that the risk of psychological harm which could be caused to either child on return could be properly described as “grave” as would be required for a Convention defence to succeed.

Intolerability

[59]I am also not persuaded that A and S will face any significant financial or material hardship on their return to the jurisdiction of Romania. What is envisaged in terms of hardship sufficient to satisfy Art 13(b) is destitution or homelessness rather than a reduction in material standards. It is clear to me that when the mother was living in Romania she had employment and a good place to live. The children were attending schools. This was the settled position as the social assessment which took place in September 2015 recorded that the mother’s living conditions with the maternal grandmother were in fact very good. The mother received 1000 leu per month in wages plus meal vouchers, child benefit from the father and rental income from the former matrimonial flat of Euro 220 per month. The children were described as cheerful.

[60]The father has agreed to undertake to continue to pay the 1000 leu per month that he has been paying for the benefit of the children and I am satisfied that the mother would be able to provide an adequate standard of living for the children were I to order their return.

Settlement and delay

[61]The children have been in the UK since October 2016. I have to consider whether the disruption to them now that they have settled into a home following a move in February and that they are settled into school supports the notion that uprooting them would cause an intolerable situation. The children have had good attendance at school and are making progress. They have generally been stable, settled and secure. There is however insufficient evidence that for these boys the inevitable disruption, uncertainty and anxiety which will inevitably follow a return to Romania - which they do not want - is such that it would lead to grave risk of harm or intolerability, even allowing for and considering their psychological vulnerability. Children’s Objections

[62]Ms Ionescu met with the children on 5 April. She was able to converse with them in Romanian. She reported that their attendance at school is good and they have some friends. They are ‘below attainment expectations’ but are making progress. The boys were seen together at their own request. S played with toys which are for much younger children and A joined in. In the context of the discussion A referred to mistreatment by his father. He said his father beat him with a rod when he was unable to do a cartwheel and that the paternal grandmother had chastised them when they used foul language. He also said that he had witnessed domestic violence and had bitten his father when he was biting the mother. The mother states that the reference to ‘biting’ is actually a reference to beating. He described an argument about a fried egg. He said that the police were not called because “…people think this is normal, for a man to beat up a woman, nobody will think about calling the police in the remote countryside”.

[63]A has also told his English school that his father held him out of a window when he was younger.

[64]S speaks to his father weekly. A has only spoken to him on a couple of occasions. The main purpose of these conversations seems to have been to tell the father how good England is and to ask him to let them stay. The boys said that they do not miss their father and A said that his father used to make him do his homework. On one occasion he had been beaten and had urinated.

[65]A was clear that he wanted to remain in England because they are better off financially and that they had come for a 2-week holiday which had been transferred to a 7-month stay. “We have everything we want as opposed to living a simple life,” he said. A was only able to identify going to church as a good thing about Romania. They are both happy with their mother and are angry with their father. The reason for their anger is not always clear. When asked what would happen if they had to go back to Romania A would refuse to go but said that it would make a difference if their mother were to go with them.

[66]A has told his school that he does not want to return to Romania to be with his father’s family as they are bad. He has said his dad has a gun and has friends that have weapons. Analysis of the

Children’s Objections

[67]I have considered the issue of whether the children object to being returned to Romania. Insofar as some of the views expressed to the CAFCASS officer are that things are better for them in the UK than in Romania on a material basis, those views are clearly an expression of preference. The objection must be to returning to Romania rather than to the circumstances in Romania or to being separated from their mother if she were not to accompany them on their return. The threshold is relatively low at the ‘gateway’ stage.

[68]I am satisfied that both boys used adult language to express their views. They were fully aware of why they were being seen by Cafcass as A stated: ”…he needs to leave us alone as he wants to bring us back to Romania.” A used phrases such as “abducted from Romania” and said that the situation related back to what he had said about the paternal grandmother, referring I believe to a holiday in 2015. The Cafcass officer commented that “…there is little doubt that A is influenced by listening to adult discussions”. I agree. The language she reports him using is not age-appropriate. In her assessment, and without apportioning blame between the parents, she concludes that A is anxious and that the boys appear to have been affected by the parental dispute.

[69]The Cafcass officer reports her deep sense of concern that although the mother alleges domestic abuse by the father during their marriage she nonetheless allowed him to have generous contact whist he remained in Romania.

[70]In my assessment the professional opinion expressed by Ms Ionescu about the children’s maturity and level of understanding is correct. They are immature for their chronological ages, a matter with which their mother agrees. Ms Ionescu comments: ”…both children expressed a strong preference to remain in England with their mother and although they objected to return, this appears to be related to the prospect of separation from their mother.” In my assessment the boys have expressed a clear preference to remain here and an objection to return without their mother. They do not however raise any specific or reasoned objections to return to Romania itself. They are angry with their father and loyal to their mother. Their mother was threatening not to return with them to Romania but has now said that if I order return she will return with them.

[71]As Baroness Hale points out in Re E, physical and psychological abuse are not things which it is reasonable to expect a child to tolerate. There is of course always a risk in cases of this kind that a young person’s view has been skewed by the parent with whom they are living. In this case I have no doubt that the children’s views have been skewed. They are aware of the conflict and I have borne in mind the fact that they are living with their mother and have been exposed to her distress at this application.

[72]I am not satisfied that the views that they have expressed are fundamentally their own because they have not given reasons for those views nor have they expressed those reasons in the way young people of their ages would more usually express things. In any event it is clear to me that they are only expressing a preference rather than an objection.

[73]Ms Ionescu comments that it is unsafe for the children to return to their father’s care but that is not what is proposed, or even possible. He lives and works in Norway. The mother has said if I order the return of the children she will return to Romania with them. The issue of his contact with the boys is being considered and will continue to be considered by the Romanian court.

[74]The second question was whether the boys have attained the age and maturity at which it is appropriate to take account of their views. Having weighed the evidence I am not satisfied that either A or S has the level of maturity and understanding of a child of their respective chronological ages. The things they said do not seem to me, on a broad assessment, to be age-appropriate. Even if what they said could be stretched to amount to an objection, I do not find that they have attained an age and maturity where it would be appropriate to place much weight on what they say.

Discretion

[75]If I am wrong about this and the gateway stage is met, or if the Art 13(b) defences were in fact proved I have considered what the position would have been if I were to exercise my discretion and what order should I make in all the circumstances.

[76]I have balanced the policy considerations with the circumstances of this case. In Re M, Baroness Hale stated that discretion is ‘at large and that the court will consider the convention policy, the circumstances giving rise to the discretion and the wider considerations of the children’s welfare.’ I must not give and do not give any single factor more weight than any other.

[77]The facts which point towards them returning would include the fact that both children were retained in England without the father’s consent and the clear policy of the Convention is that children should be returned swiftly when wrongfully removed or retained. In this case the Romanian court is actively considering the children’s future and is much better placed to consider the children’s welfare interests. Also, whilst the children say they would like to stay in England their preference is largely based on standard of living and they have lived most of their lives in Romania. The father has offered undertakings which I have assessed as adequate arrangements to protect the children on return and the principle of judicial comity means that the Romanian court can and will protect their welfare interests.

[78]The factors which militate against return include the serious nature of the allegations made by both the mother and the children themselves. They do not want to return and making someone do something against their wishes will nearly always provoke a reaction.

[79]I have borne in mind the principles of judicial comity and a proper analysis of the protective measures which may be afforded in Romania. I have very carefully considered the information that I have been given and I have reminded myself that a Member State should be assumed to provide support and protection of an adequate standard for children in this situation.

[80]I have also borne in mind the fact that if adequate arrangements have been made to secure the protection of the child after his or her return I cannot refuse to return the children on the basis of Article 13(b). On balance I have concluded that the measures which are proposed by the father’s undertakings are adequate to secure the protection of these children in these circumstances. They provide realistic, enforceable protection from violence and emotional harm.

[81]These boys have had psychological difficulties which I would not wish to exacerbate. I am satisfied however on reading the reports that their difficulties relate to the parental conflict. That conflict will continue wherever they live until it is addressed. The conflict has continued here in England. There is an argument that if something is intolerable then no amount of protective measures could make up for it and that one would not send children back to an intolerable situation. I have however considered all of the factors in this case and have determined that the situation will be far short of intolerable.

[82]Having balanced all of the factors above, I am satisfied that the children do not hold reasoned objections to return and the evidence does not come anywhere close to the threshold for a sufficiently mature objection for the limited purpose under consideration. I am also not satisfied that there is a grave risk to these children or that return to Romania would be to return to an intolerable situation. They would be protected from their father because he does not live there and their welfare is under active consideration by the Romanian court. The protective measures proposed are adequate to protect them from the perceived risks. The clearer the need for protection, the more substantial the measures must be: in this case there is a somewhat reduced need for protection because the father lives in Norway and the children are therefore less likely to be exposed to any chastisement by him or direct parental conflict. Under Art 11.4 of the Brussels II revised convention I am satisfied that there are sufficient safeguards in place on the return. I have in any event (from an abundance of caution) weighed the policy aspects of this case and the principles of comity. In this case my discretion - were it to fall on me to exercise it - would propel me very firmly to the conclusion that the children should be returned to Romania.

Conclusion

[83]I have considered the written and oral evidence and the submissions made by the parties in the case. I am satisfied that the children were wrongfully retained on 26 October 2016. I am not satisfied that the father consented to the permanent removal from the jurisdiction of Romania or retention in the jurisdiction of England and Wales. I am not satisfied that the Art 13(b) defences raised by the mother are met. I am satisfied that the arrangements made for the safety of the children on return are adequate. I must therefore order return. Even if the defence(s) were made out and it came down to exercise of my discretion the same result would ensue and I would on balance order return. Immediate return or stay/ suspension of the order.

[84]Having determined that the father’s application for summary return should be granted I have considered the issue of whether to suspend the order until 31 August. There is permission from the Romanian court the mother to remain here until that time. The power to suspend or stay is used only exceptionally for good reason. Those who have wrongfully removed children should not be allowed to delay return simply by pointing to ongoing proceedings which could take many months.

[85]In this case the Romanian courts have been well acquainted with this family’s disputes for some time. In the past 8 months the issue of temporary removal has been litigated, appealed and reviewed. A decision on permanent removal is under active consideration. I consider that the Romanian court is far better placed to consider the issue and I am sure, given recent helpful communication as to the progress of the case, that the matter will be dealt with expeditiously, including the father’s contact application. That court will be looking at the longer term future of these children and will be considering their general welfare. The fact that I shall order return under the Hague Convention should not be taken by that court as to any attempt by me to fetter their decision-making power in respect of the future welfare of the children and the questions of interim or permanent removal to the jurisdiction of England and Wales. Were I not to suspend the order, but to order immediate return, this would be to return the children to a country in which their father no long lives and at the risk of significant disruption, anxiety and distress, in circumstances where the Romanian court might very shortly thereafter allow them to remain in England. A in particular has suffered from anxiety issues and I do not wish to exacerbate his situation. Although the impact on him is not sufficient to found a defence under Art 13(b) I am satisfied that I should take it into account on the issue of suspension.

[86]I have therefore decided, exceptionally, to allow the father’s application but to suspend the order such that it take effect on 1 September 2017 unless further permission to remain has been granted by the court in Romania in which case the order I make for return will be superseded. The interim period will I hope be used by the Romanian Courts to consider the future of these children and the contact they will have with their father at least on an interim basis. The parents have been in discussions about this but have been unable to come to an agreement. The hearing in Romania today may go some way to resolving the issue. In the event that the Romanian courts have either extended the mother and children’s permission to stay either for another period or permanently by 1 September 2017 she will not have to return the children to Romania.

[87]That is my judgment. 22 June 2017