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Family Law

The leading authority on all aspects of family law

12 JUN 2014

B v B [2014] EWHC 18034 (Fam)

B v B [2014] EWHC 18034 (Fam)

(Family Division, Mostyn J, 21 May 2014)

Abduction – Hague Convention – Removal from Lithuania – Consent – Art 13 defence

The full judgment is available below.

The Lithuanian parents of a 9-year-old child were married and divorced in Lithuania. The court granted a residence order in the mother’s favour and ordered contact with the father. However, the mother brought the child to England to live permanently on the basis of her understanding that she had an unrestricted right to remove the child from the country.

The father applied for a return order under the Hague Convention. During proceedings evidence from a Lithuanian lawyer confirmed that the mother required the permission of the non-resident father to remove the child permanently from the jurisdiction.

The mother claimed that the father had consented to the move to England but the judge concluded that on the evidence available the mother was unable to demonstrate clear and unequivocal consent. The father’s conduct in reporting the matter to the police and promptly applying for a return order supported his stance that he had not consented. The mother’s actions had been shrouded in secrecy and were not consistent with a consensual arrangement.

The mother attempted to advance an Art 13 defence based upon the child’s objections but following the receipt of a Cafcass report the judge concluded that there was a significant lack of substance to her objections and rejected the defence.

The mother’s case that the child would be exposed to an unacceptable or intolerable risk of physical or psychological harm if a return order were granted was also rejected as the judge found there were sufficient safeguards that could be put in place to guard against the potential risk.

A return order was granted and the mother was given 3 weeks to affect the child’s return. Protective measures were put in place including for the child to remain in the care of her mother and for no contact to take place with the father until further order of the Lithuanian court.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law. __________________________________________________________________

IN THE HIGH COURT OF JUSTICE

No. FD14P00212 FAMILY DIVISION
[2014] EWHC 1804 (Fam)

Royal Courts of Justice

Wednesday, 21st May, 2014

Before:

MR. JUSTICE MOSTYN

B E T W E E N :

B
Applicant

- and -

B
Respondent

_________

Transcribed by BEVERLEY F. NUNNERY & CO. Official Court Reporters and Audio Transcribers One Quality Court, Chancery Lane, London WC2A 1HR Tel: 020 7831 5627 Fax: 020 7831 7737 info@beverleynunnery.com

__________

THE APPLICANT appeared as a Litigant in Person.
MR. C. HAMES appeared on behalf of the Respondent.

__________

The Judge hereby gives leave for this judgment to be reported in this anonymised form. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location.

J U D G M E N T (As approved by the Judge)

MR. JUSTICE MOSTYN:

[1] This is an application for the summary return of a child, A, a girl who was born on 24 January 2005, to her homeland of Lithuania pursuant to the terms of the Hague Convention on the Civil Aspects of International Child Abduction 1980, which has been incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985 and which has been reinforced by the regulation made by the European Council, number 2201 of 2003, which is usually known as Brussels II Revised (BR2).

[2] The Hague Convention of 1980 is arguably the most successful ever international treaty and it has over 90 subscribers to it, over half the countries in the world. The underlying and central foundation of the Convention is that, where a child has been unilaterally removed from the land of her habitual residence in breach of someone’s rights of custody, then she should be swiftly returned to that country for the courts of that country to decide on her long-term future.

[3] There are very few exceptions to this and the exceptions that do exist have to be interpreted very narrowly in order that the central premise of the Convention is not fatally undermined. It is important to understand what the Convention does not do. The Convention does not order a child who has been removed in the circumstances I have described to live with anybody. The Convention does not provide that the parent who is left behind should, on the return of the child, have contact or access in any particular way. The Convention does not provide that, when an order for return to the child’s homeland is made, the child should stay there indefinitely. All the Convention provides is that the child should be returned for the specific purpose and limited period to enable the court of her homeland to decide on her long-term future. That is all it decides.

[4] Where exceptions come into play, such as for example the exception mentioned in Article 13 of the Convention, which is that the child objects to being returned and has attained a degree of maturity at which it is appropriate to take into account her views, the type and nature of the exception has to be examined in the context of the limited objectives of the Convention. It must be a sound, reasoned and mature objection to being returned to her homeland for the sole limited purpose of enabling the court of that country to determine her long-term future. Equally, if the exception that is relied on is that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place her in an intolerable situation, that again has to be seen through the lens of the objective of the Convention. We are not talking here about long-term risks. We are not talking here about long-term harm. We are talking about risks and harm that would eventuate only in the period that it takes for the court of the child’s homeland to determine her long-term future and to impose the necessary safeguards, if necessary, in the interim.

[5] That particular exception has been heavily qualified by Regulation 11(4) of B2R which provides that it does not operate if it is established that adequate arrangements have been made to secure the protection of the child after her return. That in turn is strengthened yet further by the fact that both Lithuania and the United Kingdom are active subscribers to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children.

[6] By Article 11 of that Convention, the authorities of any contracting state in whose territory the child is present have jurisdiction to take any necessary measures of protection and, by Article 23, those measures shall be recognised by operation of law in all contracting states. In a case where a risk of harm under Article 13 of the 1980 Convention is suggested, if the countries in question are both subscribers to the 1996 Convention, measures can be ordered here - and I will do so in this case - which provide the necessary protection and which, by operation of the Council Regulation, remove the availability of that defence.

[7] Having made those preliminary remarks, I turn to the facts of this case. The mother and father were married in Lithuania on 5 December 2004. They are both Lithuanian, although I have read in the papers that the mother is of Russian origin but she has confirmed to me she is a Lithuanian citizen. Their daughter, as I have said, was born on 24 January 2005. The parties were divorced on 24 January 2011 and a final order was made by the Ukmerge District Court on 22 May 2013 which granted the mother, to use the old language, custody and which granted the father, to use the old language, access. It is apparent that an earlier order was made on 22 December 2010 to the same effect.

[8] There has been a dispute between the parties as to whether that order granted the father rights of custody within the terms of the 1980 Convention and the mother has told me that she has been told by a lawyer and indeed by a judge that the terms of the order gave her the unrestricted right to remove their daughter to this country. However, the only expert evidence that has been permitted by the orders of this court is that which was procured from Mindaugas Vaiciunas of the firm Vaiciunas & Vaiciunas, who has produced a report of 31 March 2014, in which he confirms in para.37 that:

“If it is intended to take a child abroad for permanent residence, the other parent’s permission is necessary.”

[9] In para.41, he says:

“Under the law of Lithuania, Mr. B has the right to participate in the upbringing of the minor daughter as determined in the Ukmerge District Court decision of 22 December 2010.”

[10] According to the expert, the operative decision which granted and dealt with custody and access in the manner which I have described, is the order of 22 December 2010.

[11] Following the separation, the mother lived in her own apartment in which her grandmother lived as well. She is the lady referred to as “Bubba” in the papers with whom the child,has a good and happy relationship. The mother came to this country unilaterally on 16 December 2013. That was two days after the last occasion on which the applicant had contact with his daughter. The father made a complaint to the police after the removal, but the police concluded, in a decision dated 29 November 2013, that no crime had been committed and declined to start pre-trial investigations against the mother.

[12] The mother alleges that the father agreed to her coming to this country. I should state that the reason the mother came here was because she was out of work in Lithuania and, as she said to me, she came here to seek work to support herself and her daughter in circumstances where the father had fallen into arrears with child maintenance. She found work on arrival in this country in Ipswich within two days, working in a factory, packing baby bottles and other such materials.

[13] It is plain that the reason she came to this country was as an economic migrant and of course, had their daughter not been involved, that would have been entirely within her rights under the freedom of movement guaranteed by the common membership of this country and Lithuania of the European Union.

[14] She says in her statement to the court dated 22 February:

“I informed my ex-husband that I am willing to go to England to work and I will take my child with me and he did not say anything. He was happy for this and he accepted. Also, if you see his statements which he did, no, I am in England with my sister.”

[15] She also says she informed the school in Lithuania that she was going to come and live in this country to work. In his statement in reply, the father says this:

“The respondent alleges I consented to the removal of A from Lithuania so the respondent could work in the United Kingdom. This is an inaccurate reflection of discussions which took place between myself and the respondent. I can confirm we did speak about the respondent working in England and it was agreed that A stay with me until the respondent secured employment in the UK, in England. I did not agree to A moving to England with the respondent and at no point did I state that she could go where she wanted, nor that A could reside in England with the respondent. I do accept I was aware of the respondent did want to go to England to work and we discussed that A would live with me during that time. I was shocked however when the respondent left without informing me and took A to the United Kingdom. The respondent also lied to A and told her that they were going away only for a weekend and did not inform her they would be moving to England permanently.”

[16] Thus, the first defence is raised by the mother. The Convention, as I have already stated, gives the court a discretion to refuse to return a child for the purpose enshrined in the Convention if it finds that the child objects to being returned and has attained the age and degree of maturity at which it is appropriate to take account of her views.

[17] Having regard to the competing accounts of consent and dispute of consent, I turn to Article 13 of the Convention which says merely in sub-paragraph (a) that this court is not bound to order the return of a child if the person who opposes her return establishes that the other person has consented to the removal. The authorities on the question of consent have made clear, unsurprisingly, that the evidence has to be clear and unequivocal before the court will find that such consent exists. Therefore, if there has been consent given in writing, that would obviously satisfy the test. If there has been an admission of consent, that would ex hypothesi satisfy the test. If there has been an oral agreement between the parties which is corroborated either by third-party evidence or by the conduct of the parties in the light thereof, that would satisfy the test. Here, we have simply a conflict of evidence so I have to ask myself whose account is more likely.

[18] In my judgment, the mother does not satisfy me, in circumstances where the burden is on her, that the father consented. On the contrary, the father’s subsequent conduct is at complete variance with consent. The first thing that he did after having discovered that the mother had left was to report the matter to the police on 19 November 2013. Secondly, he promptly made this application for the child’s return. Thirdly, if this was a true, consensual situation, one would have expected the mother to have been far more open with the father about where she was and what she was doing, but in fact, until these proceedings were commenced, her activities were shrouded in secrecy. Fourthly, following the removal, the mother did not supply the father with her address or contact details or even a telephone number, so far as I am aware. This is inconsistent with a consensual arrangement.

[19] In my judgment, the evidence here comes nowhere near establishing that this was a situation of consent and so that defence is rejected. The next defence, is the question of the child’s objections. The objections in question must be of appropriate maturity having regard to the terms of the Convention and they must be an objection to being returned to the homeland for the purposes of the courts there working out as soon as may be possible what is in the child’s best interests. That is not the same as an objection to being returned to Lithuania per se, let alone is it the same as an objection to being returned to the care of the other parent.

[20] In this case, the child’s objections have been the subject of a report from Mr. McGavin from the CAFCASS High Court Team and he has given me oral evidence. He says in para.27:

“I asked A how she would feel if the judge said she had to go back to Lithuania and she responded, ‘Not good because I want to stay here. I don’t want to go back to Lithuania. I like it here.’”

[21] Para.28:

“I told A in case she was in any doubt that, in the event that she has to go back, her mother would accompany her. She responded that her mother had come here because there was no money in Lithuania and they did not have money to buy food. I asked what Bubba thought about them being here and she responded she did not know.”

[22] In para.35, Mr. McGavin said

“A’s express wishes are to remain in this country with her mother. On the scaling exercise, she said she would hate to go back.”

[23] At 36:

“It was evident that A feels she has to take sides, this reinforced by her mother’s adverse comments about her father in my presence. She has clearly sided with her mother and with remaining in this country. She was guarded in what she had to say. Her responses lacked depth, detail and balance. I found it difficult to get a picture particularly of her life in Lithuania. Questions about Lithuania were frequently diverted back to favourable comments about this country.”

[24] In his oral evidence to me, Mr. McGavin said that it was very difficult to form a proper conclusion and he was satisfied that A was not able to understand the subtleties and nuances of the objection contemplated by the Convention, namely an objection to being returned for a specific limited purpose and period to her homeland for welfare adjudication there. He stated to me that, at all times in the interview, she was very anxious and there was a significant lack of substance to her objections.

[25] In my judgment, the objections such as they are of A as recorded by Mr. McGavin do not come close to meeting the threshold for a sufficiently mature objection to a return for the specific limited purpose and period which I have mentioned, so that defence does not arise either.

[26] The third defence is that the child would be exposed to an unacceptable or intolerable risk of harm, physical or psychological, or otherwise. In this regard, the defence is taken off the table and becomes unavailable if, as I have mentioned, under Article 11.4 of the Brussels II Revised Convention, I am satisfied there are sufficient safeguards in place on the return.

[27] Here, as I have mentioned, it is possible for me, under Article 11 of the 1996 Convention, to impose those very safeguards. The safeguards which I will impose will ensure that there is no risk as mentioned in Article 13(b), so that defence will not be available.

[28] It therefore follows, the defences not being available and I being satisfied that the removal was in breach of the father’s rights of custody, that an order for the return of A forthwith must be made. It is perhaps of some interest that the Convention does not specify a minimum or maximum time period within which a child should be returned, but uses the ambiguous phrase “forthwith” instead.

[29] In my judgment, it is reasonable to give the mother three weeks to return - that is, until 10 June - for a number of reasons. She will need some time in order to arrange her affairs here, perhaps to seek to negotiate a sabbatical from her job, to let A down gently, to arrange for her schooling to be brought to a temporary end. Beyond that, it is necessary for the mother to have sufficient time to instruct a lawyer in Lithuania to take proceedings there on her behalf seeking what she should have done in the first place, namely permission from the court in Lithuania to relocate to this country. The mother should understand that that is the steps that she should have taken. She should have proceeded lawfully rather than unlawfully in the first place. Beyond that, three weeks may give the mother an opportunity to obtain an urgent interim hearing in the Lithuanian court before 10 June which allows her to stay here.

[30] I cannot consistently with the terms of the Convention, which requires a forthwith return, go longer than three weeks, but within three weeks it may be possible for the mother to instruct a lawyer and to get before the Lithuanian court, seeking an interim order permitting her to stay in this country until the final decision is made. If that order is made, then of course the order for return that I am going to make will be superseded. The order that Mr. Hames will draw up will specifically provide for that.

[31] If no order is made by the Lithuanian court permitting the mother to stay here, then she must return with A on 10 June 2014. However, I will make orders pursuant to Article 11 of the 1996 Convention in the following terms:

1. A will, after the return to Lithuania, remain in the custody of her mother.

2. There will be no order for contact in favour of the father pending an order made by the Lithuanian court to that effect. The reason I make that order is in the light of the admissions of violence made by the father in his statement.

3. There will be an order prohibiting the father from molesting the mother in any way.

4. There will be an order prohibiting the father from approaching within 100 metres of the mother’s flat which I have mentioned.

[32] Those are the orders which will be made against the father. There will be an order made against the mother that she will not remove A from Lithuania pending an order from the Lithuanian court.

[33] Those are my rulings.

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