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Family Law

The leading authority on all aspects of family law

24 MAR 2014

FQ v MQ & Ors (Re EQ & DQ) [2013] EWHC 4149 (Fam)

The full judgment is available below.

SUMMARY TO FOLLOW

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.

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Case No: FD13P01697

Neutral Citation Number: [2013] EWHC 4149 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20/12/2013

Before :

MRS JUSTICE HOGG

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Between :

FQ

Applicant

- and -

MQ

- and -

EQ AND DQ

(Acting through their Guardian Mrs Julian)

Respondent

2ND and 3rd Respondents

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Mr Henry Setright QC Leading Counsel and Ms Katy Chokoury Junior Counsel for the Applicant Father

Mr Piers Pressdee QC Leading Counsel and Ms Roshi Amiraftabi Junior Counsel for the Respondent Mother

Mr Nicholas Anderson Counsel for the Guardian

Hearing dates: 24 and 25 October 2013

25 and 26 November 2013

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Judgment

HOGG J:

[1] The proceedings before me are brought under The Hague Convention and the Child Abduction and Custody Act 1985.

[2] The proceedings relate to two children E who was born on 7 June 2005 and is now 8, and her brother D who was born on 21 June 2006 and is now 7.

[3] Their father is seeking their summary return to the United States of America. Their mother is resisting that application, and seeks to assert that they had been here more than a year and had settled here before the proceedings were commenced, that the children object to returning, and should they be returned would be at grave risk of physical or emotional harm, or otherwise placed in an intolerable position.

[4] Both parents are of Pakistani Islamic descent. Theirs was an arranged marriage. They married in London on 7 June 2000. The mother is a British citizen and all her close relatives live in London or the Home Counties. The father is an American Citizen; his parents live near him in the same city on the East Coast of America, while other close relatives live in or about London.

[5] After their marriage the parents lived for a time with the paternal grandparents, before they moved to their own home in America. Both children were born there and spent all their lives there, other than for holidays here or elsewhere. Through their parents they are entitled to dual nationality. The mother does not dispute that the family's habitual residence was the United States of America.

[6] The father works in the airline business and the mother worked as a teacher. According to the mother for some years the marriage was happy, but from become 2008 it became unhappy with bouts of violence, aggression and abuse by the father towards her on an increasing basis. Sometimes the children witnessed or overheard the events, and on some occasions the violence over spilled onto the children. The father's behaviour scared the mother, upset the children and she felt lonely and afraid too ashamed to tell anyone. She says the violence escalated during 2012 and culminated with the father threatening to kill her, the children and himself if she tried to leave. She says this threat was "the last straw". She was on her own in America without her family or other support.

[7] She decided that the time had come to leave the father and take herself and the children to safety to her family in England.

[8] The father denies the allegations of violence and abuse to either the mother or the children. He is desperate to see his family reunited in America. In any event he wants the children to be returned, and has offered undertakings to enable the mother to return with them, even if, as it now seems, the marriage has broken down.

[9] Before the mother left America with the help of her brother she was able to instruct an American Attorney to launch injunction and custody proceedings in the local American courts. She never met the Attorney face to face, but gave instructions on the telephone. The American proceedings were instigated on 30 August 2012.

[10] On the evening of 23 August 2012 while the father was at work the mother and the children left the matrimonial home and flew to London arriving the following day. She went to stay with her mother and family where ever since she and the children have remained.

[11] She asked her uncle, who acts as head of the family, to contact the father to tell him that she and the children were safe and with their mother in England.

[12] According to her uncle, whom I heard in evidence, but denied by the father, her uncle asked the father whether he had been violent towards the mother and children and had threatened to kill them. The uncle told me that the father had admitted this and on various subsequent occasions during the ensuing twelve months acknowledged that he had been violent and threatening and apologised for his behaviour.

[13] Both the uncle and the father acknowledge that he had various discussions either on the telephone or face to face, or at family meetings in which the future of the parents' marriage and relationship was considered. The father insists that at no time did he admit to any violence, abuse or threatening behaviour towards the mother or the children. His sole purpose in the discussions was to secure a reconciliation and reunification of his family.

[14] The mother and the uncle say that during the ensuing months after August 2012 there were discussions and meetings with the father, and the parents between themselves on the telephone, or by e-mail concerning their future. The mother says, as does the uncle, that throughout from the beginning that the father wanted a reconciliation and said he would do "whatever it takes: to give up his job, sell the home and relocate to London". The father denies that he ever made the suggestion to relocate until after he had received the mother's English divorce petition at the end of August 2013; it was after that he says he made the suggestion to relocate.

[15] In any event having been told by the uncle on 24 August 2012 the father sent an e-mail to the mother on the following day; I have seen that e-mail in which inter alia he said:

"...I am sorry I know I have said this b4 ... we need to raise these kids together and I promise this will never happen again. I think I needed to be shaken up and had to go through this nightmare to see the light. And I have and I am sorry and apologise from the bottom of my heart and promise you that this will never happen again."

"This does not need to end like this (divorce) ... please give me one more chance. I am begging and promise you that this will never happen again. I am willing to bow my head in front of them. Give me a chance I promise this will never happen again."

"I am not perfect. But I am a good father to our kids. I do all the other stuff around the house. I support you guys and the house as I should. I do have one drawback and that is my temper. And I am working at it. But I promise you this will never happen again. Please given me one and last chance..."

"...I know it's all my fault but ... don't do this."

[16] I heard the mother's uncle in evidence. He elaborated on the short statement he had given to the Court. As the elder brother, the mother's own father had died some years before, he had become ‘Head' of her family and as such within both families' culture and tradition it befell upon him to facilitate any discussions between the parents, act as mediator, and encourage them to reconcile if possible. This was the role he assumed, and as such was able to speak directly with the father, and facilitate family meetings, which at times not only included the parents, the maternal grandmother and mother's brother, but the paternal grandparents who had flown over to assist the parents.

[17] The uncle told me that within the family's culture divorce was not encouraged, the maintenance of the family unit and life was paramount, and the older members of the family are there to try and help. He personally recommended to the parents that for the sake of the children they should reconcile. He said, "it was my duty to see if they could make their relationship work; it was for them to discuss the detail, where they lived, it was their life. I was only the facilitator".

[18] From the beginning when he first spoke to the father on the telephone he told the father that he, the uncle, could not become involved in any discussions between the father and mother unless the father was entirely honest with him. The uncle put to the father the allegations of violence and threats by the father. The father admitted them, that he had done wrong, was not sure why, that he had anger issues and promised to seek help in that respect. The uncle told me that some years earlier he had had a similar telephone conversation with the father, during which he also admitted he had lost his temper, and apologised.

[19] The uncle told me that there were a number of telephone conversations between him and the father between August 2012 after the mother had come here, and January 2013 in which the father accepted fault and apologised. The uncle was anxious to facilitate a meeting between the parents and the two families to see whether a reconciliation could be effected. A meeting was arranged for 12 January 2013 at which the paternal grandparents also attended.

[20] At that meeting the mother and uncle told me that the mother put the allegations of violence and threats to kill to the father. He accepted that he had treated her with violence and been abusive, but according to the mother side stepped the allegation of violence to the children. They said the father's parents were shocked and upset to hear of the allegations. It was made clear to the father that if there was to be a reconciliation he would have to seek help and counselling to curb his anger and violence.

[21] In a smaller meeting the same day the mother and uncle both say the father broke down, admitted he had behaved badly, apologised and begged to be forgiven and asked to be given another chance and to save the marriage.

[22] The uncle told me that the paternal grandparents were aware of the difficulties the father had with his anger and were grateful he had facilitated the meeting, and were supportive of the mother, that she was a "wonderful" daughter-in-law. I did not hear from the grandparents.

[23] The uncle also said that at the meeting he recommended to the parents that they try and save the marriage for the sake of the children, and said "I can't make you love each other, but children shouldn't grow up with a broken home".

[24] The father in his evidence denied ever making an admission to the uncle, mother personally or at family meetings that he had behaved with violence and been abusive towards the mother. To me he denied he had been violent to the mother or the children, or had made threats to kill.

[25] He was asked about the e-mail he had sent to the mother on 25 August and acknowledged he had written it, and told me "we did have problems, with days of not speaking to each other. There were bad times and unhappiness. I apologised for those bad times and problems". To me he said his worst behaviour towards the mother was not spending time with her, not speaking to her for a few days, not being romantic. "We did have arguments, but I have never used violence of any sort to her".

[26] He was asked about having a temper, and replied that everyone has a level of temper and "I have a level of temper, but have never got into trouble at work because of it" and, "I have been in the reserve police force". He acknowledged that he had a certain amount of temper.

[27] Having considered the e-mail, the parents' evidence and that of the uncle I have to say that I do not accept the father's blanket denials of domestic violence, nor his denial he admitted to the uncle and family violence and abuse towards the mother. I have not investigated or heard detailed evidence in respect of the mother's allegations against the father and I am not making findings as to the exact extent and nature of the alleged violence, that matter may be for another court, but his e-mail gives a strong indication and acknowledgement that he has a bad temper and was prone to display it. He promised "it" would never happen again. I cannot say with precision what "it" was. He begged forgiveness. To me I felt he was minimising the truth, holding back and denying that he made admissions to the uncle and family. In this respect I prefer the evidence of the uncle and the mother. In my view the father did make admissions, apologised and begged forgiveness and to be given another chance.

[28] I accept from both parents and the uncle that following her arrival in this country there were discussions between the parents, uncle and other family members to see whether a reconciliation would be possible.

[29] The mother, and to some extent the uncle, say that during those discussions the father agreed that the children could remain here. The father asserts that he never agreed that, or reached any agreement that the children could remain. He goes further to say that in December 2012 when he learnt the children were in school here the mother indicated that she and they would return to America at the end of the school year as she did not want to disrupt them at that stage. This the mother denies.

[30] What is clear to me is that there were discussions between the parents and other members of the families with the uncle at times being very involved, acting as facilitator, and a ‘listener' to the father.

[31] It is clear that the father wanted a reconciliation with the mother and a reunification of the family. The father said he wanted the family back at home in America: that there was no mention of his relocating to London (Heathrow) until after the English Divorce Proceedings were served on him on 28 August 2013. The first time being when he wrote an e-mail to the mother on 10 September:

"I have proposed so many options to you and C (her uncle) not one is acceptable to you? You could have asked for more time? I even told him that for you and the kids I can even leave my family, the house, my employers and move to London. We can find a place near by in. What ever it takes..."

[32] When asked about this e-mail the father said:

"It was a last ditch effort to save my marriage. I have always maintained my position. I wanted my wife and children back home."

"I was prepared to relocate after the divorce papers were served. It was a last ditch effort."

"Before the divorce papers were served the only option I sought was a return to America. I could have moved from the home to live with my parents. She could have had the house."

[33] He denied strongly that during the preceding months in order to effect a reconciliation he had put forward the suggestion of him relocating to London.

[34] The mother in her statement dated 16 September 2013 said:

"during discussions he and I had had previously he had specifically told me he was willing to relocate to England, and he was willing to do anything to give our marriage another chance. He had family in England ... and had been able to see I was much more comfortable with my family around me and the children were thriving and very settled in their environment of family, school and community."

[35] The mother repeated in her evidence that during the various discussions the father had suggested his own relocation to London.

[36] The uncle also was asked about the father's suggestion to relocate. He told me that since August 2012 the father had said he would relocate a number of times, "I will do what it takes, I will leave my job, I will move to London". The uncle said he told the father that if the parents wanted the marriage to work they had to decide where to live and other details. He told me that the father wanted his wife and children back, and to be reunited: that the father's preference was for the family to be reunited in America in the family home, but on several occasions during the year between August 2012 and August 2013 the father had suggested he could relocate to London.

[37] The father also said in evidence that during the discussions after August 2012 he had been assured on many occasions by the mother and the Uncle that she and the children would return to America. This is denied strongly by both the mother and uncle.

[38] The uncle was attempting to see whether the marriage could be saved and a reconciliation effected. He told me that the details of where and how they lived would be up to the parents. He was a facilitator, an enabler for them to discuss, although on occasions the father talked openly to him and he listened, but he never gave the father any assurance that the mother and children would return to America. He told me that he felt the mother was scared and withdrawn on her return to England. She needed time to reflect and consider. She told him of her allegations as a result of which the uncle told the father that "if you love her you have a hell of a lot to do to win her". He was attempting to help the father to listen to the mother, to give her time and space. He also played a role in encouraging and facilitating contact between the father and the children.

[39] During Autumn 2012, the exact date is not clear from the papers, the father made an application under the Hague Convention to the US State Department for the return of the children. On 19 December 2012 he e-mailed the officer concerned "Here is the form you asked me to send". It may be that the form was his application. On 31 December the officer e-mailed the father to the effect that they were holding "the packet" to see if you can mediate the return of the children.

[40] In his statement the father said he was ‘hopeful' that through ‘this mediation' (no doubt meaning the uncle's intervention and their discussions) the mother would come back to America of her own volition and "we could reach this position amicably instead of troubling the Court". For this reason he asked the State Department to place his Hague Application "on hold".

[41] The officer e-mailed the father again on 7 January 2013 asking what he wanted them to do. In reply later that day he wrote:

"The kids are not back yet. I am very much keen in getting my kids back and resolving this matter. I am optimistic and hoping that my wife will come to her senses and return back to the States with our kids. This way we have a foundation and a relationship to build on without the Courts forcing her to come back. If I can ... ask you to give me just a bit more time for our reconciliation".

[42] He did not make his Hague application until after he was served with the English divorce proceedings because he says he believed and trusted the mother and her family that she and the children would return.

[43] The family meeting took place on 12 January, during which I have accepted the father made admissions of violence, and asked for another chance. Both parents say there were telephone conversations between them discussing various matters, and a few e-mails in which it is clear that while the father wanted progress towards reconciliation the mother was asking him for more time and space. There is no document emanating from the mother, or any document to which the father can point and say that she agreed to return to America with the children.

[44] Having heard the parents and her uncle I am satisfied there were discussions to consider the possibility of a reconciliation and reunification of the family. I am satisfied that the father had a preference for the reunification to be in the American City where the family had lived.

[45] The mother says the father agreed the children could stay in England. This the father denies and says he never agreed to that. By early January 2013 had there been an agreement he would not have written to the US State Department on 7 January in the terms that he did. He would have indicated there had been an agreement, and no doubt withdrawing his application.

[46] At best there may have been a loose understanding that while discussions were under way that the children could remain with their mother in England until the issues relating to the marriage and living arrangements were resolved. A loose understanding with nothing said or agreed is far from an agreement and meeting of minds between two parents as to the welfare of children, particularly in the context of separation and discussions concerning a possible reconciliation. There was no meeting of minds between the parents.

[47] I am satisfied that there was no agreement at any time between the parents that the children could remain long-term in England. The father had a preference for the family to be reunited in America, but I am satisfied that on a number of occasions prior to the service of the English divorce proceedings he had suggested that he could relocate to London. He was not taken up on this as a reconciliation was never effected, but it indicates that he was willing to consider options other than the children should return to America.

[48] Between January and July the mother's uncle was busy travelling on business, and was not as involved as he had been previously. He is an international commercial advisor. He said that he was not aware that the father had contemplated issuing Hague Convention proceedings for the children's return, and later was not aware that the mother was contemplating and instructing solicitors to issue English divorce proceedings. I accept his evidence on both issues. I recognise the father feels aggrieved and that he was deceived both by the mother and her uncle and other family members and that he was "wrong footed" by the mother and her family into not issuing the Hague proceedings prior to 24 August 2013.

[49] During the course of the year following their arrival here the father was able to visit this country on 5 occasions in order to have contact with the children in addition to contact by Skype and on the telephone. The uncle had encouraged the contact and facilitated its commencement. Initially the contact had taken place in the presence of the mother and members of their family.

[50] On 13 and 14 July 2013 it was agreed that the parents and children would spend the days together. They went out to Windsor and Legoland. The fact that they were alone without other family members gave the father cause to think that a reconciliation was more likely than not. He says that during this time the mother gave an "absolute assurance" that the children would return to America in good time for the American school year. She denies this. She says he did mention the children going to school in America but said to him they were settled in their schools in England and would continue here until decisions were made about their future. She felt that he was putting her under great pressure to make a decision about the marriage and the family's future. In evidence she told me she felt it was like she was back in America before the separation. To her it seemed that the father appeared to think "our future" meant her return to America. At no time did she tell him that she had recently instructed English solicitors to draft a Divorce Petition on her behalf. He was unaware that she had done this, and remained unaware until 28 August.

[51] Given her recent instructions and subsequent silence at a family meeting on 20 August I think it is inherently unlikely that she would have given her "absolute" or any assurance to return the children in time for the new school year. I prefer her evidence on this point to that of the father.

[52] It was ascertained very late in these proceedings, during final submissions, that the mother had sought general advice about divorce in England from solicitors on 13 May 2013. She had seen the solicitors directly. On 27 June 2013 her brother B, acting on her behalf, e-mailed the solicitors confirming that divorce proceedings should be commenced. The solicitors replied confirming those instructions by e-mail on 2 July 2013. By letter dated 12 July the solicitors wrote confirming that a divorce petition would be drafted. On 6 August B wrote a letter to the solicitors enclosing the draft Divorce Petition and signed Statement of Arrangements for the children, describing them as "approved as amended". On 7 August the mother e-mailed her instructions to issue the Petition which was issued that day at 12.15pm from the PRFD. On 23 August the mother gave instructions on the telephone to serve the Petition upon the father.

[53] On 28 August the father became aware there was a packet of legal documents waiting to be served on him in America. He telephoned the mother's uncle to enquire what the packet contained. Both the father and uncle agree that the uncle said he did not know, but would find out. In due course the uncle telephoned the father back to say they were divorce papers. On 29 August 2013 he told the father that the mother would not return the children to America. The uncle told me that the mother's decision to divorce the father was "a complete surprise".

[54] Following the contact meeting in July 2013 the uncle arranged a meeting for 20 August with the mother, her brother B and her mother, in which he told me he encouraged the mother to give the father one more chance; in this he was supported by the maternal grandmother. He suggested the mother and children should return to America, her mother and brother could accompany her if she wanted. He admitted to me he had put the mother under quite a lot of pressure. Subsequently he told the father when reporting on the meeting that he hoped he had persuaded the mother to return to America with her own mother, but she seemed nervous and very unsure, and apprehensive.

[55] At the meeting he told me the mother was quiet, and said nether yes or no to his proposal. She had remained silent, and was not happy with the proposal. He told the father that if the mother was to return it was up to them to make the appropriate arrangements. He hoped he had persuaded the mother to return, and expected her to do so.

[56] The father gives a different account of the outcome of the meeting. He agrees the uncle telephoned him, said the meeting went well and "it had been decided" that the mother and children would return to America and her mother and brother would accompany them to help settle the children in. The father wrote a heartfelt thank you to the uncle for all his efforts and help.

[57] It came as a shock to the father to receive the English divorce Petition on 28 August.

[58] It has been suggested on behalf of the father that the mother deliberately concealed her intentions from the father for a significant period, certainly since she gave instructions in June to draft the Petition, and maybe ever since her return to this country in August 2012; that in effect he has been deceived and "strung along for the required twelve month period" with talk of a possible reconciliation and return: and that this deception was also practised by members of her family, including her uncle. It is said that she deceived the American Court when in her proceedings of August 2012 she said she was on a "prearranged holiday" with the children in England.

[59] It is accepted by both parents that the children's removal on 23/24 August 2012 was without the father's consent or knowledge, and was wrongful. Thus to say she "was on holiday" implying a return to America was inaccurate and misleading.

[60] The father complained that her silence as to her intention and instructions to commence divorce proceedings in England amounted to deliberate misleading if not deception of the father, and maybe of her uncle and mother at the meeting on 20 August. Her uncle commented on her silence, and apprehensiveness. He told me that the divorce proceedings were a "complete surprise" to him.

[61] The mother is criticised for e-mailing the father a few days after the trip to Legoland to say "Thank you, we had a good time, particularly the children". It is said that there was a continuation of the concealment of her true intention and ‘stringing along' of the father. She was not asked about this, but she is a caring mother who knows her children love their father and he loves them and that they enjoyed themselves. Perhaps it was her merely saying "Thank you" hoping to maintain a civil relationship between her and the father for the sake of the children.

[62] I accept that the father feels aggrieved and misled by the mother. I do not accept the suggestion that she arrived in August 2012 determined to keep the children here, divorce the father and achieve her ends by deception.

[63] She told me that she had suffered violence and abuse for some 4 years, that the father threatened her life and those of the children; that she came because she felt "trapped", unsupported in America and that she needed to put herself and the children into a safe place. She felt distraught, distressed and needed time; that at the time she had no long-term plans for the future.

[64] I have not investigated her allegations of violence or abuse against herself or the children. If they are true she and the children needed to seek a place of safety away from the father. If they are true the mother would feel overwhelmed and distraught.

[65] As it is she tells me this is how she felt. She had no knowledge of the Hague Convention, and was totally unaware of its provisions. She needed respite from whatever was going wrong in the parents' relationship which the father acknowledges was skewed and at times difficult (my words).

[66] I accept that she had no long-term plans, but that over time they developed. I accept there were family discussions concerning a possible reconciliation, and that there was a family culture to avoid divorce if at all possible. I am not able to say when she formulated her intention to seek advice from solicitors in May. It may well have been a developing thought over a period as she reflected and settled into her environment with her family. I do not think it was a long held intention to seek advice before 13 May when she saw the solicitors, but one that had developed over time and formulated itself shortly before that appointment.

[67] In that sense I do not accept that she deliberately deceived the father over a long period as he suggests. However, she did not tell him of her intention or instructions to her solicitor in July. Her silence may well have misled the father who was anxious and hopeful to effect a reconciliation, but their meeting on 12/13 July was for the children to enjoy themselves and see their father, it was not a meeting for the parents to discuss the mother's intention. Had she told the father on those outings there may have been arguments or recriminations and they would have become far from enjoyable or comfortable for the children. Her silence while perhaps misleading the father may well have been well intentioned for the sake of the children.

[68] I have also considered her silence and reticence and the family meeting on 20 August. The uncle noted it. She agreed she said nothing. She was under pressure from the ‘head' of her family who was supported by her mother. She had made a decision contrary to their hopes, efforts and culture. She may have reached the decision with some misgiving or a heavy heart and if so would have felt the family pressure even more. I accept the uncle's statement that he did not know she had issued her Petition, and that he was surprised by her decision. In that sense she misled him at the meeting and thereafter in not telling him.

[69] Where does this lead me?

[70] There was a marriage which had become unhappy. It led to the mother wrongfully removing the children from America to London on 23 August 2012.

[71] There is no evidence to suggest that there was an agreement between the parents that the children could remain in England long-term.

[72] There were discussions and meetings between the parents themselves, and between them and members of both families to see whether a reconciliation would be possible. I am satisfied no assurance or agreement that the mother would return the children to America had been reached by the time the father issued his Hague application in 2012, nor by 7 January 2013 when he e-mailed: "I am optimistic and hoping that she will come to her senses". No agreement was reached at the family meeting on 12 January 2013.

[73] There is no documentary evidence to support the father's contention that he received any assurance the children would return to America by September 2013 or at any time. While he may have wanted that result and raised it with the mother I do not accept she, or any one, gave that assurance to him. And, I think the father misinterpreted what the uncle said to him following the meeting on 20 August. The uncle was expressing his hope that he had persuaded the mother to return, and that if that was to occur the parents would have to make the appropriate arrangements. As it was the Uncle was unaware of the mother's intentions to divorce the father, and as a consequence in any event could not give any assurance on the mother's behalf to the father.

[74] The father has urged upon me through Leading Counsel that the wrongful removal on 23 August 2012 has been subsumed thereafter by "a wrongful retention". At some stage after the removal he argues there was an intervening event to subsume the wrongful removal.

[75] As I have said there may have been a loose understanding that the children would remain in England while family discussions were on-going but the father made it clear he never agreed they should stay, he did not even "Agree" they should stay to the end of the school year. He was hopeful and optimistic that there would be a reunification of the family, preferably in America, but possibly in London. There was no meeting of minds and nothing was agreed during the ensuing year. In my view there was no intervening event to subsume the wrongful removal into a wrongful retention, and the mother's wrongful act was the removal on 23 August 2012.

[76] The father raised the issue that she delayed the service of the Petition until after the anniversary of the removal deliberately with Article 12 of the Hague Convention in mind.

[77] The mother denies this. There is no explanation as to why there was a delay of some three weeks, during which time the family meeting was arranged and took place on 20 August. It is wrong to speculate why there was a delay, but while the spectre of deliberate delay has been raised I am not in a position to say whether or not it was deliberate with the express intention of passing the anniversary.

[78] In any event in my view this is a case of wrongful removal by the mother. The father's application under the Hague Convention was made on 10 September and the mother now raises the defence under Article 12 that the children are settled here.

[79] I turn now to the issue of "Settlement".

[80] The mother's case is that the children arrived here on 24 August 2012, that more than a year elapsed before the father issued his Hague Proceedings in this court, and in the interim the children settled into their new environment, and that as a consequence I should not order their return to America.

[81] The children entered the local village primary school close to the maternal family home on 1 October 2012. They have attended the school ever since. E is described by the school as "settled well and is a happy polite little girl". A similar description has been provided in respect of D. Both children, on the recommendation of the school having heard of the marital difficulties and separation from the mother, received counselling at school from a voluntary organisation providing short term support to families with children up to 13 years. The particular organisation was recommended to the mother by the school who contacted them in November 2012. The children were offered weekly sessions with the senior family support worker between 28 November 2012 and 15 February 2013. In all they had 9 sessions each.

[82] I have seen a short report from the Family Support worker and copies of drawings and writings of the children during their sessions. The report indicated that both children engaged well and talked openly about their feelings and experiences. They were keen to talk about incidents that had taken place while they were living in America and both were worried that they might have to return. At the conclusion of the sessions they appeared to be more settled and reported feeling safer and happier living in England. The children's work sheets seem to confirm that they had encountered difficulties at home in America, with E writing that she had "a bad Dad" "he started to fight with Mum, myself and brother. Mum used to cry and suffer". She drew a picture indicting she was in danger, sad and scared in America but life here was happy and enjoyable, that she had a new school and new friends. D's work sheets also indicated that his Dad "hits Mum and himself, that Dad shouts at him which is scary, and sends him to his room".

[83] The children have been able to have telephone and Skype contact with their father on a regular bass, and he visited them 5 times before these proceedings commenced and 2 or 3 times since.

[84] According to the mother she and the children live with her mother, her brother and his wife in a large 5 bed roomed home with front and rear gardens. The children have their own bedrooms and toys and possessions around them. They enjoy their family and relations and have made new friends, attending parties and visiting their friend's homes. She described them as happy and settled.

[85] In her evidence she described the children as "very settled, secure, and happy in their environment". Before, in America, they were anxious and worried, and sometimes commented adversely about their father, and have said more recently: "Why did Daddy have to do this?" or "we won't have to see you (mother) frightened by Daddy doing what he did to you". E has expressed that she feels happy. The mother says that encourages them to love their father, and have contact with him. They have told her they "do not want to go back". When the police arrived to execute the Tipstaff orders the mother says the children became anxious and scared, fearful of going back, and required reassurance that all was well.

[86] In accordance with the Court Order dated 17 September 2013 Miss Julian from the Cafcass High Court Team prepared a report on the children's degree of maturity, whether they objected to a return to America as alleged by the mother, and whether they are settled in this jurisdiction for the purposes of Article 12. The report was filed on 17 October. Before the report was filed, but on her recommendation, on 11 October I made Miss Julian the children's Guardian.

[87] Miss Julian visited the children at home on 7 October and also spoke with the Head Teacher of their school. She was also able to speak with both parents.

[88] E told Miss Julian about 'bad things' her father had done to her, her brother and to her mother in America. They included "beating Mum up", "choking me", pulling her by the collar of her shirt, dragged her brother downstairs. On occasions her mother sought to intervene, but her father would turn on her, threaten her. She described her father and his behaviour as "crazy", scary, and described times when she and D heard her mother screaming, and saw him throw shoes at his parents. She recalled seeing "my Mum's face when he hit her, crying and full of tears, her hair falling out of her bun, of scratches and bruises on her arms".

[89] She was "happy" that her father was not in England, and is "happier now".

[90] She told Miss Julian about her daily life and school, that she had made "loads of friends", naming several other little girls at school and neighbours.

[91] She wants to stay living in England with her mother's family. She feels "safer here" than in America, and if she had to return she would wish to live "somewhere far away from where Dad is". Mum would go with her. She would not wish to go by herself. She expressed reluctance at seeing her father.

[92] Miss Julian also spoke to D. He did not want to go to America with his father as "he always used to shout at us". "He did not care about his parents or sister and brothers (the paternal family) used to shout at them, shout at Mum and push her about". He and E did not always see what happened between his parents, but they heard him. Like his sister he was reluctant to recall good things or times with his father.

[93] He said that it is better in England than America "because everyone is nice and we have nothing to be scared about". He likes living in England, likes his school and has lots of friends, naming some, and like E described the Drama Club and production both are performing in.

[94] He does not want to return to America "because his father is going to keep shouting and I don't feel comfortable". He "feels safe here and nobody shouts at me". He was not sure about contact to his father if he stayed in England.

[95] Both parents were able to discuss their feelings and ambitions for the children with Miss Julian. The mother accepted that the father loved the children, was not against contact, but was worried about the children's safety. The father told Miss Julian that he had never hit the children, found some of their reported comments hurtful and said he enjoyed his contact with them and missed the children greatly.

[96] Miss Julian spoke with the Head Teacher who said both children were "lovely" with a "positive and loving relationship with their mother". They were always well presented, clean, tidy and organised for the day. She had no concerns about their welfare.

[97] She said E had settled into the school well, enjoyed coming to school, is really popular with a good circle of friends. She assessed E as being "of above average maturity and understanding for her age". Miss Julian has no reason to disagree with this assessment.

[98] D was described as "quieter" than his sister; like her loves coming to school and is helpful, kind and polite and likes to please. He has found some difficulty making friends; he is not a boisterous child and enjoys the company of girls, finding their play more acceptable and easier to deal with. The Head Teacher assessed him to be of average maturity and understanding for his age. Miss Julian does not disagree with this, adding she thought he presented more anxious and sensitive in interview, being less forthcoming than E.

[99] Miss Julian said the children seemed settled in their home, showed a natural love and affection for their family members which was reciprocated, and which gave Miss Julian a sense of the children's "feelings of security and stability". They seemed relaxed in their environment, speaking happily about the family and school, and their various friends and activities. Overall from what she had seen and heard Miss Julian thought the children presented "as physically and psychologically settled in England".

[100] She considered the children's accounts of family life in America, and complaints about their father's behaviour. She had no reason to disbelieve them, and noted there was supportive information from the counselling organisation, and if their accounts are true it is not surprising they do not wish to return to America or to the life they led.

[101] The children described feeling safe here, and they appeared physically and psychologically settled here. She said the children need to move to a "permanent position of feeling secure and safe in their environment" which given their reported views she did not feel was currently possible in America. She also thought a return to America by the mother could impact adversely on her emotional well-being and mental health which in turn could impact on her ability to care for the children.

[102] She said that wherever the children were to reside there were fractured relationships between the father and the children, despite his love for them, that work was needed to repair the relationships, and a welfare investigation was required to ensure that contact with their father was safe and beneficial.

[103] In evidence Miss Julian was clear the children are settled here with their mother and want the current arrangements to continue. She recognised that both had friends from school in America and missed them, and was certain that despite the children's negative views of American there had been good times, but she sensed they felt worried and scared at the prospect of returning, and had ‘bad' thoughts about America.

[104] She said that psychologically they feel safe, secure and happy; they are stable and relaxed in their mother's home and family. Physically they were settled at school and in the home. They were aware of their parents' differences: the father wanted them to live in America, their mother wanted them here.

[105] She did not feel the children had been ‘tutored' or deliberately influenced by their mother or her family. She felt the children's expressed views were genuine; they gave reasons for not wanting to return. They had mixed feelings about America as a place with friends they missed, but they had clear feelings about what happened there, with ‘bad' thoughts about family life and what happened. To her while the children had expressed their views about not returning she considered that rather than a clear objection to returning each had a strong preference not to return even though they knew their mother would accompany them.

[106] Miss Julian is an experienced Cafcass officer, and has reported to the court on many occasions in respect of children's wishes and feelings returning to another jurisdiction. She said some say they "do not want to go back", "will not go back". E and D gave reasons for not wanting to go back, reflecting their views of family life in America. They made it very clear that wherever they lived they wished to live with their mother.

[107] The father seeks to argue that the children's views have been influenced by the mother, and by the fact that they have lived with her here as their primary carer with little contact from the father for more than a year; that what they are objecting to is the difficult parental relationship which they had to endure and that they would settle back into life in America with their mother in the former home without the father being present, and their former schools and friends.

[108] I have listened carefully to Miss Julian and read her report. It is clear they are physically settled in the home, in the maternal family and at school and general environment. They are clear they wish to live with their mother, and "far away from their father".

[109] Both children have described feeling safe or safer here. Miss Julian saw happy, relaxed children and thought they were psychologically settled here in addition to being physically settled here. She could not recommend an upheaval and return to America. The children's 'bad' thoughts, worries and anxieties about life in America were not conducive to their welfare. She thought that they were settled and ideally should remain here, and need to move to a permanent position of feeling secure and safe in their environment which she did not consider was currently possible in America. She speaks as their Guardian having met them and considered this case.

[110] I accept Miss Julian's evidence that they feel safe and secure here, that they are settled physically and psychologically here, and a return to America would be an upheaval, contrary to their "strong preferences" and no doubt confusing and anxious making.

[111] I also accept that the children have criticised their father's conduct towards them and their mother. Miss Julian thought they had genuine anxieties and worries about their father. I am making no finding about what they said, or the details of their allegations: that maybe for another Court, another time, but I accept they have made adverse comments about him.

[112] I also accept that their relationship with their father has become fractured and I hope very much that work can be done in the near future to repair that damage. I know that he loves them dearly and I am sure they have loving feelings for him which they are currently unable to express.

[113] I am satisfied under Article 12 that the children are now settled within this jurisdiction, and were settled here by the 24 August 2013. In view of the evidence, particularly that of Miss Julian, it would not be appropriate or in their interests to order their return.

[114] I have been asked also to deal with the other "defences" raised by the mother, notwithstanding that I am not ordering their return to America.

[115] The mother says the children 'object' to returning. The Guardian says she feels they have a ‘strong preference' not to return, rather than a clear objection. The father also says they have raised a preference, no doubt because they have lived for more than a year in the care of their mother, and no doubt been influenced by her and her family whether deliberately or otherwise.

[116] It is for the mother to prove her 'defence'. E accepts she has friends and misses them in America. Neither child wants to return to parental conflict and the family life they endured before. They are anxious and worried by the prospect. They feel ‘safe' and/or ‘safer' here. They have not said they will not return, or do not want to return in such words, and Miss Julian did not sense that was their position.

[117] It is often a fine line between an objection and a strong preference or wish. In this case I share the guardian's view it is a strong preference, rather than an objection. However, to require these children to return contrary to their 'strong preference' to remain and not go back would not in my view be in their interests. In addition, it would inevitably involve disruption and upheaval. Additionally, no doubt, there would be further and increased anxieties and uncertainties as I anticipate there will be further litigation as to their welfare and place of residence.

[118] The mother has also raised the defence under Article 13(b), there is a grave risk that a return would expose the children to physical or psychological harm or otherwise place the children in an intolerable situation.

[119] Again the burden is upon her to prove the case. The father has offered various undertakings which are to be found at paragraph 35 of his statement dated 8 October 2013, which include permitting her to live with the children in the family home, and not to communicate with her directly or to threaten or intimidate her or the children. There are also divorce proceedings pending in America, instituted by the father, and no doubt further protective measures, which if need be, could be obtained urgently by the mother either in those proceedings or other proceedings. She had previously invoked the court to make protective orders in August 2012 and instructed Attorneys to do so, and is aware of what protection can be sought.

[120] It is said on her behalf that the father cannot be trusted to keep his word and to keep away from the mother and children: that he has lied to this Court in that he now denies he admitted to the uncle and family he had treated the mother with violence and abuse; that he shows no remorse or insight for his wrong doing; that he has a bad temper and has been violent and threatened to kill her and the children; that there is a risk he will be unable to control himself in some way, molest and harm the mother and/or the children.

[121] I have made no findings of violence and abuse against him.

[122] If I take the mother's allegations at their highest I must ask myself are the proposed undertakings sufficient to protect the mother and children, and are there other measures which he could accept or she could take to obtain adequate protection. America has a sophisticated legal system, and it is clear that not only can protective orders be made, but that the mother is fully aware of them and able to seek them if need be.

[123] I point out that the parents have now separated, and each is seeking a divorce. They no longer wish to live together, and assuming there is a permanent separation and they do not live under the same roof any immediate risk to the mother and children has been removed.

[124] In that sense of physical risk the mother has not proved her case of grave risk of "physical" harm.

[125] The mother clearly does not wish to return to America, but will do so to accompany the children. She wishes to remain here with them and, no doubt if she returned to America she would instigate proceedings for leave to remove the children to live with her in this country. Litigation always brings anxiety and worries which will add to her emotional burden. She would be without the physical or emotional support of close family members, unless they were able to accompany her, and stay for some time, and that may depend on the United States Immigration rules.

[126] She would find the imposed return and life in America hard and lonely, but she has lived there for some years in the past and it is not an unknown situation. It would not be what she wants, but she is an intelligent, resolute and caring mother who would want to manage and care for the children however uncomfortable she may find her own situation.

[127] The children have expressed a strong preference not to return. They have not said "No". They have friends and a school, a home and environment to which they could return and re-immerse themselves. It is not an unknown territory. It may be not what they want, and they may be unwilling to go, and at least initially find it upsetting. They may also feel some confusion and disruption as they are settled here and want to stay. No doubt if there were proceedings for leave to return here and they become aware of such litigation, and I anticipate they would, they would pick up the mother's anxieties and worries and they may well be interviewed by welfare workers and asked about their wishes and feelings. All of this would subject them to uncertainties which may prevent them from settling until the outcome is known, but they would be in their mother's care, which is what they want, in a familiar environment and away from direct parental conflict, which is something they dread (my words).

[128] To send them back would be far from ideal and not in their interests while their future welfare arrangements and residence is uncertain and in dispute.

[129] However, applying the test would there be a grave risk they would suffer 'psychological harm' or "otherwise be placed in an intolerable situation". I do not think so. There is a risk of psychological harm I cannot say it is "grave". The situation may not be to their liking and may be confusing and with uncertainties, but I cannot say it would be "intolerable". In that sense the mother has failed to establish her defence under Article 13(b).

[130] As it is I have said they are settled here, that it would not be in their interests to return them to America under Article 12.

[131] In consequence the father's application for summary return to America fails and is dismissed.

[132] There may be consequential and other directions sought following this Judgment. No doubt the parties would wish to consider their individual positions and I hope a short, early hearing can be arranged to resolve any outstanding matters. I have already indicated that if there is to be such a hearing the father is excused from attending, providing Counsel is fully instructed. I add only I am grateful he was present in person throughout this hearing.

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