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Family Law

The leading authority on all aspects of family law

14 APR 2014

Kinderis v Kineriene (No 2) [2014] EWHC 693 (Fam)

The full judgment is available below.

(Family Division, His Honour Judge Clifford Bellamy, sitting as a deputy High Court judge, 6 February 2014)

Hague Convention - Mother retained child in UK - Grave risk of Harm - Objections of 11-year-old child

The father's application for a return order was refused on the basis of the child's objections to a return order.

The 11-year-old girl was brought to the UK from Lithuania by her mother with the consent of the father to a holiday. The mother and child failed to return. The father sought a summary return under the Hague Convention.

The case had been pending for 16 weeks, well beyond the 6-week timescale envisaged by BIIR. Delays had ensued due to the refusal of the Legal Aid Agency to grant the mother public funding. The mother had only limited English and Holman J had previously held that he could not conduct the hearing with her acting in person without compromising her Art 6 European Convention rights. The mother was now represented by the Bar Pro Bono Unit.

The mother defended the application for a return order on the basis of a grave risk of harm, due to abusive and threatening text messages sent by the father, and the child's objections. The mother asserted that if they were permitted to remain in the UK she would ensure the father and child had a continuing relationship.

The Cafcass officer found the child to be very positive about her situation in England but negative about a possible return to Lithuania. She found the views could amount to an objection in Hague Convention terms.

In the circumstances of this case the judge did not find the defence of grave risk of harm was made out. There was no evidence of harm suffered and the mother's assertion that she would promote contact if they were allowed to remain in the UK was wholly inconsistent with her being at grave risk of harm.

It was impossible to separate out the child's unwillingness to return from her wish to stay in the UK. The court found that the child's strong wish did not amount to an objection for the purposes of the Hague Convention. The child was of an age and degree of maturity at which the court should take account of her views. This was a case where the child's views were determinative. In balancing the welfare issues and Convention objectives, neither was of overriding importance. The father's application was refused.

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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Neutral citation number [2014] EWHC 693 (Fam)

CASE No: FD13PO2018

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Date: 6 February 2014

Before:

His Honour Judge Clifford Bellamy

Sitting as a Deputy Judge of the High Court

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KINDERIS v KINERIENE (No 2)

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Mr Nicholas O'Brien for the Applicant father

Miss Ariel Ricci for the Respondent mother

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JUDGMENT

JUDGE BELLAMY:

[1] B is an 11 year old Lithuanian girl. She was born in Lithuania of Lithuanian parents. Her mother is Gitana Kinderiene (‘the mother'). Her father is Arunas Kinderis (‘the father'). Until 25th July 2013 B had lived her whole life in Lithuania in the care of her parents. On 25th July 2013 the mother brought B to England. She did so with the father's consent. He believed that B was being brought to England for a holiday. The mother told him she was going to return to Lithuania with B on 2nd September. The father went to the airport to meet them. They didn't arrive. The father then received a text from B to say that she and her mother were going to remain in England. On 14th October the Central Authority in Lithuania requested that B be summarily returned to Lithuania.

Procedural history

[2] These proceedings were issued on 18th October. They have been ongoing for exactly 16 weeks. Article 11(3) of Council Regulation EC No 2201/2003 (‘Brussels II Revised') requires that a court dealing with proceedings for the summary return of a child "shall act expeditiously in proceedings" and that it "shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged".

[3] In this case that requirement has not been complied with. That failure requires an explanation. That explanation is to be found in the judgment of Holman J in Kinderis v Kineriene [2013] EWHC 4139 Fam given in public on 18th December 2013. Put shortly, the delay has arisen because of the Legal Aid Agency's initial refusal of the mother's application for legal aid.

[4] The case had been listed before Holman J for final hearing with a time estimate of 1 day. The Legal Aid Agency having refused the mother's application for public funding, she appeared before the Judge in person. She speaks little English. To have continued with the hearing in those circumstances would have given rise to a real risk that the mother's Art 6 right to a fair trial would have been breached. The hearing was, therefore, adjourned until 15th January. In the event, the hearing on 15th January had to be relisted because the Cafcass officer was not available to give evidence. That led to yet more delay.

[5] In his judgment, Holman J was critical of the Legal Aid Agency. He pointed out that significant costs were being wasted as a result of the inevitable adjournment. He made the point that ‘all these wasted costs fall ultimately to the same government department, the Ministry of Justice, as does the legal aid budget'. The clear if unspoken subtext to the judgement was that this mother should be granted legal aid and quickly.

[6] The Legal Aid Agency's refusal of legal aid was a refusal on the merits. For the reasons given by Holman J, the Legal Aid Agency was wrong to refuse the mother's application on the merits. In the event, the ultimate refusal of legal aid was because, though financially eligible at the time of the hearing on 18th December the mother was out of scope financially by the time the Legal Aid Agency completed its determination of her eligibility. The irony of this is that whereas the mother had not worked when living in Lithuania it was because she had managed to obtain work in England and also had obtained working tax credit that her financial position put her out of scope for legal aid.

[7] Although the mother has had no legal assistance during the preparatory stages of these proceedings and has had to draft her own witness statements, she has had the considerable advantage at this hearing of being represented by Miss Ariel Ricci whose services have been provided by the Bar's Pro Bono Unit.

Background

[8] I now turn to the background history. Much of it is uncontroversial. Where there is disagreement on a relevant issue I set out each parent's position. As is customary in these cases, I have not heard oral evidence from the parents.

[9] The mother is aged 46. The father is aged 51. The parents are married. Prior to the mother's removal to England in July there is no evidence of previous separations.

[10] The parties have an older daughter, V. V has a long-term partner. She and her partner have a son aged 3. They live in Somerset. The mother and B have lived with them since arriving in England last July.

[11] Up until the mother's removal to England on 25th July 2013 the parents and B had lived together in a small flat. The mother and B slept in one room. The father slept in the other. As those arrangements suggest, the relationship between the parents was not good.

Grave risk of harm

[12] This is not a case in which there is a history of domestic violence or abuse whether towards the mother or towards B. The foundation of an argument about risk arises from the father's behaviour since B has been in England.

[13] In a written statement the mother refers to text messages sent by the father to herself, to V and to B. On 27th July, just two days after arriving in England, she received a text from the father saying "If the child isn't home by August 15, you'll be sorry you were born". On 30th July the father sent a text message to V saying "Tell to that bitch if the child is not there on time, she'll lose her eyes"

[14] Over the following weeks the father sent further threatening text messages both to the mother and to V. The father admits sending "some nasty test messages to V". They are more than nasty. They are abusive and threatening.

[15] On 5th August, B had a telephone conversation with her father. The mother describes the call and the aftermath:

"[B] went to another room to have a phone conversation with him. When I came to check on her, I found her pale, in fright, her eyes full of fear, I took the phone from her and I heard myself how her father...was telling her to come back to him if she did not want anything bad to happen to her mother...and sister...I hung up the phone as B...got hysterical, started crying asking not to make her talk to him ever again....That night she had trouble sleeping, had fever and headaches..."

[16] The father does not respond to the detail of the telephone conversation recounted by the mother. He does, though, deny ever abusing B either physically or psychologically.

[17] In November the mother returned to Lithuania alone, "to declare my child's departure, to inform Children's Rights about it, as well as I needed to see the doctor..." She stayed with her parents. She claims that she "was in constant fear that my husband...could find me and fulfil his threats". The father says that he knew the mother was in Lithuania and where she was staying. He made no attempt to contact her.

[18] The mother also expresses concern "about the mental state of my child, our lives and health, in case we are to be returned to Lithuania." She says that she has tried to prepare B for a possible return to Lithuania but that B "burst into tears and said a horrifying thing: ‘if they take me back, I'll kill myself"." The father says that he is ‘horrified' about the mother's report and does not believe that B would ever say such a thing.

[19] On the day of the hearing before Holman J the mother handed in a second written statement. This statement contains some comments that are relevant to the issue of risk of harm, particularly bearing in mind the exchange of text messages and the alleged telephone conversation to which I have already referred. At paragraph 2 of this statement, the mother says,

"If B stayed here, in the UK, she could keep in touch with her father via phonecalls or social media. She could visit him on her holidays or he could visit her. I will certainly not prohibit her from keeping in touch with him; I will even encourage her."

[20] In that same statement the mother makes it clear why she wishes to remain in England. She has a job here. She is living with her older daughter and grandson. She does not want to "be his housewife again". She says that the father "is most certainly incapable of providing for a growing girl neither financially nor morally."

[21] At the start of this hearing I was provided with copies of a further exchange of text messages passing between B and her father. This series of texts took place on 24th January 2014. Although B makes it clear that she does not want to return home to Lithuania, she does not make any allegations against the father that suggest that she would be, or believed she would be, at risk of physical or psychological harm if she returned. She says, "my mum and sister the best thing in the world, I don't love you and don't want to come back...I don't want to come back and don't love you. I'm scared of you...Dad, you don't love me because you don't let me live where I want...love me, no you don't because you don't let me live where I want...you just hurting me".

Child's objections

[22] At a hearing before Cobb J on 19th November, an order was made requiring Cafcass ‘to file and serve a report on the child's wishes and feelings' by 13th December. That report was prepared by Mr Bob McGavin, an officer of the Cafcass High Court Team. I have read the report and also had the benefit of hearing Mr McGavin's oral evidence.

[23] Mr McGavin met with B on 6th December. He interviewed her with the assistance of an interpreter. Also present were the mother and V.

[24] It is clear from Mr McGavin's report that B was very anxious during the interview. She found the interview stressful and was clearly relieved when it was completed.

[25] B spoke very positively about living in England. She is very happy at school where she has settled well. In contrast she said that she did not like school in Lithuania though it is not entirely clear why. She had a circle of friends in Lithuania whom she was able to name, one of whom she remains in contact with by Skype.

[26] B described her parents' relationship as ‘bad' adding that they were always arguing. Her father would regularly shout at her mother. She does not describe any physical violence by her father either towards herself or towards her mother.

[27] B did not speak positively about her father. She said that he is unemployed, drinks Vodka and never used to play with her or take her to the park. Asked whether there were any good things about her father B shook her head.

[28] Mr McGavin asked B about the circumstances of her coming to the UK. He reports that,

"18. ...She said that they came to the UK initially for a holiday, however (at this point she repeatedly touched her brow in an attempt to recall accurately) ‘my father made threats by phone and by texts and he said if I didn't return he would do something bad to my mother and sister. That night I had a nightmare and dreamt that my father killed my mother and sister and I had a high fever that night...I'm very much afraid/scared of him.

"19. I asked if B was scared of her father when she was in Lithuania. She responded ‘not very much, but when he drank he said it was better for him to commit suicide and I began crying..."

[29] Whilst in Lithuania, B had contact with both maternal grandparents and paternal grandmother. She got on well with her maternal grandparents but didn't like her paternal grandmother as much as she liked her mother's parents.

[30] B expressed clear views about the prospect of returning to Lithuania. Mr McGavin sets out her views thus:

"23. I asked B how she would feel about going back to Lithuania. She responded ‘I would be very sad. I would be crying all the time, here I am very fortunate/happy, my life has changed here'. She agreed to my suggestion that she is enjoying being here more than in Lithuania, though she misses her grandmother (maternal) and her best friend.

24. I then did a diagrammatic scaling exercise with B regarding her feelings, in the event that the judge says she has to go back; with 0 indicating that she would not mind and 10 that she would hate to go back. I asked her to indicate her position on the continuum. B immediately pointed to 10 to indicate her feelings. I asked if there was anything that would make it better for her in the event that she had to go back, for example a return to her maternal grandparents. B started crying at the prospect of having to go back."

[31] Mr McGavin confirmed that he had satisfied himself that before asking B to complete the scaling exercise that she understood what she was being asked to do.

[32] Mr McGavin made enquiries of B's school. He spoke to her class teacher. At paragraph 27 of his report he sets out the results of his discussion. Of particular note is that he was told by the teacher that

"B has said she is not keen on her father. The picture she has given of him is ‘not positive'...She is very concerned about going back to Lithuania. She does not want to go back. She is frightened at the prospect. She would be traumatised if she has to return."

[33] Mr McGavin accepted that B very much likes her new lifestyle and is cross with her father for trying to disrupting it. She is very happy living with her sister and nephew. She is particularly happy at school and doing well there. There is a greater sense of purpose in her life now than had been the case when living in Lithuania. Against that, there are also aspects of life in Lithuania which she enjoyed, not least spending time with her friends and with her maternal grandparents.

[34] Mr McGavin stands by the conclusion in his report that B "has a very strong wish to remain here which the court may consider amounts to an objection in Hague Convention terms." He also makes the point that the fact that B is able to identify positives in Lithuania adds weight to the fact that in her mind they are strongly outweighed by the negatives.

[35] As for her age and maturity, Mr McGavin says that she "came across as being in line with her chronological age. Information from her school teacher suggests it may well be in advance of her age." He does, though, sound one note of caution. He says that,

"34. On account of B's anxiety, I was not able to conduct as in depth an interview as I would have hoped. I do not feel I got a full picture of B's relationship with her father. I also had the impression that she had prepared some narrative in advance, notably paragraph 18 above."

[36] Before giving evidence, Mr McGavin had the opportunity to read the exchange of texts between B and her father on 24th January. Though he described them as ‘troubling' they did not affect his conclusions.

The law

[37] Article 12 of the Hague Convention provides that

‘Where a child has been wrongfully removed or retained in terms of Art 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.'

[38] In Re E (Children) (FC) [2011] UKSC 27 Baroness Hale and Lord Wilson make it clear that the first object of the Hague Convention

‘8. ...is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there.'

[39] It follows, therefore, that normally a parental dispute should be resolved in the country in which the child was habitually resident until her wrongful removal or retention. However, that is not an absolute rule. There are exceptions. The Hague Convention provides defences which may be raised by a parent who has wrongfully removed a child from the country in which she is habitually resident or who has wrongfully retained her in another country. Those defences are to be found in Article 13. Article 13 provides that

‘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 its return established 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 the removal or retention or had consented to or subsequently acquiesced in the removal or retention..

b. 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 situation.

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...'

[40] With respect to the defence of grave risk of harm, the approach to the proper application of that defence was considered by the Supreme Court in Re E to which I referred earlier. Given the leading judgment, Baroness Hale and Lord Wilson explain that,

33. Second, the risk to the child must be "grave". It is not enough, as it is in other contexts such as asylum, that the risk be "real". It must have reached such a level of seriousness as to be characterised as "grave". Although "grave" characterises the risk rather than the harm, there is in ordinary language a link between the two. Thus a relatively low risk of death or really serious injury might properly be qualified as "grave" while a higher level of risk might be required for other less serious forms of harm.

34. Third, the words "physical or psychological harm" are not qualified. However, they do gain colour from the alternative "or otherwise" placed "in an intolerable situation" (emphasis supplied). As was said in Re D, at para 52, "'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'". Those words were carefully considered and can be applied just as sensibly to physical or psychological harm as to any other situation. Every child has to put up with a certain amount of rough and tumble, discomfort and distress. It is part of growing up. But there are some things which it is not reasonable to expect a child to tolerate. Among these, of course, are physical or psychological abuse or neglect of the child herself. Among these also, we now understand, can be exposure to the harmful effects of seeing and hearing the physical or psychological abuse of her own parent...

35. Fourth, article 13b is looking to the future: the situation as it would be if the child were to be returned forthwith to her home country. As has often been pointed out, this is not necessarily the same as being returned to the person, institution or other body who has requested her return, although of course it may be so if that person has the right so to demand. More importantly, the situation which the child will face on return depends crucially on the protective measures which can be put in place to secure that the child will not be called upon to face an intolerable situation when she gets home.

[41] With respect to the approach to determining whether it can properly be said that a child objects, in De L v H [2010] 1 FLR 1229 the former President of the Family Division, Sir Mark Potter, said that,

[63] ‘Gateway' findings which are required of the court in relation to the discretionary defence of ‘child's objections' under Art 13 of the Hague Convention are of course:

(a) that the child does in fact object to being returned; and

(b) that he has attained an age and maturity at which it is appropriate to take account of his views.

On being so satisfied, the matter involves a wide range of considerations in relation to the exercise of discretion...

[64] As to (a) it is important to bear in mind that the objection to return must not simply be based on the child's preference to be with the abducting parent. The basis of objection is that of return to the State of habitual residence rather than simply to the care of the applicant...Nonetheless, leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated...In relation to this question and, in any event, in relation to the exercise of the court's discretion once satisfied the objection is established, the court analyses on the evidence before it the grounds on which the child's objections are based in order to determine and weigh the strength, soundness and validity of those reasons against the background of the overall purpose of the Hague Convention, namely one of prompt return to the country of habitual residence so that the courts of that country may determine the question of custody and residence on the basis of a full welfare investigation...'

[42] Further guidance was given by Baroness Hale in Re M (Abduction: Zimbabwe) [2008] 1 FLR 251. Under a section headed Discretion under the ordinary law and under the Convention, Baroness Hale said that

[32] The difference between the two was summed up thus by Thorpe LJ in Cannon v Cannon at para [38]:

‘For the exercise of a discretion under the Hague convention requires the court to have regard to the overriding objectives of the Convention whilst acknowledging the importance of the child's welfare (particularly in a case where the court has found settlement), whereas the consideration of the child is paramount if the discretion is exercised in the context of our domestic law'

There has been a tendency in some quarters to take each of these approaches further than they should properly be taken, thus exaggerating the differences between them.

[43] My Lords, in cases where a discretion arises from the terms of the Convention itself, it seems to me that the discretion is at large. The court is entitled to take into account the various aspects of the Convention policy, alongside the circumstances which gave the court a discretion in the first place and the wider considerations of the child's rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the passage quoted in para [32] above, save for the word ‘overriding' if it suggests that the Convention objectives should always be given more weight than the other considerations. Sometimes they should and sometimes they should not.

[44] That, it seems to me, is the furthest one should go in seeking to put a gloss on the simple terms of the Convention.

[46] In child's objections cases, the range of considerations may be even wider than those in the other exceptions. The exception itself is brought into play when only two conditions are met: first, that the child herself objects to being returned and secondly, that she has attained an age and degree of maturity at which it is appropriate to take account of her views. These days, and especially in the light of Art 12 of the United Nations Convention on the Rights of the Child 1989, courts increasingly consider it appropriate to take account of a child's views. Taking account does not mean that those views are always determinative or even presumptively so. Once the discretion comes into play, the court may have to consider the nature and strength of the child's objections, the extent to which they are ‘authentically her own' or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations referred to earlier. The older the child, the greater the weight that her objections are likely to carry. But that is far from saying that the child's objections should only prevail in the most exceptional circumstances.

[43] Having outlined the relevant law I turn to the facts of this case.

Discussion

[44] For the mother, Miss Ricci submits that there is substantial compelling evidence to show that B's return to Lithuania would expose her to psychological harm. This includes the fact that B is aware of the content of her father's threatening text messages, that she herself had a telephone conversation with her father in which he made threats against her mother and sister leading to her having nightmares, that B has threatened to take her own life if forced to return, that she is aware that through these proceedings the father is seeking to secure her return, that she told Mr McGavin that she is ‘very much afraid/scared' of her father, and that her class teacher's assessment is that B is frightened at the prospect of having to return and would be ‘traumatised' if made to return and has already threatened to take her own life.

[45] For the father, Mr O'Brien does not accept that there is any proper basis upon which the court could conclude that there is a grave risk that B would be exposed to physical or psychological harm or otherwise placed in an intolerable position if she were to return to Lithuania. The fact that B would be distressed if forced to return must not be confused with psychological harm. Although the father has sent offensive text messages the context in which he sent them was the unlawful act of the mother in wrongly retaining B in England last summer instead of returning her to Lithuania. In this case, the facts relied upon by the mother are not of such significance as to justify an order that B should not return to her native Lithuania. It may be that a Lithuanian court would give the mother permission to relocate to England. However, that is an issue that should be litigated in Lithuania.

[46] Furthermore, if the mother is able to establish grave risk of psychological harm, the undertaking set out in the father's written statement is sufficient protection for the mother and B in accordance with Article 11(4) of Brussels II Revised. In that statement the father undertakes not to instigate or prosecute criminal proceedings against the mother in respect of her removal and retention of B; to pay in advance for B's return flight to Lithuania and to provide accommodation for her.

[47] I am not persuaded that the mother has made out her defence of grave risk of physical or psychological harm. There is no evidence of physical or psychological harm suffered, nor even of circumstances which may have given rise to the risk of such harm being suffered, whilst the mother and B were living in Lithuania. It is only the father's behaviour since they left which is now said to give rise to that risk. I am not persuaded that the risk which follows from that behaviour can properly be said to amount to a grave risk of physical or psychological harm. There is no medical evidence to support the contention that there would be a risk of suicide were B required to return to Lithuania. The only evidence of that risk comes from one statement said by the mother to have been made by B to her at a time when she was particularly distressed. The comment made by B's class teacher that B would be ‘traumatised' if required to return is in my judgment not sufficient to found a case based on grave risk of harm.

[48] I am fortified in these views firstly by the mother's second witness statement and secondly by the very recent exchange of texts between B and her father. The mother's willingness to contemplate B visiting her father in Lithuania and keeping in touch with him by telephone and social media, and presumably also by Skype, is in my judgment wholly inconsistent with the picture the mother seeks to present of a child who is at grave risk of physical or psychological harm if required to spend time in Lithuania.

[49] The recent text messages passing between B and her father do not strike me as the kind of messages one would expect of a child in respect of whom there is said to be a grave risk of serious physical or psychological harm if forced to return to Lithuania. Indeed, if B were as traumatised by recent events as is claimed, it is surprising that she is willing to engage in text messaging with her father at all.

[50] Having come to the conclusion that the mother has not established that there is a grave risk of physical or psychological harm if B is returned, it is unnecessary to consider whether appropriate arrangements have been made to secure B's protection if she were to return. However, it is right to remember, as I noted earlier, that in November the mother returned to Lithuania and spent some days staying with her parents. There is no evidence that the mother and B could not reside there if they returned, at least pending an application to the Lithuanian court for permission to remove B to England. If that were not a practical possibility I would have expected the mother to have said so.

[51] I turn next to consider B's objections. For the father, Mr O'Brien acknowledges that B is happy with her new life in England, living with her sister and attending school in Somerset. It is clear from the evidence of Mr McGavin that there is whole range of reasons why B wants to stay here. However, none of this amounts to an objection to returning to Lithuania for the purpose of Art 13(b) Furthermore, although it is clear that B wishes to continue living in England she does not have the maturity to express an informed decision that she objects to returning.

[52] For the mother, Miss Ricci submits that it is clear that B does indeed object to returning. This is more than simply wanting to remain in England. When Mr McGavin carried out the scaling exercise with B she was very clear indeed that she does object to going back. It is equally clear from Mr McGavin's report that she is of an age and has the maturity not only to make that decision but to expect that that decision will be treated with respect.

[53] The question for me to determine, firstly, is does B object to returning to Lithuania not does she object to returning to live with her father. In reality, it is invariably very difficult indeed to separate out the two. As Sir Mark Potter P said in De L v H , ‘leeway has to be given to the fact that, in most cases, the two elements are so inextricably linked that they cannot be separated'. That is so in this case.

[54] It would be surprising if a child of B's age had the sophistication to advance a reasoned objection to returning to her home country without linking that objection to her own life in that country. In this case, because of the delay to which I have already referred, B has now been living in this country for more than six months. It seems to me to be equally impossible to separate out desire to stay where she is from unwillingness to return to Lithuania. Mr McGavin made the point that B 'has a very strong wish to remain here which the court may consider amounts to an objection in Hague Convention terms'. In this case I am persuaded that it does, particularly when one adds to that the impact that the father's behaviour over the last six months has had upon her, the fact that she was unhappy at school and the fact that notwithstanding the positives she identified about life in Lithuania she has at all times been very clear that they are heavily outweighed by the negatives.

[55] I am satisfied that B does object to being returned to Lithuania and that she is of an age and degree of maturity at which it is appropriate to take account of her views.

[56] That, though, is not the end of the matter. Even where the court finds that a child objects to returning to her country of origin and that she is of an age and degree of maturity at which it is appropriate to take account of her views, the court must still determine, in the exercise of discretion, whether to order her return or to dismiss the application.

[57] I have acknowledged the central importance of Art 12. I have also referred to the guidance given by Baroness Hale in Re M that taking account of a child's views ‘does not mean that those views are always determinative or even presumptively so'. It seems to me to be implicit in the way Her Ladyship expressed herself that there will be cases in which the child's views will be determinative. In my judgment this is such a case. Whilst I have regard to the objectives of the Convention, I am also entitled to take welfare issues into account. Neither is of overriding importance. Both must be weighed in the balance. In this case I am persuaded that the balance comes down in favour of accepting B's objections as being determinative on the basis that such an outcome is also strongly consistent with her welfare.

[58] I shall refuse the father's application.

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