12 FEB 2015
R v S  EWHC 234 (Fam)
(Family Division, Theis J, 5 February 2015)
Abduction – Hague Convention
The full judgment is available below.
The father’s application for a return order in respect of the two children was refused on the basis of the 9-year-old child’s objections.
Case No: FD14P01048
Neutral Citation Number:  EWHC 234 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
MRS JUSTICE THEIS
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Mr Richard Jones (instructed by Williams & Co Solicitors) for the Applicant
Ms Ashley Thain (instructed by Campbell Hooper & Co Solicitors) for the Respondent
Hearing dates: 4th February 2015
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Mrs Justice Theis DBE:
 This matter concerns an application by the father in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention).
 The proceedings concern two children D (age 9) and A (age 2). Their father seeks an order for their return to the Republic of Ireland. The respondent is the children’s mother, with whom they currently live. She objects to their return on two bases arising under Article 13 of the Hague Convention, namely the Article 13 b) and the child’s objections exceptions.
 The mother accepts that she wrongfully removed the children to this jurisdiction in July 2014 under Article 3, and that the court is required to return the children under Article 12 unless she can establish one of the Article 13 defences.
 These proceedings were issued in November 2014 and following two directions hearings were listed before me today.
 Both parties have filed statements, with supporting material attached. Ms Brooks, an experienced officer from the Cafcass High Court Team prepared a report addressing D’s views in respect of returning to the Republic of Ireland; whether D objects to returning to the Republic of Ireland and D’s maturity. She gave oral evidence.
 The court has had the benefit of detailed skeleton arguments from both counsel. Ms Thain now represents the mother and relies on the skeleton argument lodged by Mr Crossthwaite, who represented the mother at the last hearing. Each skeleton carefully analysed the relevant issues and were of great assistance to the court.
 This area of the law has recently been the subject of a detailed consideration by the Court of Appeal in Re M (Republic of Ireland) (Child’s Objections) (Joinder of Children as Parties to Appeal)  EWCA Civ 26.
 In that judgment Black LJ comprehensively considered the legal principles that underpin cases that concern children’s objections in this type of case.
 In relation to the gateway stage she stated at paragraph 69 ‘In the light of all of this, the position should now be, in my view, that the gateway stage is confined to a straightforward and fairly robust examination of whether the simple terms of the Convention are satisfied in 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 his or her views. Sub-tests and technicality of all sorts should be avoided. In particular, the Re T approach to the gateway stage should be abandoned.’
 If the gateway stage is crossed the court is then required to go on and consider the court’s discretion as to whether to order a return. In relation to the discretionary stage she stated at paragraph 71 ‘.......It would be unwise of me to attempt to expand or improve upon the list in §46 of Re M of the sort of factors that are relevant at that stage, although I would emphasise that I would not view that list as exhaustive because it is difficult to predict what will weigh in the balance in a particular case. The factors do not revolve only around the child's objections, as is apparent. The court has to have regard to other welfare considerations, in so far as it is possible to take a view about them on the limited evidence that will be available as part of the summary proceedings. And importantly, it must give weight to the Hague Convention considerations. It must at all times be borne in mind that the Hague Convention only works if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly. To reiterate what Baroness Hale said at §42 of Re M, "[t]he message must go out to potential abductors that there are no safe havens among contracting states".
 The parties married in Bangladesh in 2001 and moved to Ireland to live in 2002. They became Irish citizens in 2007. D was born in 2005 and A in 2012.
 The mother alleges that throughout the marriage the father has been violent to her and also to the children on a regular basis. He would slap, punch, kick, head butt, push and shove the mother with such force that she would end up with injuries, including bruising. She alleges the father was very controlling, eventually stopping her having any contact with her family. She describes occasions when the father locked her out of the family home. The police were called on a number of occasions but the mother did not feel she could press charges. In 2012, she describes an occasion when the father tried to strangle her and threatened to kill her. She also alleges he was also sexually violent to her and raped her.
 The mother alleges there were incidents of the father being violent to D, he would kick and slap him hard across his head. He has also threatened to kill D and has intimidated him with a knife. As a result the mother alleges D is extremely frightened of the father. She also describes occasions when the father has been violent to A by pushing and shoving him to the extent that he too is also scared of the father.
 According to the mother the last incident of violence took place on 3 June 2014 when she alleges the father seriously assaulted her. He attacked her with a knife and she fled from the house, taking the children with her. The mother called the police who arrested the father. She and the children went to a women’s refuge in Ireland, but the father found out her location and began following and harassing her. In early July 2014 the mother obtained a barring order, but this did not prevent the father from continuing this behaviour. The details are set out in the letter from the refuge in Ireland. The mother left for the UK with the children on 21 July 2014 to escape from the father. She is currently living in a refuge with the children.
 Even when she was in the UK the mother became concerned the father was attempting to find out where she lived. He had contacted the Child Abduction Investigation Unit and issued an application for summary return under the Hague Convention on 27 November. Location orders were made by Parker J. At around the same time the mother applied to the Family Court at Staines for a prohibited steps and child arrangements order, along with a non-molestation order. The court ordered that mother’s address should remain confidential, gave permission for the statements filed in those applications to be served on the Child Abduction Investigation Unit and “the relevant court dealing with any issues in respect of the children in Ireland” and listed the matter for hearing on 22 December 2014. Those proceedings have now been stayed in the light of the father’s application under the Hague Convention.
 The mother has exhibited evidence from Kerry Women’s Refuge & Support Services which details the father’s continuing harassment of her and from the current refuge where the family are staying about the impact on D of the abuse he has suffered and witnessed. His behaviour is becoming increasingly difficult, in particular to his mother. He appears to have less difficulty at school. A referral for D has been made to CAMHS due to his anger, aggressive behaviour and self-harming. He was assessed by them in early September and I was informed by Ms Thain that he has just started play therapy, he is on a programme for 9 weekly sessions and the expectation is that he will need more.
 The father denies these allegations of violence. He describes in his statement his relationship with the children ‘I have a wonderful bond and relationship with my children and I miss them terribly and am confident they miss me to. I would always play games with the children..’. His wish is for the family to reunite. He was present during this hearing and his counsel submitted that the father’s primary wish is for the mother and children to return to live with him.
 Ms Brooks was directed by the order of Newton J on 11 December 2014 to file a report addressing D’s views in respect of returning to the Republic of Ireland; whether D objects to returning to the Republic of Ireland and D’s maturity.
 She saw D on 19 January 2015. He had attended the appointment with his mother and a support worker from the refuge. When they were all still together she said she explained the purpose of the meeting and the orders that had been made by the court. She then saw D separately. In response to her question if he knew why he had come to see her, he said ‘to tell me about his Dad’. Her report continues ‘I told him that the judge has asked me to speak to him to find out what he would like to happen and to write a report. He said that if the judge sends him back to Ireland that his father would ‘kill him’. [D] told me that his Dad had hurt him. I asked him what he had done. He said he had punched him in the chest and he showed me by punching himself. He said it had hurt and he had cried.’
 A little later in her report she states ‘I asked [D] if his father hit anyone else. He told me that his father hit his mother and that there was a time when she in the bedroom and she was shouting ‘save me’, then his father took him out to play so he could not do anything for his mother. He looked at me and sadly said that he did not have any choice, he had to do what his father told him. He said his father also hit his little brother [A]. I asked him if he could remember any good times with his father, he thought for a couple of seconds and said ‘no’.’
 She showed him the emotions stickers, he picked out the scared face when asked how he would feel if the father walked through the door and the angry face to depict his father. He told her he felt safer living in England and said when they were in Ireland the father found out where they were living but he can’t find the refuge in England.
 She said she asked D what he would do if the judge said he had to go back to Ireland and he repeated that he can’t go back to Ireland as his father hits him. He said he would be sad, crying and worried if he went back to Ireland. She asked if his mother went back with him would that make any difference. She reported he struggled with the concept of ‘difference’ but decided it would not make it any better, he would still feel sad and frightened. She asked him if he had three wishes what they would be, he replied ‘for his Dad to die, he corrected himself and said for him to go away for ever’.
 During their interview when she was asking about his school he saw her writing the details down and became very anxious that the father would get the details and know where his school is.
 Ms Brooks spoke to the social worker. The family were referred to social services due to D’s deteriorating behaviour. The social worker reported to Ms Brooks that in her view D is a ‘troubled little boy, who has obviously witnessed domestic violence’. He had told her that he worries about his mother being hit, his father finding them and asking him to tell him where his mother is living. D had described to the social worker how the father had hit him in the chest and when asked what his father is like D had responded his father ‘likes hitting me, mum and [A]’. D had told the social worker he does not want to go back to Ireland and to his father as they would then not have escaped. His father would lock all the doors of the house.
 In terms of D’s age and maturity the CAMHS assessment in September concluded that D ‘presents with emotional problems due to the long lasting domestic abuse he experienced’. They considered his ‘understanding and responding appeared to be lower than for his age group’. The social worker reported to Ms Brooks that she considered D may have some developmental delay as when she was undertaking direct work with him he would struggle to answer some of the questions. Ms Brooks said she had the same experience although noted that the school had not observed this.
 Ms Brooks in the section of her report that considered wishes, feeling and objections stated ‘[D] says his father has hurt him and that he is frightened of him. I find this credible considering his demeanour and from what he told me. I believe he has been hurt by him. This informs his objection to returning to Ireland. His fear is so great that he wishes his father would disappear for ever. I believe that his views are his own and he has not been unduly influenced by another adult. His non verbal behaviour throughout the interview was that of a very wary anxious child. When talking about his father and what he had done to him his mother and his brother [D] would continually crumple his face to control his emotions. His face would relax when talking about going to a toy shop but then immediately tighten and twist when I returned to talking about Ireland.’
 She concludes her report with the following assessment ‘I believe that [D] has experienced and witnessed domestic violence. His objections to being sent back to Ireland are founded on the violence he suffered from his father and reflect his belief that he would not be safe in Ireland. Observing his fearful and anxious behaviour in our meeting I felt that these are genuinely his views, formed in the light of his own experience and not the product of any undue influence.’
 She also considered that there were unlikely to be sufficient protective measures that could be put in place in Ireland that would be viewed by [D] as being safe to protect him, his mother or his brother. Therefore she concluded that for D to be returned to Ireland he would be placed in an intolerable position.
 In her oral evidence Ms Brooks was pressed by Mr Jones on why she had not explored with D specifically the possibility of returning to Ireland as against going back to the father. She said she had raised with him the prospect of going back with his mother but he considered he was still not safe. It was suggested to her that effectively D was not objecting to the return to Ireland it was the father he was objecting to, she disagreed and said in D’s mind he doesn’t want to go back to Ireland, it was where he was living with his father and he didn’t feel safe. She said D equated going back to Ireland with an unsafe situation. She agreed she did not discuss the option of going into foster care with D as that was not really being put forward as an option. She agreed she did not specifically explore with D the option of returning to Ireland and not seeing his father. She said when she tried to explore safe ways of returning to Ireland, such as with his mother, she observed him become very frightened. She said her impression was D equated returning to Ireland as being unsafe and frightening place where his father was. She agreed D was not a very mature boy but did not consider his responses to be unusual bearing in mind his experiences.
 Ms Thain explored with Ms Brooks in her oral evidence her assessment that D objects to a return to Ireland and his level of maturity. She said ‘based on his experiences, what happened in Ireland, fear of the father, how they escaped and how he now feels safe in England. From his point of view as a 9 year old saying please don’t send me back to where I am going to be frightened and where the person I could depend on [the father] could kill him.’
 The father’s position is that he seeks an order for the return of the children to Ireland. He notes that the mother has stated she will not return with the children, but considers if the court made such an order she would do so.
 In terms of protective measures he agrees he would not pursue criminal proceedings for abduction and would not seek to contact the children unless agreed to by social services in Ireland. He acknowledges that he cannot care for the children if they do return to Ireland without their mother and submits that they should be placed in foster care. There is no information as to the availability of any such placement.
 The father does not wish the children to be separated, so that if the court considers the defence is made out in respect of D he does not seek the return of A. 34.If the court does not order the return of the children the father seeks direct contact with them before he returns to Ireland on Friday.
 It should be recorded that there was an incident in the narrow corridor outside court during the short adjournment at this hearing. As the mother was coming into court with her solicitor, the support worker and my clerk it was noted that the father seemed to be filming them on his phone. The father was asked to stop. Mr Jones his counsel viewed what had been filmed and observed the father delete the film. In court Mr Jones apologised on behalf of the father for this behaviour. The explanation put forward on the father’s behalf was that he wanted to film the court building to show his mother when he returned to Ireland. There was obviously not a full investigation of this incident and I did not hear the father give oral evidence about it. This incident plays no part in my decision but it does raise the question, if the father’s explanation is correct, as to why if he wanted to film the building to show his mother he happened to choose a narrow internal court corridor which included footage of the mother.
 The mother’s position is as outlined in her statement. She agrees to a prohibited steps order preventing removal of the children from the jurisdiction continuing and will lodge her passport with her solicitors. The stay that is currently on the proceedings she issued in Staines should be lifted and that court can consider the wider welfare orders concerning the children, including what, if any, arrangements should be put in place for the children to see their father.
 Mr Jones does not concede the gateway requirements are met. He submits the court should be cautious in accepting that D has the level of maturity in which it is appropriate to take account of his views. He relies on what is said by CAMHS, the social worker and Ms Brooks about his immaturity. In addition he submits that D does not object to the return to Ireland, it is a return to his father’s care that he objects to.
 If the court does find the gateway requirements are met Mr Jones submits the court should exercise its discretion to return the children. The protective measures proposed would meet the concerns expressed by the children and in the event of the mother not returning with the children arrangements could be made for the children to be placed into foster care.
 Ms Thain submits this is not a mother refusing to return with the children as a way of holding the court to ransom. The mother’s position she submits is justified and genuine on the particular facts of this case. It is clear this is an issue that she has raised with the refuge here and her mental health position has at time been fragile. She relies, in particular, on entries in the chronology from the refuge, for example on the 12 and 13 November where the mother was referred to the mental health crisis team. On the mothers account she has had first hand experience of protective measures being in place in Ireland and not being an effective way to protect her or the children from the father.
 She submits whilst acknowledging the Hague Convention consideration, that it is generally better for disputes concerning children to be decided by the courts of habitual residence, this becomes weaker the longer the children have been away from that country. Ms Thain submits when balanced with other considerations such as the strength and nature of D’s objections to a return to Ireland, the interference a return would have on the play therapy that has started, and the likely adverse effect a return would have on D’s already difficult behaviour the court should exercise its discretion and refuse to order a return.
 I have carefully considered the written evidence and the oral evidence of Ms Brooks. This is essentially a summary procedure where this court is not in a position to make findings, but has to assess the evidence in the context of the principles the court is bound by.
 In this case the father denies the allegations that are made against him by the mother and D. This court cannot make any findings and those matters will have to be considered in the context of a contested hearing where oral evidence is given by the parties.
 I am satisfied the gateway requirements are met on the evidence I have. In my judgment D objects to being returned to Ireland and has attained an age and degree of maturity at which it is appropriate to take account of his views. He is 9 years old and whilst there is some evidence that his understanding is lower than his chronological age, Ms Brooks in her assessment considered his objections were founded on his actual experience and reflected his belief that he would not be safe in Ireland. She felt these views were genuine and were congruent with his behaviour which she observed when they met. They were based on first hand experience, rather than the product of any undue influence by others. I agree with this assessment which is supported by the interview she had and the other material that was available to her. The fears expressed by D were genuine and strongly held. Whilst it is correct it was difficult for D to separate his objections to a return to Ireland from a return to particular circumstances involving his father his objection to a return to Ireland due to his fears for his own safety remained. This was clear when Ms Brooks raised with him a return with his mother, which did not allay his fears.
 Turning to the question of discretion I have in mind the matters set out by Baroness Hale in Re M and another (Children) (Abduction: Rights of Custody)  UKHL 55 (in particular at paragraph 46). I, of course, give weight to the important policy considerations underpinning the Hague Convention. This Convention can only work if, in general, children who have been wrongfully retained or removed from their country of habitual residence are returned and returned promptly.
 However, as the cases have made clear, there are other considerations the court needs to factor in. The discretion the court has is wide and is not determined by the children’s wishes.
 The availability of protective measures in this case may not, on the facts of this case be effective. The mother and children had fled the family home in Ireland after an alleged assault on her by the father. After calling the police she and the children had been placed in a refuge. There is no dispute that the father made contact with the mother, although there is an issue as to the precise circumstances. The mother obtained a barring order, which is in similar terms as a non molestation injunction here. It was following the father allegedly breaching the terms of that order the mother made the decision to come to this country with the children. Therefore the mother and D have direct experience of orders being made to protect them not being effective in Ireland. This has to be viewed in the context of the father still wishing the family to be reunited. This was made clear in the submissions made to this court; that is his first position. The protective measures proposed are unlikely to address the fears expressed by the mother or D.
 D has started to have the therapy recommended by CAMHS. The first of 9 weekly sessions has taken place and it is likely to be extended. This has to be looked at in the context of his deteriorating behaviour, in particular his violent and aggressive behaviour to his mother. The situation is not only being supported by CAMHS but also by therapy within D’s school and the involvement of social services and support within the refuge. Even if such support could be provided in Ireland a return now would disrupt this important work and there is no information as to timescales as to when it could re-start in Ireland.
 It is right that if the children stayed here that may place obstacles in them being able to resume their relationship with their father. Mr Jones rightly says that would cause the father difficulties. However he did make it clear if the children remain here the father would participate in the proceedings here that are currently stayed. The reality is that issue is more likely to be determined here in a more timely way, the proceedings are already before the court and the necessary work and support for the children is already in place. If they returned to Ireland fresh court proceedings would be required and there would be inevitable disruption in the therapeutic support being available. This would very likely be detrimental to D’s emotional difficulties.
 The views expressed by D are in my judgment clear. His objection to being sent back to Ireland is founded on the violence he reports he suffered from his father, and he genuinely believes he would not be safe. I accept Ms Brooks’ assessment as to the genuineness of his views and those fears. He has had direct experience of protective measures in Ireland not working. His emotional state is particularly concerning and it is clearly important that he continues to receive the support he is currently receiving, with as little disruption as possible. It is right to carefully consider his age and level of maturity and what is said about his level of understanding, but it is clear in the way he expressed himself to Ms Brooks he had a rational base for his views. It was noteworthy that he expressed considerable anxiety when he thought details of his current school might be disclosed to his father and his fears did not reduce when he was asked to consider a return to Ireland with his mother.
 Whilst I can’t rule out that the mother would accompany the children if the court did make an order for their return I consider on the facts of this case that is unlikely. This is not, in my judgment, one of those cases where the mother is taking a position to influence the outcome of the case. The rationale for her position is based on her own experience of protective measures in Ireland previously being insufficient to protect her and the children from harm. Her mental and emotional fragility is evident from the information provided by the refuge. A return to Ireland is likely to have real risks to her emotional stability.
 Having stood back and weighed the various factors and reminded myself of the importance of the Hague Convention considerations I have reached the conclusion that there are strong reasons to exercise the discretion not to order the return of D to Ireland particularly in the light of his age and understanding, the strength and rationale of his objections and his emotional vulnerability.
 Having reached that conclusion it is not necessary for me to consider the Article 13 b) ground.
 In the light of my conclusion about D and the father’s position about A not being separated from D, I refuse the father’s application for the return of both children.
 I will hear counsel as to the terms of any order.