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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> BG v BG [2008] EWHC 688 (Fam) (08 April 2008) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2008/688.html Cite as: [2008] EWHC 688 (Fam), [2008] Fam Law 714, [2008] 2 FLR 965 |
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THE HON. MR JUSTICE COLERIDGE
This judgment is being handed down in private on 9th April 2008. It consists of 7 pages and has been signed and dated by the judge.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
AND IN THE MATTER OF THE HAGUE CONVENTION ON THE CIVIL
ASPECTS OF INTERNATIONAL CHILD ABDUCTION
AND IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF COUNCIL REGULATION (EC) NO 2201/2003
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
B-G |
(Plaintiff) |
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- and - |
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B-G |
(Defendant) |
____________________
Edward Devereux (instructed by John Bromfield & Company) for the Defendant
Hearing dates: 25th - 26th October 2007
____________________
Crown Copyright ©
Mr Justice Coleridge :
"Notwithstanding the provisions of the previous 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 establishes that –
(a) the person, institution or other body having the custody of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention."
"(1) For the purposes of Art 13 of the Convention, the question whether the wronged parent has 'acquiesced' in the removal or retention of the child depends upon his actual state of mind. As Neill LJ said in Re S (Minors) 'the court is primarily concerned, not with the question of the other parent's perception of the applicant's conduct, but with the question of whether the applicant acquiesced in fact.'
(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstance of the case, the burden of proof being on the abducting parent.
(3) The trial judge, in reaching his decision on that question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to his bare assertions in evidence of his intention. But that is a question of the weight to be attached to evidence and is not a question of law
(4) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced."
"He would like to pursue specific issue application in this country but that depends upon the progress of the case that he says is currently pending in France with his French lawyers. He said that nothing as yet has actually been issued in the French courts but he has been told that within the next few days that will happen and his lawyers are apparently highly optimistic that they will be able to get orders requiring her to return to France with the children."
"He said he has had some further thoughts and is prepared to sell up in France and return back to England and live close to where her and the children are living and be as fully involved in the children's life as possible. Ideally he would like an arrangement whereby they have one week with him and one week with her. He now feels that coming back to this country is a better course of action than trying to push for the return of the children to come over to France and he is prepared to wind things up in France and restart his life back in this country". (my underlining)
"The respondent has however on reflection decided that on the basis the applicant clearly intends to remain in England long term, and the basis that the children have already had one move back to the UK, that questions as to the children's future should be decide in this jurisdiction and he would not seek to challenge that. If necessary he will sell the property in France and wind up his affairs there to return to the UK and to achieve a child care arrangement which will allow him maximum involvement in his children's upbringing. The Respondent further acknowledges that if he is to remain living in France and the children remain living in this country, his contact will clearly be limited and it is therefore for this reason that he would prefer to return to the UK so there can be greater and more regular level of contact".
That note seems to be further confirmation of the father's state of mind then.
"(a) The F's acquiescence
(b) The fact that the children are settled, happy and well cared for her (see school [C91: "they have settled well and have made friends with children who live in the area"] and the CAFCASS report; and the M's affidavit).
(c) The emotional harm that will come to the children by their being uprooted from this country
(d) The fact that the children are British: their cultural roots are in the UK.
(e) All of the children's extended family, who they see regularly, are in this country and are British citizens (including their paternal grandmother and their half brothers and sisters): see [C5].
(f) The further emotional harm that will come to the children by being separated from the mother (she being prevented from returning to France because of her employment here which she needs to continue to allow her and the children to subsist, the F having no proper means of income at all).
(g) The proceeding here are well advanced with the appointment of a CAFCASS Reporter who has already carried out part of his investigation.
(h) The father has delayed significantly (which he does not adequately explain) in seeking to rely on his Hague remedy.
(i) The mother has shown herself to be willing properly to promote contact and to seek to involve the F in the Children Act proceedings: see, for example, extracts from the M's diary. She has not sought to evade the F or conceal the children from him.
(j) The F fails to provide sufficient undertakings to ensure the wellbeing of the M and the children if they were to return (see [C107]). Despite specifically being asked to in correspondence (and by virtue f the M's affidavit at [C20]), he provides no financial disclosure as to his means. He has widespread debts which he cannot meet: [F5 "he owes…thousands"; [F14]; [F43]).
(k) The M has always been the primary carer for the children"