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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 >> Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) [2019] EWHC 490 (Fam) (06 February 2019) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2019/490.html Cite as: [2019] EWHC 490 (Fam) |
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| MR |
Applicant |
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| - and - |
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| JN |
Respondent |
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| Re: Q & V (1980 Hague Convention and Inherent Jurisdiction Summary Return) |
____________________
Christina Omideyi (instructed by Wilson Solicitors) for the Respondent
Hearing dates: 30th January 2019
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Crown Copyright ©
Mr Justice Williams :
The Parties' Cases
a. Following the separation in September 2010 the children lived with her and in the court proceedings she was assessed by a psychologist who concluded that she was properly looking after the children. She asserts that the psychologist concluded that the father would hinder the mother's time with the children and limit co-decision making in matters regarding them were they to live with him. The court noted he had good relations with them and ordered contact with the children.
b. The mother makes a brief reference to having received treatment for domestic abuse at some point in the past she also alleges that the father has been convicted for killing a man and has killed a woman.
c. The appeal hearing was a violation of her rights to a fair trial and that the court's conclusions were incorrect and false. She says the court incorrectly stated the children wanted to live with their father despite them not having been heard.
d. The children opposed a change of residence and the mother sought to vary the order. Mother alleges the father was harassing her and that the police were searching for the children and that the father abducted V from school by force.
e. At a hearing on 7 November 2014, Q told the court he did not want to live with his father and said his father would set them up against their mother and isolate them from her and that he was not interested in their emotional or medical needs. The court ignored this and on 24 February 2015 Q was taken to his father's. The mother alleges that her application to enforce contact with V was unlawfully rejected by the court.
f. The mother filed a complaint with the European Court of Human Rights in February 2015. It is not clear what has happened to this complaint.
g. She alleges that the father was hostile during contact with the children which took place for a while at his home before switching to school and after a further court and Cafcass enquiry staying contact commenced.
h. The mother alleges that the father neglected her son's education, his health needs and failed to meet their basic physical needs for clothes or food. Enquiries by the court were limited to one interview in which the 'curator' concluded that the children were learning well and that the father did not neglect their needs.
i. In July 2017 the mother says V complained about chest pain and said it had happened before in February 2015. She says the medical records show that in February 2015 V had a life-threatening supraventricular tachycardia attack. She says that the cardiology clinic indicated that when symptoms returned, a doctor or an ambulance should be called. The mother says that the father failed to take V for appointments and told V when she complained to him about pain that she was okay. She says that during contact she took V to a cardiologist who wanted an ECG record and identified treatment. The mother says that she made a request to the court for the father to forward the ECG records. She says the father denied the illness. Also in October 2017 she says V began to write SMS messages indicating she was having suicidal thoughts and the mother took her to a psychologist who assessed that the atmosphere in the father's house was bad for the mental state of the child.
j. The mother says that V was bullied in her school and although the father intervened the situation did not improve following which the mother says the father denied the whole situation with school, V, and the court.
k. The mother says she took Q to a psychologist who recommended therapy for addiction to computer games.
l. In February 2018 the court was involved and the children were asked by the court who they wanted to live with. The mother says that they told the court they wanted to live with her but the court declined to transfer residence because they did not say anything bad about their father
m. In Easter 2018 the mother says that V was suffering chest pains and she was at home alone. The mother says she went to the house and called an ambulance who took her to hospital. The mother says that when the father arrived he denied that she had a cardiac problem and that the hospital staff examined V and concluded that she did not have supraventricular tachycardia but sinus tachycardia caused by strong emotional agitation. The mother says after this that V asked to go home with her mother and that an argument then developed because the father and grandfather tried to prevent the mother and V going to the mother's home. The mother says the police were called by the father and V said she wanted to go with her mother.
n. Since then the mother says she has taken over the care of V. She says V has seen a psychologist and a psychiatrist to address the basis of her ailment. She says V did not return to school following a doctor's recommendation.
o. She says that the district prosecutor commenced an investigation into the psychological abuse of the children by the father. [One of the documents the mother has produced in Polish appears to confirm an investigation was opened. The letter from the father's lawyer asserts that the enquiry was closed in August 2018.] The mother says that at a hearing on 15 November 2018 her lawyer requested the results of the investigation but the court dismissed this as being late.
p. After V moved to live with the mother she says that the father prevented Q from going to school and left him with the grandparents before he moved to live with her. She says this occurred on 12 April 2018 and that there were blows and physical fights between the father and Q. She says he continued to go to school and did outstanding work. The mother says that whilst he had been living with his father he had not been treated for a problem with his larynx. The mother says that the father continued to neglect this medical condition and refused to accept the treatment was needed. The mother says that in June 2018 she took Q to a specialist clinic who carried out a medical procedure to remove a blockage.
q. The mother says that there were further proceedings in Poland (I think after April 2018) and that a curator talked to V and made a report.
r. She says that after the children moved to hers the father saw and heard from the children regularly until the end of June 2018. She elaborates on this which seems to state that in fact the father did not see V but had contact by phone and text save for seeing her at school at the end of the school year.
s. The mother says that in August 2018 she saw a paediatrician who had previously issued certificates (I think to the father in respect of the children's health) and that he had completed them solely on the basis of what the father told him and he refused to correct them even when shown documentation about the children's medical conditions.
t. The mother alleges that the father delayed initiating Hague Convention proceedings to take financial advantage of the situation and obtain financial orders against the mother. She says that he has wrongly secured the sale of the mother's apartment in Warsaw and has been misusing the funds.
u. She says that the father has tried to conduct proceedings against the mother in Poland in her absence to deprive her of parental authority and to impose punitive measures. It seems there was a hearing in November 2018. She says that the father withheld material from the court. She also alleges that he has bypassed the English court and is probably planning to abduct V before the hearing.
v. Attached to her statement are exhibits which are said to support Q's medical problems, V's admission to hospital, the mother's application to the European Court of Human Rights, the commencement of an investigation by the police in April 2018, a psychological recommendation in respect of Q and his computer addiction, a referral of V in December 2018 for a cardiac issue, and some school documentation.
a. Grave risk of harm or other intolerability arising from
i. the father neglected the children's needs physical, medical, educational and emotional and would continue to do so if they were returned to his care (grave risk of harm),
ii. the children are exposed to the conflict that the father creates in respect of their contact with the mother (grave risk of harm)
iii. living with him would be against their clear and long held wishes (intolerable)
iv. returning V would separate the two siblings (intolerable)
v. returning the children would separate them from their mother (intolerable)
b. Child's objections in respect of V.
c. Returning Q contrary to his expressed wishes would be contrary to his welfare given his age and maturity and his well-founded desire to remain in England with his mother, sister, and the rest of the family here.
a. The evidence shows that V is capable of providing an accurate factual history in respect of how she came to move from her mother to her father in 2014 and thus her account in respect of other matters such as her health problems, school problems her desire to live with her mother and her dislike of her father should be also taken as accurate.
b. Her account is authentically her own, is strongly held and should carry great weight.
c. If the court is exercising its discretion her welfare points to her remaining here.
d. Q is mature and articulate and he also has expressed good reasons for wanting to remain with his mother. His account also can be considered to be reliable and should carry considerable weight.
e. The evidence shows that if the children are returned they will be returned to a highly conflicted situation where they will be unable to have a proper relationship with the mother.
f. Returning the children to their paternal grandparents would remove them from the care of their mother and place them in the care of somebody who they are not close to.
g. The evidence shows that their living conditions in Poland were unsatisfactory, neglectful and harmful. The father's failure to address V's medical problem create a grave risk of harm.
h. The children should not be separated; they have suffered together and are a support to each other.
a. After the initial separation the children remained with him but were then taken by the mother to live with his brother. Initially the district court provided for the children to live with their mother in October 2013 but the Court of Appeal ordered that they should live with him. He says that the mother did not comply and ran away with the children, the police located the mother, and in due course the mother returned to Warsaw and father then collected V from school and she lived with him. In respect of Q the court ordered the mother to return him to her care and this was undertaken with the help of police and court officials. The father says that at some point during this process Q said that he wanted to live with his mother but the court psychologist concluded that he was not saying this voluntarily. Subsequently he says Q wrote a letter indicating he wanted to live with the father.
b. The father says that the mother made various allegations against him whilst the children were living with him alleging he had mistreated the children. He says that these were false allegations and they were dismissed after having been checked by the Prosecutor's Office. He says this was the case in 2018.
c. Whilst the children lived with the father they had regular contact with the mother initially at his home then it was extended to every other weekend.
d. The father denies the mother's allegations in respect of V's medical problems. He says that he took her for medical appointments including in 2015 when she suffered chest pains. The investigations revealed no heart defect. He produces very brief documents confirming the children are healthy.
e. The father alleges that the mother began to influence the children seeking to persuade them that they were unwell. He denies that V had suicidal thoughts. He says he's never seen such messages and nor has anyone else. He says this particularly happened when the children were staying with the mother at weekends. He seems to agree that the children were seen by the court and says the court concluded the children were being forced by the mother and they did not say anything bad against him.
f. In respect of the bullying he says that the school investigated the mother's concerns which were not made out. He says V had friends at school. He says she got an outstanding achievement certificate at the end of the 2017/18 school year even though she wasn't attending school after April 2018.
g. He says that in April 2018 he had taken Q to a medical appointment and whilst they were at the hospital the mother took V to another hospital on the basis that she was suffering a heart problem. He says at the hospital she was examined and she was not found have any problem. He says the mother argued with the hospital about it before disappearing with V.
h. In relation to Q's health, he says an ENT doctor identified some minor problems with his sinuses but said that treatment was not obligatory.
i. He says that later in April Q did not come home from school and he went to the mother's home address but no one was there. Later he went to Warsaw to collect them and spoke to the mother's partner, who told him that he would not see the children any more. He said he was unable to speak to the mother. The police were called as the mother's partner threatened him but they had no power to remove the children.
j. Since April 2018 he says he has had almost no contact with the children and has not seen them. He says there was one occasion when he spoke to V and she was crying on the phone.
k. The father denies manipulating medical experts, being convicted of killing anyone or wanting to re-abduct V. He alleges that the mother herself has been accused of abducting another child and produces a copy of the indictment against her.
Q's views
a. Q does not truly object to returning to Poland; he has positive memories of it. Although he says he does not want to live with his father his reasons are not substantiated and it is a reasonable inference that he is saying what he is in order to keep the peace with his mother and thus his expressed wishes and feelings must be discounted to take account of influence.
V's views
b. It is clear that V also has been influenced. She did not demonstrate any emotional connection with her complaints, being described by Ms Demery as flat. Her complaints mirrored those of her mother (inattention to health) and in interview she appeared to Ms Demery to be positive about school and yet when she wrote a letter later (in the company of the mother) she complained of being bullied. Having not seen her father, whether the influence arise from direct manipulation or absorption of the atmosphere the views she expresses are not authentically her own. They are not clearly an objection and may be a preference.
Harm
c. The allegations that the children were neglected by the father, that he left V alone, that there was no food, that he neglected their medical needs do not reach the Article 13(b) threshold. In any event the evidence establishes that the Polish authorities have investigated the mother's complaints and they have not been established.
d. The mother's refusal to return with the children cannot form a foundation for an argument of grave risk of harm on the basis of separation of the children from the mother. This would be a self-created and self-serving defence.
e. Nor can the mother rely on the children being returned to an atmosphere or environment of conflict when she is the cause of conflict in failing to abide by Polish court orders and by repeatedly making unfounded allegations.
f. Although it would be preferable for the children to remain together this is not a case where their separation would create an intolerable situation or a grave risk of harm. Baroness Hale noted in re E that when one is considering children of quite different ages and where one is on the cusp of leaving home in any event the consequences of separation may be quite different from separating two much more closely connected children who might be expected to live together for many years to come.
Discretion
g. If V's views are an objection then taking account of the factors which inform the court as to the weight to be given this is a weak objection. Ms Demery is clear that there is evidence of influence both in terms of what she says but also the school's concerns. She was not at all clear that she had got either V or Q's authentic views. There is also clear evidence that V has no perspective; her inability to describe anything positive about Poland or her father illustrates this and there are signs that they were content living with the father. Given the Polish authorities did not move them this suggests the concerns were not made out. It is likely that her expressed views would alter upon a return. At present she is having no contact with her father and this is not conducive to her welfare. When in Poland living with her father she had regular contact with the mother. Policy considerations in this case weigh very heavily given the mother has failed to comply with Polish court orders in 2014, has breached Polish court orders in 2018 and has abducted the children from Poland; the mother's wrongful actions should not be condoned. The Polish courts continue to hear proceedings concerning the children and as a matter of comity a return should be ordered.
h. Given the children's expressed wishes it may be that a return to the grandparents initially will ease their transition as suggested by Ms Demery.
Inherent Jurisdiction
i. Q clearly misses Poland and has not put down any roots in England. His any recently started to attend an English school so is not even in mainstream education. He can return to his high school where he has friends and where he was doing well. His removal to England was away from the country that he was born and brought up in. His description of missing hearing Polish voices indicates his connection with Poland. All of his extended family who he has relationships with are in Poland; his maternal grandparents and his paternal grandparents. Although he is 17, a summary assessment of his welfare shows a return would be in his best interests
Separate Representation
The court may make a child a party to proceedings if it considers it is in the best interest of the child to do so.
Chronology
| Date | Event |
| 28.03.1973 | Applicant Father born |
| 16.03.1977 | Respondent Mother born |
| 2000 | Parties begin a relationship |
| 2002 | Child, Q born |
| 2006 | Child, V born |
| September 2010 | Parties separate; children remain in Father's care What happened thereafter is the subject of some dispute. According to the order of the Warsaw provincial Court of 27 August 2014, on 2 November 2010 the mother applied to the district court for a residential order in respect of the children. On 26 May 2011 the father applied for a residential order and for contact. I note that this contradicts the mother's assertion that the father never applied for contact. The judgment says that both parents were active in bringing the children up until September 2010 with him looking after them single-handedly at times. In May 2010 the police attended an incident and the mother was placed in a mental institution. She returned to the family home in July and in September moved out to live with the father's brother. In October 2010 she rented a property and without informing the father took V from her nursery to live there and a few days later took Q. This appears to have been the commencement of a pattern of the mother taking unilateral action. There were problems over contact with police involvement as a result of the mother obstructing the father's contact; on one occasion she demanded money to buy a new kitchen in exchange for permitting contact. |
| 16.10.2013 | District Court X makes an order providing that the children live with their Mother; Father to have time with every Friday after school - Saturday at 18:00. Provision made for time with F over Christmas and Easter. The court concluded that the mother was emotionally labile, unpredictable and impetuous The respondent lacked insight, sought to avoid issues and was uncooperative Both children were at school in Warsaw, were neat and clean and good students both parents were involved with the school. The children viewed their father as more stable calm and interested in their problems. The 'expert' who was instructed concluded the children had emotional relationships with both parents but the mother's unpredictability and emotional lability meant she was unable to provide the children with stability and safety but the father could guarantee the children's welfare. The expert was of the opinion that the mother was manipulating her surroundings. The district court did not consider that the report and the good relationship the children had with the father justified changing residency where the mother's approach parental capacity was not challenged and was meeting the needs of the children Residency was set with the mother. |
| 27.08.2014 | Appeal. Order 16.10.2013 overturned and Court orders that Q and V live with their Father. The appeal court found that the district court's order was against obvious facts stating that the father can offer a better warranty of providing safety to the children and meeting their needs and that it disregarded the children's opinion that they do prefer the father as a parent who was more stable, calm and interested in their matters. The court considered that the provincial court had ignored the report of the court probation officer. The court considered that the mother's removal of the children from the father's care was significant as it disturbed their settlement and environment and that she had usurped the right to decide whether or not the children would see their father. This was the view of the probation officer who was working with the family. The court considered that the mother's actions in removing the children from the father and taking them away was an abuse of power and harmful to the children The court concluded that the father was calmer, composed, and knowing the needs of the children and whom the children saw as such. The court also concluded that the mother's commencement of a relationship with the father's brother was emotionally harmful to the children. Given the paucity of other documentary evidence from Poland relating to the court process or the involvement of the children with authorities this judgment seems to me to be a key document. It gives a clear insight into the views both of the professionals who worked with the mother and father at the time and of the Polish courts. Against the backdrop of that judgment some of the later events can be viewed with a clearer focus. |
| August - October 2014 | Mother refused to comply with the order. It seems to be agreed that she moved away for a period of time and that she refused to comply with the order. She clearly considered that there had been an injustice; she says as much. In fact in respect of much of the involvement of external agencies in the lives of the children where they have not agreed with the mother she has complained either of incompetence, bias, or other malfeasance. |
| October 2014 | V moves to live with her Father. |
| 26.11.2014 | District Court X orders Mother to hand Q to Father |
| 24.02.2015 | Q moves to live with his Father following successful enforcement of the order 27.08.2018. Mother makes referral to ECHR – not clear if application inadmissible or not pursued. |
| 24.11.2015 | M allegedly assists in abduction of child. It is not clear what the current position is in respect of criminal proceedings brought by District Prosecutor's Office. Given she remained in Poland for nearly 3 years after the indictment I wonder whether this in fact has been pursued. All one can say is that it is a piece of a jigsaw that is consistent with other examples of the mother taking unilateral action in respect of her own children |
| 2014 | M makes false allegation that F abused children; investigated but matter concluded without charge in 2015. |
| April 2016 | Polish court order that Q should attend school in X not Y as sought by the mother. |
| October 2014 - 2017 |
M has contact with child/ren in FMH on alternate Sundays |
| 2017 | M permitted to have alternate weekend contact |
| 2017 - 2018 | M makes 2 (unsuccessful) applications to change residence of children |
| 2018 | M makes allegation that F abused/neglected the children. Public Prosecutor discontinues the case without charge in August 2018. Both the mother and father make reference to complaints that the mother has made down the years about the father's care of the children. Whether that relates to his failure to address bullying at school, or his alleged failure to take V's medical condition seriously or to attend to Q's medical condition, leaving them alone, failing to feed them, failing to clothe them the authorities have been involved. The school investigated the bullying complaint. V seems to have been doing very well indeed at school and appears to have had friends. This does not suggest that either school or V or the father regarded any issue as a serious one; unlike the mother. It is clear that V was seen by doctors in relation to her alleged arrhythmia. The mother herself agrees that she was seen at the hospital and the mother herself agrees with the father that the doctor concluded there was no serious problem. However the mother infers that the doctor was either coerced or pressured by the father into saying there was no problem. This seems highly improbable. The mother's complaint is consistent with her other complaint that the father had secured medical notes in respect of the children by wrongdoing in relation to another doctor. Again this seems improbable and seems to me a pattern emerges of the mother making allegations in respect of those who do not agree with her perspective. The children were seen by a curator (who I assume is something equivalent to a court social worker) when the mother made a complaint. The curator appears to have reported that the children made no complaints about the father although apparently may have said that they wanted to live with the mother. The court did not act on their wishes. The mother complained that the curator did not do their job properly. What seems to emerge from all of the various strands of the mother's evidence and the father's is that these children have come to the attention of various agencies with a welfare interest down the years but none of them appear to have upheld the mother's complaints. However the mother has not been deterred and has continued to make complaints all presumably in pursuance of her desire to resume the care of the children. As Ms Demery observed this has led to chronic parental conflict although it would seem that the primary source of the conflict has been the mother's unremitting refusal to accept the Polish court orders or the father's ability to care for the children or the children's appreciation of their father's care. |
| 03.04.2018 | V taken to hospital by her Mother on pretext of emergency and from there removed to an unknown address. F says this was the last time he sees V. Although the mother says that the father has had contact with the children since even she accepts that in respect of V he has had no direct staying contact of the sort that she was having when the children were living with the father. Taking her position at its highest there may have been some telephone or text exchanges with the father perhaps seeing V once at school. This appears to be in stark contrast to the relationship that the father allowed the children to have with the mother when they were living with him. Notwithstanding his belief that the mother was seeking to undermine his care which appears to have been borne out to some extent by the enquiries carried out and of course is consistent with the mother's criticism of the father's care he did not end contact. |
| 12.04.2018 | Q removed from school by his Mother. I'm not clear of the circumstances in which Q came to move to live with the mother and V. It may be through the mother's pressure, it may be through unhappiness with the father's care, it may be because he wished to remain with V. Given the reports on the father's capacity as a parent and the children's relationship with him dating back to 2013 together with the involvement of various agencies dealing with the mother's complaints and the lack of substantiation of those it seems unlikely that there was any real problem with the father's care or any real problem with the children's relationship with the father. It seems likely that the children were exposed to the mother's unhappiness both with the situation generally and her view that the father was incapable of caring for them properly. Thus the most probable scenario for Q leaving is a combination of wishing to remain with V and the mother's pressure. It is clear that Q has a greater ability to connect with his father now than V does. The father describes V being upset during the one telephone call they had and perhaps she is less able to cope with the inevitable tension that exists when she is with her mother who so plainly critical of the father's capability as a father. Whether Q has seen his father at school or after school since then is perhaps neither here nor there. What is clear is that when he is with his mother a relationship with his father becomes very difficult to maintain. |
| August/September 2018 | The Applicant Father believes that the Respondent Mother has removed the children from Poland to England. |
| 31.08.2018 | Polish prosecutor drops investigation into mother's allegation in 2018 of father abusing the children and neglecting their medical needs |
| 04.10.2018 | Polish court orders mother to pay child support. |
| 05.11.2018 | F makes application to Polish Central Authority |
| 21.11.2018 | ICACU instruct Makin Dixon Solicitors Ltd. |
| 29.11.2018 | Application to the Royal Courts of Justice is issued for the summary return of the child. Mr Justice Newton made a number of disclosure orders and made a Location Order. |
| 13.12.2018 | Details of the Respondent Mother's whereabouts are sent to Tipstaff to execute the Location Order. |
| 18.12.2018 | Russell J provides for applications for both children to proceed, directs statements and for Cafcass to file and serve a report. Provision made for Skype contact with both children. |
| 21.01.2019 | Cafcass report. |
| 24.01.2019 | Final Hearing listed to take place at The Royal Courts of Justice, time estimate – 1 day. Vacated due to lack of Judge. |
| 30.01.2019 | Adjourned final hearing. |
| 31.01.2019 | hearing in Poland it is not clear what this hearing is for although from the document provided by the father's lawyer it seems clear there are ongoing cases. There is an old case III Nsm494/14 relating to the mother's applications for contact and changes of residence. A more recent case III Nsm228/18 relates to the father's application arising out of the mother's removal of the children from his care. Another case III 278/18 relates to financial penalties for removing the children from the father's care. |
The Children's Views
Q (45 mins)
a. Ms Demery described Q as charming. He is interested in art and IT and told her he spends a great deal of time on his computer. He told her he was in contact with all his friends on social media in Poland and said he only sees his college friends at college (I understand he commenced college in January 2019).
b. He speaks to his father every two days and they discussed music and stuff. He said they did not have a close relationship and that he would not choose to Skype his father but the judge made the decision and he is honouring that. He also said that he is speaking to their father to save V from having to do so. He said he is protective of V.
c. He described it as bad living with his father and he much prefers living with his mother. He said she takes care of everything. He said when he was with his mother he did well at school but not when he was with his father. He also said she had arranged for him to have an operation and that he no longer need to take medication. He said that although both of them were living with his father that was a result of a court decision but both he and V wanted to live with their mother. He said the whole of the time he was living with their father he wanted to be with his mother.
d. He said he thought the grandparents on both sides would be missing them the most. He is in contact with his maternal grandparents. He said that when things had stabilised here he would go on holiday to Poland to visit his grandparents. When asked if there was anything about Poland that he missed he said he misses walking along the street and hearing everyone communicate in Polish.
e. He told Ms Demery that it was necessary for them to come to the UK as his mother could not get work. He said when he knew of the proposed move he was confused and had mixed feelings but he now very much wants to live in the UK. He likes the mother's partner.
f. He said whatever happens he wants to be with V and he did not think a judge would decide to divide them.
g. In his letter Q says he is 17 and has a little brother and sister. He said I don't really want to be [divided?] from them and he wants to stay with his mum. He asks me to think on my decision twice. He thanks me for reading the letter and prays that I won't separate them or send them back to Poland.
V (1 hour)
a. She impresses as intelligent and articulate which is borne out by the school report from Poland. Her maturity is commensurate with her chronological age.
b. She recalled how she had lived with her father for four years and that it had been shocking (in the sense of it being a shock) when she initially went to live with him as it happened suddenly. She recalled not seeing her mother and having to see her mother at school, and that initially Q had remained with their mother for six months. She found it hard being separated from her mother and missed Q too.
c. She described lots of family in Poland including maternal and paternal grandparents and said she missed all of her grandparents. She said she speaks to her maternal grandparents on the phone and commented on her paternal grandparents on her father's side. She said she missed her schoolfriends the most and is in contact with them on social media. Ms Demery thought it significant that during the interview she appeared positive about her Polish school but in the letter that she wrote after the interview and whilst with her mother she said 'I also want to say that I was very unhappy in Poland. Every day in school my classmates were bullying me and saying bad things that were upsetting me so much' Ms Demery wondered to what extent this was influenced by her mother; this being one of the mother's issues identified at paragraph 18 of her statement.
d. She has made friends at school and finds schoolwork easier than in Poland.
e. She said that she does not speak on Skype with her father. She said her father was very emotional when she was having contact with him by phone in Poland. She said she does not want to speak to him and she is unsure about whether she wants to see him. She said she does not miss him at all although she thought he might be missing her.
f. She told Ms Demery that the father ignored her when she talked to him about her arrhythmia and that he had not sent the results of her ECG examination to the UK. Ms Demery wondered whether this indicated she had been inappropriately drawn into the dispute by the mother. She told Ms Demery the father had told her not to tell her mother about her first arrhythmia attack and that he had essentially told her to ignore it.
g. She said that he would leave her alone at home when she lived with him for 10 hours and that there would be no food to eat and she recall this happening on several occasions. She also complained that he did not turn on the heating when she asked him to. She said his attitude to her mother was very upsetting as he would say that her mother was trying to turn her against him.
h. She said she gets on well with Q and that Q and her father argued a great deal. She said on one occasion it turned physical but she did not see it.
i. Ms Demery was unable to elicit anything positive from her about her father. She described him as tall and wearing grey clothes. She said she didn't want to return to Poland because of her father.
j. She described her mother is very lovely who cares a great deal about her and her brothers. She said she got on okay with her mother's partner
k. In her letter she said she decided to write it because she believed it could help her to stay in England. She said she knew that her mum wants the best for her and for her brothers. She said she felt really bad in Poland and it if she asked her father to help it felt really bad and he just ignored her. She says she hopes I understand their problem and will let her live a nice life in England.
Ms Demery's analysis
The Relevant Law
Article 13(b)
"'… 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) …; or (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…or
The judicial 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.
Grave risk of harm and intolerability
a. Re D (Abduction: Rights of Custody) [2006] UKHL 51
b. Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2011] 2 FLR 758
c. Re S (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 FLR 442
i) There is no need for Article 13(b) to be narrowly construed. By its very terms it is of restricted application. The words of Article 13 are quite plain and need no further elaboration or gloss.
ii) The burden lies on the person (or institution or other body) opposing return. It is for them to produce evidence to substantiate one of the exceptions. The standard of proof is the ordinary balance of probabilities but in evaluating the evidence the court will be mindful of the limitations involved in the summary nature of the Convention process.
iii) The risk to the child must be 'grave'. It is not enough for the risk to be 'real'. It must have reached such a level of seriousness that it can be characterised as 'grave'. Although 'grave' characterises the risk rather than the harm, there is in ordinary language a link between the two. A relatively low risk of death may be grave.
iv) The words 'physical or psychological harm' are not qualified but do gain colour from the alternative 'or otherwise' placed 'in an intolerable situation'. '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'.
v) Article 13(b) looks to the future: the situation as it would be if the child were returned forthwith to his or her home country. The situation which the child will face on return may depend on the protective measures which can be put in place to ensure that the child will not be called upon to face an intolerable situation when he or she gets home. Where the risk is serious enough the court will be concerned not only with the child's immediate future because the need for protection may persist.
vi) The source of the risk is irrelevant. I do not agree with Ms Papazian's assertion that a self-created risk (i.e. a mother refusing to return with the children or conflict created by the mother) cannot form the foundation of an Article 13(b) defence. The 'coach and four' doctrine deriving from C v C (Abduction: Rights of Custody) [1989] 1 WLR 654 has been substantially ameliorated following the judgment of Hale LJ in TB-v-JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 TB-v-JB (supra) and Potter P in S-v-B (Abduction: Human Rights) [2005] 2 FLR 878 and the Supreme Court decisions in Re E and Re S. Of course the court will evaluate carefully any assertion that a primary carer cannot return or any other alleged risk to the children arising out of some matter control over which is in the hands of the Respondent but ultimately the court must consider whether the grave risk of harm exists or not, whatever its source.
vii) Separation of siblings created by the return of one and not the other might create an intolerable situation. Re E (above); Re F (abduction: Article 13(b): psychiatric assessment) [2014] EWCA Civ 275, [2014] 2 FLR 1115; Re S (Child Abduction: Joinder of Sibling: Child's Objections) [2016] EWHC 1227 (Fam), [2017] 2 FLR 384.
viii) Allegations that the courts or authorities of another EU member state are either incompetent or biased and that they do not properly fulfil their functions will not found an article 13(b) defence unless there is the 'most persuasive compelling evidence' to support the contention: F-v-M [2008] 2 FLR 1263
ix) Where allegations of domestic abuse are made the court should ask whether if they are true there would be a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation. If they would then the court must ask how the child can be protected from such risk. If the protective measures could not ameliorate the risk the court mat have to do its best to resolve disputed issues of fact. It will be rare to hear oral evidence.
x) Article 11(4) precludes a non-return where it is established that adequate protective measures are available. The Practice Guide makes clear this is intended to address the situation where authorities have made or are prepared to make such arrangements. The Court of Appeal has said that protective measures includes all steps that can be taken – including housing, benefits etc as well as orders or undertakings. C (Children) (Abduction: Article 13 (B)) [2018] EWCA Civ 2834 (20 December 2018)
a. "'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""
b. As with risk of harm, the threshold is high as all children must expect a certain amount of 'rough and tumble'.
Child's objections
i) The gateway stage should be 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.
ii) Whether a child objects is a question of fact. The child's views have to amount to an objection before Article 13 will be satisfied. An objection in this context is to be contrasted with a preference or wish.
iii) The objections of the child are not determinative of the outcome but rather give rise to a discretion. Once that discretion arises, the discretion is at large. The child's views are one factor to take into account at the discretion stage.
iv) There is a relatively low threshold requirement in relation to the objections defence, the obligation on the court is to 'take account' of the child's views, nothing more.
v) At the discretion stage there is no exhaustive list of factors to be considered. The court should have regard to welfare considerations, in so far as it is possible to take a view about them on the limited evidence available. The court must give weight to Convention considerations and at all times bear in mind that the 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.
vi) 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 the child's own or the product of the influence of the abducting parent, the extent to which they coincide or at odds with other considerations which are relevant to the child's welfare, as well as the general Convention considerations (Re M [2007] 1 AC 619).
Exercise of Discretion
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 second, 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 article 12 of the United Nations Convention on the Rights of the Child, 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.
Summary Return under the Inherent Jurisdiction
[25]. Hence, in all non-Convention cases, the courts have consistently held that they must act in accordance with the welfare of the individual child. If they do decide to return the child, that is because it is in his best interests to do so, not because the welfare principle has been superseded by some other consideration
It is plain, therefore, that there is always a choice to be made. Summary return should not be the automatic reaction to any and every unauthorised taking or keeping a child from his home country. On the other hand, summary return may very well be in the best interests of the individual child
32. The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.
Discussion and Conclusions
Conclusion
