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Re H, R and E (Children) [2013] EWHC 3857 (Fam)

Application by father under the Hague Convention for the summary return of three children to the Netherlands. Arts 13a and 13b of the Convention argued by mother. Return order made.

The father applied under the Hague Convention for the summary return of three children to the Netherlands. In opposing the return the mother argued that the father consented to the removal of the children pursuant to Article 13a of the Convention; that subsequent to the removal the father acquiesced to their living in this jurisdiction pursuant to Article 13a; and thirdly that the children would be at grave risk of harm and/or would be placed in an intolerable position if the court were to order their return to the Netherlands pursuant to Article 13b of the Convention.

In a review of the authorities in relation to acquiescence and/or consent the court confirmed that acquiescence is a subjective state of mind, it is a pure question of fact and the burden of proving it is on the abducting parent. The court said that judges should be slow in inferring acquiescence from attempts to reconcile or agree a voluntarily return. Furthermore consent needs to be clear and unequivocal although this can be inferred from the circumstances of the case.  H v H (Abduction: Acquiescence ) [1997] 1 FLR 872; D v S (Abduction: Acquiescence) [2008] 2 FLR 293; K (Abduction: Consent) [1997] 2 FLR 212; P-J (Abduction Habitual Residence : Consent) [2009] 2 FLR 1051; and TB v JB (Abduction : Grave Risk of Harm) [2001] 2 FLR 515 approved.

The court held that there was no evidence of anyone speaking directly to the father about the removal. Taken at its highest the maternal family's evidence was that the father would have known about the plan to move to the UK at a time when there were discussions between the families regarding reconciliation. Waiting two months after becoming aware of the removal to try and affect reconciliation was reasonable. The court found nothing in the father's conduct which could amount to acquiescence.

In respect of risk of harm the mother asserted that she had been physically and sexually abused by the father during the relationship. The court found that the mother had lied about the sexual abuse and there was insufficient evidence to support a finding of physical abuse. However the court proceeded on the basis of the mother's case in respect of the physical abuse for the purpose of the judgment. On either party's case there had been no contact between the parents from February and September 2012 when the mother moved to the UK. The father offered undertakings to regulate his behaviour towards the mother and the court was satisfied, based on the mother's ability to call upon the assistance of the Dutch courts and police and the father's undertakings, that there was no grave risk of harm.

Finally in the event the court had been wrong in its conclusion under Article 13b and the question of discretion arose, the court confirmed that it would unhesitatingly conclude it was manifestly in the best interest of the children to return to the Netherlands where they had lived all their lives prior to September 2012. Accordingly it was ordered that the children should be returned to the Netherlands.

Summary by Georgina Clark, barrister, Field Court Chambers
______________________

Neutral Citation Number: [2013] EWHC 3857 (Fam)
Case No:  FD13P00998  

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

The Royal Courts of Justice
Strand
London
WC2A 2LL
Monday, 2 September 2013

BEFORE:

MR JUSTICE KEEHAN
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IN THE MATTER OF H, R AND E (CHILDREN)
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MS G MORE O'FERRALL (instructed by Hopkin Murray Beskine) appeared on behalf of the Claimant
MR A PERKINS
(instructed by Maya Solicitors) appeared on behalf of the Defendant
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Approved Judgment
Court Copyright ©
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MR JUSTICE KEEHAN:  
1. This is an application under the Hague Convention for the summary return of three children from this country to the Netherlands.  The three children with whom I am concerned are H, who was born on 17 March 2005 and is therefore eight years of age;  R, who was born on 14 December 2007 and is therefore five years of age; and E, who was born on 7 October 2010 and is therefore two years of age.

2. The applicant in this matter is the father of all three children, S, who is 36 years of age.  The respondent to the application and the mother of all three children is R, who is 29 years of age.

Application
3. The father, as I say, seeks the summary return under the Hague Convention to the Netherlands of all three children.  That application was dated 24 May of this year.  The mother opposes the application for a return and bases her opposition on three defences:  firstly, that the father consented to the removal of the children from the Netherlands pursuant to article 13a of the Convention; secondly, that subsequent to the removal the father acquiesced in their living in this jurisdiction pursuant to article 13a; and thirdly that the children would be at a grave risk of harm and/or would be placed in an intolerable position if the court were to order their return to the Netherlands pursuant to article 13b of the Convention.

The Law
4. In relation to considering consent and/or acquiescence, I take account of the decision of the House of Lords in the case of H v H (Abduction: Acquiescence) [1997] 1 FLR 872, I take account of the principles identified by the House of Lords in that case.  Firstly,

"i) Acquiescence was a subjective state of mind.  In English law acquiescence was normally viewed objectively but under the Hague Convention it must have the same meaning and effect under the laws of all Contracting States.  Art 13 looked to the subjective state of mind of the wronged parent.

ii)  Acquiescence was a pure question of fact.  The court could infer the actual subjective intention from the outward and visible acts of the wronged parent.

iii) Judges should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect a reconciliation or agree a voluntary return of the abducted child.

iv)  The burden of proving that the wronged parent had acquiesced was on the abducting parent.

v)  The only exception to this general principle under Art 13 of the Convention was where the words or actions of the wronged parent clearly and unequivocally showed and led the other parent to believe that he was not asserting or going to assert his right to summary return of the children and were inconsistent with such a return."

5. I also take into account the decision in D v S (Abduction: Acquiescence) [2008] 2 FLR 293, that:

"The Hague Convention cases on consent required a true and unequivocal consent ..."

6. I accept as was submitted by Mr Perkins on behalf of the mother that consent and indeed acquiescence can be inferred from the circumstances of the case.  In the case of K (Abduction: Consent) [1997] 2 FLR 212 Hale J. as she then was, said at 217-218:

"It is obvious that consent must be real.  It must be positive and it must be unequivocal.  But that is a separate issue from the nature of the evidence required to establish it.  There will be circumstances in which the court can be satisfied that such consent has been given, even though it has not been given in writing.  It stands to reason, however, that most people who wish to retain or remove a child would be well advised to get written consent before they do so to place the matter beyond argument. There may also be circumstances in which it can be inferred from conduct."

7. And in the case of P-J (Abduction Habitual Residence: Consent) [2009], 2 FLR 1051 Ward LJ identified a number of principles which could be deduced from the authorities.  Those relevant to this application are as follows:

"(1) Consent to the removal of the child must be clear and unequivocal. 

(7) The burden of proving the consent rests on him or her who asserts it. 

(8) The enquiry is inevitably fact specific and the facts and circumstances will vary infinitely from case to case. 

(9) The ultimate question is a simple one even if a multitude of facts bear upon the answer.  It is simply this: had the other parent clearly and unequivocally consented to the removal?"

8. I accept and take account of the decision of TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, in which it was observed that in relation to evaluating whether there was a grave risk of harm, regard should be had as to the protective measures which could be put in place to ameliorate or alleviate such risks.

9. I also have regard to the provisions of Article 11(4) of the Brussels II revised regulation, which requires:

"A court cannot refuse to return a child on the basis of Article 13b of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return."

10. I further take account of a decision in A v A (Child Abduction) [1993] 2 FLR 225, where it was said that where an objection by a child to a return arises from a desire to remain with an abducting parent "little or no weight would be given to the views that the child so expressed."

11. Finally in relation to a finding by the court that one or other party has lied during the course of this hearing, I remind myself of the judgment of Ryder LJ in the case of Re M [2013] EWCA Civ 388, where he gave guidance as to the approach that should be taken when applying a modified "Lucas" direction in civil proceedings.

The Background
12. The full history of this matter is set out in a very helpful chronology filed by Mr Perkins on behalf of the mother.  For the purposes of this judgment, I refer only to the salient features of the background.  On 20 October 2003 the mother and father married in a civil ceremony.  On 17 March 2005 H was born.  Shortly thereafter on 5 May 2006 the mother and father went through an Islamic marriage ceremony.  In February 2007 R was born.  And on 15 May 2007 the family moved to their long-term address in Amsterdam.  On 7 October 2010 E was born.

13. The mother was born in the Netherlands, the father moved to live there before the parties' marriage.  There were plainly difficulties in the relationship between the mother and the father, which the father identified as having occurred after the parties returned from a visit to Pakistan, either in late 2010 or early 2011.  The father told me in evidence that the mother had changed and become different after she returned from that holiday. 

14. In October 2011 there was an argument between the parents.  The mother asserts that the father pronounced the talaq.  She alleges the father cut both his wrists in front of her and the youngest two children and that he made threats to kill her, the children and then himself.  And she asserts that the two youngest children were hysterical and that after that incident the father vacated the former matrimonial home and the mother asserts that the relationship ceased.  She says that the father did not see the children until February 2012.  The father does not accept that account and he asserts that he did leave the matrimonial home after an incident but only for about 10 or 15 days and he finally left the home after an event in February 2012. 

15. The parties are agreed that after this episode, whatever occurred, they both went to see the Imam with members of the maternal and paternal family accompanying them.  Having heard from both parties the Imam decided that a talaq had not been pronounced by the father.  The father did not accept the mother's contention that the Imam then gave advice to both of them about how to proceed if they wished in due course to divorce.

16. On 25 October 2011, there was a letter in the bundle received by the mother from the Amsterdam Department of Work and Income, which notified her that because she no longer had a partner her benefits would change.  That, of course, was a letter generated by an application made by the mother and the father asserts that he had no knowledge of that application being made.

17. In November 2011 the mother says that she started to receive telephone calls from the father and members of his family requesting her to consider reconciling with the father.  She was also contacted by a mutual family friend, Mr Shafiq, who was acting as an intermediary on behalf of the father. 

18. On 1 December 2011 the father signed what is termed in the Netherlands, "a bed and table separation agreement", he asserts that that was because he had certain debts and he and the mother agreed that if it was thought that they were separated it would safeguard and secure the position of the mother and the children.  The mother does not accept that and says that document was signed because it reflected the then reality of the family.

19. On 29 December 2011 the father registered a change of address with the Municipality of Amsterdam indicating that he had vacated the former matrimonial home to move to another address.  The father contends that that was again in agreement to avoid the mother and the children being affected by his indebtedness.  The mother does not accept that and says, once again, that it reflects the reality of their then lives. 

20. There was then an incident on 27 February 2012.  The father accepts that there was an argument between him and the mother on that occasion and during the course of that argument he sought to take the mother's mobile phone off her.  Other than that he denies there was any violence by him against the mother.  The mother asserts that there was an incident where one of the children accidentally caught R's finger in a door, which for some reason caused the father to become angry and he started slapping and punching the mother in front of the children.  The police attended, says the mother, as a consequence of a neighbour hearing her screams and calling the police.  The police did attend and the father left the former matrimonial home.  It is agreed between the parties that he did not thereafter return.

21. In her oral evidence before the court, the mother went somewhat further and accepted that from that time, 27 February 2012, the father did not again attend the former matrimonial home, he did not try to contact her directly or by telephone, he did not further assault her and the mother conceded he did not thereafter cause her any difficulties.

22. On 11 March 2012, the Dutch police prepared a report on this incident of 27 February and the mother made a statement to the police.  In April 2012 the mother attended and instructed Dutch lawyers to commence divorce proceedings.  On 10 April the divorce petition was issued on the basis that the mother was of the opinion that the marriage had irretrievably broken down.  It is plain and agreed between the parties that during this period after 27 February 2012 there were discussions ongoing, not directly between the mother and the father, but between members of the maternal family and members of the paternal family and/or Mr Shafiq about whether it would be possible for the parents to reconcile and when that might take place. 

23. It is of note that the mother accepts that in instructing a lawyer to issue divorce proceedings she did not tell any member of her family that she was going to do so or indeed that she had done so.  The maternal family and in particular the maternal grandmother only became aware of the divorce proceedings when they were contacted by members of the paternal family after the father had been served with the divorce petition.  The mother told me that the maternal grandmother did not wish her to proceed with the divorce proceedings.  She urged the mother to affect a reconciliation on the basis that the maternal grandmother or her generation did not pay particular regard to this use of domestic violence between a husband and a wife.

24. As I shall refer to in a little more detail in a moment, it is asserted by the mother that during the course of those familial negotiations the father consented to the mother taking the children from the Netherlands to live with her mother in the United Kingdom.  The father denies at any time consenting to or having knowledge of any plan for the mother to live with the maternal grandmother in this country.  Save and except until late August or early September 2012 when he attempted to telephone the mother, the phone was not answered,  and  he identified a different ringtone from that he would have  expected if the mother was in the Netherlands.

25. The mother told me, in evidence, that after 27 February she was in a particularly difficult emotional state, she was not capable of looking  after the children particularly well.  That position and assertion was accepted by the father who told me that, when he by way of the only contact he had with the children went to their schools secretly, he noticed they were not looking as tidy and clean as normal and concluded that the mother was struggling to take care of them.  The maternal grandmother in her statement asserts the same and says that it was her who raised the idea of the mother coming to this country to live with her, so that she may support her looking after the children.  The mother contends that the plan and the discussions between the family members were that she would come to the United Kingdom for a period of one year during which time she would reflect on whether she wished to reconcile with the father.  The father denies that that was ever the plan, he asserts that he was told by the intermediaries that the mother would make a decision that hopefully a reconciliation would be effective by the end of Eid, which in 2012, we have heard, was late August. 

26. On 1 September 2012 the mother left the Netherlands to move to live in Oldham with her mother.  It would appear that at least a number of the Dutch authorities were aware of the address where the mother was living because there is included in the bundle a number of letters, helpfully translated, which were sent; for example, by the benefits agency and health insurance agency sending letters in September and October to the mother in Oldham.  It is not clear to me how those particular agencies were made aware of the mother's address in this country. 

27. Somewhat confusingly on 2 October 2012 there is a document produced from the Municipality of Amsterdam which records the children leaving the Netherlands for the Republic of Germany.  Mr Perkins says that is a result of an error made by the mother when she was registering the fact that she had departed the Netherlands by wrongly selecting Germany as the country.  The date of 2 October, it is said, is the date when the mother, online, registered her departure and did not, it is said on behalf of the mother, reflect the date when she did.

28. After the father became aware that the mother was not in the Netherlands he told me, that he approached Mr Shafiq and Mr Shafiq advised him to leave the matter to him.  Mr. Shafiq told him that  he would try and find out what was going on and try and attempt to affect a reconciliation with the mother and to identify when the children would return to the Netherlands.  Accordingly, says the father it was not until he realised that that process was getting nowhere, that in December 2012 he instructed solicitors who fairly promptly sent an application to the Dutch Central Authority requesting an application be made under the Hague Convention to the return of the children. 

29. Between that date and May of this year there was a considerable delay in the Dutch Central Authority transmitting a request for an application to be made under the Hague Convention to the UK Central Authority.  I do not understand what caused that delay but I am entirely satisfied it was through no fault of the father's.  Subsequent to the issue of proceedings there has been regular telephone contact between the father and the children.  The father tells me that when nobody else is around that telephone contact goes well but if there is a noisy atmosphere or other people are around with the children they become easily distracted and do not talk.

Evidence
30. I heard evidence from the mother and from the father at the request of both parties.  Initially the mother sought to call evidence from a number of witnesses, particularly the maternal grandmother, the maternal uncle and a friend of hers, Miss Kion, in support of her contention that the father had consented and/or acquiesced to removal of the children.  Miss More O'Ferrall, on behalf of the father, did not seek to cross-examine any of those witnesses and on the basis of taking their statements at its highest I refused to permit  those witnesses to be called to give evidence. 

31. The father sought to call a number of character witnesses and their informal letters were exhibited to his statements prior to these proceedings.  Again I did not consider it appropriate for the character evidence to be filed in these summary proceedings but I have read and taken them into account. 

32. The mother, save for today when the father is not present he having returned to the Netherlands on Friday, took part in these proceedings over a video link and was not present in court, because she said she was terrified of the father.  When she gave evidence in court, it was behind a screen for the same reason.  The father speaks no English and so he gave his evidence through an interpreter and I make all due allowance for the difficulties that can result for a parent having to give evidence via an interpreter.  I have regard to the demeanour of the parents as they gave their evidence.  The mother was at times somewhat tearful but she gave her evidence, particularly her answers in cross-examination, forcefully and robustly. 

33. She told me that she didn't tell her family that she was going to see a solicitor to get a divorce and agreed her family only found out from the father's family.  Further she told me that her mother had shouted at her when she learned of the divorce proceedings and asked her why she had done this.  The divorce proceedings were withdrawn by the mother at the instigation of her own mother.  The mother accepted in evidence that Mr Shafiq had given the father hope that there would be a reconciliation and she agreed that Mr Shafiq had led the father to believe that there was going to be a reconciliation.  The mother asserted that the father knew very well that she was going to come to England with the children.

34. The mother asserted in her oral evidence that she found it very hard to talk about her allegations that the father had sexually abused her and that she had not told the Dutch police about her sexual abuse.  She said that she was raped by the father every day.  She said that her friend Miss Kion knew about it and that she, the mother, had seen a statement made by Miss Kion in which she set out her account of the mother telling her about the sexual and physical abuse that she had suffered at the hands of the father during the marriage.  But, said the mother, somewhat surprisingly, her solicitors advised her not to rely on that statement because it was not important and they had changed it so that the statement before the court did not refer at all to the mother telling Miss Kion of allegations of physical violence by the father or sexual abuse.

35. The father, when he gave his evidence, was in my judgment, quiet and measured.  He did not appear to me, albeit giving evidence in court of law, as the Jekyll and Hyde character described by the mother.  He accepted, when asked by Mr Perkins, that the fact that the mother had issued divorce proceedings against him was, as he put it, a bit embarrassing.

Analysis
36. In considering this matter and the decisions I shall make, I take account of all the statements that appear in the trial bundle and the various documents set out both as exhibits to those statements and also in section D.  I take full account of the oral evidence given by both the mother and the father and the submissions both written and oral made by counsel on behalf of the parties. 

37. By direction of the court at an earlier stage the CAFCASS Officer was directed to ascertain the wishes and the feelings of H, as the eldest child.  That report was prepared by Jacqueline Bartley and is set out in section C of the bundle.  The CAFCASS officer sets out in her report that she asked H why she felt happy when she said that her father loved her but unhappy when he, the father, asked her to return to the Netherlands.  It is recorded then that H told the CAFCASS officer that she didn't wish to go back to the Netherlands because she might not see her mother again, because the father will not bring her back.  She then told the CAFCASS officer:

"She then said that her father kept shouting and slapping her mother and she is scared of him.  I asked H whether her father has ever hurt her or her sisters and she told me he had not.  No one smacks them.  I asked how she knew that her father had hit her mother. She told me she saw it, she explained after I sought clarification, that she had seen her father hit her mother once and trap her sister's fingers in the door.  I asked if she could recall details, such as where she was and whether it was night or day.  She told me it was night time and that she was sitting with her parents in the living room and she spoke to both of them and said the same thing, she thinks she was telling them both to stop shouting but could not recall.  Her father then stretched over her and slapped her mother on the face.  I asked how old she thought she was at the time and she told me she was 3, 5 or 6 ...  She added that her mother is scared of her father because of the way he is.  I asked how she knew her mother was scared; she said she just knew."

38. There was then a discussion about whether she missed her father and about her life in England and H told the CAFCASS officer that she had more friends, she had a bigger house and a garden, she had her own bedroom, "In the Netherlands they had less and everything is small."  She told the CAFCASS officer that "her father did not shout at her often and she could not remember what he said if he did."

39. A little later, C6 of the bundle, H was asked about what would make her happy and unhappy and if she had to go back to the Netherlands she feared that her father would not let them come back to their mother.  And then this:

"I asked her to pretend for a moment that her mother could return with her and H then said she would be happy before correcting herself and suggesting she would still find it better to be here.  I discussed the possibility of her returning and she said she would not go without her mother."

40. In assessing the wishes and feelings and objections of H, the CAFCASS officer was of the view that H had a mix of feelings about her father and about a return.  She concluded:

"It seems to me that H would be extremely distressed if a return order was made and if this were to happen she would need familiar and consistent care on her return to prevent any short term distress becoming longer term."

And later at C 9, the CAFCASS officer said this:

"My one meeting with H suggests that her overriding concern is separation from her mother and fear for her mother.  She expresses anger at her father for demanding their return, but possesses some fondness for him as evident by her feeling happy when he says nice things to her."

41. The mother alleges, as I have indicated, that she was the subject of serial and serious sexual abuse at the hands of the father.  In her first statement, B 47, paragraph 17, she asserts that she did tell the Dutch police about her allegations of having suffered sexual abuse at the hands of the father.  In her second statement, B 48, she describes how she was very upset during the course of that first statement being prepared and there were some errors.  And in the balance of that second statement she sets out what those errors were and corrects them.  But she makes no alteration to what she said in her first statement, paragraph 17; namely, she had told the police about allegations of sexual abuse. 

42. After those two statements had been prepared, there was disclosure of documents from the Dutch police, and at D4 of the bundle, there is a translated version of the police report in relation to the incident of 27 February 2012.  In that statement the mother asserts that her husband is often aggressive.  She said:

"If I keep my mouth shut, he sticks to shouting.  If I say something back, he beats me or hurts me by constantly tapping my forehead or by twisting my ear round.  He also breaks things."

A little later she says, "My family stands behind my decision to divorce him."  She then asserts that on 27 February she was struck by her husband four times on the face but she did not sustain any injury.  There is no reference whatsoever in that statement to allegations of sexual abuse.  I find it inconceivable that if the mother had told the police about allegations of sexual abuse it would not have been recorded either in the statement or elsewhere in that police report.

43. Secondly, as I referred to a moment ago, in her oral evidence the mother asserted that she had seen a statement prepared by Miss Kion where she sets out discussions with the mother where she is told of allegations of sexual abuse and physical abuse.  No such document is before court.  And when I asked Mr Perkins about the matter I was told there was no other statement from Miss Kion but that she had some time ago sent an email to the mother's solicitors where she set out some of the matters that had been discussed between them.  Importantly that email did not set out any allegation or complaint of sexual abuse made by the mother. 

44. I conclude that the mother has lied to the court.  She said in her statement that she had told the police about the allegations of sexual abuse.  She had to change that in her oral evidence because by that time she had seen the police report and her statement and she knew that it contained not a single reference of any sexual abuse.  I consider why the mother should  lie, I am satisfied the only reasonable explanation is that she lied to bolster her case to prevent the children being returned to the Netherlands.  I entirely reject any allegation that the mother was raped or the subject of sexual abuse at the hands of this father.  The consequence of that finding is that I now consider the mother's evidence on four issues to be tainted and I am required and I do treat her further evidence on important matters with considerable caution.

45. I turn then to consider the allegations of physical violence.  Mr Perkins, on behalf of the mother, asserts that I can rely on H in her comments to the CAFCASS officer in providing corroboration for the mother's allegations.  I do not so find that H's accounts to the CAFCASS officer to be corroboration.  For two reasons:  first, it is plain from her own account that she was very confused about what happened, she had real difficulties remembering whether she was "three, five or six" when an incident, where the father slapped her mother, occurred.  What is more and is of real significance is that she, in that conversation with the CAFCASS officer accused the father of, I infer, "deliberately catching R's fingers in the door".  There is no question whatsoever that the father was responsible for that matter or that R's fingers being caught in the door was other than a pure accident.  Accordingly, I treat what H said with very real caution.  The father denies ever being physically violent to the mother, save and except that he accepts he tried to take a mobile phone from her on 27 February 2012.  Given the events of October 2011 and November 2011, which included the visit to the Imam it is plain that there were problems in the marriage between the parties.

46. The mother asserts in her police statement and in her statement to this court, the father's conduct towards her was such that he made "me psychologically completely mad.  He totally controls me mentally."  That description of the father's approach to her and of her response to it does not sit well with the mother's actions, effectively behind the back of her family, going off in April of last year to instruct a lawyer to issue divorce proceedings.  Nor does it sit with the robust and forceful manner in which she gave her evidence to this court.  On the basis of what I have heard I am not prepared to make a finding that there was physical violence suffered by the mother at the hands of the father.  But for the purposes of this judgment only I will proceed on the basis of the mother's allegations against the father but without making any finding of fact on the issue.

47. It is important to note that whatever happened in the course of the relationship between the mother and the father as from 27 February, there was no violence by the father to the mother, there were no threats, there was no contact and no difficulties were caused by him to her.  There is an issue about the date of the separation of the parties, whether as the mother would say it was October/November 2011 or as the father says February 2012.  I am not at all clear, on the basis of the evidence before me, as to who I should believe on that issue.  I make no finding but for the purposes of this judgment only I proceed on the basis of the mother's case.

48. I then turn to consider the mother's defence; firstly consent.  The mother relies on a statement made by her mother, B68 of the bundle, the maternal grandmother says:

"3.  I visited the Respondent and the children in May 2012.  I was worried about them following the separation from the Applicant as my daughter had no family support in the Netherlands ... It was obvious when I arrived at their home that the Respondent was having difficulties coping with the house and the children.  She was not cooking or cleaning and appeared to be depressed.  I therefore suggested that both she and the children would benefit if they came to the UK to stay with me so that I could look after my daughter and help care for the children.  I also suggested that she should stop the divorce until she had had time to consider the matters further. 

4.  Whilst I was in the Netherlands I spoke to Uncle Shafeeq on the telephone.  He is a friend of my late husband.  He also knows the Applicant and his family.  I indicated to him that I believed it would benefit both the Applicant and the Respondent if the Respondent came to the UK with the children and that the divorce was stopped.  I believed that this would give her time to recover and to think about reconciling her marriage."

A little later, she says this:

"5.  A couple of days, later Uncle Shafeeq rang me whilst I was still visiting the Respondent in the Netherlands.  He told me that he had spoken to the Applicant and informed him that the Respondent intended to leave the Netherlands and live at my home in Oldham with the children for the reasons I had discussed with him.  Uncle Shafeeq asked if the Applicant and the Respondent try and resolve their difficulties between them."

The maternal grandmother also asserted that Uncle Shafiq had indicated that he would contact the applicant to let him know what the grandmother had said.  She then refers, in her statement, to other discussions she had had with other members of the paternal family either in the Netherlands or in Pakistan. 

49. The maternal uncle, Mohammed Naeem Altaf said that he had received a telephone call from one of the applicant's brothers, Shaheen, he also said that he was aware from conversations with the family that the grandmother had suggested to the respondent that she should stop the divorce and consider matters and he said:

"I also indicated that my mother had suggested that the Respondent and the children come to the UK to give her some time and space to decide their future.  I have no doubt whatsoever that Shaheen would have informed his brother, as Shaheen had rang me on behalf of the Applicant."

Later he said

"I also spoke to Uncle Shafeeq on at least one occasion ...  It was agreed that she needed time to consider her relationship with the Applicant.  I believe that he would have relayed details of our conversation either directly to the Applicant or to the Applicant's family."

There is no evidence of any witness who has filed a statement for these proceedings speaking directly to the father and obtaining from him his consent to the children being removed from the Netherlands.  At its absolute highest all it is capable of demonstrating is that the maternal family assert that the father would have known that the plan was for the mother to move to live in the United Kingdom with the children.  I accept that it is possible to infer consent from the circumstances but I also have regard to the fact that there must be clear, compelling and unequivocal evidence of consent.  I also bear in mind that these events were taking place whilst there were active discussions between the maternal and paternal family members about a possible reconciliation.

50. Mr Shafiq has not filed a statement in these proceedings setting out what he did or did not say to the father.  I am not satisfied on the evidence available to me about what was in fact said to the father by members of his family and more importantly what he said to them to pass on to the maternal family.  All assertions that he would  do whatever he could to affect the reconciliation with the mother does not amount to consent to the removal of the children from the Netherlands to this country.

51. In relation to the events subsequent to the mother leaving the Netherlands in September 2012, I am satisfied that the father was entirely reasonable to follow the advice and guidance offered by Mr Shafiq.  I consider it entirely reasonable that he allowed time for Mr Shafiq to attempt to affect a reconciliation and/or to gather why the children were not in the Netherlands. It was not unreasonable for him to wait until December 2012 to instruct solicitors.  In my judgment there is nothing in his conduct in late 2012 which could amount to acquiescence or in fact does amount to him acquiescing to the children remaining in the United Kingdom.  The delay between December and May, as I have indicated, is not his fault.

52. In relation to his knowledge about where the children were in the United Kingdom, save for them being vaguely in the Manchester area, I accept the father's evidence of his ignorance of the precise address at which the children were living. 

53. I turn then to consider the question of grave risk of harm and all the children being placed in an intolerable position if they were to be returned to the Netherlands.  I note and take account of H's views to the CAFCASS officer but I also note that her main concern is not a return to the Netherlands but separation from the mother.  On the basis of the evidence before me, not one of the children are at risk of harm from the father.  It is not asserted that he has been violent to them and the father denies any such course of action. 

54. The basis on which the defence is put under article 13b is essentially that such is the mother's fear of the father that her emotional and psychological state would be such that if a return were ordered the children would be at grave risk of harm and/or be placed in an intolerable situation.  I entirely accept that if the court orders a return the mother and more importantly the children would need support.  I accept that the children would need their mother on a return and, as I understand the evidence, if the court orders the children to be returned the mother will return with them.  The father has offered a number of undertakings if a return is ordered.

55. In brief terms he will undertake (i) not to be violent or threaten violence to the mother, (ii) that he would not separate or remove the children from the care of the mother before the first hearing before the Dutch courts, (iii) he would not appear or be present at the airport on the arrival of the mother and the children, (iv) he would notify the mother of any court hearing, (v) he would not support any criminal prosecution or process being taken against the mother in relation to the abduction of the children, (vi) he would pay the mother a sum of money, it varies between €1,000  a month or €1,300 a month for the next two months to cover the interim position of the mother and the children (vii)  that he would vacate the former matrimonial home to enable the mother and the children to live there and

56. (viii) he would seek to take such steps as are necessary to enable the mother to obtain benefits including, if needs be, temporary registering at another address.  He would wish the mother to seek alternative accommodation as soon as possible and that she would not sub-let the former matrimonial home.  She would notify him of any intention to move from that address and that he would allow her reasonable contact with the children. 

57. It was submitted on behalf of the mother that the father ought to make application prior to any return to the Dutch courts for an order against him, prohibiting him from being violent to the mother.  In light of the fact that between 27 February 2012 and September 2012 there is no allegation of any inappropriate conduct by the father, let alone any violence from him, I do not see it as appropriate that the father does seek an order from the Dutch courts.  And indeed if the Dutch courts were to approach such an application as this court would, in light of the absence of any incident over a period of some six or seven months, the prospect of any order being granted would be remote.  I am quite satisfied from the totality of the evidence that with the undertakings given by  the father and the mother's ability to call upon assistance if need be from the Dutch police and/or her ability to make application to the Dutch courts, there is no grave risk of harm in this case, nor is there any question that a return would place the children in an intolerable position.  I accept, as was expressed by H that she might have a preference to remain in this country but that does not begin to amount to placing her in an intolerable situation at all.

58. Finally, if I am wrong in my conclusion about the defence under article 13b and the question of a discretion therefore arose as to whether or not to order a return of the children, I would unhesitatingly conclude that it was manifestly in the welfare best interest for all of the children, that they should be returned to the Netherlands.  For that is the appropriate court where they have lived all of their lives prior to September 2012 to make the welfare assessment of what is in their best interests.  Accordingly I am in no doubt that the proper order to make is to order the children to be returned to the Netherlands in 14 days.  I accept the undertakings offered by the father.  There was an issue about the sufficiency of the quantum of maintenance he proposed.  I am satisfied that for the purposes of the short-term transitional period the provision offered is adequate.  It will then be for the mother to make such application as she sees fit or is advised to do so to seek any additional maintenance or monies from the father through the Dutch courts.

59. That is the judgment of the court.