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CL v MB [2014] EWHC 927 (Fam)

Judgment in proceedings under the Child Abduction and Custody Act 1985, the 1980 Hague Convention and Brussels II Revised concerning a 5 year old girl, in which it was agreed that she should be returned to Spain. Consideration of the timing of the return and the undertakings to be given to the court.

R's father ("F") brought proceedings under the Child Abduction and Custody Act 1985, the Hague Convention on the Civil Aspects of International Child Abduction 1980, and Council Regulation EC2201/2003 for the return of R, aged 5, to Spain. Initially her mother ("M") resisted the application having made unsubstantiated allegations in Spain that she had been assaulted by F and having sought to garner evidence that R had been sexually abused by F.

On the morning of the hearing M conceded that her removal of R from Spain was unlawful and that R should be returned to Spain. The remaining issues were the timing of that return and what undertakings or interim measures should be put in place. The court determined that the appropriate return date to allow M to order her affairs and to make interim arrangements was 16 days from the hearing date. The court accepted a number of undertakings offered by F but was asked to order in the face of his opposition that F pay for M's return flight, interim child maintenance, and a contribution to allow M to instruct lawyers in Spain. M also sought an order prohibiting F from contacting M.

The court was satisfied that it had jurisdiction to make interim orders pursuant to Article 11 and Article 23 of the Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of the Children. The court refused to order F to pay for M's return flights, interim child maintenance or a contribution to legal fees. The court did prohibit F from contacting M directly until the first inter parties hearing in Spain. The court invited Hertfordshire County Council to reconsider commencing their s.47 enquiries given the imminent departure of R to Spain.

Summary by Georgina Clark, barrister, Field Court Chambers
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IN THE HIGH COURT OF JUSTICE No: FD13P02392
FAMILY DIVISION

[2014] EWHC 927 (Fam)


Royal Courts of Justice

Wednesday, 12th February 2014


Before:

MR. JUSTICE RODERIC WOOD
(In Private)


B E T W E E N :

CL Applicant
-  and  -
MB Respondent
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Transcribed by BEVERLEY F. NUNNERY & CO
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MS. K. CHOKOWRY (instructed by Goodman Ray) appeared on behalf of the Applicant.
MR. A. PERKINS (instructed by Dawson Cornwell) appeared on behalf of the Respondent.
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J U D G M E N T
(As approved by the Judge)

 
MR. JUSTICE RODERIC WOOD:

The Proceedings:
1. These proceedings under the Child Abduction and Custody Act 1985 and the relevant parts of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (herein after referred to as the Hague Convention), and Council Regulation EC2201/2003 commonly referred to as Brussels II Revised, concern a little girl, R, born on 3rd June 2008 and thus 5 years of age.

2. The proceedings were fully prepared for a hotly contested final hearing listed before me for one day (I mention in passing a woefully inadequate time estimate had the matter proceeded on that basis).

3. In the event, I was informed at 11 o'clock this morning that the mother, after advice from one of the doyens of the bar in this field, Mr. Perkins, has conceded, as already set out in her documentary evidence, that:

i) Her removal of R from the Kingdom of Spain, R's habitual residence, was unlawful when it took place in the summer of 2013.

ii) The removal was in breach of the father's rights of custody.

iii) She now agrees, however reluctantly, that R should be returned to the Kingdom of Spain which is the proper jurisdiction for the resolution of any welfare issues relating to her.

4. In issue, nevertheless, are the following:

i) The timing of that return.

ii) What undertakings or interim measures ordered by the court should be in place to guarantee what has colloquially become known in this Division as a "soft landing" for R and for the mother.

5. As to timing, the following matters are said on her behalf to be relevant:

i) Her health.

ii) Her lack of means to support herself and the child in Spain, and indeed prior to their arrival in Spain to pay for the necessary airline tickets to bring about that return.

iii) Her lack of housing and employment in Spain.

iv) There should be an opportunity for R to say a planned farewell to other children in her nursery school.

6. (i) As to the mother's health, there is a brief report from the mother's new general practitioner dated 8th January of this year.  I quote in full the relevant passage:

"This lady, who is a new patient to our practice, requests that I write to inform you that she is currently awaiting an operation for divarication of her recti which is a weakness of the abdominal wall."

(ii) That one sentence is singularly lacking in detail, and as a matter of pure construction, it is difficult to see whose diagnosis this might be, or whether it is simply a report from the mother as to a diagnosis given by another doctor.  Leaving that aside for the moment, by way of further information there are two notifications of appointment for her to attend (presumably for that condition, although it is not specified on either sheet) at a National Health Service hospital.  The first notification suggests an appointment at an outpatient clinic on 27th February, and the second reschedules the appointment for 27th March.  In addition, the mother, through Mr. Perkins, informs me that her pain is becoming worse and is inhibiting her from working, etc.  There is no further evidence and I emphasise the word "evidence"; there is only that statement through counsel.  There is no indication from the general practitioner of the timescales for any operation, nor indeed for any recuperation period, etc.

(iii) Although the mother says she will seek to reschedule the appointment to the original date of 27th February, there is no guarantee she will be successful in that endeavour.  The papers show that this mother is resourceful, well-used to travelling back and forth to Spain when need and/or inclination arise, and adroit at seeking out cheap airline tickets.  I remind myself this is the off-peak season.

(iv) In my judgment on this material, I consider a proper return date, to permit her to order her affairs and to make interim arrangements for her return with R to Spain, is 16 days from today, namely by 23:59 on Friday 28th February.  This would allow her to attend the rescheduled appointment on 27th February if she is successful in persuading the hospital to do so, but if not, she can return for the second date on 27th March.  For the avoidance of doubt, if such a return is required for that or any other purpose, R shall not leave the Kingdom of Spain to accompany her unless there is a Spanish court order approving such a temporary removal.

The Background:
7. Before I turn to whether or not to accept any undertakings by either of these parties or to make interim orders in default of such undertakings, I should refer to a very few relevant matters which are set out in the papers.  I should emphasise, for the avoidance of doubt, that where such matters are contested as between the parties, I have made no findings of fact in respect of them. 

8. The position seems to me to be as follows insofar as I need advert to the background:

i) The mother has a second child, another little girl, N who is just short of 2 years of age and born of a different father from R's father.  The mother and two children currently reside in England at the home of the mother's father.  The mother proposes to take both R and N with her on her return to the Kingdom of Spain. 

ii) There are currently civil proceedings relevant to welfare issues in respect of R in that Kingdom where both parents are represented by lawyers.  I am told that the next interim hearing before an appropriate court dealing with welfare issues in that Kingdom can probably be arranged within the next two to three weeks.  At such a hearing, the future arrangements for R can be determined.

iii) There appears to have been a complaint recently made by the father to the Spanish police which has led to consideration of a prosecution of the mother in Spain for what is now agreed to have been her unlawful abduction of R.  I am told that it is more likely than not that that prosecution, if there is one, is "on ice".  The mother does not risk an immediate arrest upon return. 

iv)  Last summer, before she left Spain, the mother instituted proceedings in the civil jurisdiction about what she said was a violent assault upon her by the father.  That civil court, as I understand it from the papers, also had the power to, and did, consider the matter in relation to the criminal standard of proof.  It heard the allegations and relevant evidence, and determined that there was insufficient evidence to make such a finding against the father, and dismissed her application.

v) The mother has, since returning to England, been assiduous in her attempts to garner evidence to support a finding, which she seeks, that R has been sexually abused by her father, and to establish that he has been guilty of such child sexual abuse in relation to other of his children in the past from at least one, if not two, different relationships.  Indeed, it was primarily this allegation that, until today, she was putting forward by way of defence to the child abduction process pursuant to Article 13b of the Hague Convention.

vi) Historically, both the mother and the father have been self-employed.  He has been predominately for many years in the Kingdom of Spain and his current circumstances are little known to me, save that he appears to be living with a new partner in her home, and there is insufficient evidence to establish whether he has any current income or not.  He asserts that he has none.  There is no way of knowing from the material before me, quite understandably, as to the extent of his ability to earn in this season, his expenses, any accumulated savings, etc. upon which I might base a figure for child maintenance.

9. Against those background factors I have to consider the nature and extent of any undertaking on offer from the father, and if there are what I consider to be insufficient provisions by way of undertaking on offer, what interim orders I might make.  There has been insufficient time between this morning's hearing and this afternoon's for full instructions on undertakings to be taken from the father.  I have therefore indicated to counsel that I will accept that they may offer an "either/or" option.  I require the draft agreed order to be lodged with me by 9 a.m. on Friday 14th February.  In the meantime, further instructions may be taken from the father as to what further undertakings, if any, he offers.  If he declines to offer more than is currently available then I shall indicate that I propose to make interim orders, the jurisdiction for which I shall refer to in due course.

10. At the moment, the following undertakings are on offer, and I emphasise that I do not use full, formal wording which counsel must adopt in their draft:

i) The father will not seek to prosecute the mother for the offence of child abduction on this occasion, nor will he assist in such a prosecution unless the domestic criminal or civil law of the Kingdom of Spain imposes a positive obligation upon him to do so.

ii) The father will pay for the return flight of R to the Kingdom of Spain.

iii) The father will put into effect, in advance of the arrival of R in the Kingdom of Spain, an appropriate policy to cover her health costs should she fall into ill health on her return.  I emphasise that such a policy must come into effect prior to the child's landing, and further require that he provide a copy of the policy to the mother which may be sent by scanned email or some other method but in advance of her leaving this country.  For my part, I would emphasise that the absence of such a policy is not necessarily or impliedly permission to her not to take the flight.

iv) The father will undertake not to attend the airport upon arrival of the mother, R, and the other little girl, N. 

v) The father will undertake not to seek to separate R from the mother save for agreed periods of supervised contact, if any are arranged, until the first inter-partes hearing of the welfare issues in the Kingdom of Spain's courts.

vi) The father further undertakes not to harass or molest the mother and, indeed, it shall be recorded that the mother offers a cross-undertaking in the same terms which I accept.

11. The mother, in addition, has historically sought further undertakings which have been shaded in the course of this morning, so that I only here record what I believe to be her final position:

i) She wants the father to pay her return flight costs as well as those of R.

ii) She seeks interim child maintenance in the sum of €300 per calendar month by way of child maintenance and that the first payment should be made prior to the return.

iii) She seeks a contribution from him in the sum of €300 to enable her to instruct a lawyer in relation to welfare issues in the Kingdom of Spain.

12. The first question to arise is what jurisdiction I might be exercising in making any interim orders.  Ms. Chokowry has very helpfully researched the matter and provided an impressive body of written information.  In the event, I need not set out the argument in full because both Mr. Perkins and she agree, as indeed do I, that the route to be adopted by me in making any interim orders is that of Article 11 and Article 23 of the Convention of Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of the Children which was concluded on 19th October 1996. 

13. Should I exercise those powers, I would do so on the basis that where this is a relevant consideration, there should be a clear recital in bold on the face of the order that this court has come to no conclusions and made no findings in respect of contested matters.  On that subject, returning to the undertakings offered by the father, and indeed in the case of the one undertaking offered by the mother, there should be a clear recital that in respect of those undertakings I have come to no conclusions and made no findings in respect of contested matters in that context.

14. For my part, I can see no reason why the father should be required to pay the return costs of the mother because she wrongfully abducted this child who came to England.  She can hardly decline to return on the basis that he will not pay the costs of her illegal act.  I refuse that application. 

15. Whilst I have considerable sympathy with the notion that any parent should pay child maintenance towards the upkeep of their child, as I have made abundantly clear earlier in this short judgment, I have absolutely no information about his current means and what it would be reasonable to expect him to pay.  I therefore decline to order the payment of €300 per calendar month at all, let alone the first payment in advance of take-off.  In that context, I remind myself that I am told that the first hearing can be swiftly arranged where these matters can there be discussed.

16. She invites an order to the effect that €300 be provided to her to instruct a lawyer in respect of the proceedings in Spain.  Once again, for my part I consider that an inappropriate request.  There is no reason which I can immediately see which would persuade me that it would be appropriate to order him to pay for her defence of what is, in effect, her own illegal act.

17. In relation to whether or not the father contacts the mother, either before or on her return to Spain, for my part, unless that can be the subject of an undertaking from him, I consider that to be an appropriate interim measure.  The father shall be prohibited from making direct contact with the mother until the first inter-partes hearing in the courts of the Kingdom of Spain, and she shall only make contact with him pending that hearing through her lawyers.

Local Authority Enquiries:
18. Quite by chance, it emerged this morning that Hertfordshire County Council, within whose local authority designated area the mother and R are now staying, have expressed an intention of interviewing R, presumably in relation to issues of child protection, and especially given the allegations the mother has made in relation to allegations that R has been sexually abused by her father. 

19. I have been very helpfully referred by Mr. Perkins to s.47 of the Children Act 1989.  I do not set out in its entirety that provision which can be easily researched, but I express this view: whilst the local authority has a duty to investigate matters relating to a child who lives in their area, and in respect of whom they consider there to be reasonable cause to suspect that the child is suffering, or is likely to suffer, significant harm, they are entitled, pursuant to that provision, to make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare. 

20. If one looks at the balance of s.47, other than s.47(1) to which I have just referred, it appears to me that the context of such enquiries is in cases of emergency where a local authority are contemplating, or have already taken, emergency protection remedies.  In this case, it is now agreed (however reluctantly on the mother's part) that welfare issues should be determined in Spain.  It follows, it seems to me given the imminent departure of the mother to Spain with R, that it would be inappropriate and unnecessary for the local authority to commence what at best would be a very limited enquiry when the child concerned is about to depart their area, and indeed the jurisdiction of the courts of England and Wales.  I therefore invite them to reconsider their decision to interview R or to make any further enquiries on the subject.  I have been helpfully informed by Mr. Perkins that the mother, herself, does not encourage such further enquiries in this jurisdiction whatever her position may be in Spain, a matter in respect of which I have no information. 

21. I therefore invite the local authority, as a matter of urgency, to reconsider their plan and to defer in this matter to the relevant agencies who will no doubt be vigorously encouraged by the mother to make such enquiries as she considers necessary in Spain, no doubt also, I add, with the imprimatur of the courts of Spain.  In other words, for my part, I think it more appropriate than not that the enquiries proceed there if they are to proceed at all.  Further, the mother would be wise only to encourage further enquiry on that subject once the Spanish courts have determined whether or not it is appropriate for there to be any, bearing in mind their domestic statutory or regulatory provision.

That is my Judgment
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