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Re AT v SS (No 2) [2015] EWHC 3328 Fam

Application by mother for variation of an order requiring the return of the parties' child to The Netherlands. Application dismissed.

In these Hague Convention 1980 proceedings, the father sought the summary return of the child, S aged 5, to the Netherlands. At the final hearing, the mother stated that she would not return with S in the event that a return order was made.  The mother was heavily pregnant and was due to give birth in early November 2015. Mr Justice MacDonald determined that S should be returned to the Netherlands forthwith. The judgment is at [2015] EWHC 2703 (Fam).

Owing to the fact that the return of S to Holland was to take place without his primary carer accompanying him, MacDonald J permitted what is described in the first judgment as "a short delay" in the implementation of the return order. The delay of approximately 6 weeks was due to the necessity to make arrangements in conjunction with Dutch social services for the return of S to, and his reception, in Holland.  The parties were able to agree an order that S is returned to Holland on 13 November 2015.

A few days after the initial judgment, the mother had a change of heart, and through her solicitors indicated that she would be willing to travel to Holland with S prior to the birth of her second child. The mother asserts that the next day she was advised by her GP that not all airlines would permit her to fly while heavily pregnant. The mother stated that she was told that she should wait until after the birth to travel.

The mother adduced a letter from her GP which was at odds with her account. There was no evidence that the mother had checked with airlines whether she would be permitted to travel. Nor was there evidence that she enquired about alternative modes of travel.

The mother's application to vary the order was first made two days after she gave birth on 9 November 2015. At the time she sought to travel with S to Holland on 28 November 2015. On the same day, the Dutch authorities had provided documents to the court concerning the arrangements for S to travel to Holland. They had yet to be translated. The application was adjourned to allow the documents to be translated and the mother was permitted to file and serve further medical evidence in support of her application together with evidence of the process and timescales of applying for a passport for her new child.

MacDonald J found that notwithstanding the adjournment, the mother's application remained characterised by a complete paucity of medical evidence demonstrating that she required a further period of time to recover. At this hearing the mother stated that she needed two months before she could travel to the Netherlands. In contrast, Dutch Social Services advised that a social worker was available to collect S on 17 November 2015 and place him in foster care and a hearing was fixed in the Netherlands on 23 November 2015.
MacDonald J considered the authorities on the meaning of Article 12 and the court's power to suspend a return order. The Learned Judge dismissed the mother's application for the following reasons:

(1) The purpose for which implementation was delayed following the final hearing had been met. The Dutch Social Services had communicated their plan setting out the steps they would take  to the Court;

(2) The court must have regard to the strong imperative for expedition contained within the 1980 Convention.  A reasonable delay before implementation can be allowed, but this period must be strictly limited to what is necessary to achieve a return. "Any additional delay based on the mother's particular circumstances would not fall within the very narrow scope of circumstances that permit a delay in the return of the child (R v K (Abduction: Return Order) [2010] 1 FLR 1456)";

(3) The mother failed to produce cogent evidence in support of her case;

(4) Whilst returning S without his mother was "not ideal", the Dutch authorities were equally competent to safeguard the welfare of S, the court having already concluded that he should be returned subject to practical arrangements being made;

(5) The Dutch courts were now seised of proceedings and a care order had been made enabling accommodation in foster care. "In these circumstances, having ordered the return of S to the jurisdiction of Holland this court must take care not to in any way to usurp, or to be thought to be usurping the functions of the court of S's habitual residence by retaining him in this jurisdiction any longer than is necessary to effect his safe return to Holland";

(6) Finally, it was far from clear why the mother had not returned with S prior to giving birth to her second child. It was also not clear why she did not investigate other modes of transport apart from flying. The background to this case was one where the mother had attempted to frustrate the process of the Dutch Courts over a significant period of time. The child's removal was a barefaced and cynical abduction designed specifically to avoid the provisions imposed by the Dutch court to ensure a continuing relationship between S and his father.

The order was varied only to the extent that the child would return to the Netherlands on the collection date arranged by Dutch Social Services.

Summary by Katy Chokowry, barrister, 1 King's Bench Walk
____________________________

Neutral Citation Number: [2015] EWHC 3328 (Fam)
Case No: FD15P00102

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/11/2015


Before :

THE HONOURABLE MR JUSTICE MACDONALD

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Between :
AT
 Applicant

- and - 

SS (No 2)
 Respondent
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- - - - - - - - - - - - - - - - - - - - -

Ms Mehvish Chaudry (instructed by Brethertons) for the Applicant
Mr Main-Thompson
(instructed by Duncan Lewis) for the Respondent

Hearing dates: 13 November 2015
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE MACDONALD
This judgment was delivered in private. The Judge has given permission for this annonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the current addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and current addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.

Mr Justice MacDonald:
INTRODUCTION
1. On 29 September 2015 I made a return order pursuant to Art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (hereafter 'the Convention') in respect of a child, S.  S is now aged 5 years old.  My reasons for making the order are set out in my judgment of that date, the neutral citation for which is [2015] EWHC 2703 (Fam).  This judgment should be read with my previous judgment.

2. Within my judgment of 29 September I recorded the stated intention of S's mother, SS, articulated during the final hearing of this matter on 11 September 2015, not to return with S to Holland in the event I made a return order.  That remained the position of the mother as at the date of my first judgment.

3. By reason of the fact that the return of S to Holland was to take place without his being accompanied by his primary carer, I permitted what I described in my first judgment as "a short delay" in the implementation of the return order whilst the necessary arrangements are made for the return of S to, and the reception of S in Holland. 

4. The arrangements to which I made reference included the need to notify the Dutch authorities of the decision of this court, the need for an interim foster care or kinship placement to be identified and the need for arrangements to be made for transporting S to the Netherlands in the event that the mother persisted in her stated intention not to accompany her child to that jurisdiction.  Within this context, I ultimately approved a consent order which provides for the return of S to Holland no later than 13 November 2015.

5. At the beginning of last week I was informed by a letter from the solicitors acting on behalf of the mother that she had now decided that she did wish to return to Holland with S.  The mother now applies to vary the return order I made on 29 September 2015 to allow for a further two month delay in the return of S to allow the mother to accompany him to Holland.

BACKGROUND
6. As noted in my first judgment, the mother was, as at the hearing on 11 September, heavily pregnant. Within this context, the mother appears to have notified her own solicitors of her change of heart regarding return to Holland with S on 5 October 2015.  On 6 October 2015 the mother's solicitors wrote to the father's solicitors informing them that the mother would wish to travel with S to Holland in the week commencing on 12 October, before the birth of her expected child. 

7. However, the mother asserts that on 7 October, and in response to her enquiring whether it was safe to fly prior to her giving birth, she was advised by her general practitioner that not all airlines would allow her to travel heavily pregnant and that she should she wait until after the birth to fly to Holland. 

8. It is important to note that the recollection of the mother's GP appears to be somewhat at odds with the mother's account in several respects.  In a letter dated 12 November the GP relates that the mother stated on 7 October that she was planning to fly to the Netherlands on 13 November. This is contrary to what the solicitors for the father had been told regarding an intended return in the week commencing 12 October.  Further, the GP makes clear that she advised the mother against this course of action because her estimated delivery date was 4 November and, accordingly, that she should await the outcome of the birth before deciding whether to fly on 13 November 2015.  It is clear that the advice of the GP was predicated on the mother giving an intended date of travel that post dated her estimated date of delivery.  At no point does the GP state that she informed the mother on 7 October that she should not travel to Holland ahead of her estimated date of delivery, either because of restrictions put in place by some airlines or because it was unsafe for her and her unborn child to travel per se. 

9. Further, even if the mother's contention regarding the advice she received from her GP is accurate, there is no evidence of the mother checking with airlines on 7 October whether they would permit her to travel.  In addition, air travel is not the only means of reaching Holland from the United Kingdom.  There is no evidence that the mother looked at alternative forms of travel, although the mother now states that she did not think about the option of travelling to Holland by ferry. 

10. The mother also asserts that, some days subsequent to the appointment with her GP, her midwife told her that she should not travel until after the birth.  There is no evidence before the court to corroborate that assertion.

11. Nearly a month after the mother indicated that she would be prepared to travel to Holland with S, on 3 November 2015 the mother's general practitioner provided a letter which confirmed that the mother "is not able to travel soon because she is 39 weeks pregnant".  The letter further stated that the midwife had advised against travelling for at least three weeks after the delivery "assuming that she has a smooth trouble free birth process". 

12. On 7 November the mother gave birth to her new child.  That birth, I am told, was not "smooth and trouble free" and had to be achieved by way of a caesarean section.  The mother was discharged from hospital on 9 November 2015.

13. The mother's application to vary the terms of the return order first came before me on 9 November 2015.  At that hearing the mother contended through counsel that, by reason of the circumstances of the birth of S's sibling and notwithstanding her change of heart with respect to accompanying S on his return to Holland, she would not be in a position to do so until at least 28 November 2015. 

14. I pause to note that, beyond the letter from her GP dated 3 November 2015, mother adduced no medical evidence at the hearing on 9 November to substantiate that assertion, either by way of her primary medical records or by way of a report from the medical staff responsible for her health and the health of the new born baby.  In addition to the absence of medical evidence to underpin the mother's submission that she and her newborn child would not be fit to travel with S until the end of the November, the mother also raised an issue concerning the passport that will be required for the mother's newborn child to travel to Holland.  As related in my first judgment, the mother shares joint Dutch and Afghani nationality.  The father of her new child is English.  Within this context, both the nationality of the new child and the mechanism and timescales for obtaining a passport for that child remained to be confirmed as at the hearing on 9 November.  Finally, it was only on the morning of 9 November that confirmation was received from the Dutch authorities as to the arrangement for transporting S to the Netherlands and receiving him into foster care in the event that the mother did not travel with him.  That document had yet to be translated.

15. Accordingly, on 9 November 2015 I adjourned the matter until Friday 13 November 2015 to allow the translation of the document received that day from the Dutch authorities setting out the arrangement for transporting S to the Netherlands and receiving him into foster care and to permit the mother to file and serve medical evidence in support of her application together with evidence of the process and timescales of applying for a passport for her new child.

16. Notwithstanding this adjournment, the mother's application remains characterised by a complete paucity of medical evidence demonstrating that she requires a further period of time to recover, which period, the mother now states, is two months, before being well enough to travel to Holland with S.  As well as there continuing to be no medical evidence to support the assertion that the mother is unable to travel with S for a further two months per se, there is no medical evidence before the court dealing with the comparative efficacy of different modes of travel and whether, for example, the mother might be able to take a ferry to Holland with S before she would be fit to fly back to that jurisdiction.  

17. In relation to the issue of a passport for her new child, the mother contends that the child is entitled to a British passport but that she is unable to apply for such a passport until the birth of the child is registered on 23 November 2015.  Thereafter a passport application would take a number of weeks to process.

18. In relation to the proposals advanced by the Dutch authorities for the collection of S and his placement in foster care in Holland pending the Dutch court's determining his welfare, the translated information from Holland provides as follows:

a. The Dutch Childcare and Protection Board (CCPB) has obtained the equivalent of a 12 month care order which gives the CCPB authority to place S in foster care if her returns to the jurisdiction of Holland without his mother;

b. A further hearing in the Dutch proceedings will take place on 23 November 2015;

c. The Dutch social worker for S will arrive in England on 17 November 2015 to collect S and to return him to foster care in Holland.

19. As I have already noted, at this adjourned hearing the mother now asserts that she will not be in a position to accompany S to Holland for a further two months and seeks a variation of the return order accordingly.  The father opposes the mother's application and invites me to vary the return order only insofar as extending the time for return to 17 November to accommodate the arrangements put in place, and now confirmed by the Dutch authorities.

THE LAW
20. Art 12 of the 1980 Hague Convention provides, inter alia, as follows with respect to the return of an abducted child:

"Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

21. Art 12 makes clear that an order for the return of the child must be an order that child be returned of the child 'forthwith' (the wording of Art 12 making it clear that it is the return rather than the order that must be forthwith).  This position is consistent with Art 1 of the Convention, which makes clear that the object of the Convention is to secure the prompt return of children wrongfully removed or retained in any Contracting State.  Within this context, Art 2 of the Convention mandates that Contracting States shall take all appropriate measures to secure the objects of the Convention and, for this purpose, shall use the most expeditious procedures available (see Re M (Abduction: Zimbabwe) [2007] 3 WLR 975, [2008] 1 FLR 251 at [42]).

22. In R v K (Abduction: Return Order) [2010] 1 FLR 1456 Ryder J (as he then was) considered the power of the court to stay or suspend a return order pending the occurrence of a specified event (in that case a decision by the Polish court on the abducting parent's application for interim permission to remove the child from Poland).  The court held that there is jurisdiction to implement an order for return forthwith in a manner which provides for the identification and implementation of identified practical steps over a limited period of time prior to the return. 

23. As to the time scales for implementing an order for return forthwith in a manner which provides for the identification and implementation of identified practical steps over a limited period of time prior to the return, in Re M (Abduction: Undertakings) [1995] 1 FLR 1021 Butler-Sloss LJ (as she then was) observed as follows in relation to the timescales that might be contemplated:

"It is perhaps helpful to remind those engaged in Hague Convention applications about the position of undertakings or conditions attached to an Art 12 order to return. Such requirements are to make the return of the children easier and to provide for their necessities, such as a roof over the head, adequate maintenance, etc, until, and only until, the court of habitual residence can become seized of the proceedings brought in that jurisdiction.  In Re C (A Minor) (Abduction) [1989] 1 FLR 403, Lord Donaldson MR said at p 413: 'Save in an exceptional case, our concern, i.e. the concern of these courts, should be limited to giving the child the maximum possible protection until the courts of the other country, Australia in this case, can resume their normal role in relation to the child.'  This court must be careful not in any way to usurp or to be thought to usurp the functions of the court of habitual residence. Equally, the requirements made in this country must not be so elaborate that their implementation might become bogged down in protracted hearings and investigations, as was suggested by Sir Thomas Bingham MR in Re M (A Minor) (Child Abduction) (above) at p 397. Undertakings have their place in the arrangements designed to smooth the return of and to protect the child for the limited period before the foreign court takes over, but they must not be used by parties to try to clog or fetter, or, in particular, to delay the enforcement of a paramount decision to return the child.   It would be helpful if realistic time-limits for the compliance with the undertakings were included in the orders to return the child, but in the absence of a specified time, clearly the court would consider a reasonable time and not allow the case to drag on with repeated applications to the court."

24. Finally, it is also of note that a failure by national authorities to take the measures set out in the Hague Convention to secure the return of the child under those provisions (including the provision for return forthwith under Art 12(1)) can amount to a breach of the Art 8 right to respect for family life of the non-abducting parent (see Ignaccolo Zenide v Romania (2001) 31 EHRR 7 at [95] and Gil and Aui v Spain (Application No 56673/00) [2005] 1 FLR 190 at [59]-[63]).

DISCUSSION
25. On the morning of 13 November 2015 I dismissed the mother's application to vary the return order to provide for a further delay of two months before S is returned to the jurisdiction of Holland.  I varied that order only to the extent that I directed that S shall be returned to the jurisdiction of Holland by 11.59pm on 17 November 2015.  I now set out my reasons for that decision as follows.
 
26. I of course accept that the mother's current position is a difficult one.  She has only recently given birth to her newborn child and that birth was not easy.  However, in my judgment the mother's current position is not, within the context of the imperative need for expedition under the 1980 Convention and the concomitant legal principles outlined above, sufficient reason to vary the return order to provide for a further two month delay in the return of S to the jurisdiction of the Netherlands.

27. First, within the foregoing legal context, and given the need to notify the Dutch authorities of the decision of this court, the need for an interim foster care or kinship placement to be identified and the need for arrangements to be made for transporting S to the Netherlands in circumstances where the mother persisted in her stated intention not to accompany her child to that jurisdiction, in this case and notwithstanding that I was satisfied that S should be returned forthwith to his country of habitual residence, I was prepared to permit a period of time that provided for the identification and implementation of required practical steps over a limited period of time prior to the return of S to Holland.  Each of those steps has now been taken and S is now able to return safely to the jurisdiction of Holland unaccompanied by his Mother on 17 November 2015.  In the circumstances, the purpose for which I delayed the implementation of the return order, namely the identification and implementation of identified practical steps necessary to effect the return of S, has been met. 

28. Second, I must also have regard generally to the strong imperative for expedition contained within the 1980 Convention.  Once the court is satisfied that the return of a child to the jurisdiction of his or her habitual residence is merited the law is clear in what it demands.  Whilst a reasonable period of time between the making of a return order and the return of the child is permitted for the purpose of identifying and implementing practical steps necessary to effect the safe return of the child, it is plain that that 'reasonable period' is strictly limited to that which is necessary to achieve that end.  If the demands of the Convention are to be met the court must guard against attempts to expand any necessary delay beyond that which is reasonably required to put in place the practical steps required to effect the return.  Within this context, any additional delay based on the mother's particular circumstances would not fall within the very narrow scope of circumstances that permit a delay in the return of the child (R v K (Abduction: Return Order) [2010] 1 FLR 1456).

29. Third, the mother has in any event my judgment failed to produce cogent evidence that she is unable able to travel with S for a period of two months.  Whilst, as a matter of common sense, I accept that travel at this point in time, very close to a difficult birth and with a newborn baby and a young son, would not be at all easy, for the court to even begin to be satisfied that the mother's circumstances justified a variation to the return order that would run contrary to the spirit of the 1980 Convention, the court would need cogent evidence demonstrating that her circumstances, and specifically her inability to travel to Holland by any means, are as she claims.  Despite giving the mother a further opportunity to secure it, such evidence has still not been forthcoming.

30. Fourth, whilst I accept that, for the reasons set out in my first judgment, for S to be returned to Holland without his mother is not ideal and may well result in short term emotional and psychological upset for S, my decision to return S to Holland was reached within the context of the mother making clear she would not travel with S.  In the circumstances, and within the context of the Dutch authorities being as competent as their English counterparts in safeguarding the welfare of S, I have already concluded that, subject to confirmation of the arrangements, it is appropriate for S to be returned to Holland without his mother if necessary.

31. Fifth, it is plain that the Dutch courts are now seised of this matter.  A care order authorising the reception of S into foster care has been made in Holland and the matter is to return before the Dutch court on 23 November 2015.  In these circumstances, having ordered the return of S to the jurisdiction of Holland this court must take care not to in any way to usurp, or to be thought to be usurping the functions of the court of S's habitual residence by retaining him in this jurisdiction any longer than is necessary to effect his safe return to Holland.

32. Finally, whilst not determinative of my decision, I also bear in mind that it is far from clear why the mother did not return to the Netherlands at the point in early October when she decided to accompany S on his return to Holland.  I am concerned about the disparity between the advice the mother claims she was given by her GP at this time and the account of the GP in this regard.  There is also no satisfactory explanation why the mother did not, upon being told that flying might not be possible, consider the alternative of travel by road and sea.  Within this context, I bear in mind the account set out in my previous judgment of the mother's efforts to frustrate the Dutch court process over a significant period of time and my finding that her abduction of S from Holland gave every impression of being a barefaced and cynical abduction designed specifically to avoid the provisions imposed by the Dutch court to ensure a continuing relationship between S and his father.

CONCLUSION
33. In the circumstances, and for the reasons set out above, I am satisfied that I must dismiss the mother's application to vary the return order of 29 September 2015.  Having now had confirmation of the arrangements put in place by the Dutch authorities to transport S to Holland and place him in foster care I shall vary that order only to the extent that I direct that S shall be returned to the jurisdiction of Holland by 11.59pm on 17 November 2015.

34. That is my judgment.