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C v B [2005] EWHC 2988 (Fam)

Proceedings brought under the Hague Convention for a return of 2 children to Australia.

Neutral Citation Number: [2005] EWHC 2988 (Fam)

Case No: FD05P01921

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2005

Before :

THE PRESIDENT

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Between :

G C Applicant

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S B Respondent

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Mr Scott Manderson (instructed by Messrs Hornby & Levy) for the Applicant

Philip Noble (instructed by Bailey & Co Solicitors) for the Respondent

Hearing date: 8 December 2005

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Judgment

THE PRESIDENT

This judgment is being handed down in private on Wednesday 21st December 2005. It consists of 20 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Sir Mark Potter, P:

Introduction:

1. These proceedings are brought under the Hague Convention by the Plaintiff father who is an Australian national resident in New South Wales. He seeks an order against his former wife for the return to Australia of their two children of the marriage, A born on 14 December 1996 (now aged 9) and R born on 1 September 2000, (now aged 5). The mother brought the children to England on 1 August 2005 on holiday with the consent of the father in order to visit the mother's parents. Instead of returning to Australia on 28 August 2005 as arranged, the mother has since remained in the United Kingdom with the children. There is no issue that for the purposes of Article 3 of the Hague Convention the mother's retention of the children in the United Kingdom was wrongful and that the father is entitled to an order for their return to Australia under Article 12 of the Convention subject to the mother establishing a defence under Article 13(b), on the basis that the children will be exposed to the grave risk of physical or psychological harm or otherwise placed in an intolerable situation and that /or A objects to being returned to Australia having obtained an age and degree of maturity at which it is appropriate to take account of his views.

2. In relation to the exercise of the court's discretion, should it find that either or both of the defences is established, the mother contends that the necessary balance between the children's welfare and the objects of the Convention should be resolved in favour of their non-return. It is asserted in her statement of defence that:

"The children's welfare is partially dependent on the mental and physical well-being of the defendant, in that she is and always has been the children's primary attachment figure and primary care provider. A return to Australia in consequence of an order to return the children will render the defendant once again subject to the behaviour of the plaintiff, and subject to social isolation and distance from the support and care of her extended family"

3. The behaviour of the plaintiff to which the wife makes reference is that the husband is an alcoholic, or at any rate regularly drinks to excess, who on occasions uses violence towards the mother and children and who is a dominant and controlling person, insensitive to, and constantly undermining of, the mother's position, confidence and happiness.

History:

4. The background is as follows. The parties were married in Cumbria in England on 27 June 1992. They first met in 1989 when the father was aged 28 and the mother 24. She was in Australia working at the time. She moved in with the father and they remained together in Australia until the father was made redundant from his job and went with the mother to take up a job in Kuala Lumpur. There followed a brief spell working in Seoul, Korea before they moved together to the United Kingdom in 1991 and started to live in London after spending a week with the mother's parents in Cumbria. Despite the fact that, according to the mother, the father began to drink heavily, used drugs from time to time, and was on one occasion violent towards her, they married on 27 June 1992. They remained in the United Kingdom, but it was not long before the relationship began to deteriorate. The husband drank regularly to excess while finding difficulty in keeping employment and, according to the wife, was selfish and dominant in his habits. The wife worked throughout the pregnancy with A and the husband made no effort to help around the home, continued to drink to excess, would often come home drunk and was a regular user of cannabis. Having started his own business in the mid-1990s, he spent heavily on drinking and £80.00 a week on cannabis. For some time the parties had contemplated going back to Australia, the husband having been homesick for sometime. At the end of 1998 they returned there, the husband having convinced the wife that his problems were due to the fact that he was homesick and things would be different in Australia.

5. However, when they returned to Australia, the pattern continued much as before. The wife got a job but, after the birth of R, she was no longer working and started to feel isolated. The husband's drinking habit and use of cannabis continued. He was on occasion violent.

6. In January 2003, after only three years back in Australia, the parties separated.

7. On separation, they agreed that the children would live with the mother and made amicable arrangements for access. The wife moved to live in Wollongong, some 60 miles from Sydney on 12 January 2002. However, successful access and contact arrangements continued. The father would drive over each alternate Friday and pick up the children to spend the weekend in Sydney. The father consented to the mother's request in 2002 to take the children to England for 6 weeks over the Christmas period. She has visited her parents in the United Kingdom since with the husband's consent and she received occasional visits from members of her family.

The Australian Proceedings:

8. In September 2003, the wife applied to the Family Court of Australia in Sydney for parenting and property orders. She applied for permission to relocate to the United Kingdom with the children on the basis that the father would remain in Australia, having face to face contact with the children for two block periods each year and at other times as circumstances permitted. As the judge, Justice Chisholm put it, the only practicable alternative was that the mother remained living in Australia with the children, they continuing to have regular contact with the father on alternate weekends and half school days. The issue of the husband's drinking was explored at length, a significant issue being the extent to which his drinking should be taken into account in relation to parenting matters as well as the assessment of his contributions.

9. The judgement of Chisholm J is before me. He heard the case for four days and gave a written judgment of some thirty-three pages and one hundred and sixty-five paragraphs in relation to issues of behaviour explored at length. It is a most careful and balanced judgment. Chisholm J ruled against the wife's application.

10. In the light of the issues explored before me there are two particular aspects of the judgment to which I must turn and which were considered under the headings "The Effects of Changes and any Separation" and "Drinking".

11. As to the first, at Para 79, the judge identified that one of the most substantial arguments on behalf of the mother if she were not allowed to relocate was that she would continue to suffer significant depression and related problems which would compromise her parenting. By contrast, if she were able to relocate, these problems would be greatly eased or disappear. Against this, the husband argued that a relocation would disrupt the children's contact with him, which would be disadvantageous for them. The judge described these issues as "at the heart of the case". The judge had before him the report of a Ms Muul, as to whose qualifications I am ignorant but who, having administered psychological tests, had diagnosed the mother as suffering from "adjustment disorder with mixed anxiety and depressed mood". He also had evidence from the wife's general practitioner Dr Joliffe who recorded fluctuations in the wife's condition. In July 2002 she was described as depressed and having difficulty coping with the separation from her husband, worried that the access periods for the children were too long for them, crying a lot, not sleeping and feeling anxious. In October she was feeling better, but in November she presented again with anxiety and palpitations. In December 2002 her anxiety was worse and she had panic attacks at night when she had had difficulties with her husband. She had been prescribed valium. In January 2003 she again felt very depressed. However, the report had concluded:

"… [her] prognosis for the future is good. She has maintained her job as a Radiographer part-time. It will possibly be some years before she returns to work".

12. The judge also heard evidence from a counsellor on the impact on the mother of being prevented from relocating. The counsellor said that she saw in the mother signs of resilience and ability to cope and thought that she was in a reasonable psychological state. She said that the mother had good positive strengths and had indicated that if she were refused permission to relocate she had said that she would "get on with her life". In these circumstances, and concentrating upon the welfare of the children, Chisholm J said that the evidence did not indicate that the lack of additional support from her family in England would be a disabling factor for the mother. He said:

" 108… I agree with the counsellor that the wife shows considerable resilience and that she would be able to cope with the difficulties she would experience in Australia, the difficulties would not have a major impact on the quality of her parenting. I agree with the submissions of Mr Maurice [for the father] to the effect that the evidence to this point indicates that the pressure that the wife has been under has not had an adverse impact on the children.

109 I agree that the benefits to the wife of the support available to her in England, and the consequential benefits for the children in her care, strongly supports the wife's case. However it is necessary in this difficult case to balance this importance factor against a number of countervailing considerations."

13. Moving on to consider these, Justice Chisholm considered the impact of relocation on the children, and of the much reduced contact they would have with the father if relocation took place, was the centre piece of the husband's case. He rejected any suggestion that this was a case where the father sought to prevent the mother from relocating because of some desire to control her life or for some other unworthy objective (Para 114). He was satisfied that the father's genuine concerns were that A would miss "his dad, his grandpa, his school friends, his friends from Hornsby and his soccer as he would have to change schools again", and that separation would have an adverse on the close relationship which he believed he had with R. The judge found considerable evidence supporting the proposition that the children would greatly miss their father if the relocation were to take place, giving examples. He accepted the counsellor's view that:

"That there is a high risk of negative impact on the children's relationship with their father if they were to relocate in England. This is a particular concern for R as a two-year-old at a crucial stage for developing and maintaining attachments."

(See Paras 116, 121, 122). While recognising the mother's "fine record as a parent and especially... that she has been primary the one to make the decisions about the children", and that the evidence showed that "she had acted responsibly for the children in other areas", the judge indicated that the decision must be based upon his judgement as to "what is best for the children, difficult though this is".

14. Dealing with the question of drinking at Paras 132 – 145 of his judgment, Chisholm J referred to the husband's evidence as having minimised his drinking habits, while at the same time admitting that during the relationship he had drunk "fairly heavily at home" in response to the pressure of a failing relationship with his wife. He had also stated that since separation he had not abused alcohol but drinks "at an appropriate social level". The judge found that the husband had indeed engaged in a heavy pattern of drinking and stated:

"142. I think there is merit in the submissions … that the husband is somewhat deluded in the apparent view that he has the matter completely under control. It is true I think, that in his letter of 29 April he gave the impression that he was going to give up drinking altogether. However, he has not shown the desire or ability to achieve that objective.

143. I can understand in view of the history, why the mother is anxious about this matter. On the other hand, the evidence does not suggest that the husband's drinking is likely to have a significant impact on his parenting. The evidence indicates that he has been able to limit his drinking so that it does not affect the children.

144. The mother's concern in this regard is expressed to Ms Muul as "the major concern", being the fear panic and worry she reports about feeling the risk to the children if the father is driving under the influence while the children are in the car with him, travelling to Wollongong to Sydney during the contact visits. However, apart from the fact that this problem does not seem to have happened, the father consents to orders to the effect that he should not drink while the children are with him or a reasonable time before hand. In my view he will comply with that order.

145. I take into account that the father's continued drinking may reflect on his attitude to the responsibilities to parenthood. But having regard to all the evidence, I do not think that there is any appreciable risk arising from the father's drinking."

15. Turning to the question of violence, the judge accepted that there was some evidence of family violence associated with the father's drinking. In this respect he stated:

"147. While of course no violence is acceptable, having regard to the whole of the evidence and the submissions, I do not think that these matters are of great importance in the present case. There is no evidence of any recent violence by the husband, or any suggestion that his other relationships with adults or children, are characterised by violence…

149. On the evidence I think it very unlikely that the children will be exposed to violence in the care of the husband now that the parties have separated, and in the end, although I have considered the evidence carefully, I do not think that this is a matter of real significance…

16. Chisholm J finally concluded:

164. In the end, having regard to the evidence as a whole, I have come to the same conclusion as the court counsellor, namely that the children's interests would be better served by the mother remaining with them in Australia rather than relocating with them to the United Kingdom. The fact that the children are so young is an essential part of this conclusion. I have no doubt that older children would be better able to maintain a relationship with a parent who lives in another country, through visits, electronic communications, and the like. But for the reasons I have indicated, for these very young children, who have a close and loving relationship with their father, I have come to the conclusion that the relocation will not be in their best interests.

165. I recognise that this will be a disappointment to the mother, and I very much regret that. However ultimately I must apply the law, and treat the children's interests as paramount. I think that at this stage of their lives there interests would be more damaged by the disruption caused to their relationship with the father if relocation when ahead by the impact on them by the mother's difficulties if she were not permitted to take them to live in the UK."

17. There was attached to the judgment a Family Report Summary of 8 October 2002 in which the counsellor concerned reported on the situation having seen the parties and the children. The counsellor observed that both children demonstrated a strong emotional attachment to their parents. R was too young to understand the concept and implications of relocation to England but demonstrated enjoyment of physical contact and play with her father. A gave indication of being torn between his parents, aware of his mother's desire to move to England and suggesting ways that he might maintain contact but at the same time indicating that he would want to continue regular activities with his father and grandfather, appearing sad at the thought of leaving them and his friends.

18. The counsellor found that there was a "high risk of negative impact" on the children's relationship with their father if they were to relocate to England, particularly in the case of R as a two-year-old at a crucial age of development and maintaining attachments. She recommended the mother to continue counselling to develop her confidence in her parenting ability and to reduce the negative impact she felt the husband had on her and that the father should assess the impact of his "heavy drink" on his ability to care for the children; he to would benefit from counselling to address the issue.

19. The counsellor's recommendations stated that there was significant evidence to suggest that relocating in England would not be in the children's best interest "at this time". She recommended that the current residency/ contact arrangements should be maintained; the children residing with their mother and having alternate weekend contact and half the school holidays with the father. They should be permitted to make an extended visit to their maternal grandparents for a period of up to six weeks per year. Finally she recommended that neither parent should consume alcohol while the children were in their care.

20. In those circumstances Chisholm J made an order by consent that the father should not drink while he had the children in his care

More Recent Events:

21. In March 2004, the husband moved from Sydney to an apartment in Alexandria, only one hour's drive from the mother's home. The mother got a part-time job to supplement the monthly child support paid by the husband. Contact took place in accordance with the agreed arrangements. The husband says simply that, so far as he was aware, the mother was "relatively happy" living in Wollongong, having a number of friends and appearing to be popular and respected.

22. The mother paints a different picture, in lengthy exhibits to her statement: SB2 (Recognition of Court Orders), SB3 (Welfare of the Children), SB4 (My Situation in Australia) and SB5 (Response to Plaintiff's Affidavit).

23. In SB2 she describes a gradually deteriorating situation in relation to contact. She states that from her own observations as well as remarks made by the children, it appears that the husband has continued his drinking in breach of the court order. This, in particular, causes her to have fears for the welfare of the children when in his care because of his temper, his driving and his heavy sleeping at night, which last means that he does not get up to attend to their needs when necessary. She describes increasing reluctance on the part of the children to having extended contact with the father and their complaints that he does little to amuse or entertain them so that they become bored away from their home and friends. She has spoken to the father about this and he simply says that he has his own method of doing things that which will not change. She describes the children as often apprehensive before their weekend trips and as being unsettled for two or three days on their return. At the same time, the father is constantly critical of her parenting and is threatening in his manner. She finds herself continually anxious when the children are with the father, to the extent that it affects any ability to relax and spend enjoyable time by herself.

24. So far as her health was concerned, she started to become depressed earlier in 2005, had trouble sleeping at nights, woke with panic attacks, feeling tired throughout the day. She raised no interest in housework and had to push herself to keep the house clean. She found herself thinking that life was not worth living and bursting into tears. In July there was an incident of violence in A bedroom when A did not wish to go with his father and was violently dragged from his bunk bed. This left A traumatised and insecure as a result of the incident. Just before they were due to leave for England, the father told the mother that he might not let them go.

25. In short, she asserts that in Australia she is "continually anxious about the physical safety of my children while they are in their father's care. This anxiety impedes my life and restricts me from building a new life of my own. I live with ongoing criticism of my parenting abilities which leaves me undermined and reduces my confidence. I also live with continual threats that [the husband] wants to have custody of the children. So I'm under continual anxiety wondering when and what will be next."

26. In SB3, in relation to the children's psychological development, she states:

"I fear that the children's continued exposure to [the husband's] hatred for me, my family and the English, his manipulation of their feelings which make them confused and insecure will affect their ability to develop into psychologically healthy adults. Greg is unable to put the children's needs above his own and would not allow them flexibility and arrangements to enable them to feel more secure."

27. In SB4 she describes the effect upon herself at the stage shortly before she came to England:

"With the events of the last 2 weeks in July, I just totally sank, the incidents were so reminiscent of the time that he dragged me to my knees and I am terrified that we were returning to the previous situation.

I am not emotionally strong enough to be able to live with that kind of aggression and violence again. Even more he came into my home and directed his violence at A. When I look back I'm amazed where I've been and that I came out in one piece. I am terrified that it wouldn't take much to return me to that state again.

I have tried over the last 3½ years to find a resolution to the problems we face, but I don't seem able to move forward. I feel totally helpless and hopeless about resolving this situation and being able to have a set up where we can all live peaceful, happy and productive lives. I have become unable to envisage a happy future."

28. There is a detailed supporting statement from the mother's own mother confirming the difficulties with the husband, his inflexibility with the children over contact and the effect of his conduct upon the mother. It describes the mother as having made a decent attempt as a single mother, as being isolated, with acquaintances but no close friends or relatives in Australia, and as becoming ill or exhausted with no one to talk to or lend a hand.

29. There is a lengthy affirmation from the father taking issue with many of the points of detail made by the mother and maternal grandmother in their statements. He denies that he has drunk alcohol while the children are in his care and describes himself as having "continued to drink socially, but not to excess and never when the children are with "him". He does not accept that the children have little attachment to him or the extended paternal family. He does not challenge the account of the incident of 15 July 2005 but asserts that he dealt with A in the best way possible on that occasion, stating that it was a difficult situation in which he had to pick him up physically and did not harm him.

30. The father accepts that there have been occasions of reluctance on the part of A to come with him, giving as his reason that he does not have friends in the father's neighbourhood. The father denies that he is intimidating, to or puts pressure on, the mother when questioning her about the children, which he asserts that he has every right to do. He also denies that it is true that the children are unable to wake him when they are with him or that he neglects them in any way. He accepts that there are disagreements between himself and the mother on child-rearing issues, he being firmer than she is and believing that she is not sufficiently consistent with the children. However he denies that he is threatening in that regard. He denies that he has ever been aggressive or violent or tried to control the mother or that he has ever threatened to take custody of the children away from her. He refutes the mother's portrayal of his relationship with A, with whom he says that he has always had a strong and loving relationship. He denies that A behaviour or attitude is affected by the time spent with him. He denies that he abuses drugs or alcohol. Finally, he offers a number of undertakings in relation to an order for the return of the children to Australia, to which I will turn further below.

The Objections of A

31. A will just be 9 years old at the date of this judgment. Six weeks ago he was interviewed on his own by a CAFCASS officer pursuant to an order of Coleridge J dated 11 October 2005 which directed a Cafcass report as to A degree of maturity and his wishes. The report is before me.

32. At interview the reporter found A self-possessed and fluent. In respect of his expressiveness and ability to maintain dialogue, he had a degree of maturity higher than his age. He was confident and cooperative and his responses to questions were thoughtful and precise. Asked to say why he had come to talk to the officer he said it was because of his father who was having problems with his mother. The problems made his father angry and his mother both angry and sad. He knew that his father wanted him and his sister to go back to Australia. Asked if he would like to go back to Australia, he said he would for one reason; "all of my friends".

33. Asked if he missed his father like he missed his friends, he said that he did not. He stated that one of the reasons for his not wanting to go back to Australia was his anger with his father. He was angry about something his father had done to him and his sister. Asked whether his father physically chastised him by smacking or hitting him, he said that sometimes his father would smack him on the hand if he had been naughty. He also described an incident when his paternal grandfather had been looking after him and his sister and had struck him with a plastic sword giving rise to a bruise which his mother had photographed. However he said his grandfather was nice and used to buy him a particular toy on each of his visits.

34. A seemed reluctant to explore his feelings about his father, other than the anger that he felt against him. Asked if he had good experiences of play or activities with his father, he said that he could only remember playing cricket with him.

35. Asked to clarify the problems he had cited as the reasons for not returning to Australia, he replied "when mum and dad divorced, dad shouldn't drink beer when we were around, but he did, and he sort of broke that". Asked if his father's behaviour changed when he drank beer, A said that he would not be able to tell if his father were drunk as he had not seen anyone when they were drunk. He said that his father's behaviour changed to the extent that, whereas he used to get up early, when he had drunk beer he stayed late in bed.

36. A also said that his father was supposed to give his mother money to help look after him and his sister but that, since they moved to England, his father had stopped paying money which meant that he was short of new clothes and other things. Asked whether he had any specific fear about returning to Australia, he described an incident when his father had shaken his bunk bed trying to get him off the bed in order to go with him for contact. It had been a violent shaking of the bed which had broken the bed joint and a screw had been lost. The Cafcass reporter added in oral evidence that A did not presently appear upset about the incident.

37. Asked how he would feel about returning to Australia if his mother were to return and he were to live there with her, A said that he would feel sad for his mother because she needed someone to look after him and his sister at times. Whereas she had her parents to do that in England, he thought that she would not have enough money to pay for babysitting or childminding in Australia. Asked about the prospect of returning to Australia and living with his father there, he replied firmly "I don't like the idea of dad looking after me, because of the reasons I gave for not wanting to go back to Australia". He added emphatically "I would miss mum too much". A and the reporter spoke of the differences between living in Australia and living in England. A said that he preferred the English climate because the summer was tolerably hot and you did not have to stay indoors in the midday hours to protect yourself from the sun. He did not identify any significant differences between Australian and English schools and was proud of the excellent school report which the reporter had seen from his school in Australia.

38. Finally, asked whether he missed any extended paternal family members who were in Australia, A said he missed one of his cousins.

39. In my view, the evidence of the mother and maternal grandmother fails to demonstrate any substantive basis for an exercise of the court's discretion against making an order for the return of the children based on A objection to return. A did not appear to the reporter to be in fear of his father, although he recalled one incident of violence. He voiced no objections to returning to school in Australia and his only criticism of Australia as a place to live was the excessive heat in the summer midday sun. He was plainly sympathetic and loyal to his mother. He was also angry with his father for reasons he was reluctant to articulate. However they did not emerge in a manner sufficient to amount to an objection to returning to Australia for the purposes of Article 13. While I consider that, upon the description of the Cafcass reporter, A is a child who has attained an age and degree of maturity at which it is appropriate to take account of his views, those views are an insufficient basis on which to invoke the discretion of the court to withhold an order for return of the children.

Grave Risk of Exposure to physical or psychological harm/ intolerable situation.

40. The position of the mother is that, unwilling though she is to return to Australia, if an order is made for the return of the children she would accompany them so that they could continue with her and under her primary care. However, it is her case, based on her own assessment and that of Dr Rifkin a Consultant Psychiatrist contained in a report made on the joint instruction of the mother and father, to which I shall shortly turn, that the outcome of her return to Australia is likely to be a severe deterioration in her own mental health. It is submitted that this in turn would be likely so adversely to affect or impinge upon her ability to provide appropriate care for the children that there is a grave risk that the return of the children would expose them to physical or psychological harm or otherwise place them in an intolerable situation.

41. Dr Rifkin's report is a thorough and careful one based upon study of the papers in the case, including the mother's medical records from Australia and the judgment of Chisholm J and an interview with the mother lasting some two and a half hours. He acknowledges that he has relied extensively on that interview, but states his view that the mother was a credible informant, noting also that in the judgment of Chisholm J, he found both the mother and the father impressive witnesses believing that both had done their best to tell the truth and the differences in their accounts arose from genuinely different recollections.

42. Dr Rifkin outlines the mother's feelings of anxiety agitation and distress upon her arrival in England, feeling trapped by a situation in Australia, and recently shaken by the contact incident involving physical removal of A from his bed, referred to by A in his statement to the court reporter. She felt trapped by her situation in Australia, concerned that her husband continued to have the power to intimidate and frighten her, which he exercised, and that she was unable to protect the children from what she saw as his aggressive and damaging behaviour. In England her inability to sleep well, her appetite, concentration and memory were all restored and she was neither depressed nor anxious as she had felt before she left. She was able to "put away" the worries from Australia during the period of her holiday, but that her anxiety and distress as the date for her return approached, she expressed increased anxiety and distress, exacerbated by the fact that on 18 August 2005 she found that the husband had failed to pay her child support, which she took to be deliberate and designed to upset her. When she sought to delay her return because A had developed a tooth abscess, angry and frightening conversations with the husband ensued, which made her resolve not to return at all. Since then, despite the worry of the proceedings, she had felt calmer happier and more at ease with herself and ceased to feel "stressed or frightened". She felt safe and secure within her parents' home with easy access for herself and the children. She has worked part-time as a radiographer at a local hospital and has now been offered a full-time job contributing to a multi-disciplinary team with the prospect of training to develop new skills.

43. Having set out the family and personal history and described in more detail the mother's account of her relationship taken from her long statement to which I have previously referred, Dr Rifkin sets out the mother's main concerns in relation to contact as follows:

"She feels highly anxious when she meets with [the husband] for the contact. She sometimes finds him to be aggressive, threatening or critical at such times. She worries that he is unable to safely care for the children and believes that he is drinking while he is responsible for them. She believes that he is having an adverse effect on their psychological wellbeing and behaviour. The contact with [the husband] at times reminds her of when she was living with him and she feels controlled, bullied and fearful of him. She feels that she at times implies that he wants to take the children away from her by applying for full custody if he had a permanent partner. She feels that he routinely implies that he may prevent her visits to her family in England unless she behaves in a particular way. Overall [she] continues to feel that she is bullied and intimidated by [the husband] and believes that he continually seeks to dominate and control her life, undermine her confidence, and dictate how she behaves."

44. Dr Rifkin sets out the mother's situation in Australia prior to her departure as follows:

"[she] feels isolated and vulnerable in Australia. She says that she has two very good friends but that there are limits to the support that she can obtain from these relationships. She has a sense of financial insecurity and constant worries about juggling work and child care. She does not have much job satisfaction as her work is quite limited and routine, with no opportunities to develop this further in her current situation in Australia. She does not go out very much and has a limited social circle. She feels very trapped as she would never leave her children who have to remain in Australia."

45. Having reviewed the mother's medical records from Australia, Dr Rifkin states:

"In summary these entries indicated [the mother] presented with symptoms of depression and anxiety at various points between July 15 2002 and September 11 2003. [She] never actually took any of the prescribed medication for any significant period of time, partly due to side effects. She therefore has never actually had a trial of antidepressant treatment."

46. Describing her mental state at interview, Dr Rifkin states:

"She was not currently depressed. There was no recurrent evidence of recurrent and intrusive images, thoughts or perceptions of any traumatic events and no persistent symptoms of increased arousal. There was no evidence of abnormal perceptions.

[She] was reasonably optimistic about the future if she remained in the UK. She found it difficult to contemplate how she would cope if she had to return to Australia. In the previous six months prior to arriving in England she at times felt like life was not worth living. She said that she had never previously understood how anyone could want to commit suicide but had realised what it had felt like to give up on life and was pointless. She had thoughts of killing herself by for example driving under a truck, but never had any impulse or intent to act on these occasional thoughts. She never made any plans to harm herself. She said that she could never kill herself because of the children. There was no evidence of any current thoughts of self-harm."

47. The relevant parts of Dr Rifkin's Summary and Conclusions read as follows:

"Whilst [the mother] does not currently have a mental illness it is clear that she suffered from anxiety and depressive symptoms over a very extensive period of time… [She] has experienced mood disturbance of varying degree and duration for much of the time since late 1992. The type of symptoms she has experienced include marked anxiety, increased levels of arousal, some difficulty in concentrating, hypervigilence, fatigue, decreased interest and pleasure in life, low self-esteem, lack of confidence, indecisiveness and intrusive distressing negative thoughts. [Her] ability to function has, to an extent, been maintained throughout. She has managed to work consistently, attend to household and financial tasks and take part in various activities. However, her level of subjective distress was often very high; she often avoided socialising and only maintained her day to day function often with extreme effort."

48. Having referred to her fear of [her husband's] anger and violence during the marriage, the report continues:

"Following their separation the nature of the contact arrangements meant that [the mother] would come into regular contact with [the father]. She was regularly very anxious in anticipation of these meetings. [She] felt that [he] continued to dominate and control aspects of her life and behaviour… She was regularly very anxious about the welfare of the children when [he] was looking after them. It is clear from the GP records in Australia that [she] attended for help with depressed mood and anxiety fairly frequently between the 15 July 2002 and 8 September 2003 although she received prescriptions for three different antidepressants, she never took the antidepressants for any significant time and the would not have had any therapeutic affect…

Overall it is hard to neatly diagnose and categorise this very longstanding period of mood disturbance. I feel that broadly speaking then anxiety and phobic symptoms dominated the presentation during the period of her relationship and depressive symptoms had been more prominent since her separation from [the husband]. I think that there were times [when her] symptoms were more consistent and severe and would have generated a categorical diagnoses such as a major depressive disorder. Her mood disturbance was worse after the birth of her children, particularly R. Her mood disturbance has also been generally more consistent and severe since she moved to Australia. Worryingly, it is probably in the last six months prior to her arrival in England that [she] began to feel that life was pointless and suicidal ideas, albeit with no attached plans or intent.

Under the heading "The impact of the return to Australia on [the mother's] mental health", the report states:

… in general [the mother] has developed a model of understanding her situation in which all her situations and experiences are seen as manipulative strategy by [the husband] to retain power and dominance over her, her children and her life. This analysis extends to the point where, for example, if [the husband] feels upset or sad it is seen as a strategic attempt to gain power over her or when he becomes upset by his children not returning to Australia this is seen as merely an attempt to bully and intimidate.

While I am not seeking to diminish the very powerful impact that [the husband's] behaviour has had on [the wife], I believe the general thesis is very over simplistic. It ignores the impact of other factors and exaggerates and distorts [the mother's] mind the threat that Mr C poses in a range of situations…

I believe that since their separation, while the issues in relation to [the husband] remained an important factor, [the wife's] life as a single mother with two young children living in a setting where she is relatively isolated, with chronic concerns about financial security, security of her accommodation and the difficulty of her juggling work and child care are crucial factors"

49. Having referred to her improved situation in England where the support and commitment provided by her parents, family and friends is of a completely different order to that provided in Australia, the report continues:

"I believe that a return to Australia would in all likelihood to a relapse in her mood disturbance. It is of concern that in the six months prior to her most recent departure from Australia she felt for the first time her life was pointless and had suicidal ideas. [She] has had fairly continuous affective disturbance since the separation and received treatment from a psychologist over a two year period. It is speculative to predict to what degree her mood would deteriorate, but I would predict that it is likely to become worse than it has previously been if she was to return to live in Australia. In contrast I would be optimistic about her progress if she were living in England."

50. Finally, in relation to the support services which the mother would require if she were to return to Australia, Dr Rifkin states as follows:

"As stated previously, [the mother] has not has a successful trial of antidepressant treatment. The choice of antidepressants by the GP were perfectly reasonable and generally speaking the class of antidepressants known as Selective serotonin reuptake inhibitors (SSRI's) would be the first choice. It would need to be clearly explained to [the mother] how long she needs to take the medication for and she would need to see someone to enable to advise and manage the process to ensure that she has a proper trial of treatment. In terms of psychological treatment it would be best if she received treatment form a clinical psychologist. The treatment of choice for depression, anxiety and panic is cognitive behavioural therapy. In addition it would be essential for [the mother] that there was someone to consult in relation to her concerns about the children. This includes issues to the psychological development, parenting issues and somewhere of her safety concerns in relation to her children being properly acknowledged and monitored"

Discussion and Conclusion

51. In the light of that report, I have anxiously scrutinised the case for the mother under Article 13. Mr Noble for the mother has put the case, as he is indeed obliged to do, not upon evidence of any grave risk of physical or psychological harm to the children as a direct result of the father's conduct or activities, but upon the intolerable situation in which he submits the children are likely to find themselves upon return to Australia if (as to which he submits a grave risk clearly exists) the mother relapses into depression on return to Australia.

52. Mr Noble submits that the court should not be inhibited from exercising its discretion to refuse an order for return by reasons of the findings and conclusion of Chisholm J as long ago as September 2003 because, as he submits, matters have moved on since then. In the following relevant respects.

53. First, Chisholm J. was impressed by the resilience of the mother. While, that resilience lasted in the sense that, until the mother came to England, she retaining the ability to parent the children despite her unhappiness, it proved too fragile for her to be able to face return to Australia. It is now clear on the evidence of Dr. Rifkin that it will break down completely if she has to return. Mr Noble submits, that the breakdown will place the children in an intolerable situation, in that they will have a mother unable properly to take care of them. Either they will continue in her care with a serious decline in the general happiness and welfare of the household, or they will be faced with the Hobson's choice of being in the care of the father, who is in no position to look after them himself. Mr Noble submits that it must be wrong to propel the wife up to, or over, the edge of nervous breakdown by ordering her return, in a situation where she is the primary carer of the children who are reliant upon her for a happy and ordered life. In this respect he relies upon the authority of Re G (Abduction: psychological harm) [1995] 1 FLR 64, a case in which, at the time of examination with a view to her return, the mother was found to have a moderately severe reactive depression which doctors were satisfied would, if she were forced to return to Texas with the children, be likely to become a state of psychosis to the extent of making her unable to look after the children.

54. Second, it seems clear that the husband in breach of the order of Chisholm J, has continued to drink when the children are in his care in a manner which that judge plainly regarded as unacceptable and justifiably gives rise to concerns on the part of the mother. Third, Chisholm J made his findings on the basis of the report of Dr Joliffe that the mother's prognosis for the future was good, whereas plainly her condition had deteriorated rather than improved since. He made clear his views that on the evidence before him the wife was sufficiently resilient to be able to cope with the difficulties she would experience, that has not proved so, as the report of Dr Rifkin makes clear.

55. Mr. Scott Manderson submits for the father that this is not a case similar in nature or seriousness, or established to the same standard as proof, as that of the mother in Re G. He relies upon, and emphasises, the requisite high standard of proof authoritatively laid down in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 per Ward LJ at 1154 a:

"There is therefore, an established line of authority that the court should require a clear and compelling evidence of the grave risk of harm or other intolerability which must be measured as substantial, not trivial, and of a severity that is much more than is inherent with the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence."

56. Ward LJ went onto refer to:

"the high standard which, in my judgment, it is vital that our courts maintain in order to give full effect to the purpose of the Convention so as to carry out our international obligations. Stringent tests must be enforced, not diluted."

57. In that case the judge at first instance, in refusing to order the return of the children to the USA was held by the Court of Appeal to have given undue weight to what was slight evidence of a risk of a psychological harm contained in the report of a Court Welfare Officer. It was made clear that the same high test applied in assessing the grave risk of placing the children in an intolerable situation.

58. Mr. Scott Manderson emphasises the distinction between general concerns going to the welfare of the children in the broad sense (which he rightly submits are matters for the Australian court) and matters which are sufficient to establish the higher threshold (i.e. "grave risk of harm") required to establish a defence under Article 13. He submits that the threshold will only be crossed in this case if I am satisfied that there is clear evidence of a likely breakdown in the mother's health on her return to Australia to an extent which would remove or seriously impair her ability to provide proper parental care to the children and he submits that the evidence falls well short of this.

59. He points out that:

1. The mother is currently in reasonable psychological shape, anxious about the court case but not disproportionately so, and is presently at any rate, happier and more at peace with herself without current symptoms of particular concern.

2. While she is fearful of her return to Australia and finds it difficult to contemplate how she can cope with a return to her former existence, it is not clear that she will be unable to tolerate it, or that the resilience she displayed before will not be maintained, particularly if backed by counselling or therapy.

3. While Dr Rifkin predicts a reversion to depression and disturbance worse in character than her previously (manageable) position, he acknowledges that it is speculative to predict to what degree her condition might deteriorate. If it holds good, Dr Rifkin's (speculative) fears will prove unjustified. If it does not, then counselling or therapy should be available.

4. The mother has herself made clear that, if there is an order for the return of the children, she will return with them and will endeavour to cope, unhappy as she will be.

5. With the children growing older and spending more time at school the strains of care will be less and the mother's opportunity to further her career may ease her feelings of inadequacy and depression.

6. Nowhere does Dr Rifkin state that the mother's condition is likely to deteriorate so far that, with medication or other support, she will be unable to look after the children properly.

60. Mr Scott Manderson goes on to submit that, in general, the concerns of the mother are over the contact arrangements and the welfare and happiness of the children. These are essentially matters for the Australian courts to consider in the light of the changed circumstances since the hearing before Chisholm J. This court is not in a position to judge the matter on the basis of contested evidence in summary proceedings which are designed simply to deal with the question of whether or not there should be an order for return according to the criteria set out in the Act.

61. I have anxiously considered the rival submissions. It is plain from the report of Dr Rifkin that there must be fears over the mother's state of health if I order return. However, I reluctantly remind myself that this can be a harsh jurisdiction. As pointed out by Hale LJ in TB v JB (Abduction: Grave Risk of Harm) [2001] 2 FLR 515, the Hague Convention was originally drafted to deal with case where the abductor was not the child's primary carer, but the other parent who snatched the child away from her. Now, all too frequently the abductor is the primary carer, the parent left behind acting to protect his rights of access. Because the threshold for an Article 13 defence is not to be decided on the basis of straightforward welfare considerations, but according to the higher standard of serious risk of harm, an order for return to the home country may well prove harsh in a situation where, although the child needs contact with the other parent, his or her need for a secure and happy home with the primary carer is even more important. Thus the order for return may well prove temporary in a case where the court in the "home" jurisdiction subsequently decides that ordinary welfare considerations now militate in favour of removal. That may well prove to be the position in this case if Dr Rifkin's concerns prove correct. However, in the absence of the court being satisfied that the Article 13 threshold has been breached, it is no part of this court's task , and indeed it would be improper, to usurp the function of the "home" court by way of short cut.

62. In my view, Mr Scott Manderson is correct in his submissions and what is sought on behalf of the mother is essentially that I should succumb to the temptation of a "short cut" solution in a situation where the evidence is insufficiently cogent to justify it. The proper solution in this case is for the court to order return so that the Australian court can reconsider the position on the application of the mother. It seems to me, that the highest it can properly be put on the evidence before me is that there are indeed risks that the mother will be come depressed on her return to Australia. However, I am not satisfied as to a grave risk that she will do so the extent of losing her parenting ability. Upon the evidence before me, there is a strong welfare case for the wife to be permitted to return with the children to England. Her continued good health and her own welfare as primary carer of the children, with the loving support available from her own family, presents a plain contrast to her unhappy and relatively isolated life in Australia, with less promising job prospects in a situation where money is tight. It is plain, as acknowledged by the husband, that she is the appropriate primary carer. A appears to have a plain preference for living with his mother, siding with her over the tensions which arise with his father. Again, the happiness of the mother is of considerable importance in the life of R, although I have little information directed to her position.

63. However, as I have already indicated, those are matters to be examined by the Australian court on principles and under procedures which are apparently similar to those which apply in this country.

64. Apart from the state of the mother's health, there are various concerns of detail which otherwise arise in respect of an order of return unless appropriate undertakings are given by the father. One particular matter of concern is the question of his non-payment of maintenance for the care of the children since August 2005. Upon his instructions, that fact was denied through his counsel in response to specific questions from the court, until the wife was able to produce documentation which showed such denial to be false. According to the father's second explanation, once the correct position became apparent, he had been "advised" to stop making such payments.

65. The husband offers, and the court will impose, the following undertakings to be lodged with the Australian Central Authority and the Family Court in Australia as a basis upon the which the order for return will be made:

(1) To pay the arrears of child support in full to the mother's English solicitors prior to the children's return.

(2) To continue to pay to the wife child support at the rate ordered by the Australian Court unless or until that court varies the amount payable.

(3) Not to institute any criminal proceedings against the mother arising out of her wrongful retention of the children.

(4) Not to institute any civil proceedings for contempt of court arising out of such wrongful retention.

(5) Not to seek to separate the children from the care of the mother save for contact in accordance with the existing Australian Court order pending the first inter-partes hearing in the Australian Court of any application in relation to the care of the children.

(6) Without making any admissions and without prejudice to the previous undertaking, not to molest, assault, harass, threaten or otherwise interfere with the mother by himself or by encouraging any other person to do so until further order of the Australian Court.

(7) To cooperate with the mother in finding and securing suitable accommodation for herself and the children prior to her return.

(8) Not to attend the airport on the arrival of the children with the mother or, without the request or permission of the mother, to attend at the mother's property in Australia providing that agreement is reached upon a neutral venue for contact handovers, pending any further order of the Australian Court.

66. It will not be appropriate for the children to be returned before Christmas. Once the undertakings are established and acted upon, then there should be a speedy return in order that the children may not miss the beginning of their next school term in Australia.