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Re DD [2016] EWHC 3546 (Fam)

Exercising inherent jurisdiction, Baker J applied the welfare principle to order summary return of an abducted child to a non-Hague Convention jurisdiction.

A father brought an application under the inherent jurisdiction for the summary return to Northern Cyprus of his son, D, who was aged six. The mother opposed it. Both parties accepted that D was and at all material times had been habitually resident on Northern Cyprus, and that the mother has retained him in the UK after a holiday without the consent of the father. The mother alleged that the father had been violent to her and made threats against her. The father accepted that he had made threats, but denied that he had been violent.

Northern Cyprus is not a party to the Hague Child Abduction Convention. The court applied the leading authority on the approach to be adopted in applications for a summary return under the inherent jurisdiction: the decision of the House of Lords in Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights) [2005] UKHL 40.  The key principle is that there is no presumption that it is highly likely to be in the best interests of a child, subject to unauthorised removal, to be returned to the country of habitual residence so that issues which remain can be decided by the courts in that country.  Instead, the most that can be said is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his own country for any disputes to be decided there. The weight which can or should be given to that starting point varies depending on the context and the specific nature of the case. The court does have power under the inherent jurisdiction, applying the welfare principle, to order the immediate return of a child without a full welfare investigation.

Baker J therefore considered the evidence of a Cafcass Officer who had interviewed D and both parties' cases, and conducted what it described as "a swift, realistic and unsentimental assessment of the child's best interests starting from the proposition that it is likely to be in his best interests to be returned to Northern Cyprus so that disputes about his future can be resolved there".

Having done so, the court was persuaded that it was in D's best interests to order summary return. The following factors were significant. Northern Cyprus was D's home, where he had always lived. Returning D to Northern Cyprus would enable him to have a close relationship with both of his parents to whom he was obviously devoted. D had started school in Cyprus and would be able to resume his education there if returned. The mother would be returning with him. In his meeting with the Guardian, D demonstrated through his reaction and relationship with the interpreter and in other ways that he had a very close affinity with his home country. D had been able to articulate in a strikingly clear way for a child of his age that he wanted to return to Northern Cyprus.  A return was therefore plainly in accordance with D's wishes and feelings. The risk of harm identified in respect of the mother's allegations could be addressed through an investigation as proposed by Northern Cyprus social services into the circumstances of the family, and the Guardian had received assurances from Northern Cyprus authorities about such an investigation.  The parties both gave a series of protective undertakings.

The court therefore ordered summary return under the inherent jurisdiction.

Summary by Marlene Cayoun, barrister, 1 Garden Court Family Law Chambers



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IN THE HIGH COURT OF JUSTICE No. FD16P00508
FAMILY DIVISION
2016 EWHC 3546 (Fam)

Royal Courts of Justice

Thursday, 15th December 2016


Before:

MR. JUSTICE BAKER
(In Private)


IN THE MATTER OF THE SENIOR COURTS ACT 1981
AND IN THE MATTER OF DD (A CHILD)


B E T W E E N :

D
 Applicant
- and -
D Respondent
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Transcribed by BEVERLEY F. NUNNERY & CO.
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__________

MR. Gillon. CAMERON was instructed by ADH Law for the Applicant Father.
MS. Lauren  LANSON
was instructed by Ozoran Turkan Solicitors for the Respondent Mother.
MS. Kelly WEBB was instructed by CAFCASS Legal for the children's guardian.
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J U D G M E N T
(As approved by the Judge)

MR. JUSTICE BAKER:
1. This is an application under the inherent jurisdiction by the father for the return to Northern Cyprus of his son, D, who is aged six.  The application is opposed by the boy's mother. 

2. The brief background is as follows:  The parties were married in 2009 in Cyprus, D was born in Cyprus and has lived there all his life.  At all material times, therefore, he has been habitually resident there.  It is the mother's case that the parties' marriage was marked by episodes of domestic violence perpetrated on her by the father.  The father denies that this is the case and I shall deal with this in a little more detail below. 

3. The marriage broke down and the parties were divorced on the mother's application and petition in 2015.  By an order of 29th December 2015 in the Famagusta Family Court, the following arrangements were made in respect of D:  First, custody of D was given to the mother; secondly, the father was ordered to pay child support for D; thirdly, contact between D and his father was ordered to take place "to establish personal relations" every Wednesday and Thursday between 13:00 and 20:00, every Sunday between 09:00 and 20:00 and between 09:00 and 18:00 on the second day of religious holidays.  The order further made provision for financial matters, which it is unnecessary to recite here. 

4. In the Spring of 2016, following that order, it seems there was an attempt at reconciliation between the parties but this failed.  In August 2016, the mother brought D to the United Kingdom ostensibly for a two week holiday.  The father agreed to the trip on that basis and even drove the mother and D to the airport.  On 31st August 2016, however, the mother sent a text message to the father telling him that she was not returning.  Since that date, the mother and D have lived in South London with the maternal grandmother and uncle who live in this country. 

5. On 15th September 2016 the father, who had come to England in an effort to achieve the return of D to Cyprus, filed an application in the Central London Family Court seeking the return of D to Cyprus and what he described as a "residence order" in his favour.  His hope was that D would be returned to Cyprus before the start of the school term on 19th September 2016, but that did not happen.  Prior to his arrival in this country, he had started proceedings in North Cyprus to enforce the earlier order.  On 16th September 2016, the mother applied for a non-molestation order and a prohibited steps order.  On that day, District Judge Dias in the Edmonton Family Court, at a without notice hearing, made a non-molestation order against the father preventing him coming within one hundred metres of the property at which the mother was residing or sending any threatening or abusive text messages or other communications to the mother, save through solicitors.  At the same hearing, the District Judge made a prohibited steps order preventing the father from removing D from the care of the mother. 

6. Meanwhile, the father's application which was earlier in time had been listed in the Family Division.  On 29th September 2016, it came before Mr. Charles Geekie QC sitting as a deputy judge of the Division.  Both parties were represented at the hearing and the mother accepted that she had retained D in the United Kingdom without the father's consent.  The judge made various directions including for a CAFCASS officer to prepare a safeguarding letter and for the documents to be filed and for the matter to be listed again on 27th October 2016.  An order was also made requiring the mother to make D available for contact with the father, both by Skype three times a week and also on four occasions for direct contact. 

7. The matter came back before me on 27th October 2016 and on that occasion, I made an order stating inter alia, first, by way of recital:

(1) "Both parties accept that D is and was at all material times habitually resident on Northern Cyprus and that the mother has retained him in the UK after a holiday without the consent of the father.

(2) The father has applied under the inherent jurisdiction for the summary return of D to Northern Cyprus.  The application is opposed by the mother.

(3) The father has handed his passport to his solicitor at the hearing.

(4) The mother has alleged that the father has been violent to her and uttered threats. The father accepts that he has uttered threats, but denies that he has been violent.

It is ordered that:

(1) D is joined as a party to these proceedings and CAFCASS High Court Team is invited to appoint a Guardian to represent him.

(2) The application for summary return is listed for a final hearing before Mr. Justice Baker on 14th December 2016. 

(3) Both parties and the CAFCASS Guardian are to attend the hearing.

(4) The mother shall file and serve all evidence on which she intends to rely by 4pm on 18th November 2016.

(5) The father shall file and serve all evidence on which he intends to rely in response by 4pm on 2nd December 2016.

(6) There be permission for both parties jointly to instruct an expert on Northern Cyprus law to address the following issues:

(a) Whether the custody order made on 29th December 2015 in the Famagusta Family Court in favour of the mother gave her unconditional leave to remove D from the jurisdiction of that court; and

(b) The implications of the father's proceedings of child abduction in Northern Cyprus and in this court on the mother's liberty were she to return to Northern Cyprus. 

The report which is necessary to resolve the issues in the proceedings shall be filed by 4pm on 2nd December 2016. 

(7) The Guardian to file a report by 9th December 2016.

(8) In the interim, D shall live with the mother and have contact with the father.

(9) The mother shall make D available for contact on dates set out in the order.

(10) Prior to each contact visit, the father is to surrender his passport to his solicitors.  Contact is conditional upon those solicitors informing the mother's solicitors by email that they hold the father's passport. 

(11) Neither parent is to discuss these proceedings in the presence or hearing of the child nor speak critically of the other parent in the presence or hearing of the child. 

(12) No order as to costs."

8. Pursuant to that order a report was obtained from a Mr. Hassan Balma, an advocate in Turkey, who concluded:

(1) The judgment of the Famagusta Family Court of 29th December 2015 granting custody of D to the mother does not give her unconditional leave to remove D from Northern Cyprus.  She will be required to show at the exit point permission from the father before leaving the country.  If no written permission is produced, the child would not be allowed out of the country. 

(2) In the event of the mother returning to Northern Cyprus after the father's proceedings in the UK or Northern Cyprus, her liberty will not be at any kind of danger. 

9. In her statements, the mother has alleged that the father has been violent to her during and after the marriage.  In particular, she claimed that, during an argument in May 2016, he pushed her and caused her to break her leg.  Subsequently, she says, he assaulted her again and on this occasion she called the police.  She further alleged that he has threatened, insulted and harassed her. The mother alleges that the father has assaulted her in the presence of the child including, she says, on one occasion by pulling her hair.  She also claimed that he ignored the terms of the court order of 29th December 2015 by bringing D back after contact at times of his choosing. 

10. The mother said that it was in this context that she decided that she could no longer bear his behaviour and threats and decided to move to the UK with D.  Thereafter, according to the mother, the father started sending her and the family threatening text messages and threatening to kill her and her family.  Examples of the abusive text messages are exhibited to one of her statements that she has filed in these proceedings. They include the following:

• "Look I'll break the door and walk in.  Ask the police.  It's my right.  I bought the house.  If you want, get your mother's key for her house. This house for my child."

• "And you prostitute's child.  Every time you beg, I will cut your flesh."

• "You son of a bitch.  I will be dancing with your screams."

• "Your mother should prove that she is not sending you for money."

• "You son of a bitch.  You are selling my car with the people who sleep around."

• "You planned to kidnap my child."

• "Did you think I would've just let go?"

• "I will fuck you all."

Those quotations are taken from translations of text messages exhibited in the original to the statement. 

11. In his statement, the father denied that he assaulted the mother.  He denies that the mother sustained a broken leg as a result of being assaulted by him and instead described an accident in which he says she sustained an injury to her foot, fracturing her toes.  In describing this account that he draws attention to a medical report from a doctor which is consistent with the injuries and the incident as described by him.  The father denies pushing the mother or pulling her hair.  He denies that D has witnessed any incidents between them.  He denies making threats to the mother's family.  He accepted that he had sent text messages of an abusive kind as evidenced above, but described them as showing two headstrong people having an argument with each other.  He believes that the mother had been planning to leave for some time to set up a new life in this country.  He noted that the mother in her complaint to the police in September in this country made no allegation that he was a danger to D and, in fact, said expressly that he was not, although in her statement in these proceedings she contradicted this assertion. 

12. The father relied on positive comments made by him by a social worker in Northern Cyprus in a report and also sent to the CAFCASS Guardian. In response, the mother asserts that the father who is a successful businessman in Northern Cyprus had used his influence through family connections with Social Services to obtain an unfairly positive report. 

13. The CAFCASS Guardian, Ms. Jolly, has prepared a detailed report in accordance with the direction.  For that purpose she met D, spoke via telephone and email with the social worker in Northern Cyprus, spoke to the mother by telephone and also to the father by telephone with the assistance of an interpreter.  She recorded that social services had told her of the police passing on information from the mother alleging threats and abuse.  Ms. Jolly confirmed that social services were told that the mother did not believe that D was in any immediate harm from his father, although she had felt unsafe due to the threats. 

14. A further referral had been made to social services by the refuge with which the mother was initially in contact based on the mother's assertion that the father had been using the time he was spending with D to manipulate him to convince him to return to Cyprus.  Social services considered these matters, but did not consider the concerns met the threshold for intervention noting that the proceedings were ongoing and the mother accessing support. 

15. Ms. Jolly was also able to establish that the police had undertaken a risk assessment and concluded on the basis of the mother's allegations that there was a high risk to her and her family. 

16. The key part of Ms. Jolly's report is her description and analysis of her interview with D.  After preliminary discussion when she putting D at ease, she asked him how he came to be in England now and D replied "because my mum's separate from my father".  He further informed her that he came here with his mum because she had separated from his dad and wants to live in England.  He added, however, "I would like to live in Cyprus, but my mum is scared of my father".  Ms. Jolly gently explored why his mother was scared of his father to which D replied that his father gets "quite angry".  He said that he had seen his dad become angry "many times".  Asked by Ms. Jolly what happens when his dad is angry, D said that he heard his parents' voices many times and he had heard his dad shouting at his mother.  He also said that he had seen his father pull his mother's hair. 

17. When Ms. Jolly asked him why he wanted to go back to Cyprus, he said, "because it's my country".  He said he liked England "a bit" and then later said he liked it very much.  He said he loves his mum because she is "a beautiful mum".  He also loves his dad.  He enjoyed spending time with his dad when he came over to England "because I love my father and I love my mum".  He told Ms. Jolly what he and his dad did when they went out together.  On the last occasion, before Ms. Jolly's visit, he had taken him to Toys R Us. 

18. In response to a direct question from Ms. Jolly, D said that neither parent talked about the other.  D told Ms. Jolly that he would like to live with his mum in Cyprus.  Ms. Jolly asked him whether he would feel scared about returning to Cyprus, but D - in what Ms. Jolly described as a seemingly confident tone - replied that he would not "because I love Cyprus". 

19. After the conversation finished Ms. Jolly offered to take D back to join his mum who was waiting outside in the waiting area, but D wanted to stay and spend more time with the interpreter and they played together for a bit before he went back to his mum. 

20. In conversation with Ms. Jolly the mother said that, notwithstanding the court order, the father was continuing to discuss the proceedings and criticise her when talking to D.  Ms. Jolly asked the mother what she would do if a return order was made.  She became emotional when she told Ms. Jolly that she would accompany D back to Northern Cyprus if an order was made.  She explained that she could not leave D with his father.  The mother told Ms. Jolly that she was scared about the prospect of returning because she believed the father would carry out his threat to have her raped and murdered.  She does not think it possible to have protective measures in place that would protect her.  She said that her home in Cyprus was near fields and with not many people around who knew her.  In contrast, she said the father had connections with many official people. 

21. In Ms. Jolly's conversations with the father, he told her that the contact visits had given him a welcome opportunity to do things with D.  As to the threats he made to the mother, the father said that it was an angry reaction to being informed that D would not be going back to Cyprus.  He apologised and said that he understood his behaviour was unacceptable.  He accepted that some messages he sent would be unacceptable.  He told Ms. Jolly that he believed this was all part of a plan to make him angry.  He said, however, that he would accept protective measures if the court decided to put them in place to provide reassurance in the event that a return is ordered.

22. In her analysis, Ms. Jolly concluded that D had been exposed to conflict between the parents and noted that D had said that he had seen his father assaulting his mother.  D has some understanding, according to Ms. Jolly, that his mother is frightened and that is why they came to live here.  However, whilst he likes being here, it is clear, according to Ms. Jolly, that his stated wish is to return to Cyprus which is the place that he knows best and loves. 

23. Ms. Jolly was struck by the way in which D was observed to have a spontaneous and sustained identification with the interpreter.  Ms. Jolly described this as very stark and compelling, something she had not come across before.  In her view, it was a powerful demonstration of D's identification of himself as a little boy from Cyprus.  He has, as Ms. Jolly describes, "a significant connection with that country reflective of his ethnic and cultural heritage, his first language and the time he has spent there".  Ms. Jolly thought that, while his cultural and linguistic needs can be met in his current living environment with his mother, maternal grandmother and uncle, he experiences a sense of loss of being removed from day to day live in Cyprus.   Ms. Jolly observed that:

"D is a six year old boy and, whilst his stated wishes and feelings are not determinative, he conveys an understandable yearning to return to the country he considers to be his home.  As I understand it, it is generally accepted that the best interests of a child is secured by having their future determined in the jurisdiction of their habitual residence.  However, each case has to be considered on its circumstances and welfare is the paramount consideration. For the purposes of this assessment, I take the mother's reports of violence at their highest.  The father has subjected the mother to threatening communications here which necessitated the intervention of the police who have a statutory duty to protect, to intervene, and have classified the risk of harm as 'high'.  He received two warnings from the North Cypriot Police. 

The mother is D's primary carer.  As with his father, D loves his mother and would suffer significant harm in turn if she was subjected to domestic violence.  The mother has confirmed that she would accompany D if a return order was made.  The father has indicated that he is able and willing to withdraw the proceedings instigated in Northern Cyprus against the mother.  The legal expert opinion before the court is that her liberty would not be in any jeopardy.  In the light of admitted threats to the mother and the serious allegations raised, the court will wish to be satisfied that robust protective measures are in place before any return order is implemented."

24. On that basis, Ms. Jolly recommended that, subject to the father providing undertakings and protective measures which could be mirrored in Cyprus and the social services in Famagusta confirming they stand ready to assess the situation and provide what is needed by way of support and protection, she will support D's return to the Turkish Republic of Northern Cyprus.  She had further advised that the case papers in the proceedings, including this report, should be transmitted to the social services in Northern Cyprus and be disclosed in any proceedings concerning D's future welfare in that country. 

25. Furthermore, following that report, Ms. Jolly did receive an email from the social worker in Northern Cyprus confirming that she would be able to take protective and preventative measures under the law in that country if the mother were to return.  She pointed out that they would have the opportunity to do family work with the parents and stressed that D's welfare was "as important to them as it is to us".

26. As to the law, the leading authority on the approach to be adopted in applications for a summary return under the inherent jurisdiction to countries that are not party to the Hague Child Abduction Convention is the decision of the House of Lords in Re J (A Child) (Return to Foreign Jurisdiction: Convention Rights) [2005] UKHL 40.  In the speech of Baroness Hale of Richmond, the following principles are set out:

(1) Save where statute provides an exception, "any court which is determining any question with respect to the upbringing of a child has had a statutory duty to regard the welfare of the child as its paramount consideration".

(2) There is no justification, either in statute or case law, for extending the principles of the Hague Convention to cases outside the Convention, which, exceptionally, requires the court to make a decision but does not give paramountcy to the child's welfare. 

(3) An application under the inherent jurisdiction for the summary return of a child from one country to another must therefore be determined by giving paramount consideration to the child's welfare.

(4) This court does have the power, in the course of the welfare principle, to order the immediate return of a child who has been abducted without conducting a full investigation of the merits. 

(5) Kidnapping is strongly to be discouraged by other forms of unilateral action in relation to children but that discouragement must take the form of a swift, realistic and unsentimental assessment of the best interests of the child, leading, in proper cases, under the inherent jurisdiction to the prompt return of the child to his or her own country, but no sacrifice for the child's welfare for some other principle of law. 

(6) There is always a choice to be made by the court.  Summary return of a child to his home country should not be the automatic reaction to any and every unauthorised taking of a child. 

(7) On the other hand, a summary return may well be in the best interests of the individual child.

(8) A trial Judge making the choice of these matters has to focus on the individual child in the particular circumstances of the case. 

(9) There is no presumption that it is highly likely to be in the best interests of a child, subject to unauthorised removal, to be returned to the country of habitual residence so that issues which remain can be decided by the courts in that country.  The most that can be said is that the Judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his own country for any disputes to be decided there.  The case against that has to remain that the weight which can or should be given to that starting point varies enormously depending on the context and the specific nature of the case. 

Discussion and Conclusion
27. On behalf of the mother, Ms. Lanson submits that it is clear that, whilst it is clear that the child misses his life in Northern Cyprus, that is not enough to justify an order for return.  The court needs to balance the risk to the child in experiencing harm coming to his mother or the stress of anxiety that she would experience if ordered to return against the benefits of a return.  The court in Northern Cyprus has already adjudicated on the matter of the child's residence determining that he should live with the mother with visiting contact to the father.  In the event that no order for return is made, the child will benefit from a closer relationship with his maternal family in this country whilst still being able to maintain a relationship with his father who is a man of means and able to afford to fly over to see him. 

28. Applying the principles in Re J, a summary return should not be regarded as automatic reaction.  Ms. Lanson submits that the outcome of a delicate balancing act in this case should be for the court to decide that it is not in his best interests to be returned to Northern Cyprus where the risks of harm are, in Ms. Lanson's phrase, "so great". 

29. In my judgment, however, this is a clear case to order that D be returned to Cyprus at the earliest practical opportunity.  In an application for the return of a child brought under the inherent jurisdiction, it is the child's welfare that is the court's paramount consideration.  However, as Re J confirms, the court does have power under the inherent jurisdiction, applying the welfare principle, to order the immediate return of a child without a full welfare investigation.  This court has carried out what I hope has been a swift, realistic and unsentimental assessment of the child's best interests starting from the proposition that it is likely to be in his best interests to be returned to Northern Cyprus so that disputes about his future can be resolved there. 

30. In this case, there are strong arguments, in my judgment, for concluding that he should be returned there:

(1) Northern Cyprus is the home where he has always lived.

(2) Returning him to Northern Cyprus would enable him to have a close relationship with both of his parents to whom he is obviously devoted.

(3) D has started school in Cyprus and will be able to resume his education there if returned.  The mother is going to be returning with him.

(4) In his meeting with the Guardian, he demonstrated through his reaction and relationship with the interpreter and in other ways that he has a very close affinity with his home country.

(5) He was able to articulate in a strikingly clear way for a child of his age that he wanted to return to Northern Cyprus.  A return is therefore plainly in accordance with D's wishes and feelings.  Although not decisive, I find that both his wishes and feelings are significant factor in this case. 

31. On the other hand, I take into account the points raised on behalf of the mother.  Her allegation of abuse and risk of harm and the abusive texts which the father has sent her provides support for her allegations, as do D's comments about the father pulling the mother's hair.  Although any domestic violence or abusive behaviour or language between parents leads to a risk of emotional harm to the child, there is, in this case, no evidence of direct abuse or harm suffered by D.  I take into account, of course, that D would be adversely affected by the mother's suffering and unhappiness if she is obliged to return. 

32. Overall, however, I conclude that any risk of harm of the sort identified above can be addressed through the investigation proposed by Northern Cyprus social services into the circumstances of the family.  The Guardian has, as I have described, received assurances about this investigation which will prioritise D's welfare and will extend to an investigation of the mother's allegations of domestic violence and harassment.  I will therefore direct that all papers in the case be disclosed to the Northern Cyprus social services and that this judgment should be transcribed and translated and sent to Northern Cyprus. 

33. In addition, as a condition of my return order, I have required the parties to give a series of undertakings.  The father has undertaken: 

(a) That he will comply with the order of the Famagusta Family Court dated 29th December 2015 in respect of D's living arrangements.

(b) That he will co-operate with social services in Northern Cyprus.

(c) That he will not contact the mother, other than through lawyers, until the conclusion of the anticipated assessment of the family that is undertaken by social services in Northern Cyprus.

(d) That he will not go to or enter the mother's property in Northern Cyprus.

(e) That he will withdraw any current proceedings in Northern Cyprus in respect of the mother's abduction of D in September 2016 and will not institute any further proceedings, whether criminal or civil, for the punishment of the mother arising out of the abduction of D in September 2016.

(f) That he will not molest, harass or intimidate the mother nor instruct any other person to do so. 

34. The mother has undertaken:

(a) That she, having returned to Northern Cyprus with D, shall not remove D from Northern Cyprus without the permission of the father or order of the court.

(b) That she will comply with order of the Famagusta Family Court dated 29th December 2015 in respect of D's living arrangements.

(c) That she will co-operate with social services in Northern Cyprus.

(d) That she will not molest, harass or intimidate the father nor instruct any person to do so.

35. I explained to both parents that the undertakings they have given are promises to the court and that, if broken, they would be in contempt of court.  Each of them accepted that and signed copies of the undertaking form.  The undertakings shall be appended to the order made by the court and sent, along with the rest of the papers, to Northern Cyprus.   In my judgment, the involvement of the Northern Cyprus social services and the undertakings given by the parties significantly reduce the risk of any harm to D resulting from his return to Northern Cyprus. 

36. I have therefore reached the clear view that the right order to make in this case is to order that D be returned to Northern Cyprus, as described above. 

37. The only remaining issue is the date on which he should be returned.  The mother asks that it should be postponed until 7th January 2017 - she wishes D to be a page at her friend's wedding in this country - but, in my judgment, he has been away from his home for too long already and I do not think that postponing the return for nearly four weeks can be justified.  I am conscious, of course, that the holiday season may make travel more difficult and I therefore have decided to direct that he be returned to Northern Cyprus within fourteen days, that is to say, by no later than 29th December 2016. 
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