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CS & Another v PD [2017] EWHC 1514 (Fam)

Judgment of Mr Justice Holman in an “unusual” case under the Hague Convention on the Civil Aspects of International Child Abduction.

The case involved two children, two fathers and one mother, who had been living in the United States of America. The mother unilaterally brought the two children to England. This was found to be a wrongful removal and an order for the summary return of the children to the USA was made. The court rejected the mother's argument that due to her own mental health and profound anxiety at the thought of returning to America, this constituted a grave risk of psychological harm under Article 13.

However, following this decision of the court, the mother suffered a severe deterioration in her psychiatric well-being. She applied to set aside the court's order to return the children on the grounds of a significant change in circumstances. The fathers opposed this application. A psychiatrist was instructed to assess the mother. 

The psychiatrist concluded that the mother had suffered and continued to suffer severe psychiatric ill-health which would only deteriorate further if her children returned to the USA. In light of this assessment, the fathers both withdrew their applications for return.

Summary by Patrick Paisley, barrister, 1 Garden Court Family Law Chambers
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Case No.  FD16P00420
Neutral Citation Number: [2017] EWHC 1514 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Date: Friday, 7th April 2017

Before:

MR  JUSTICE HOLMAN
(In Private)

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B E T W E E N :

CS and  D
 Applicants
-  and  -
PD Respondent
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Transcribed by OPUS 2 INTERNATIONAL LTD
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MR M. JARMAN (instructed by Brethertons LLP) appeared on behalf of the first applicant father.
MISS J. RENTON appeared on behalf of the second applicant father.
MS M. CHAUDHRY appeared on behalf of the respondent Mother.
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J U D G M E N T (As approved by the Judge)
MR JUSTICE HOLMAN:  

1. This is an unusual set of proceedings under the Hague Convention on the Civil Aspects of International Child Abduction.  There are two children, two fathers and one mother.  The mother has two daughters now aged respectively seven and a quarter and four and three quarters.  Those are children of different fathers, both of whom are American and serving in the American forces.  Both daughters have always lived with their mother and together with each other.  Until last May, the mother and the children had recently been living together with the father of the younger daughter, who is her husband, in America.  The mother unilaterally brought the two children here to England.  It is beyond argument that that was a wrongful removal within the meaning of The Hague Convention.

2. Both fathers applied, pursuant to the Convention, for the return of their daughters to America.  After a lengthy contested hearing in October 2016, Mrs. Justice Roberts made an order for the summary return of both children to America pursuant to the Convention.  She gave a characteristically clear and detailed judgment under neutral citation number [2016] EWHC 2913 (Fam.).  I will not make further reference to anything in that judgment.

3. A defence that was raised by the mother at that time pertained to her own mental or psychiatric wellbeing and her profound anxiety at the thought or prospect of her daughters having to return to America, But Mrs. Justice Roberts concluded, on the evidence available before her at that stage, that those matters did not amount to a grave risk of psychological harm to either child so as to trigger the exercise of discretion under Article 13 of the Convention.

4. Immediately following that decision and order and before the children had actually returned, the mother claimed to suffer a further severe deterioration in her mental or psychiatric wellbeing as a consequence of the decision and the prospect of the imminent, enforced return of her daughters to America.  This led to cross-applications heard before Mr Justice Mostyn on 1 November 2016.

5. The father of the younger child, being the mother's husband, applied for enforcement of the order of Mrs. Justice Roberts with appropriate orders for the immediate return, at any rate of that child, to America.  The mother cross-applied for the order of Mrs Justice Roberts to be set aside on the grounds of a subsequent and significant change in circumstances.  These matters were fully argued before Mr Justice Mostyn, as one would expect, since counsel for that father was Miss Jacqueline Renton and Mr Nicholas Anderson appeared on behalf of the mother.  Mr Justice Mostyn declined to make any immediate order in enforcement of the order of Mrs. Justice Roberts and, in a characteristically lucid and learned judgment, he made plain that, even when an order for immediate return has been made pursuant to the Convention, it may be set aside on the basis of some subsequent and sufficient change in circumstances.

6. That appears to have been a contentious proposition, although I, for my part, have never doubted it.  The upshot was that directions were given for the mother to be examined by a consultant adult psychiatrist on the joint instructions of the mother and both fathers.  There was a delay due to funding difficulties but, in the end, a consultant psychiatrist, Dr Una McDermott, whose qualifications include MRCPsych, was instructed.  She considered all the relevant documents and met the mother over a long period, face to face, and had a further telephone consultation with her a few days later.

7. Dr McDermott then reported in a report dated 2 March 2017.  I will not, in this brief judgment, quote anything from that report, since the report has of course been seen by all parties to these proceedings and will remain available to them and to any court anywhere which may subsequently have to consider the arrangements for, and wellbeing of, either of these children. The gist of the report is that, as a personal and subjective reaction to the decision that her children must return to America, this mother has suffered, and continues to suffer, severe psychiatric ill-health which could only deteriorate yet further if indeed her children had to return to America.

8. That report has been seen by both fathers.  I am pleased to record that, at this restored hearing today, both fathers (although not personally present) have reacted responsively and responsibly to what they have read in that report.  Both fathers have now accepted that their respective child cannot return to live in America, for the effect upon the mother, and indirectly upon the child, would be likely to be so severe and deleterious.  In the result, therefore, I have not had to rule upon anything today.  By consent, the application of the mother that the order of Mrs. Justice Roberts in relation to each child should be set aside will be granted, and the application by each father for permission to withdraw their respective applications under the Hague Convention will also be granted.

9. There has been discussion outside court today in relation to child arrangements.  For reasons which it is not necessary to go into and indeed which are not really known to me, no agreement has been reached between the mother and the father of the elder daughter.  That father is in fact currently posted to, and serving in, Japan.  If he wishes to seek contact with his daughter or any other child arrangements, the onus will be upon him to issue an appropriate set of proceedings and make such application as he seeks.

10. In relation to the younger child, the mother and that child's father have reached a significant measure of agreement today in relation to future arrangements.  I appreciate that there are some unresolved issues and that a bigger issue may remain to be considered one day in relation to whether that child should travel to America and, if so, with what safeguards.  At all events and meantime, the parents of that child have reached a significant measure of agreement with regard to child arrangements here in England and Wales.

11.  I am very pleased indeed that this case has resolved in that way today.  I hope that the mother will already begin to feel the massive release from the terrible burden that she felt was weighing down upon her, with the prospect of the return of her daughters to America.  She can leave today, secure and confident in the knowledge that, absent some truly unforeseen circumstance, her daughters will be able to continue living together with her here in England.  As I have said, issues in relation to contact may remain, but that fundamental issue has now been resolved.

12. So far as concerns the younger child, I sincerely hope that the agreements which have been reached today can be seen by both parents as a platform or springboard from which they can now start moving forward collaboratively and cooperatively as parents, and indeed that future litigation and court hearings may yet prove unnecessary.

13. I wish to conclude by expressing to Dr McDermott, who remains in court, my very considerable gratitude to her for the quality of the work which she has put into this case and the clear and insightful way in which she set out her conclusions and opinion in her report.  She put at the very end of her report at internal paragraph 39, a "postscript" saying:

"It would be most helpful for the development of my work if I could be informed of the outcome of this case and particularly if my report has been helpful."

14. As she has sat here throughout today, she herself has seen and heard with her own eyes and ears the outcome, and I do assure her that her report has been very helpful indeed to me and, I hope, to all the parents and indeed children involved.
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