username

password

3PBDNA LegalHarcourt ChambersGarden Courtimage of 4 Paper Buildings logoHind Court1 Garden CourtCoram ChambersAlpha Biolabssite by Zehuti

Home > Judgments

Re W (A Child) [2017] EWCA 2152 (Civ)

Judgment in an appeal against the decision to return a 15-month-old boy, Z, to America in proceedings under the Hague Child Abduction Convention. The parents of Z were married and had lived together in America since 2008.

Factual background
Z's Mother, who is English, had suffered for a long time with low-level depression, but her mental health had deteriorated after the birth of Z and her symptoms of depression became acute and complicated with the onset of post-natal depression. The Mother had also been diagnosed with obsessive compulsive disorder.

The Mother's difficulties were such that, in early February 2017, she returned to England with her sister. The hope was that the Mother would benefit from returning to her home country for a period of time; Z was left in the care of his Father, who is American, in America.

At the end of March 2017, the Father and Z travelled to England; there was a plan that the Mother, Father and Z would all return to America together on the 19th of April. Return tickets had been booked for this date. However, the circumstances and plans changed when the experts assessing the Mother's needs and mental health in the UK decided that she needed a more intensive intervention and formulated a plan to find a unit in which she could live as a voluntary patient, with Z. On 18th April 2017, the Mother and Z moved to an NHS mother and baby unit, and the Father returned to America alone on the 19th.

During the time that the Mother and Father were together in the UK, their second child was conceived. The trial judge found that, "the father … was anticipating that the mother and child would return to America once she was fit to do so, but he found that, by mid-May, with the discovery of her pregnancy and following the father's reaction to that, the mother concluded in her own mind that from that time her intention was to remain in England."

On 15 June, the Father wrote to the Mother saying, "then I will have to inform you that it's okay if YOU stay there but I don't approve that our son (Z) stay any longer that he has stayed.  Z needs to be returned to Rochester NY".

The Father issued a petition for custody in the local court in America on 27 June. The Father also issued Hague Convention proceedings in England on 26 July. On 27 July, the Mother moved with Z to a family centre residential unit at Jamma Umoja.

First instance decision
At trial, the Mother's case was argued on the issues of habitual residence and whether or not the circumstances of the child fell within Article 13(b) of The Hague Convention. Article 13(b) provides that a return of a child can be avoided where "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".

The judge rejected the Mother's case, finding that the key date was 15 June and that at the time, Z was habitually resident in America but wrongfully retained by the Mother in England. The judge did not consider that Article 13(b) was established and examined Z's circumstances if the Mother were to return to America with him, and those he faced if she did not retrun and he went to America in his father's sole care. The Mother appealed on an urgent basis to the Court of Appeal.

Grounds of appeal
The Mother ran four main points on appeal:

1) That the judge erred in failing to determine and properly consider the habitual residence of the Mother (with particular reference to her being in an institution) when assessing Z's habitual residence;

2) That, in considering whether or not there was a wrongful retention at all, a case where one parent unilaterally brings to an end a period of a stay in a country, which has previously been fluid, could never properly establish a breach of Article 3 of the Convention;

3) That a detailed welfare examination of Z's circumstances should have been conducted in this case when looking at Article 13(b). Mr Turner QC, for the Mother, argued that a detailed welfare analysis was not only permissible under the Convention, but (in some cases such as this) absolutely necessary; and

4) That the effect of the judge's order was to prematurely decide the overall "custody" issue between the parents.

Court of Appeal decision
The decision of the Court was given by Lord Justice McFarlane, with whom Lords Justice Moylan and Peter Jackson agreed.

In considering the ground of appeal relating to the analysis of habitual residence, the Court ultimately saw no reason to question the evaluation and conclusions of the trial judge. The judge correctly assessed the degree of integration that the Mother had achieved in the social and family environment in England, whilst taking careful consideration of the fact that,

"the mother's whole environment was sadly dictated by her condition, and she was not only in an institution, but in a frame of mind as a result of her illness that inhibited her ability to form a settled view and become integrated in social and family environment as would otherwise hopefully be the case" (paragraph 32).

The Court of Appeal felt that the submissions on behalf of the Mother in relation to wrongful retention were "bold" as, if correct, the effect would essentially be that the Convention could never apply to circumstances such as these, where arrangements are fluid. Lord Justice McFarlane was firm in his conclusions on this ground saying (at paragraph 43):

"I go no further in my analysis of this area of the appeal.  In my view, it gets nowhere once habitual residence has been determined as the judge held that it was. The mother clearly formed her conclusion prior to 15 June not to return. The father, at all times, had been looking for the time when the mother and the child would return, but once, as it became, as it had increasingly so become, clear to him that she was going to stay put in England, he very clearly required the child to return. …"

More detailed consideration was given by the Court of Appeal to the third ground of appeal. The factors taken into account by the trial judge are set out in full (at paragraph 53) and the Court concluded that it was correct for both options (Z's return with the Mother and Z's return without her) to be evaluated in full. Ultimately, however, the Court dismissed this ground of appeal too, summarising their conclusions as follows:

"55. The thrust of Mr Turner's submissions led the court to consider a great deal of information about the mother's circumstances. She is in a difficult situation which generates a great deal of sympathy, from this court and no doubt from all who hear about it, but the court is not required to assess the intolerability of the mother's predicament or the choice that she has to make; the focus must be on the impact on the child.  The judge found that for the child to go to America without the mother, despite the breach of the "close bond" that the judge held that the child had with the mother, would not expose the child to a situation sufficient to engage with the high level of intolerability required by Article 13(b).

56. In my view, it is impossible to hold that the judge was wrong in that evaluation. …"

The Court of Appeal felt that the fourth ground was wrapped up within the Mother's case on Article 13(b) and that, given that it was not possible to predict what course either parent would take in relation to proceedings in America, or in relation to Z's soon to be born younger sibling, this factor did not add to any "intolerability" for Z on return but was instead a mere future unknown.

The appeal was therefore dismissed.

Summary by Millicent Benson, barrister, 1 King's Bench Walk
_______________________________________

Case No: B4/2017/2929A&B
IN THE COURT OF APPEAL (CIVIL DIVISION)   [2017] EWCA 2152 (Civ)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Nigel Poole QC)

The Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday, 12 December 2017

Before:

LORD JUSTICE MCFARLANE
LORD JUSTICE MOYLAN
LORD JUSTICE PETER JACKSON

- - - - - - - - - - - - - - - - - - - - -

Between:

Re W (A child)
- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of WordWave International Ltd trading as DTI
8th Floor, 165 Fleet Street,  London EC4A 2DY
Tel No: 020 7404 1400  Fax No: 020 704 1424
Web: www.DTIGlobal.com        Email: TTP@dtiglobal.eu
(Official Shorthand Writers to the Court)


- - - - - - - - - - - - - - - - - - - - -

JAMES TURNER QC and TOM DANCE (instructed by Miles & Partners LLP) appeared on behalf of the Applicant

TEERTHA GUPTA QC and ROSHI AMIRAFTABI (instructed by TV Edwards) appeared on behalf of the Respondent
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment

 

Crown Copyright©

LORD JUSTICE MCFARLANE:

1. This is an appeal brought by the mother of a still very young child following the conclusion of proceedings under the Hague Child Abduction Convention which were heard before Mr Nigel Poole QC, sitting as a Deputy Judge of the High Court.  Judgment was given on 25 October 2015 and following permission to appeal being granted by my Lord, Lord Justice Moylan, this appeal has come on relatively quickly for hearing before the full court.

2. The circumstances of the case are tragic, if that is not an over-used word in this jurisdiction, they are certainly extremely sad, because the couple, who are the parents of the child, met in ordinary circumstances and married in 2006. She was born and resident in the United Kingdom living in England. He is an American. In February 2008 she went over to America to take up married life with him.  They lived in Rochester in the State of New York from that time onwards.

3. The child concerned, a boy, Z, was born in September 2016 and so he is now 15 months of age.  All of that is unremarkable and in other circumstances would not bring a case before this court.  The sadness arises from the mother's unfortunate mental ill-health.  It is now clear, and she has been assessed by experts both in America and here, that for a long time she has suffered from relatively low-level depression, but following the birth of Z, her symptoms of depression became acute and complicated with the onset of post-natal depression.

4. Separately, she is also now diagnosed as having obsessive compulsive disorder and so the cocktail of complications in her life, the mix of these two relatively serious conditions, means that she has difficulties which would not face others who are more fortunate and at times this compromises her ability to care for her son. 

5. That there were difficulties became apparent in the weeks and months following Z's birth and the mother spent a short time in hospital in America in January of this year. There was concern in doubt both sides of the family; the mother's sister came over to America at around that time and it was agreed that the mother would benefit from returning to her home country, as it had been before she went to America some nine years previously, of England.  Thus it was on 8 February this year, the mother and her sister left America and came to England, leaving (at that time) the boy Z in the care of the father.

6. The father brought Z over to England, departing America on 31 March and his plan was that that should be for a short period.  A return ticket for the three of them was purchased returning on 19 April.  However, by that time, the mother's condition had been assessed by experts here and it was agreed that she needed a more intensive intervention in order to assist her with her mental wellbeing, and by that stage, the plan was to find a unit in which she could live as a voluntary patient and take her young child, Z, with her.  That was the situation the father met.  The judge made findings as to this and he concluded that, at the time that the bookings were made, he was quite satisfied that when the father came to England, the plan was to return with the mother and Z together on 19 April, but that, because he found the situation had changed, in the event on 19 April, it was only the father, by agreement, who returned alone.

7. The day before, 18 April, the mother and Z had in fact been admitted to an NHS mother and baby unit and there they remained until the end of July.  Also significantly, on 18 April, it is agreed that the father visited the mother at the unit.  Sexual intercourse took place and, as the mother discovered a month or so later, she became pregnant with the child that she is now expecting to give birth to next month in January 2018. 

8. The judge found that, as at the father's departure on 19 April, there was agreement between the parties that, for the time being, Z would remain with the mother in the unit.  The judge had the benefit, as is often the case in modern times, of extensive text communications between the couple following his return to America.  The judge's judgment unfortunately has not been transcribed into an approved transcript and is not at present available under any neutral citation. We have a written copy of, as I understand it, the notes used by the judge when giving an oral ex tempore judgment and I understand he has approved the use of that copy before this court for the purposes of this appeal.  It is an extensive judgment with a range of detailed findings within it.  I am not going to quote extensively from that judgment in this judgment, except where necessary, but I hope that his judgment will be published in an ordinary and approved form in due course. 

9. At paragraph 17 of the note of judgment that we have, the judge made some 13 separate micro-findings (as they might be called) as to the events in the period between 19 April and 15 June, which as I will explain, became the key date for the judge's determination of the issues in this case.

10. In short, the judge found that the father, as I have indicated, was anticipating that the mother and child would return to America once she was fit to do so, but he found that, by mid-May, with the discovery of her pregnancy and following the father's reaction to that, the mother concluded in her own mind that from that time her intention was to remain in England.  She did not communicate that to the father at that time; she simply did not respond to his increasingly clear statements that he expected her to return to America. 

11. Matters came to a head, as the judge records at paragraph 17(xii):

"On 15 June [C299] he wrote that if M wanted to continue at the Mother and Baby Unit "then I will have to inform you that it's okay if YOU stay there but I don't approve that our son (Z) stay any longer that he has stayed.  Z needs to be returned to Rochester NY"

12. The father, no doubt understanding that the mother was not by that stage intending to return, issued a petition for custody in the local court in America on 27 June.  That led to the granting of a habeas corpus order, as it is referred to in the papers, by that court on 18 July requiring the child to be produced in America forthwith and a further order of 31 July requiring the mother to comply with the habeas corpus order and return the child to America.  Pausing there, it seems to me unattractive, to put it in the mildest and most neutral terms, but certainly incompatible with the agreed policy aims of the Convention, for one party or another to seek to obtain orders of that clarity and force when the Convention is available to determine the very issue of whether or not the child should return to this jurisdiction. 

13. The father did, however, in the same time frame as those American proceedings, also issue Hague proceedings and the application in this jurisdiction was issued on 26 July.  That, by coincidence, was at the time that those in charge of the NHS mother and baby unit, determined that the mother no longer required care in their institution, but they recommended that she was unable at that stage to move straight away into the community.  Thus it was that on 27 July, in cooperation with the local social services, the mother moved with Z to a family centre residential unit at Jamma Umoja.  It is in that unit that she and her child continue to reside even now.

14. That was the factual set-up in very short terms that presented itself some two or three months later before the judge.  The case was fully argued on the issues of habitual residence and whether or not, as the mother asserted the case to be, the circumstances of the child fell within Article 13(b) of The Hague Convention.  In the event, the judge rejected the mother's case.  I will turn to the detail in a moment, but in short terms, he concluded that the key date was 15 June and that, if Z was habitually resident in the USA as at that date, then the mother's actions in not complying with the father's request for return, he having rights of custody and requiring the child to return, was a wrongful retention under Article 3 of the Convention.  The judge concluded that the child was indeed still habitually resident in America at that date and he therefore held that there was a wrongful retention as at 15 June.  He contemplated whether or not an earlier cut-off date should be contemplated upon on the basis of anticipatory wrongful retention.  But in the event, he went to the more solid ground on 15 June and issues of anticipatory wrongful retention have not been the focus of this appeal. 

15. He therefore moved on to evaluate the mother's Article 13(b) case.  He did so in the alternative, firstly contemplating circumstances if she were to return to America, and secondly, if not, if she was to remain here, what the situation would be for the boy were he to go to live with his father and his father's family without his mother who is the primary carer. 

16. After a full evaluation, the judge held that Article 13(b) was not established.  He therefore made a return order on the basis, as was the case before him, that it was likely that the child would return with the father, the mother having made it clear that she did not at that stage feel able to return to America with him if that was the court's order.  That order was stayed by a direction of my Lord, Lord Justice Moylan, on 27 October and so the status quo, as it was before the judge, continues to exist.

17. For the purposes of this appeal, this court has been told that the local authority remain concerned about the mother's potential to provide safe and good enough care for Z and that, if her appeal is successful, they will contemplate issuing care proceedings.  For my part, whilst it is helpful for this court to be kept up to date, that information plays no part in the analysis of what went on before the judge, which has to be the focus of this appeal process. 

18. The case brought on appeal by Mr James Turner QC, who did not appear below, on paper leading Miss Katy Chokowry who did, but this morning her place being taken by Mr Thomas Dance, relies upon three main grounds of appeal and a subsidiary fourth ground which really forms part of the mother's Article 13(b) case. 

19. The three grounds relied upon travel under the headlines of: (1) habitual residence; (2) wrongful retention; (3) Article 13(b).  Turning to each in turn, Mr Turner makes a preliminary point which seems to me to be well made which is that there is an overlap in cases of wrongful retention between the determination of the question of habitual residence and the determination of the wrongful retention issue itself.  Put in short terms, one has to understand when, in the sequence of factual events, it would be a case of wrongful retention if the child was habitually resident elsewhere, so that a date can be generated, and then the question of habitual residence is evaluated as against that date.  The judge in the present case asked himself precisely that question.  He, as I have indicated, having fixed upon 15 June 2017, said this at paragraph 46 of the note:

"I find that from 15 June 2017 at the latest, Z was wrongfully retained in England, provided of course that at that date he was still habitually resident in the USA."

20. One has to start somewhere in that circle taking either the case on habitual residence or wrongful retention first, and I adopt the course taken by Mr Turner before this court in looking at the judge's evaluation on habitual residence on the basis that 15 June 2017 is the date.

21. The mother's case on habitual residence on appeal is put in a variety of ways.  It is a given that at the start of the sequence of events that I have described, all three parties, the mother, the father and the boy, were habitually resident in the USA.  The question for the judge was whether the child's habitual residence had changed as a result of the movements in the family since that time.  Mr Turner submits that, given the age of this child, it is not only important but imperative that the court determines the habitual residence of the child's primary carer, namely the mother, she having been his carer for the whole of his life, save for the five or six weeks when she came in advance of him to England in February. 

22. Mr Turner accepted in the course of submissions that the determination of the mother's habitual residence does not itself determine the answer to the question about the child, but he submits that it has a powerful impact upon the outcome of that ultimate question.  He refers the court to a number of authorities, in particular the Supreme Court case of Re R [2015] UKSC 35.  That was a case where the couple separated. The mother came to Scotland which was her home State and, whilst there, came to a view that the marriage was no longer tenable and decided to remain there and the court accepted that it was possible for her and the child to achieve a change of habitual residence in those circumstances.  The court was also referred to another case of Re R [2015] EWCA Civ 674, a Court of Appeal decision.  In that case, the mother had come from Morocco and was living in what would be thought to be less than ideal circumstances and it was accepted by this court that the habitual residence of the party does not have to be assessed only in circumstances where life is positive and, as it were, commodious to them.  The overall circumstances of the case can include, as they do sadly for this mother, arrival in the State to which she has come to circumstances which are not ideal, not living at home, living in an institution, suffering from mental ill-health and having no clear plan as to where her future might be.

23. In the course of his submissions today, Mr Turner argues that the judge blurred the lines between assessing habitual residence of the mother and of the child.  It is the case that at no time in his judgment does the judge express a clear finding that the mother was or was not habitually resident back in England at any time in the period up to 15 June.  Mr Turner submits that that is a significant error.  Taking the point in turn, one has to have in mind just what the test is and whether it is the case that a court has to determine the "habitual residence" of the parent with primary care or some different level of finding, and Mr Turner took us to paragraph 54(vi) of the Supreme Court decision in A v A [2013] UKSC 60, which is in these terms (it is a list of "threads" which, at that stage of her judgment Baroness Hale was drawing together; the only relevant one being):

"(vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent.  Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned."

24. There is no requirement in that list of threads for a discrete finding on habitual residence.  When one looks at the judgment of the judge in the present case at paragraph 50 of his note, one sees words which almost precisely echo those of Baroness Hale.  The judge says this:

"It is necessary to assess the integration of M in the social and family environment of England as at 15 June 2015." 

25. Thereafter, Mr Turner says that the judge's account and the analysis of habitual residence runs for some 15 or more paragraphs, interweaves points about the child and the mother before coming to an overall view about the child's habitual residence.  But within the points that the judge makes about the evidence, the following appear.  At paragraph 55 he says this:

"I have found that M formed an intention not to return Z to the USA in about mid May 2017 and that hardened into a decision over the next two weeks or so.  However, she was liable to change that decision depending on circumstances.  By 15 June 2015, she was still in an uncertain position under clinical care and under supervision.  If her mental health and relations with F were to have improved, she might well have decided to return to the USA with Z."

26. Pausing there, that, to my eyes, is a finding by the judge that the mother did not reach the level of integration, even at 15 June, in terms of having a settled view of her own position to establish a change in her habitual residence.  The other striking thing about that paragraph is that it brings home just how short the time period is even when taking the mother's case on habitual residence at its height.  It is a period measured in two weeks or so on the judge's findings.  The judge then says this at paragraphs 58 to 61:

"58. The quality of M's care of Z during that period is not my primary concern in relation to the question of habitual residence, but it is relevant that Z was in England from 18 April 2017 because M needed admission to the unit and she needed admission to the unit to improve her condition so that she could function properly in the family and in society.  She wasn't able to do either as at 15 June 2015.  M's illness hindered her ability to integrate into the social and family environment and it hindered Z's integration too.

59.  Even after M formed an intention to remain in England, Z's day to day circumstances didn't change.  As an inpatient, the usual routes of integration into a social and family environment in England were not fully open to M.

60.  M had not home of her own, she had no independent means of support.

61.  There was no stability of residence.  As at 15 June, it was unknown for how long M and Z would remain at the unit or where they would go after being discharged.  If M's condition had improved significantly, she might have been discharged and been able to live on her own with Z but there was no settled plan as to where they would live.  If she had deteriorated significantly, Z might have been removed from her altogether.  There was great uncertainty about future living and care arrangements for Z as at 15 June.  There was no plan save for treating M at the unit for the next few weeks.  There was no established discharge plan." 

27. Mr Turner, drilling down to the detail, acknowledges the points that the judge did make but submits that he failed to take account of the fact that, by early June, the mother well knew that she had an established pregnancy and her clear intention was to see this through to term and do so in England.  Secondly, the mother knew that she needed to maintain the level of treatment that she was currently accessing through the NHS in England and that she would be unlikely to obtain that level of care in America.  That was, in short, the reason why she had come to England in the first place.  Thirdly, the mother's family were here.  Mr Turner submits, rightly in terms of the list in the paragraphs dealing with habitual residence, that the judge does not engage with those factors expressly in the course of his evaluation.

28. The further point Mr Turner makes on appeal is that the judge, in his analysis, put too much weight on the fact that the mother was in an institution at the time and therefore, on the judge's description, unable fully to engage and become engaged with, family life and society as would ordinarily be the case were she to be living in the community.

29. Mr Turner is plain in submitting that the judge was in error in the structure and content of his analysis.  This is not an appeal on the basis that no judge could come to the conclusion that this judge did about habitual residence on the evidence as a whole.  It is a process challenge, but it is not to be side-lined because of that factor in my view.

30. In drawing matters together on habitual residence, I should record that I am impressed by the judge's approach to this question in the note of judgment that we have, in the same manner that I am impressed by the judge's judgment overall.  This is a careful, well-structured judgment by a judge who approached the issue of habitual residence, following a short but accurate summary of the relevant case law involved.  What was required in terms of assessing the mother's position was for him to assess the degree of integration that she had achieved in the social and family environment in England.  He asked himself the right question, as I have quoted from paragraph 50, and, as his analysis shows, that was the question that he answered. 

31. Whilst it is right that he does not list all of the factors that Mr Turner adumbrates within the section of the judgment under the heading "habitual residence", these were factors which were at large elsewhere within the judgment and were known to the judge. 

32. On the particular facts of this case, where the mother's whole environment was sadly dictated by her condition, and she was not only in an institution, but in a frame of mind as a result of her illness that inhibited her ability to form a settled view and become integrated in social and family environment as would otherwise hopefully be the case, the judge did not over-exaggerate the importance of those factors in this case. 

33. Coming back to a point that I observed a short time ago, the timescale in which the mother could possibly squeeze a change of habitual residence for herself and, more importantly, for the child, is pressingly short in this case.  At tops, it is really down to a change occurring for the child within a period of about two or three weeks, and that happening at a time when the mother was not able to function as fully as she would otherwise do. 

34. The judge's conclusion was, in round terms, that the way matters might move in the future, the habitual residence of the child might change, but it had not yet done so by 15 June. 

35. Despite taking on board all of the points that Mr Turner so ably and clearly makes in relation to habitual residence, I see no reason for questioning the judge's process of evaluation or the conclusion to which he came.

36. I turn, therefore, to the second main area of challenge under the heading "wrongful retention".

37. The judge approached the case on the basis of the text message of 15 June to which I have already referred (which came after a sequence of texts of growing clarity); that indicated the father's clear request for his child to return to America.  Mr Turner submits that that should not, of itself, trigger the satisfaction of Article 3 of the Convention which requires there to be a "breach of rights of custody" under the law of the State of habitual residence.

38. A number of rhetorical questions are asked by Mr Turner.  Firstly, how does the court know that the circumstances in this case, where there has been a consensual stay of the child for an unspecified period in one country, have come to an end so as to establish rights of custody for the father to insist unilaterally upon his return? Secondly, Mr Turner (and this is a wider point) submits that in these circumstances it can never be the case where one parent can say 'enough is enough' and unilaterally bring a period of a stay in a country, which has hitherto been fluid, to an end so as to establish a breach of Article 3 of the Convention.

39. The judge found (to use the judge's words) that the father "was entitled to withdraw his previous agreement to Z staying in England and he did so unequivocally by 15 June".  Again, Mr Turner asks the question: how was the father "entitled to withdraw from the agreement"?

40. In approaching this area of the case, I bear in mind the fact that the issue of wrongful retention was not raised in the mother's formal answer issued in The Hague Convention proceedings on 18 April 2017 (at page C64 of the bundle).  The only pleaded points were habitual residence and Article 13(b), together with a point on acquiescence under Article 13(a) which is no longer run.  The judge's judgment does not engage with the big issue points that Mr Turner seeks to raise before this court, which was not apparently raised at first instance.  It is therefore harder for this court to engage in criticism of the judge when the matter was not put before the court in that way. 

41. There are further difficulties in the mother's case.  Forcefully and clearly put though it is, it is based on rhetorical questions. Mr Turner does not rely upon any authority of (as it would be) NY law to support his overall submission which is that, even if habitual residence was for the child still in America on 15 June, the mother's determined plan not to return the child against the father's insistence, does not establish wrongful retention. 

42. In reply to questions from the court as to whether, in circumstances such as this, which are different from a holiday case or where a child comes over for a fixed purpose with a return on a fixed date and the arrangements are fluid, the Convention could ever apply.  Mr Turner was forced to fall back on the bold submission that I have already rehearsed, namely that it would never apply to these circumstances.  If that is the result, it is an odd result and does not appear compatible with the overall policy of the Convention.

43. I go no further in my analysis of this area of the appeal.  In my view, it gets nowhere once habitual residence has been determined as the judge held that it was.  The mother clearly formed her conclusion prior to 15 June not to return.  The father, at all times, had been looking for the time when the mother and the child would return, but once, as it became, as it had increasingly so become, clear to him that she was going to stay put in England, he very clearly required the child to return.  What is more, he went to the court in New York and, for what it is worth, that court, albeit at a one-sided summary hearing, albeit respected the fact that he had basic rights of custody and was entitled to insist upon a return.

44. It seems to me that the main issues in this case fall to be determined under the third area of appeal, namely in relation to Article 13(b), the terms of which are well known, but so far as they are relevant to this case, the court is not required to order the summary return of a child where "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation".  As is the norm, the focus is on the latter set of circumstances, namely "a grave risk that a return would expose the child to an intolerable situation". 

45. Mr Turner in mounting the appeal set out the broad focus of the entire Convention which is upon the welfare of the child and he rightly cautioned this court not to lose sight of that. He submitted that there will be cases, of which this was, he submitted, a classic example, where some form of more detailed welfare examination of the child's circumstances is required before an order for return or not is made, and that this is therefore not a case for summary return.  In making that submission, he was not arguing that this case should be taken outwith the Convention.  On the contrary, as I understand his case, he was arguing that the Convention meets precisely that need in the right case through Article 13(b) and, where the circumstances relating to the particular child's welfare are "intolerable", and taking the primary carer's case at its highest, then it is entirely proper, necessary and compatible with the Convention for the court to refuse summary return and then embark upon a more detailed welfare evaluation. 

46. Of course, in the present case, the mother had made it clear before the judge, as is her case before this court, that she cannot contemplate returning to America with the child.  Nevertheless, the judge looked at both options, option 'A', as it were, for the mother to return and do so with the child, option 'B' to remain here while the child goes on his own.  Mr Turner agrees that the judge was right to do so.  He himself has taken this court down each of those two avenues. 

47. In doing so, under option A, he submits that, if the mother and the child return, it is likely that she will be unhappy.  In the past she has felt very isolated in America; her own family are not there.  Taking her case at its highest in terms of her complaints about the father's behaviour, he could be described as a "controlling" man in certain respects, and the couple have agreed that they are going to look for a divorce in due course.  So it is unlikely that the mother will be living with the father.  If that is the case, where will she and the child live?  She is heavily pregnant and with her unfortunate psychiatric history, her ability to care for the child now and to do so around the time of her pregnancy and thereafter, must be a cause for great concern.  The circumstances for the child in that setting, with all of the uncertainty that those various elements would generate, is one that he submits is plainly intolerable.  It would lead to Z haphazardly facing being separated from his mother at certain junctures in an unpredictable future over the next few weeks and months, and the impact upon him and his development is plain.

48. In addition, Mr Turner questions whether there will be sufficient resources to support the mother, as there are in this country, in her mental wellbeing were she to collapse, as the doctors predict unfortunately might be the case. 

49. Looking at the alternative route, B, namely of Z going back to America with his father but without his mother, he would be taken from the care of his mother, with whom he is well-bonded and attached, and we were taken to evidence in the reports which establish that (if evidence were needed).  He would be taken from regular contact with the maternal family, including the grandmother who stays for four nights a week at the Jamma Umoja unit, and he would miss becoming engaged in a relationship with the new baby sibling which is to be born in the next month or so.  He would nominally be going to the care of his father, but his father works five nights a week and he would, in reality, be being cared for by other members of the paternal family.  He has only been in the situation of being cared for by the father and father's family for the period of five or six weeks in the spring of this year and it is untried and untested in the long-term.  The father himself has said that, because of the passage of time and the way events have moved on, it is likely that the son will not know who the father is at this stage and Mr Turner submits that this would clearly and plainly create a grave risk of an intolerable situation for this young boy.

50. Mr Turner also submits that the court should take account of both sides, route A and route B as I have called them, even though it is accepted that the mother herself has contemplated route A and concluded that it is simply not viable either for her or for her son. 

51. Going to more detail, Mr Turner seeks to challenge the judge's conclusion on the detailed matter of healthcare that could be provided to the mother.  At paragraph 77 of the note, the judge says this:

"I am satisfied that M could be afforded adequate healthcare in New York State..."

"However, I am not prepared to find on the evidence provided to me that the healthcare provision in the USA would be materially worse than that which M would be likely to receive in England."

52. The judge does not descend to detail, but Mr Turner took the court to a social worker report, which was itself impressive in the degree of endeavour that it demonstrated on the part of the English social worker, which summarised her findings as to healthcare.  The case is that there is health insurance available through the father's work scheme, provided that the couple stay married, but that is limited in terms of the number of sessions and the type of therapy that can be supported by it and that, therefore, it must be at least questionable what healthcare the mother could access.  Although the judge assumed that protective measures in America would be adequate or at least as good as in this country, that was an unsafe assumption, Mr Turner submits, for the judge to make because the protective measures must be real and effective.

53. The choice faced by this mother in the next few weeks and months and for this young child is stark.  There is no golden scenario for him.  If he is required to return to America, either of the two options would be difficult and challenging for him, and no doubt for the father and the paternal family as for the mother and the maternal family.  I cannot think that any of them would have wished to be in the situation that I have described in this judgment.  But drawing back and looking at the Article 13(b) evaluation, the judge went through the details of the case in relation to this aspect of his determination, with the same degree of precision as is demonstrated elsewhere in the judgment.  He says this at paragraph 80 of his judgment:

"80. In relation to the Z's position. If he were returned to the USA there is no evidence to establish that he would be exposed to any risk of physical harm as a result. The impact on his mother's mental health must be taken into account in relation to the question of whether there is a grave risk that his return would expose him to psychological harm or otherwise place him in an intolerable situation. In relation to that question I bear in mind all the circumstances including the following matters:

i) Z has a close bond with M. However for some months she has been incapable of looking after him be herself and there is no evidence that that position is likely to change in the near future whether Z returns to the USA or remains in England.

ii) If, as she indicated, M would not join Z in the USA if he were returned, Z would be deprived of day to day contact with M and he would have much less contact with M's family.

iii) He would have the benefit of the day to day support of and contact with F and the support of F's family upon his return.

iv) He would no longer be living in an institutional setting or living full time with a parent who no longer requires 24 hour supervision to protect him.

v) F is able to look after Z and would have the support of his family. They had a close bond in the past which has been weakened by Z's wrongful retention in England but which can be rebuilt.

vi) F has offered undertakings which offer some protection against the potentially harmful effects on M of her returning to the USA if that is what she chose to do.

vii) There are healthcare and social security provisions in the area where Z would live which would offer some protection against potential harmful effects on Z of his return, whether or not M also returns.

viii) The courts in New York State are already seized of Z's case and are highly likely to make orders as to family arrangements designed to further Z's best interests and to protect Z generally and specifically in the event of any relapse in M's condition or any geographical separation from her.

ix) M is at risk of relapse on giving birth to her second child wherever she is and wherever Z is at the time. That risk would not be created by Z's return but it would be increased by Z's return to the USA. It is a substantial risk whether he is returned or whether he stays in England.

x) Whilst M has indicated that she would not return to the USA if Z is returned, and whilst she has her own health to consider, it would be open to her to return – unless there were a change in circumstances there would be no legal bar to her doing so or to having a significant amount of suitable contact with Z. I accept that she has genuine cause to be anxious about returning to the USA and being away from her sister and mother, in particular. However, proper support could well facilitate her return. Whilst he does refer to risk of relapse, Dr Musters does not advise that M's return to the USA should be excluded on health grounds

xi) The Local Authority has agreed to assist in the arrangements for Z's return to the USA in order to minimise the risk of harm to him.

81. In my judgment there would not be a grave risk that Z's return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. I am sure that that his return will cause him some discomfort and distress. However, in relation to the test under Article 13(b), including intolerability, it is not for this court to weigh up all the welfare considerations for and against return, but to consider whether M has established the criteria set out in the article. She has not done to my satisfaction.

54. The factors that the judge highlights there are, in my view, factors that were fully open to him on the evidence.  Although the judge was right and Mr Turner was right to take us into contemplating both route A and route B, this case has to be decided upon what is actually going to happen.  Article 13(b) requires focus on a particular child and the particular situation, to undertake an evaluation of whether that particular situation will be intolerable for this particular child.  The situation in this case is not route A; the situation in this case is for the mother to remain in England and receive a continuing level of the care that she is experiencing at the moment and for the child to go with his father to be cared for in the paternal family. 

55. The thrust of Mr Turner's submissions led the court to consider a great deal of information about the mother's circumstances. She is in a difficult situation which generates a great deal of sympathy, from this court and no doubt from all who hear about it, but the court is not required to assess the intolerability of the mother's predicament or the choice that she has to make; the focus must be on the impact on the child.  The judge found that for the child to go to America without the mother, despite the breach of the "close bond" that the judge held that the child had with the mother, would not expose the child to a situation sufficient to engage with the high level of intolerability required by Article 13(b).

56. In my view, it is impossible to hold that the judge was wrong in that evaluation.  He approached the matter correctly in accordance with the law and the matters relied upon were open to him. 

57. The fourth ground of appeal which, as I have indicated, forms part of the mother's Article 13(b) case, is that the effect of the judge's order is in fact to decide the overall "custody" issue as between these parents.  Again put in short, lay terms, if Z goes to America now, it is said, that in fact will be the outcome of any custody dispute.  Mr Turner says that that is undesirable and that it is not the purpose of the Convention, but, as I understand his submissions, he says this adds to the intolerability of the position of Z were he to go back alone.  That was not a factor that seems to have been raised before the judge or featured in his judgment, but I have taken that into account.  It is not possible to predict what course the mother and her family will take in terms of engaging in proceedings in America.  It is also not possible to predict the father's position if the mother stays here and a sibling is born here.  There will be decisions that need to be taken by these two parents about the care, all being well, of their two children and what is best for them.  It is not a factor that of itself should render the otherwise not intolerable situation, intolerable.  It is an unknown for the future.

58. So, despite the sympathy and understanding I have for the great difficulties that this mother has, and the difficulties that her family have arising from her circumstances and otherwise at this time, the focus of this court's role is to analyse the judge's judgment and to determine whether the judge fell into error. 

59. For the reasons I have given, none of the points of appeal that have been raised persuade me that that is the case.  I would therefore dismiss the appeal.

LORD JUSTICE MOYLAN:  I agree.

LORD JUSTICE PETER JACKSON:  I also agree.

Order: Appeal dismissed.