K v K  EWHC 2721 (Fam)
Judgment in application for summary return of child of Polish parents removed to the UK from Ireland where they lived and worked. The judge exercised his discretion to refuse to order a return on the grounds of consent.
The couple were married in Poland in 2001 but the father moved to Ireland to work in 2003. The mother followed with their 2 children in 2006. The couple separated in 2008 at which point the father removed the children back to Poland. The mother at that point contacted the Central Authority in Ireland but no action was taken before the father returned. In March 2009 the mother left Ireland to live in the UK, she claimed by consent, and the father issued Hague proceedings in June but were not served as the mother returned apparently for a holiday after which she she returned to the UK in August with the children.
In this judgment Sumner J reviews the evidence and the law. He states that under Hague the return for a holiday did not bring the earlier consent to end. Then he concludes that the father consented partly because the mother, with her knowledge of Hague, would not risk a summary return by removing the children without consent. He therefore exercised his discretion to refuse to order the return of the children.
Neutral Citation Number:  EWHC 2721 (Fam)
Case No: FD09P01946
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
SIR CHRISTOPHER SUMNER
- and -
Mr Cellan-Jones (instructed by TLT Solicitors) for the Applicant
Mr Gupta (instructed by Davies Gore Lomax Solicitors) for the Respondent
Hearing dates: 22 & 23 October 2009
Crown Copyright ©
Sir Christopher Sumner : Introduction
1. The hearing of this origination summons under the Hague Convention came before me on 22 and 23 October when I reserved judgment. It was issued on 7 September 2009 by the Plaintiff father, D K, who is 31. He seeks the summary return of his 2 children to Ireland. They are 7 year old P, born on xx.xx.02, and 4 year old N, born on xx.xx.05.
2. The Respondent mother, 27 year old E K, accepts that she took the children from Ireland to England without the father's knowledge or consent on 26 August 2009. However she opposes the application on the grounds that the father had earlier consented to her taking the children to England on 10 March 2009. She claims that the consent continued when she left for the second time in August 2009.
The Hague Convention
3. It is accepted by the mother that the essential requirements of the Hague Convention which give the court jurisdiction are present. The Convention was brought into effect in domestic law by the Child Abduction and Custody Act 1985. Under Article 3 the father has to show that, when the children were removed from Ireland on 10 March 2009, he had rights of custody and the children were then habitually resident in Ireland. This the mother accepts. Accordingly, pursuant to Article 3, her removal of the children is to be considered wrongful.
4. Under Article 12, where a child has been wrongfully removed, the authority of the contracting state to which the child has been taken "shall order the return of the child forthwith." The authority in this instance means the High Court of England and Wales. Under Article 13 (b), the authority "is not bound to order the return of the child if the person ..., which opposes its return, establishes that- (a) the person (the father) ... had consented to ... the removal...".
5. It is for the mother to prove that the father consented to the removal. If she does so, then the court has a discretion whether to order the children's return to Ireland or not. In order to determine that issue I heard evidence from both parents through interpreters.
6. The parties were born and brought up in Poland. They were married there in October 2001. Following the birth of P the father went to work in Ireland in 2003. The mother remained in Poland and N was born there in 2005. In March 2006 the mother went with the two children to join the father in Ireland. There is a dispute about the state of the relationship there after. The mother says that the father was threatening, abusive and violent, forcing her to have sexual intercourse with him. The father denies this.
7. They moved into separate accommodation in August 2008, she says as a result of the father's behaviour. On 10 October 2008 the father took the children to Poland. It is in dispute whether the mother was told beforehand or not. It is accepted that she contacted the Central Authority in Ireland before going to Poland on 20 October to meet the father and the children. They all returned together to Ireland on 8 November 2008.
8. On10 March 2009 the mother went with the two children to Leeds where the maternal grandmother had just started to live. The mother's case is that it was with the full consent of the father. He denies it. There is a further dispute about whether the mother told the father of her address or whether she kept in touch with the father on a daily basis for the first two or three weeks as she says.
9. The father started Hague Convention proceedings in England on 4 June 2009. They were not served as 2 days later the mother returned with the two children to Ireland. She says it was for the purposes of a holiday and so that the children could see their father. He says they returned permanently.
10. It is agreed that the mother returned to Leeds on 17 June to see her mother. She went back to Ireland on 29 June. The father had her passport. He returned it to her. On 26 August she returned to Leeds with the children. It is common ground that she did so without the father's prior knowledge or consent.
11. In summary they are as follows:
i) Has the mother proved that, when she left with the children on 12 March 2009, it was with the father's prior consent?
ii) If she did leave with his consent and if he subsequently changed his mind as she says, did that bring the father's prior consent to an end?
iii) If the father did consent, and if his change of mind did not bring his consent to an end, has the mother proved that her return to Ireland on 6 June 2009 with the children was for a holiday and, if so did that change before she left again with them again on 26 August 2009?
iv) Finally if the father did consent to the original removal, and that consent was still operative when she left on 26 August, how should the court exercise its discretion on whether to order the children's return to Ireland or not?
12. This has not been an easy application to decide on the facts. Both counsel, Mr Gupta for the mother and Mr Cellan-Jones for the father, have sought to find the document, error or inconsistency which clearly established the true position. It led Mr Cellan-Jones to apply during the hearing for an adjournment so that 2 witnesses could be interviewed and if necessary called. I refused the application and reserved my reasons.
13. The use of interpreters, skilled though they were, has not made my assessment of the parents as straightforward as in some cases. The impact of the questions and answers was not as marked as normal. The mother was reserved at first showing little emotion, though this changed latterly. The father was upset and in tears for much of the time that he gave evidence.
14. I have therefore to approach the crucial issue of credibility with unusual care bearing in mind 2 important principles. Firstly this is a summary jurisdiction. Secondly it is for the mother to prove her case; if I am left in doubt she has failed to prove her defence.
15. I start by summarising the evidence of the parties in relation to the removal by the mother of the children on 10 March 2009 before making my findings of facts. I shall turn to the father's removal of the children in October 2008 and the reason for the mother's return on 6 June 2009 later. I set out the main parts of each parties' case.
The mother's account of her departure with the children on 10 March 2009
16. It starts with the mother's original account in her statement of 17 September. I summarise it as follows.
17. The father had moved out within a few days of their return in November 2008 from Poland. She gave up her employment soon afterwards when the father had slept through P's severe asthma attack at a time when he was looking after the children. He then asked to return with Christmas approaching, though they would sleep in separate rooms, and she agreed.
18. After Christmas when the maternal grandmother, her husband and son had visited, matters deteriorated between them. Her mother, who was then living in Leeds, had liver problems and asked her support. She told the father that she was unhappy and isolated in Ireland. She was going to seek work in Leeds and try and make a new life for herself with family support around her. He could see the children whenever he wanted and they could have Skype contact every day.
19. Her mother's health got worse and she told the father that she was going to move immediately to Leeds with the children. She would transfer the tenancy to his name. He had no objection, and said he could discuss when he would see the children later. She left with his full consent, knowing that she was not going to return except to facilitate contact. They took all their belongings save some of the children's toys. She informed P's school that he was moving to England permanently.
20. She contacted the father by Skype on her arrival and the children were able to talk to him. After a few weeks he started to say in front of the children that it was not right that she had left and that she would live to regret what he had done. She should not be so bold, and she would lose the children as she had done last October. This frightened the children and she stopped the communication. She realised that if she returned she would have no money, no job and have to live with the father.
21. She then had calls from the father saying that unless she returned to him she would pay for her actions. He also rang her mother and stepfather saying they would suffer the consequences of helping her. It was at the end of May that she next contacted the father about a holiday in Ireland after P had said that he would like to see his father for a week or so. I deal with the reason for this visit later on.
22. After her arrival on 6 June for a holiday, the father told her that he would not allow her to return to England. They argued, the mother telling the father that he was going back on his agreement that she could move to England permanently with the children. As a result, she asked a friend of hers in Ireland to keep the children's passports.
23. When she returned to Ireland at the end of June there was an argument. The father removed her passport and ID card. She asked friends to convince the father to return her passport. Eventually he did so, but he refused to agree to her returning to England. It was only then with the help of her mother who bought her tickets that she was able to leave on 26 August. She did so on that day with the children without the father's knowledge after he had gone to work.
24. She telephoned him from Liverpool to talk about the children seeing him regularly. He threatened to go to the police and said she was going to be in trouble. Proceedings were served on her on 8 September.
The father's account
25. He agreed about the visit from the mother's relations at Christmas. A few weeks later the mother told him that the maternal grandmother had telephoned. She had had an argument with her husband. One day he returned from work and the mother and children had left. She did telephone and they had contacted by Skype. He could hear the children in the background asking to speak to him. He asked to speak to them but the mother would not let them come into the room.
26. She then shut down the connection, and he had no contact with the children until they returned to Ireland in June. There had been no discussion about the mother leaving Ireland, about transferring the tendency of the flat into his name, nor about contact.
27. When the mother came back she seemed enthusiastic about the prospect of living together again. Then she said she was going there to see her mother. He said that he wanted the children to stay in Ireland with him and this is what happened. She returned for a few days before going back again. He had already instructed a solicitor to obtain an order that the children's passports should be delivered to him. It was in support of that application and to prevent the mother removing the children that he swore his affidavit of 12 June. When she returned he believed they had reconciled.
28. He kept the passport of the mother at work until he was persuaded to bring them back when she suggested they should all go to Euro Disney for a holiday. It was part of her plan to remove the children from Ireland.
The mother's oral evidence
29. There are sharply differing accounts. It has not helped that each parent in evidence has added to their statements and been inconsistent. There are a number of documents and an account of what P said to a CAFCASS officer concerning his wishes to stay here. I shall do no more than highlight selective parts of the parents' evidence.
30. The mother said that she had tried without success to obtain employment in Dungarvan, Ireland, where they lived. In relation to her leaving with the father, he said it would be good for both of them to be on their own. He knew the children would suffer no harm, as she had always been a good mother. He was aware of the address of the maternal grandmother in Leeds.
31. She was not surprised that he agreed as he was frequently walking away from the family. She packed all the children's things, leaving behind some summer dresses as was no room for them. She took all important toys and books.
32. Having started Hague Convention proceedings in October 2008, when she left in March 2009 she did not think she was doing anything wrong. The father was aware that she had started Hague Convention proceedings because he feared he would face problems on his return. She thought he wanted her to return now, so he could compel her to live next door without employment on his terms; it was not about the children.
33. When they spoke after she had left, she told him about how the children felt and how they liked England. There was no indication that the children should return. They spoke to their father but not for long. They had a conversation via Skype every day after the father had returned from work when she called, sometimes he did.
34. She had learned about the possibilities of work in Leeds in January. She knew that PMP, an employment agency, would be able to get her a job about 8 days after her arrival. She had also found her employment at a hotel through her stepfather. She had to wait for a letter from the local education department before enrolling the children.
35. She had told the principal of his former school that P and N were leaving school. P bought sweets for the principal when he was going which he wanted to give her. He gave toys to classmates and a teacher thanked him. His present was on the wall. There was no party for P's friends before he left because he was not particularly attached to any.
36. Her return could not be in holiday time as the father would be unable to take annual leave. It was a one-way ticket, because she did not know if she would be away for one or two weeks. She feared for her self under the same roof as him and that is why the maternal grandmother travelled with her.
37. There was no disagreement when she first arrived back in Ireland about going back with the children to England. It was only later, when she had visited her mother in Leeds, that the father said that she had no right to go back. She was not so concerned about leaving Ireland to see her mother as the paternal grandmother was staying. Her only concern was if he removed the children, but she had their passports.
38. The father tried to blackmail her into staying. She hid the children's passports because she knew he would use them as blackmail.
39. She had not been to Leeds before when she went there but her brother had been there two years. She had asked the father many times to improve his relationship with the children but he did not have time for them.
40. She discussed the date of departure with the father in particular shortly before she left. The air tickets were a gift from her family. She had to go to an agency to register as she knew they had vacancies, but she could not do it from Ireland. She saw that in her absence the father told the school that the children would return in September.
41. They did have dinner with friends whom she named before she left. They do not wish to be involved. They were aware of the situation, the subject of her leaving was raised and the suitcases had been packed. The father saw her packing and went with her to the airport.. She went on a weekday, because there were problems picking her up at Liverpool airport on a weekend.
42. She did give her address. There was no contact at Easter, because he was threatening her. They went back after half-term because the father chose the date.
43. The father forced her to say to the schools in Ireland that the children would be back there in September. The father did not pay £2,000 or 1,500euros and he did not pay any contributions to rent.
The father's oral evidence
44. The father's evidence was necessarily shorter, as he denied that much of what the mother said was correct. He did not agree to the mother going with the children to England. If he had been asked he would not have agreed, he was not anxious to spend more time with friends, and the mother had taken the children whilst he was at work.
45. The mother left everything, including pictures of the children. When she left he did not know what to do. He had to go to Kilkenny, which was 2 1/2 hours away. He reported it to the police.
46. It was about a week or week and a half before the mother called him. She said she was staying in Leeds.
47. She later contacted him about a website asking the tickets, there was no mention of money, but she said the situation between the maternal grandmother and her husband was not good. The children wanted to come to school. It was not correct that he had only agreed on the date of 6 June for her to return.
48. They had gone to the home of 2 friends before she left. There was no conversation about the mother leaving. He did give her money every week. There was only one Skype message between March and June.
49. He denied that there were difficulties in the marriage when the mother left. There was never a lot of shouting as P said. He did not know that the mother wanted to be with her mother in Leeds. He did not in his statement mention buying tickets twice. He did not change his mind. The mother and children were the most important thing. He wanted them to have everything.
50. P saw Mr Mellor, a most experienced reporter. He told him of the arguments between his parents, with his father shouting at his mother. He remembered being kept awake by arguing and shouting at night. He described his father pushing his mother against a door on one occasion, making her cry. He and his sister were also upset. He also said his father never took him out on trips or played with him much, though in Ireland he did take him to work on the farm with him once.
51. Mr Gupta for the mother, in a series of persuasive points, pointed out that the father had no explanation for why the mother started Hague Convention proceedings in October 2008. It was an incident that went to his credibility if he took the children without notice. It also showed the fractured nature of their relationship at that time.
52. Support for the mother's account is given by the fact that she hid the children's passports with a friend when she returned to Ireland. With the mother knowing about such proceedings when she took the children in March 2009, it was less likely that she would act in breach.
53. His credibility also arises when he said there were no violence and no difficulties in the marriage. He now says there was a tense situation as justifying going away with the children.
54. Mr Cellan-Jones for the father, in a submission that lost nothing of its force by its brevity, started with the reasons for an adjournment. It was an application which called for extra information, though there was much evidence in favour of the father having given no consent.
55. He sought the opportunity to interview and if necessary call the two Polish friends whom the parents at least agreed that they had met the night before the mother left. It was a crucial period. It would destroy the father's case if they said they had discussed the mother leaving. On the other hand it would severely dent the mother's case if there had been no discussion of her departure.
56. In relation to his other points which I invited him to make, he highlighted the lack of preparation by the mother prior to her leaving, all pointing to it being without consent. She had not arranged schooling, she had not found a home other than with her mother, she had left in the middle of the term rather than waiting for Easter, there was no evidence of a farewell for the father who cares deeply for the children, and she had not even gone to Leeds beforehand to have a look at the city.
57. The father says that he did not know her address. He would hardly have sought its discovery for the purpose of serving his proceedings if he had known where they were.
58. Contact had not been agreed, nor were there any arrangements for their goods to be delivered other than what they could take by air. It was highly unlikely that the father would change his mind as swiftly as the mother said.
Why had the mother not obtained the father's consent in writing if he really agreed to go?
59. She had done wrong and, in a parlous financial way, asked him for money so she could return. She was inconsistent in her account about when she closed her bank account, and her story that she had been forced by the father to say to the school that the children would return to Ireland was incredible. Not to mention in her statement that the father took her to the airport was even more incredible. All the signs were of a rushed departure, not a planned and consensual one.
60. Taking a holiday in June shortly after half term was utterly extraordinary. She was really looking for a reconciliation.
Reasons for refusing an adjournment
61. It is tempting to allow an adjournment, even in Hague Convention proceedings, if there is a reasonable prospect that important evidence would then be before the court pointing to the true position. However there are in my judgement a number of compelling reasons to refuse it in this instance.
62. It is important to remember that these are summary proceedings, which should be completed within six weeks. That period expired 3 days before the proceedings began. The adjournment sought is for a further week and a half. There would have to be good reasons even for that period of time, and I am not satisfied that there are.
63. It is true that the mother had not mentioned in her statement meeting the two friends the night before she left. But the father knew about that meeting because he said it was at the friends' home and the mother said it was at their home. It did not therefore become of crucial importance because the mother suddenly mentioned it in her oral evidence.
64. The only new point was that the mother said they discussed her departure. It was no less important for the father, who knew of the meeting, if they had not talked of the mother leaving. The father in all probability did not mention it.
65. The remedy lay in his hands before the hearing. If he had mentioned the meeting, no doubt the necessary steps to contact the potential witnesses would have been taken. It is now too late.
66. I am also not clear that any helpful evidence would be forthcoming. The mother says that the friends are unwilling to become involved. Given that this is likely to be a small Polish community in that part of Ireland, it is well within the bounds of possibility that, with such a fraught situation between the mother and father and with the father still resident, there would be a reluctance to be seen to take sides.
67. Thus I take the view that if an adjournment was granted, it is by no means clear that any evidence would be forthcoming. For all those reasons I rejected the application for an adjournment.
68. Partly through pressure of time there was little discussion of the law nor of discretion when I raised the issue. Any consent has to be a full consent to a permanent move by the mother with the children to Leeds given before she left. A change of mind by the father after she had left with the children does not invalidate consent given earlier. Once consent has been given it cannot be later withdrawn (see judgment of Hale J as she then was in Re K (Abduction: Consent)  2 FLR 212).
69. Though I have been referred to no authorities, I am satisfied as a matter of law with the following proposition. Under the Hague Convention where a parent returns with the children for the purpose of an agreed holiday to the country from which they were removed after a consensual departure, that does not by itself bring the earlier consent to an end. It may come to an end for other reasons. It would however need a clear indication from the mother for instance saying that she was no longer relying on the earlier consent, or that her return was permanent. It could equally arise if her actions were incompatible with any other interpretation.
70. I start by deciding 2 particular episodes. They are the removal of the children by the father in October 2008 and whether it was with the mother's consent. Secondly I consider the reasons for the return of the mother in June 2009. I have selected them as I have found them easy to resolve and all that follows represents my findings unless the context indicates otherwise.
The removal of the children to Poland by the father
71. The mother moved into her own accommodation in Dungarvan in August 2008. The father looked after the children whilst the mother did nightshifts. On 10 October the father collected the children at 5.30pm and took them on a flight to Poland. This is all agreed. The issue is whether the mother knew of and agreed to his actions as he says.
72. As documents show, within a week the mother was in touch with Legal Aid and with the Central Authority in Ireland seeking the return of the children. She left for Poland on 20 October. She was not allowed to see the children at first. She pleaded with the father to return with the children, offering to pay for the airline tickets. As he had given up his accommodation, she also offered him a room in her flat. After six days, he agreed to go back and they returned two weeks later.
73. The father said in his statement:
"I did take the children to Poland in October 2008. This had been agreed with E to the extent that she told me that she had made arrangements with the school for P to take the vacation during term time. The situation between us had been tense for some time, and I felt that the children needed a break ........ E did travel to Poland, and we spent time together. I had not given up my job, though I had given notice on my accommodation."
74. In his evidence the father said that he did have the mother's permission to remove the children. I am quite satisfied this is wrong.
75. The mother and children had been living apart from the father for two months as a result of the father's behaviour. It is wholly improbable that she would have let the father remove the children in the light of the whole history without going with them. There was no return flight booked, and no date for their return was fixed. In this instance it is significant that the father said in his statement only that the mother had arranged for a vacation in school time. He did not say that she agreed to his removal of the children. The mother sought their return very promptly.
76. It was a high handed and unlawful act by the father, done in part to exercise control over her. It caused her to lose confidence in him. It enabled him later, when the mother was in Leeds with the children, to remind her of the hurt that she had been caused when he had removed the children.
The mother's return to Ireland with the children on 6 June 2009
77. This is another occasion where I have had no difficulty in establishing the truth. Having left Ireland in March 2009 with the children, the mother says that she telephoned the father in late May and told him that they would be coming to Ireland for a holiday of about 2 to 3 weeks. The father spoke about reconciliation, but the mother made it clear this would not happen.
78. The father's account in his statement is that she contacted him through a website, saying that she had not got any money and wanted to come back to Ireland. He bought tickets, but the mother changed her mind about returning. She rang again about 10 days later saying that the children were missing their friends and wanted to return to school in Ireland. She wanted tickets for herself the children and her mother, which the father purchased. When she returned the father says she seemed enthusiastic about the prospect of them living together again.
79. The mother exhibited a statement from the account manager of the agency which had found her work in Leeds. He said that the mother had asked him in May (2009) if she could take some time off because she had got a holiday with the family planned. In a further statement the housekeeping manager of a hotel in Leeds said that the mother was employed for three weeks in the spring of 2009, and that she had to go on holiday to Ireland with the children in June 2009.
80. Finally the maternal grandmother in another statement said that the mother told her that she was going on holidays with the children for about two weeks. On 6 June 2009 she left with the children, though their belongings and toys remained in her flat.
81. In an affidavit of 12 June 2009, the father said that she agreed to return with the children on receipt of £2,000 form him. "I sent on these monies to the Respondent immediately, and she returned with the children and home mother last Saturday night, 6 June 2009".
82. In his oral evidence he said that he did not send the money, but told the mother he would try and organise it and give it to her when she arrived. He borrowed 1,500 euros from a friend and produced a receipt in Polish signed by him and the friend, confirming the loan on 27 May.
83. Thus it is that two days after the mother returned the father, in his affidavit in support of an application for the mother to give him the children's passports, said that he had sent £2,000 to her in England before she left. In a statement 4 months later, he made no mention of any payment at all. Finally in his evidence to me he said that he had paid her, but it was a lesser sum and only after she had returned. The mother denies receiving any money.
84. It is, I find probable, that the father did borrow money. He may have given some to the mother. But given the mother's evidence, the other statements, and the inconsistency in the father's accounts, I find that the mother's return to Ireland was solely for the purpose of a holiday for herself and the children. This is what the mother intended and the father agreed. The mother never changed her mind. It was not a permanent return as the father knew.
The mother's removal of the children on 10 March 2009
85. I find that by the time that the mother moved out in August 2008, the marriage was in serious difficulties. The father was wrong to say otherwise. Though I am unable to make specific findings, I am satisfied that this was principally because of the father's conduct. His precipitate action in taking the children to Poland was as I have said partly to exercise control over the mother. Once he moved back in and the Christmas period was over, the father's conduct again deteriorated and it was apparent to the mother that the outlook was bleak.
86. Once she had given up on night shifts she could find no employment, she was afraid of the father, and for her the relationship was over. Her mother's illness and the need to find employment provided the opportunity to leave Ireland. Was it with the father's prior consent?
87. There must have been a temptation to go without telling him. But she knew about the Hague Convention having invoked it herself. She knew that a summary return from England could be ordered. I am satisfied that she did not wish to put herself in the wrong in the way that the father had done in October 2008.
88. She did seek the father's consent. When she said that he gave it quite willingly as I accept, even saying that they could discuss contact later, I raised the question of whether this surprised her, as it seemed untypical of the father and his wish to control. It did not surprise the mother because of what she said was his lack of interest in the children. In relation to that, what P told Mr Mellor has some significance though I do not attach much weight to it.
89. I have found the mother's evidence in relation to telling the school and the details of P's gifts convincing, given that she is not I find an imaginative person and her understanding is limited. Equally, I have found her account of the conversation by Skype after she was in Leeds to be reliable. The father did not raise any objection for the first few weeks. He then changed his mind and made it clear to the mother by threats and otherwise that he wanted her to return.
90. All this convinces me having me read the entirety of the evidence that the father knew that the mother was leaving with the children, fully consented to it before she left, but soon afterwards regretted his decision. I find that this did not affect the validity of his earlier consent.
91. The father had on 14 April 2009 submitted his application to the Irish Central Authority for the children's return. Ordinarily a month's delay would be unremarkable given that it takes time for the majority of people to be advised that this is the appropriate course.
92. This was not such a case. The father knew about the mother's application under the Hague Convention in October 2008. It was not right for him to say that he did not know what to do. The delay was caused by the fact that he consented to her moving to Leeds. It was only when he changed his mind some weeks after she left that he decided to take action. He then moved swiftly to contact the Irish Central Authority.
93. Contract by Skype broke down because of the way the father discussed matters in front of the children which the mother rightly considered inappropriate. This changed when the mother unexpectedly rang him up in late May to talk about returning for a holiday. It was unexpected because she had had little contact but she appreciated that the children would like to see him. She felt safeguarded by the fact that she went with her mother, that she kept the children's passports, and that later the maternal grandmother was present.
94. The mother did not intend to remain as long as she did but, until the father returned her passport and the maternal grandmother paid for her airfares, she was unable to return to Leeds as she always intended. The length of the visit was dictated by the father's change of attitude once she had arrived and his refusal to return the mother's passport. The extended stay was caused by the father's actions alone and was against the mother's wishes.
95. There was I find nothing said by the mother that would indicate that she had returned permanently. She was contradictory about whether the father enrolled the children in Ireland against the school in September or whether he compelled her to go and say so. Whatever the truth I am satisfied that she was all along planning to leave Ireland when she could do so. This required her passport. It was always just a holiday as far as she was concerned as she told others before she left.
96. I find that the mother's friend who kept the children's passports knew of her departure and that it was by consent. This is whether they discussed it in any detail on the night before she left or not.
97. There is the addition in the mother's evidence that the father accompanied them to the airport. However it has been a feature of both parent's evidence that they appear not to have understood inconsistencies or earlier omissions, in particular the mother, even when they put clearly to them. This is either a detail to embellish the mother's case or something significant which was not appreciated by her earlier.
98. It is consistent with the father having raised no objections as I have found when first contacted by the mother after her departure. I have in the end concluded that it was an omission by the mother the significance of which she still may not see.
99. I have not been persuaded that the mother's lack of planning prior to her departure is of significance. Her English is very poor. She had a brother in Leeds, and her mother had recently gone there. She therefore had a base from which she could make all the necessary investigations as she did about obtaining work, finding school for the children, and in time, obtaining her own accommodation. No doubt she had heard from her relations sufficient about Leeds for her immediate purposes.
100. Contact the mother accepts was not agreed before the she left. She relied on the father who said that it could be arranged later. He probably did not have the mother's address. This would have followed had the contact not come to and end.
101. I am not satisfied the mother made it a term of her return that the father would pay her. Equally I am not satisfied that the return in June was so unusual a date when the father picked the date.
102. In a case which I initially found presented some problems, I have come to clear decisions but only after a full review of all the evidence. I have accepted the mother's evidence on the main points. I find that the father did consent fully to the mother's departure with the children prior to her leaving on 10 March 2009. It had been discussed for some time. That consent was still operative when she returned with them again on 26 August.
103. I then have to consider the exercise of my discretion. I have had little by way of submissions to rely upon. I have however considered the speech of Baroness Hale of Richmond in Re M (Abduction; Zimbabwe)  UKHL 55;  1 FLR 251 where she discussed the question of discretion. She said at paragraph 42 -
"In Convention cases, however, there are general policy considerations which may be weighed against the interests of the child in the individual case. These policy considerations include, not only the swift return of abducted children, but also comity between the contracting states and respect for one another's judicial processes. Furthermore, the Convention is there, not only to secure the prompt return of abducted children, but also to deter abduction in the first place. The message should go out to potential abductors that there are no safe havens among the contracting states."
"...the Convention itself has defined when a child must be returned and when she need not be. Thereafter the weight to be given to Convention will vary enormously. The extent to which it will be appropriate to investigate those welfare considerations will also vary. But the further one gets away from the speedy return envisaged by the Convention, the less weighty those general convention considerations must be."
"..in consent or acquiescence cases, on the other hand, general considerations of comity and confidence, particular considerations relating to the speed of legal proceedings and approach to relocation in the home country, and individual considerations relating to the particular child might point to a speedy return so that her future can be decided in her home country."
"All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighed together with the circumstances which produced the exception and such pointers as there are towards the welfare of the particular child. The Convention itself contains a simple, sensible and carefully thought out balance between various considerations, all aimed at serving the interests of children by deterring and where appropriate remedying international child abduction. Further elaboration with additional tests and checklists is not required."
104. One of the significant factors here is that the father who seeks the return of the children is the one who, only 4 months before he consented to the mother taking the children to England, had himself abducted the children to Poland without seeking the mother's consent. It makes it more difficult to say that the court should exercise its discretion to order the return of the children when he has acted in this way, and then with knowledge of his own actions, consented to the mother's removal.
105. In exercising my discretion I have to look first of all at the whole philosophy which lies behind the Hague Convention and the need for comity between contracting states as Baroness Hale set out. Once a child is habitually resident in one country, where the parent remaining has rights of custody any removal is unlawfully. But the unlawfulness is I consider tempered somewhat where the removal is with the consent of the remaining parent. Equally a later change of mind, as happened here, does not further erodes that philosophy when the original consent remains.
106. Save for the period between June and August the children have been in England since March. They left a place where they were isolated and subject to the strife between their parents. They are settled in their own home, the mother now has work which she could not find in Ireland. There is no longer the strife between the parents.
107. She took steps to obtain the father's consent because she knew of the pain she was caused when the father took the children away without telling her. Balancing all the considerations looking at the evidence in the round, I propose to exercise my discretion not to order the children to be returned to Ireland. The originating summons will be dismissed. I am grateful to counsel for their assistance.