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Home > Judgments > 2010 archive

Re H (A girl) and L (A boy)

Application by father for the return of two children to Italy under the Hague Convention. Application failed.

The parents, both of Somalian origin, left Somalia for Italy, the father in 1988 and the mother in 1995. The father now has numerous family members in England, including his mother and some eight brothers and sisters. The mother moved to Italy in June 1995 when, according to her, she was 13. The parents married in Italy in 1997, the mother claiming to have misrepresented her age as over 16. The children were born in Italy: H in 2000 and L in 2002. In February 2003, or at some point thereafter, the mother and children came to this country. H has attended school here since late 2004 or early 2005. L has attended school here since late 2006 or early 2007. In September 2008 the mother and children moved, without informing the father, from Swansea, where they had been living since December 2003 with father's full knowledge, to London. The father continues to live in Italy.

In these proceedings, the legal issues related to the questions as to i) whether the father had acquiesced in the children's removal or retention; ii) since more than one year had passed since the children have been living in the UK, whether they were now more settled in their new environment; and iii) if acquiescence or settlement were established, whether the court should exercise its discretion not to order an immediate return.

The judge found, following the approach adopted by the House of Lords in Re H (Abduction: Acquiescence), that the father had acquiesced in the children's removal to the UK. He also concluded that the children were settled in their new environment. In the circumstances of the case the judge exercised his discretion not to order a return of the children to Italy.

_____________________________

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY

Case no: FD09P02638

 

IN THE MATTER OF H (A GIRL) AND L (A BOY)

IN THE MATTER OF THE CHILD ABDUCTION AND CUSTODY ACT 1985
AND IN THE MATTER OF THE COUNCIL REGULATION (EC) NO 2201/2003

Before Mr Peter Jackson QC, sitting as a Deputy High Court Judge

BETWEEN:

AI (Plaintiff)

-and-

N (First Defendant)

-and-

THE CHILDREN
by their Guardian Mrs Joyce Lubell (Second and Third Defendants)

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

JUDGMENT

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

The Plaintiff Father was represented by Ms Jaqueline Renton

The Defendant Mother was represented by Mr Nicholas O'Brien

The Children were represented by Ms Kirsten Maclean

Introduction
1. Between 22 and 24 February 2010 I heard this application for the summary return of two children to Italy. At the end of the hearing I informed the parties that I would refuse the application. I now give my reasons for doing so. In summary, it has been established that the children are settled in their new environment and that, even on the doubtful premise that they had been wrongfully removed from Italy or wrongfully retained in this jurisdiction, the father plainly acquiesced thereto. In view of he length of time that the children have been here, I unhesitatingly decline to exercise the court's discretion to order their return.

The parties and the proceedings
2.  The children are H, a girl aged 9, and L, a boy aged 7. They live with their mother in London. The father lives in Milan.

3. The matter comes before the court on the father's summons under the Hague Convention on the Civil Aspects of International Child Abduction, issued on 30 November 2009. In some aspects it might give rise to potentially interesting legal issues but in the event the outcome is dictated by facts, mainly those that are undisputed.

4. The broad picture is that the family is of Somalian origin, with both parents having left Somalia for Italy, the father in 1988 and the mother in 1995. The father now has numerous family members in England, including his mother and some eight brothers and sisters. The mother moved to Italy in June 1995 when, according to her, she was 13. She was brought there by the father's mother in the guise of a daughter.

5. The parents married in Italy on 5 August 1997, the mother claiming to have misrepresented her age as she says she was not yet 16. The mother had used a number of different dates of birth and the true position is not clear.

6. The children were born in Italy in 2000 and 2002. In February 2003, or at some point thereafter, the mother and children came to this country. H has attended school here since late 2004 or early 2005. L has attended school here since late 2006 or early 2007. In September 2008 the mother and children moved from Swansea, where they had been living since December 2003 with father's full knowledge, to London. She did not inform the father of this move in advance but he found out through a telephone call to H shortly afterwards.

7. The children have an extremely close relationship with their mother and with each other. They speak Somalian in the home and their English is faultless. The mother speaks Somalian and a little English. The father speaks Somalian and fluent Italian. The children speak no Italian, though H may understand a few words.

8. The children have never attended school in Italy. On the mother's case, her arrival here in 2003 with the children was with the full agreement of the father in order to settle. She says that they have not been back to Italy since October 2003. Even on the father's case the children have not been in Italy since about July 2006, when he says they left for this country with the mother for a six-month period to study English.

9. It is agreed that the father visited Wales and stayed with the mother and children two or three times each year, but that from about April 2007 their relationship as a married couple had ended. In that month there was undoubtedly a meeting of the parents at the home of a relative in London, but in the absence of any corroboration I cannot be satisfied that a religious divorce took place as the mother states. Nevertheless, it was certainly clear by that time that the mother had no intention of returning with the children to Italy. On top of that, there was an occasion later that year, probably in December but possibly in June, when the police were called by one or both of the parents after the mother refused to admit the father to her home when he arrived in the small hours of the morning. The father continued to see the children for days at a time a few times a year, but matters have been more difficult recently.

10. The mother and children were granted exceptional leave to remain in the United Kingdom on an indefinite basis on 11 December 207. The mother has now formed a new relationship and is expecting a baby by her new partner on 1 April 2010.

11. The range of issues that were canvassed during the hearing were these:

(1) On the facts asserted by the mother, did the children's habitual residence change from Italy to this country as a result of an agreement between the parents, with the consequence that their removal from Italy was not wrongful at all?

(2) On the facts asserted by the father, was the failure of the mother to return the children in early 2007 at the end of the six-month study period a wrongful retention?

(3) On either case, has the father acquiesced in the children's removal or retention?

(4) It being on any view more than one year since the children have been living here, are they now more settled in their new environment?

(5) If acquiescence or settlement is established, should the court exercise its discretion not to order an immediate return?

The parents as witnesses
12. On 14 January 2010 Mr Justice Hogg, because of the gulf between the accounts given by the parents, provided for the hearing to have a two day time estimate and for the parties to have leave to give oral evidence, subject to the approval of the trial judge. Accordingly, I heard evidence from the mother (through a Somali interpreter), the father (through an Italian interpreter) and the Guardian.

13. It may be a good thing that each of their parents has now had their say. However, with the benefit of hindsight, the experience of listening to their evidence has ultimately been of little assistance to me in forming a view about the issues that I have to decide. I say this because the disputes mainly relate to a period that is now between three and seven years in the past and because there are significant concerns about the credibility of both parents.

14. My opportunity to assess the parents as witnesses was in no way handicapped, as sometimes happens, by difficulties in interpretation. Both the interpreters in this case were particularly skilled.

15. I have found the mother to be a broadly satisfactory witness in relation to the issues before me, but I treat her evidence with the greatest of caution because on her own account she is a person who has shown herself to be capable of persistent and elaborate deception of authorities, and to have been more or less successful in doing so. As to the father, he was a most unsatisfactory witness. His evidence was confused, internally inconsistent and generally incompatible with reliable known information or the inherent probabilities. The basis on which he launched these proceedings was highly misleading in suggesting that the family was living in Italy but that the mother and children had come to England in 2009, and that the mother had kidnapped the children. In the witness box the father constantly shifted his ground in response to obvious challenges, to the extent that by the end of his evidence it was difficult to know what he was saying had happened at all.

16. As I remarked in the course of the hearing, it is impossible to build any very tall structures on the foundations of the evidence of either parent. Fortunately, there is a certain amount of known information about the children's situation which is more than sufficient to determine the outcome. To the limited extent that the evidence of the parents is relevant, I generally prefer that of the mother to that of the father, but I certainly do not take what she says at face value.

17. In contrast, the evidence of the Guardian on the question of settlement, which I accept in its entirety, is of central and decisive importance. I will therefore consider her evidence first.

The evidence of the guardian
18. Mrs Lubell is a very experienced CAFCASS officer who was asked to report on the issue of whether or not in Hague Convention terms the children are settled. She visited the children's school on 4 February 2010 and went on to speak to the children on their own at home.

19. The assistant head teacher of the school said that H had been there since October 2008 and L since January 2009 (because a place was not available sooner). She said that both children have settled in well with good circles of friends and that their behaviour is good. Their work is on track or in some subjects slightly below. The mother brings them to school and collects them most days. On other occasions they are collected by "auntie", a friend of the mother. The school has no concerns about the children.

20. Mrs. Lubell met the mother and children at the end of the school day. Both children appeared cheerful and lively, well-dressed and clean, affectionate towards their mother and friendly towards Mrs Lubell. Once at home, she spoke to the children for 1 1/2 hours. They spoke freely to her, H more so than L, although L was confident in expressing his opinions, which were not always the same as his sister's.

21. The home is a two bedroomed terrace house which is clean and well kept and had many children's toys in evidence. The children said they had lived there for a little over a year and that they like it because there were many other Somalian families in the street, whose children they play with.

22. The children speak excellent, virtually unaccented English and Somalian at home. In Wales H had learnt Welsh but she had now forgotten it. H told Mrs Lubell that when they had left Italy she had only been 2 1/2 years old and L 6 months old. Mrs Lubel referred to Italy a number of times and H was adamant that she had not been back since that time and had no memory of it. For instance, when she was asked what it was like in Italy, she offered to show Mrs Lubell photographs of it and proceeded to "Google" "photos of Italy" on the computer. H said that she knows that her father lives in Milan, but that she has no idea what sort of home he has there.

23. The children said that they had been happy when they lived in Wales and were more of a "normal family" there because the father had been visiting. They said that they had a lot of fun and wished it could be like that again. Both children were sad about the court proceedings and volunteered that they wanted to stay with their mum. They liked their school and their previous school. H would like her family to consist of herself, her parents and L. L chose his mum, H and "uncle", their mother's partner, about whom both spoke very fondly.

24. That information comes from Mrs Lubell's report of 12 February 2010, which was not challenged and I accept it. Her oral evidence included the following additional matter:

25. Again, I accept all this evidence. Neither parent gave additional relevant evidence on the question of settlement.

Settlement
26. Article 12 of the Convention provides that where the application is made more than one year after a child was wrongfully removed or retained, an order for return must be made unless it is demonstrated that the child has now settled in his new environment. For the purposes of considering this defence, I must of course assume in the father's favour that a wrongful removal or retention has taken place.

27. On behalf of the father, Ms Renton presents these arguments:

(1) She rightly draws attention to the broad meaning of settlement, encompassing not only physical but also emotional and psychological security and stability: see Re N (Minors) (Abduction) [1991] 1 FLR 413 per Bracewell J at 418 and Re M (Abduction: Acquiescence) [1996] 1 FLR 315 per Thorpe LJ at 321. In other words, the "environment" to be considered is more than just a geographical place. As Bracewell J puts it at 418, settlement

"is the opposite of "transient"; it requires a demonstration by a projection into the future, that the present position imports stability when looking at the future, and is permanent insofar as anything in life can be said to be permanent. What factors does the new environment encompass? The word 'new' is significant, and in my judgment it must encompass place, home, school, people, friends, activities and opportunities, but not, per se, the relationship with the mother, which has always existed in a close, loving attachment. That can only be relevant insofar as it impinges on the new surroundings."

(2) Accordingly, Ms Renton asserts that any stability for the children is associated with their mother and not their environment, and that the mother could return to Italy.

(3) She argues that the absence of any meaningful links with Italy does not of itself constitute evidence of settlement.

(4) She submits that the "new environment" stipulated by Article 12 in this case is London and that the move from Swansea to London amounted to a break for the children. She says that the court should really be focusing on the children's circumstances from September 2008 onwards.

She draws attention to the facts of Re N (Minors) (Abduction) (above). In that case the children aged 4 and 3 had been in this jurisdiction for 1 year 2 days prior to the summons being issued. When considering settlement, the judge focused on the last 3 months and found the children were not settled, and thus ordered a return.

(5) Lastly, Ms Renton argues that concealment of the mother's whereabouts from the father, together with such irregularities as there may be in the mother's immigration position, counterindicate settlement. She draws attention to RE L (Abduction: Pending Criminal Proceedings) [1999] 1 FLR 433 and Re H (Abduction: Child of 16) [2000] 2 FLR 51 in this regard. In these cases the abducting parent was on the run and was not allowed to benefit from that.

Very fairly, Ms Renton points out that any consideration of concealment should be considered against the child-centred principles to be applied in settlement cases: per Baroness Hale in Re M (Abduction: Zimbabwe) [2007] UKHL 55 at [47-48]:

"In settlement cases, it must be borne in mind that the major objective of the Convention cannot be achieved. These are no longer 'hot pursuit' cases. By definition, for whatever reason, the pursuit did not begin until long after the trail had gone cold. The object of securing a swift return to the country of origin cannot be met. It cannot any longer be assumed that the country is the better forum for the resolution of the parental dispute. So the policy of the Convention would not necessarily point towards a return in such cases, quite apart from the comparative strength of the countervailing factors, which may well, as here, include the child's objections as well as her integration in her new community.

All this is merely to illustrate that the policy of the Convention does not yield identical results in all cases, and has to be weighted 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."

28. In reply, Mr O'Brien for the mother says that she is able to establish that the children are settled on the basis of uncontentious matters. The children are settled into the British way of life within the British/Somalian community. Any slight unsettlement is the result of these proceedings, As to concealment, the father knew that the mother was living with the children in Swansea from December 2003 and learned of the move to London within at least a month of it taking place. Mr O'Brien does not accept that the "new environment" is to be equated with London. He points out that the children's circumstances are not in fact so very different. They are cared for by their mother in a similar home, and attending a similar school and making similar friends. The circumstances of Re N concerned a transient series of events.

29. On behalf of the children, Ms Maclean says that the Guardian is very clear that the children are settled, and that this would be her view even if the clock did not start until September 2008.

30. Having considered the evidence and these submissions, I have concluded that these children are undoubtedly settled in their new environment. Indeed I would go further and say that it would be hard to imagine a clearer case of settlement within the Hague Convention proceedings. Out of respect for Ms Renton's careful arguments I will deal with them in turn:

(1) I find that these children have physical, emotional and psychological stability and security that is anything but transient and is likely to project into the future. Borrowing for Bracewell J, the settled aspects of their environment encompass place, home, school, people, friends, activities and opportunities. I agree with Mr O'Brien in his submission that these children, although not British citizens, are fully and inextricably integrated within the British way of life and in their local environment. H has, I find, been here for over two thirds of her life and L for nine tenths of his.

(2) It follows that I do not accept that the children's stability is merely associated with their relationship with their mother, important though that is. A moment's thought shows that it would be utterly impractical for the mother to return to Italy with them now or at any time in the foreseeable future.

(3) I agree that the absence of any meaningful links with Italy does not of itself establish settlement in England, but it is highly significant because it shows that the children's life in their new environment is subject to no competition. The absence of any meaningful connection with Italy is a dog that does not bark.

(4) I find the "new environment" referred to in Article 12 means the total physical, social, emotional and psychological experience of the children. This was not significantly affected for these children by the move from Swansea to London. There was no "break". Children move with their families all the time in the normal course of life, and the move may be something of an event, but of itself it says nothing about whether they are settled. It seems to me that the answer to Ms Renton's argument is contained in her own first submission: namely, that settlement does not merely consist of physical or geographical features, but involves a more holistic assessment.

It is also clear that the facts in this case are a far cry from those in Re N. Bracewell J, giving judgment on 4 December 1990, said this at page 418:

"Every case must depend on its own peculiar facts...I am not satisfied that the mother has demonstrated that these young children are settled in their new environment...These children in their young lives have moved about. They spent the first part of their lives in Texas. They were then moved to England, with the consent of their father, for a period of 3 1/2 months. They then returned to Texas in a short period and finally, in October last year, were brought to this country. They lived, initially, with their grandmother for some 11 months and it is only as recently as 13 September that they have moved into their own accommodation. K has had less than one term at school. "

(5) The submission that the settlement defence fails because of the concealment of the children's whereabouts by the mother is not made out because I find as a fact that the father has at all times known that the children were in Swansea and that he knew that they were in London within, at most, a month of their arrival. Even if the mother had temporarily gone to ground (and I do not think she did) this is plainly a situation of the kind envisaged by Lady Hale, where the integration of the children in their community would be of far greater importance than any issue of concealment.

(6) Further, on the facts of this case, I do not accept that the children's immigration status is relevant to this issue. They have indefinite leave to remain and I have no expectation that this will be disturbed.

31. In connection with this last matter, I record that the father invited me to direct that a copy of my judgment should be sent to the Home Office immigration authorities, and Ms Renton told me (having taken specific instructions) that if I did not take this step, the father would do so himself. There was some suggestion that he might feel himself under a duty to do so.

32. In considering this unattractive stance on the father's part, I should make clear that this court does not condone possible criminal offences, whether associated with immigration status or other matters. That said, I do not propose to make any direction in relation to disclosure of this judgment, as it would be patently contrary to the interests of these innocent little children. It is a matter for the father as to whether he wishes to try to make trouble for the mother and the children in this way.

33. It is said on behalf of the father that his intentions are relevant to the question of whether the children are settled. He is wrong. In the first place, I have no reason to believe that the immigration authorities would act on any information given by him in view of his credibility as a witness and the length of time the children have been in Britain. In addition, I agree with Mr O'Brien that the court should be very slow indeed to hold that a litigant can advance his case by means of voluntary actions carried out without regard for the welfare of his children. A defendant cannot normally benefit from concealing children, and I would hold that the same underlying principle applies to a plaintiff in the position of this father.

34. Having considered all the above matters, I find that these children are settled. It would be plainly inappropriate on the facts of this case to exercise the court's discretion to order their return to Italy. As I have said, it would be virtually impossible for the mother to accompany them. I find that the father's summons that the children be returned to Italy is without merit, and I dismiss it.

35. I would add that I am in no way influenced by the suggestion that the father has a meaningful alternative remedy via the terms of Article 11(7) of the Brussels IIR. On the facts of this case it is highly unlikely that procedure would produce a different outcome.

Acquiescence
36. The approach to be taken was set out by the House of Lords in Re H (Abduction: Acquiescence) [1997] 1FLR 872:

(1) The question of whether the wronged parent has "acquiesced" in the removal or retention of the child depends upon his actual state of mind.

(2) The subjective intention of the wronged parent is a question of fact for the trial judge to determine in all the circumstances of the case, the burden of proof being on the abducting parent.

(3) The trial judge, in reaching his decision on the question of fact, will no doubt be inclined to attach more weight to the contemporaneous words and actions of the wronged parent than to bare assertions in evidence of his intention.

(4) The court should be slow to infer an intention to acquiesce from attempts by the wronged parent to effect reconciliation or agree a voluntary return of the children.

(5) There is only one exception. Where the words or actions of the wronged parent clearly and unequivocally show or have led the other parent to believe that the wronged parent is not asserting or going to assert his right to the summary return of the child and is inconsistent with such a return, justice requires that the wronged parent be held to have acquiesced.

37. Applying this approach, I reach the conclusion that the mother is entitled to the dismissal of the father's summons on the basis of his own case. This is that he agreed to the mother and children coming to this country in July 2006 for the six month study period described above. If this were the true state of affairs, it would follow that from January 2007 onwards, the mother would have retained the children.

38. I say, "if this were the true state of affairs", because it is also important that the court's decision is based upon reality. In fact, I find that the children have been living in England since October 2003, as described by the mother. I reach this conclusion on the basis of:

(1) The children's almost complete ignorance of Italy. If the father's case were correct, H would have been 6 years old when she last lived in Italy and L would have been approaching 4 years old. H would certainly have remembered a great deal and L would have remembered at least something.

(2) The mother's evidence, which I accept, that she lived in Swansea from December 2003 onwards.

(3) H's school attendance in Swansea from the beginning of 2005 at the latest, and her continuation in the British educational system to this day, joined by L in due course.

(4) There is no reliable evidence of the mother and children's presence in Italy after October 2003, which is striking if they were living there until July 2006. The father produced photographs of one of H's birthdays, saying that this was her 4th. In fact the photograph of the candles on the cake shows it was her 3rd birthday. Other documentary evidence produced by the father (an appointment for a citizenship interview, airline records and so on) does not establish the mother's presence in Italy after October 2003.

(5) The father's account of the mother and children coming here to study English is extraordinarily improbable. He was completely unable to explain why the mother needed to study English at all, or why on his account he would have agreed to the children moving to Wales for six months at the very time when H should have been starting school in Italy.

39. I note the father's total inaction in taking any positive steps to secure the return of the children. The first positive steps he took were the legal steps in the late summer of 2009 leading to the issue of his summons. There is no indication that he was trying to "secure a voluntary return" - see Re H - at any earlier stage. He did not ask the mother to return the children in 2007, or 2008, or during the first half of 2009. I do not accept his evidence that he was "trying to sort it out" (i.e. the children's return) with the help of family members, or that the mother briefly agreed to the children returning permanently to Italy in June 2009, although the father certainly wished to take the children there. The father was unable to suggest any possible reason why the mother should agree to anything so improbable.

40. I therefore find that the father's state of mind was to accept that the children were in Britain and that they were not going to return to Italy. It is a plain case of acquiescence and, given the exceptional lengths of time involved, may even fall within the exception allowed for in Re H. I therefore decline to order the return of the children to Italy under the discretion available on this ground as well as on the ground of settlement.

Habitual residence and consent
41. There is a complete conflict between the parents about why the mother and children came to England in 2003. She says that it was a joint plan to settle permanently, carried out with the assistance of the father's family. He says that she did not settle here at all, but returned to Italy for another three years, interspersed with regular "holidays" in this country. I have already indicated that his account of the family's presence in Italy after 2003 is not credible.

42. However, it does not necessarily follow that the mother and children came here in 2003 with the father's consent. The mother's own evidence was that it was a joint plan, but that she came here willingly in order to get away from the father, whom she accuses of being violent towards her. He denies this. He also protests that he has responsible work and a good life in Italy, and has never had a reason to move to Britain. Even though I note that a large part of his family, including his mother, lives in this country, I cannot be sure where the truth lies.

43. Ms Renton submits that it would be wrong in law to make a finding that the children were habitually resident in England if a Hague Convention defence had been established as in that case the court would have had to find a wrongful removal or retention, pursuant to Article 3.

44 The legal issues surrounding consent and habitual residence in circumstances such as these are deep waters which it is not necessary for me to enter. If I had had to make a finding on the matter, it would have been that the mother and the children have been habitually resident here since the end of 2003. In commonsense terms the father's case, which is that these children are habitually resident in Italy to this day, appears to be so far-fetched that it could only be established by the most recondite legal argument based on highly uncertain facts and a detailed analysis of the effect of breaches of immigration control on habitual residence. Fortunately, given my findings on other matters, no more need be said.

Conclusion
45. Although these are not welfare proceedings, the conclusion reached within the Convention proceedings is in line with the children's welfare needs. The father's wish to take them back to Italy is not in their best interests. In saying this, I fully acknowledge his feeling for the children and theirs for him. He has played an important role in the past and should do so in the future, but he must now decide to decide to support the children's position rather than undermining it.