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H v D & Ors [2007] EWHC 802 (Fam)

Judgment provided at the request of counsel following an uncontested hearing in residence and contact proceedings.

Sumner J provided the judgment so that the history of the case may be set out as it may help in any further proceedings, so that the father (who was absent) knows what happend and so that he can explain the application of jurisdiction to make the orders that he did following the uncontested hearing.

___________________

Neutral Citation Number: [2007] EWHC 802 (Fam)

Case No: FD05P01669
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

4th April 2007

Before :

THE HON. MR JUSTICE SUMNER
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Between :

C L H (Applicant)
- and -
R M D (1st Respondent)
and
A J F D and A S E D (By their Guardian ad L L O) (2nd & 3rd Respondents)

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

Mr Henry Setright QC for the Applicant
Mr Marcus Scott-Manderson QC for the 1st Respondent
Miss Joy Brereton for the 2nd & 3rd Respondents

Hearing dates: 29 and 30 January 2007
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.


.............................

THE HON. MR JUSTICE SUMNER

This judgment is being handed down in private on 4 April 2007. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.



The Hon. Mr Justice Sumner :
Introduction
1. This application came before me on 29 and 30 January 2007. It related to issues of jurisdiction, residence, and contact between the Plaintiff mother, Ms C H and the Respondent father, Mr R D. They are respectively 42 and 44 years old. The issues concern their 2 daughters, A, born 26 August 1998, who is 8 years old, and A, born the 22 November 2000, who is six years old.

2. At the hearing neither the mother nor the father were present. The mother was at a secret location. It followed an incident on 19 January 2007 when the mother says the father tried to abduct A on her way back from school.

3. The father was in custody. He was brought to the Royal Courts of Justice, London where I was sitting on both days of the hearing. He declined to come into court. He was represented on the first day by Mr Scott-Manderson QC, on the second day by his solicitor, Mrs Usher. The mother was represented by Mr Setright QC. The Guardian from CAFCASS Legal, Miss O, on behalf of the children was represented by Miss Brereton.

4. A detailed order was made on that occasion in the father's absence. Mr Setright and Miss Brereton requested me to give a judgment. This would not normally follow a hearing which appeared not to be disputed. The father by his choice was not present nor represented on the second day after Mrs Usher had addressed me. He sought to withdraw his application for contact.

5. I agreed to provide a judgment. I did so for 2 main reasons. Firstly it may be helpful for the father to have a record of what happened in his absence. Secondly there are courts in Venezuela which until July 2005 (and it may be more recently) have been concerned for the 2 children. Should any aspect of the disputes return to those courts, it may assist to have a short history.

6. I shall not attempt to decide historic issues between the parties. I shall outline the history in a non-contentious way so that the present position can be understood. I shall summarise the limited jurisdiction I have considered it right to exercise. My substantive decisions are contained in the order I approved on 1 February which was drafted by Mr Setright. The court's approval is an essential prerequisite for all court orders within this jurisdiction which concern children.

7. I have accepted that I had power to make a residence order in favour of the mother. There was to have been a dispute about the exercise of a jurisdiction by the English Court over the children, the father having as recently as 12 January 2007 expressly "reserved his position as to the exercise of the English jurisdiction".

8. As a result of the father's withdrawal, and in the absence of argument from him, I have gone no further than was required to decide the question of the exercise of jurisdiction on the narrowest basis consistent with providing a firm foundation for the orders I made. I have not found it necessary or appropriate, in the circumstances to make determinative findings on other grounds on which I could have exercised jurisdiction.

9. They relate in particular to any jurisdiction flowing from the issue of the originating summons in August 2005. This followed the arrival of the children in England the previous month in circumstances to which I refer later. In the absence of any countervailing arguments from the father, I have left those unresolved.

The history
10. The father was born in the United States and is an American national. The mother was born in England. The parents met at Nottingham University. They subsequently went to the United States where they lived together. They were married in England in May 1995. They returned to live in the United States. A was born there in August 1998.

11. The father is a banker by profession. In 2000 the family moved to Caracas, Venezuela where the father worked for a bank in which he may have had a financial interest. A was born there in November 2000.

12. The mother was not happy in Venezuela. In April 2000 after a family holiday in Barbados, the mother returned to England with the two children. She applied for a divorce in May 2002. She then sought an order that the father should pay her a capital sum and maintenance.

13. In June 2002 the father started proceedings in England under the Hague Convention. The Convention in brief provides for a means whereby one parent in Convention country A can apply summarily for the return of a child who has been taken unlawfully by the other parent to Convention country B. It is for the courts of Convention country A to decide where the child should live. There are certain conditions the requesting parent has to establish. The defences are limited and, if proved, discretionary.

14. The mother accepted that she had wrongfully retained the children in England. She claimed a defence under Article 13(b), namely that to take the children back to Venezuela would place them in an intolerable situation.

15. The father answered this by offering a series of undertakings which would enable the mother to live apart from him in Venezuela with the children. The father's claim was upheld by Mr Justice Hedley on 18 October 2002. In the meantime the father sought a stay of the divorce proceedings. This was refused by Mr Justice Kirkwood on 1 November 2002. A decree nisi of divorce was granted on 4 November 2002. A week later the mother and the 2 children returned to Venezuela.

16. In November 2003 the mother's claim for financial orders came before a Deputy High Court Judge, Mr Everall QC. The father had earlier failed to comply with a series of earlier court orders relating to his finances. He had also earlier sought unsuccessfully for a court order to have the proceedings stayed so they could proceed in Venezuela.

17. He renewed his application for a stay at the hearing in November 2003 but it was once more unsuccessful. At the conclusion of the hearing the father was ordered to pay the mother a lump sum of £1.275 million, together with maintenance for her and the children of some £170,000 a year. In April 2005 the father was successful in New York in preventing that order being registered there.

18. Meanwhile both parties sought custody orders in respect of the 2 children in the Venezuelan courts. The mother additionally asked for permission to remove the 2 children to England.

19. There was regular contact by the father to the 2 children. It included alternate weekends and half the school holidays. According to the father it went well.

20. The contact came to an end when the mother was shot on 28 June 2005 by a hired gunman who accosted her outside her apartment in Caracas, Venezuela. He fired 4 shots. One bullet grazed her right shoulder causing a burn. Another burned her right ear. A third hit her in the face, entering by her right eyelid and exiting through the side of her face. The mother believed the father was responsible. He denied this.

21. On 7 July 2005 she was given permission by a court in Venezuela to leave with the children for England. She was ordered to return by 25 August. She arrived in England with the 2 children on 10 July.

22. On 25 August 2005 the mother issued an originating summons. The same day Kirkwood J made the children wards of court. The father was ordered not to have contact with the children nor remove them from the care of their mother.

23. On 7 September the father started Hague Convention proceedings for a second time seeking the summary return of the children to Venezuela. In the course of those proceedings the father said that he himself had been the subject of 2 attacks in June 2005, but he had not been injured.

24. The father's application was refused by Macur J on 15 December 2005. In the course of her judgment, Macur J recorded the conclusion of a psychiatrist, Dr Turner. It was that, given the mother's psychiatric state, for her to return to retune to Venezuelan would probably lead to a marked and potentially dangerous deterioration in her health. He maintained this conclusion in later reports.

25. She also noted the views of a child psychologist, Dr Fuggle. They were that he would be gravely concerned about whether a return to Venezuela would be in the children's best interests.

26. She concluded that there was clear, compelling and cogent evidence to support a defence under Article 13 (b). In the exercise of her discretion, she refused the father's application. The father appealed. His appeal was dismissed by the Court of Appeal on 25 January 2006.

27. At a directions hearing on the 3 April 2006, the father made it clear that he did not accept the jurisdiction of the English courts in the wardship proceedings which had been started in August 2005. There were, he pointed out, also proceedings continuing in the Venezuela courts with regard to the children which had started earlier.

28. The father meantime had telephone contact with the children. The mother complained that he made derogatory remarks about her to the children. He proposed that, before he had contact with the children, they should see his father and sister.

29. At an interlocutory hearing before Mrs Justice Hogg on 6 June 2006, the father maintained his position that the court did not have jurisdiction in relation to the children. Directions were given for the children to be represented by a Guardian from CAFCASS Legal, the official government supported welfare organization for children.

30. There were further directions on the 23 June 2006 and 14 and 26 July. They included provision for the mother's psychiatric health to be reported on by Dr Turner. Professor Gowers, a child psychiatrist, was to report on the children's welfare generally.

31. Dr Turner reported on 25 October 2006. He considered the mother continued to suffer from symptoms of post traumatic stress disorder and major depressive disorder. She was on medication, and it was difficult to give a firm opinion about her prognosis.

32. Professor Gower witnessed one emotional reunion between the children and their father in November 2006. He did not consider the father recognised the effect of his behaviour on the children nor their predicament and divided loyalties.

33. There was a CAFCASS report by the Guardian of 4 January 2007. She was present during contact with the father on 1 November 2006. She was also present during telephone contact between the children and their father on 7 and 13 November and again on 7 December when they refused to speak to him. She spoke with the father, the mother, the maternal grandmother as well as the 2 children.

34. She recommended that the children remain wards of court, with a residence order in favour of the mother, and supervised contact between the children and their father every two months. She suggested indirect contact by telephone with the father every two weeks, and a review of the situation after either six or 12 months.

35. In a position statement from the father of 12 January 2007, he "reserved his position as to the exercise of the English jurisdiction". He assured the court that he would comply with undertakings he had given to the English courts, and that the court could trust him.

Directions hearing on 15 January 2007
36. At a hearing that before me on 15 January 2007, the mother attended court, the father did not. Counsel for the mother and CAFCASS Legal argued that the issue of jurisdiction between Venezuela and England needed to be resolved. Counsel for the father said it could be postponed. I held that the parties should come to court at the next hearing on 29 January prepared to argue the issue of jurisdiction.

The events of 19 January 2007
37. The only account I have heard is that given by the mother in a statement shortly afterwards. She confirmed the truth of that statement on oath over the telephone to me on 30 January.

38. She said that in the afternoon the 2 children were walking home from school with her. They also had 2 school friends with them, who were coming back for tea. The mother went into a shop to buy some bread. The children and their friends were outside. She heard A crying. A was nowhere to be seen.

39. As a result of what she was told by A and another parent, she ran home and used a panic alarm, which had been installed by the police. She told the police that A had been abducted by her father and driven away in a London taxi cab.

40. It appears that prompt action by the police led to the cab being driven to a police station. The father and two men who accompanied him were detained. A was returned to her mother within an hour. On advice from the police, the mother and two children went to a safe house at an address unknown to the father where they have remained.

Subsequent court hearings
41. On 29 and 30 January 2007 there was a further hearing before me. There was available a report from Professor Gowers of 25 January and a letter from Detective Constable Nanji.

42. Professor Gowers had interviewed the father on 1 November 2006. He had been informed of the events of 19 January. He had not seen the parties or the children again. In relation to the events of 19 January, he said –

"The incident would also appear to fully endorse the mother that the father was motivated by a desire to win what he saw as a personal battle against her at any cost. It also supports her view that he is calculating, will not concede defeat as he is contemptuous of "losers" and will go to any lengths to prevail, both for its own sake, and also because he is motivated by a wish to punish his ex-wife".

"It also supports my view of the father as self absorbed and grandiose. I believe he would not have considered that he would fail in his actions. Furthermore, in view of his propensity in my interviews with him to refer to the "injustice" of his position in relation to the proceedings and a "moralistic" attitude in relation to the care of his daughters, I believe he will view his actions as justified, in that they were motivated to (in his eyes) right a wrong. The most striking conclusion from the father's actions in abducting A however is that he has no regard to the well-being of his daughters. I also found the father lacking in any perception of the impact to the children's ability and security, that moving back to Venezuelan might entail ……..."

"Unquestionably, the girls will both have been traumatised by the incident. They will be anxious, fearful and confused ……."

"The children's mother was already suffering anxiety, post-traumatic and depressive symptoms for which she was receiving treatment. The recent experience will undoubtedly have set her back in her recovery. She is likely to be very fearful, suffer intrusive thoughts and feelings of powerlessness and hopelessness. These symptoms will likely be evident the children, and despite her best efforts, impact on her parenting….…."

"Is it likely that the children and their mother will require substantial of therapeutic help to address the traumatic experience and its consequences …… in view of the attempted abduction and the inevitable trauma suffered by the children, I can no longer recommend contact with the father, either direct or indirect".

43. In a later report he raised the question of indirect contact by letter through CAFCASS Legal. Through Mrs Usher on 30 January the father indicated he wished to take this up.

44. The letter from Detective Constable Nanji said that the mother was in the police's witness protection programme. The officer considered that the threat against the mother and her family was so high that it would be unsafe and dangerous for her to attend court.

45. The Guardian said she was astonished and disturbed by the events of 19 January 2007. She supported the views of Professor Gowers. She expressed herself in these terms in her position statement –

"In light of the father's actions the Guardian can no longer support direct contact between the father and the children. Nor can she support any telephone contact. The Guardian has yet to hear the father's reasons for such actions. But the incident was very serious, and it appear planned. The father had no regard whatsoever to the welfare of his daughters, causing them major distress and upset. His actions were absolutely contrary to their best interests and can be seen as nothing other than that destabilising. Any feelings of security that they were experiencing can only have been shattered."

Hearing on 29 and 30 January 2007
46. On 29 January Mr Setright QC appeared before me for the mother, Mr Scott-Manderson QC for the father and Miss Brereton for CAFCASS Legal. Mr Scott- Manderson said he sought leave to withdraw. He was not fully briefed. There had been difficulties making contact with the father who was in prison. The case was adjourned to the following day and Mr Scott-Manderson withdrew.

47. On 30 January the same counsel attended again, save that the father's solicitor Mrs Usher appeared for him. She is a highly experienced family lawyer. She had seen the father in the cells at the Royal Courts of Justice that day for more than an hour. She had already told the mother's solicitors on 24 January 2007 that it was the father's intention to withdraw his application for contact with the children.

48. She told me that the father did not wish to take further part in the proceedings. He wanted to be able to send the children letters through CAFCASS Legal. He sought permission to have the papers in the family proceedings disclosed to those representing him in the criminal proceedings. She would be seeking to be removed from the record as acting for the father.

49. I ensured that a message was sent to the father making it clear that, if he wished to come to court, he would have that opportunity. I was told later the same day that he had received my message but declined to come. I considered an order drafted by Mr Setright.

Court order of 1 February 2007
50. I shall ask that a copy be attached to this judgment. The preamble (that part preceded by the words "And Upon") sets out in narrative form the events at court on 30 January and 1 February 2007. They record the opportunity the father had had to read the report of Professor Gowers and the statement of the mother.

51. The order itself is short. In essence the matter is part heard. The children remain wards of court and in the care of the mother. No one is to remove them from the mother. The father is prevented from communicating with them or going within 100 metres of where they live or go to school. The application for the father's defence lawyers to see the papers is adjourned. Costs were reserved.

Jurisdiction
52. The order is silent on the question of this court's jurisdiction. There was no sustained argument addressed to me on this issue partly because I did not invite it. Also, following the withdrawal of the father, there was at the time no challenge. As I have said, I therefore considered the narrowest basis upon which I could be satisfied that I should exercise a jurisdiction to make the orders that were sought. I recognise the wider arguments for its foundation but I make no determination upon them.

53. The Plaintiff's case is that there was and is a valid legal jurisdiction from the moment Kirkwood J made the 2 children wards of court on 25 August 2005. But in the context of the retention of the children in England by the mother in August 2006 and the concurrent proceedings in Venezuela, the question arises whether the English Court should exercise that jurisdiction.

54. There is in addition a clear argument arising from the events of 19 January 2007. It is because the children were within the jurisdiction and in need of protection. The jurisdiction therefore needed to be exercised. Such an exercisable jurisdiction could arise under wardship or the court's inherent jurisdiction (see Re: Z(A Minor)(Freedom of Publication) [1994] 1 FLR 191).

55. However, without derogating from those arguments, the children's continued presence within this jurisdiction on that day was in clear breach of the order of a Venezuelan court of 7 July 2005. Further the mother conceded before Macur J. that her retention of the children on 25 August was unlawful. The wardship proceedings were stayed during the currency of the Hague Convention proceedings (although arguably any subsisting orders remained valid). Following the dismissal of the Hague Convention proceedings on appeal the stay was lifted.

56. It is the Plaintiff's case that an additional basis for the exercise of the court's jurisdiction in wardship was added by the physical presence of the children within the jurisdiction since July 2005 coupled with a need then for the courts to protect them. It is that they acquired at some stage, following the lifting of the stay, an habitual residence in England and Wales, and therefore on that basis the English jurisdiction was and is ordinarily exercisable. I bear in mind that the father has from an early date challenged the exercise of jurisdiction by this court over them. I make no decision on that submission.

57. There is however a clearly exercisable inherent jurisdiction in the English High Court to protect children physically present within its jurisdiction from harm. It can be exercised irrespective of the proceedings in which the need to protect the children arose. It can even be exercised where there are concurrent proceedings in another territorial jurisdiction. It can also be exercised if the child's presence is transient provided there is a good enough reason, such as damage or risk of damage to the child's wellbeing (C v K (Inherent Powers: Exclusion Order [1996] 2 FLR 506, Re: C (an Infant) [1956] 'The Times' 14 December).

58. I bear in mind the events of 19 January 2007, the presence of the children within the jurisdiction, the attempted abduction, the father's detention in custody, and the mother and children's presence in a safe house on police advice. In my judgment, in the light of these events, the children are in clear need of protection, and that amounts to a good reason in their welfare interest to exercise jurisdiction as their safety requires it.

Conclusions
59. The children have experienced a traumatic time. They have lived in Venezuela where their parents separated. They have been brought unlawfully to England and been ordered back to Venezuela. Their mother was shot and they were brought back to England where they have remained. There have been proceedings in the courts of this country and Venezuela. On the eve of their resolution before this court, there was an attempt by the father to abduct one of them.

60. My conclusion and the order I made does not prevent the father's continued challenge to the future exercise of the jurisdiction of this court. The Plaintiff can challenge the arguments set out above on the grounds I have mentioned or on any other basis. It does provide for the wellbeing of the children to be protected for such time as is necessary and ensures that any challenge has to be lawful and properly made before the English Court. I make it clear that unless or until such a challenge is successfully made, these orders, like the orders made in these proceedings since 25 August 2005, remain valid and enforceable.